The entire Texas government is fighting over whether to save Robert Roberson’s life.

On Thursday night, the Texas Supreme Court issued an unusual order saving Robert Roberson from the death penalty. But it may not last long.

Roberson was convicted in 2003 of murdering his daughter on the theory that she died of “shaken baby syndrome.” However, an unusual turn of events makes it appear likely that Mr. Roberson is innocent. Not only that, but it’s not even clear whether his daughter was a murder victim in the first place.

One reason to doubt this conviction is that modern science is increasingly skeptical of shaken baby syndrome. But more importantly, the evidence in Roberson’s case is that his poor daughter actually died from a combination of pneumonia and drugs that should never have been prescribed to such a young patient, and that in 2003 This suggests that the injuries that the jury found were caused by child abuse may have been caused. resulting from surgery.

Another reason the Texas House order is so unusual is that it involves what appears to be an unprecedented confrontation between the state Legislature and the governor. Texas Governor Greg Abbott (R) has the power to halt Roberson’s execution for 30 days (but not grant a permanent pardon), but has so far refused to do so. The state had scheduled to execute Mr. Roberson on Thursday night.

But the day before, a bipartisan group of state lawmakers issued a subpoena for Mr. Roberson to testify before a state House committee. This hearing is not scheduled until Monday, and it is clear that Mr. Roberson would not have been able to respond to this subpoena had he been killed on Thursday night.

In short, Roberson’s case raises what could be described as a unique separation of powers issue under the Texas Constitution. In other words, can the executive branch of the Texas government carry out a lawful execution when doing so would prevent the legislature from hearing testimony from witnesses it has already subpoenaed?

Roberson’s lawsuit has proven divisive within the Republican-controlled Texas government.

The Texas Supreme Court’s Texas House order says nothing about whether Mr. Roberson is innocent. In fact, state supreme courts are typically not allowed to consider criminal appeals at all. Criminal appeals are handled by an entirely separate court, known as the Texas Court of Criminal Appeals, which has repeatedly denied Mr. Roberson relief. The state Supreme Court also has not issued a final ruling on whether a House subpoena can halt an execution.

Instead, in a concurring opinion joined by two other justices, Justice Evan Young wrote to give the court time to decide what would happen in the unusual circumstances in which Congress seeks testimony from a death row inmate. , explained that they voted to temporarily halt Roberson’s execution. A prisoner on the eve of his execution.

“There is no clear precedent on this issue,” Young wrote, which is not surprising given the highly unlikely circumstances that brought this case to court.

Two other aspects of this incident are worth noting. One is that many state Republicans are at odds with each other over this case. Mr. Abbott, a Republican who has not yet intervened on Mr. Roberson’s behalf, is also a Republican, as are the two Texas senators who introduced the resolution to subpoena Mr. Roberson. The justices on the Texas Supreme Court are all Republicans, as are the justices on the Court of Criminal Appeals, which most recently voted 5-4 to deny Mr. Roberson relief.

Another aspect is that Mr. Roberson’s fate likely rests with the Texas Board of Pardons and Parole, which has already voted once on Wednesday not to recommend a pardon for him. If the commission recommends clemency, Mr. Abbott could completely commute Mr. Roberson’s death sentence. But without a recommendation for clemency, Abbott can only delay the execution by 30 days.

For now, Mr. Roberson’s lawyers are trying to buy time. At best, a congressional subpoena would prevent the state of Texas from rescheduling his execution until after Monday, when he is scheduled to testify. In that case, it would be up to Mr Abbott to give him another 30 days to persuade the pardons board to reverse its decision.

But what’s surprising about this case is that virtually everyone touched by this case except for a few people in Texas government who actually have the power to save Roberson (Court of Criminal Appeals, Board of Pardons, Abbott) It is the desire for the survival of he. One of Roberson’s supporters is Brian Wharton, the lead detective on his case, who now believes he is innocent.

The other was U.S. Supreme Court Justice Sonia Sotomayor, who wrote a 10-page statement explaining that the U.S. Supreme Court could not intervene because Roberson did not allege that his federal rights were being violated. Ta. Sotomayor agreed that she was powerless because Roberson “has not made any federally cognizable claim,” but her statement effectively precludes the state’s ability to save Roberson’s life. We are pleading with the authorities to do so.

“The 30-day suspension will give the Texas Board of Pardons and Parole an opportunity to review the evidence of Roberson’s actual innocence,” Sotomayor wrote at the end of his statement. “This may prevent the occurrence of miscarriages of justice in which individuals are executed who have produced credible evidence of actual innocence.”