By Kayla Guo, The Texas Tribune
Oct. 11, 2024<\/p>\n\n\n\n
If Robert Roberson is executed on Oct. 17, he would become the first person in the country put to death on the basis of a shaken baby syndrome diagnosis. Photo Credit: Jenevieve Robbins\/Texas Department of Criminal Justice<\/p>\n\n\n\n
“Robert Roberson loses one of his final appeals to stop Texas execution” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans \u2014 and engages with them \u2014 about public policy, politics, government and statewide issues.<\/p>\n\n\n\n
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The Texas Court of Criminal Appeals denied one of death row inmate Robert Roberson\u2019s final appeals on Friday, declining to halt his Oct. 17 execution and again rejecting his long-standing claim of innocence and argument that his conviction was based on a now-debunked shaken baby syndrome diagnosis.<\/p>\n\n\n\n
Roberson, who was convicted of capital murder in 2003 for the death of his ailing 2-year-old daughter, Nikki Curtis, has maintained his innocence over 20 years on death row.<\/p>\n\n\n\n
He has argued that his conviction was based on a flawed shaken baby syndrome diagnosis given to his daughter, which presumed abuse on his part and did not consider her severe illness before her death.<\/p>\n\n\n\n
Roberson had asked the Texas Court of Criminal Appeals to stay his execution, pointing to developments in what his attorneys see as a parallel, non-capital case out of Dallas County. In that case, the Texas Court of Criminal Appeals overturned the conviction of a man on Oct. 9, finding that the shaken baby syndrome diagnosis at the center of his prosecution was now scientifically dubious.<\/p>\n\n\n\n
Roberson had also urged the court to reconsider an earlier appeal based on Texas\u2019 2013 junk science law \u2014 an appeal that the court previously denied without reviewing its merits \u2014 citing concerns from a majority of the Texas House that the law was not being properly implemented by the judiciary.<\/p>\n\n\n\n
The Texas Court of Criminal Appeals denied both requests on Friday, without offering a written opinion, and leaving Roberson with few options ahead of his imminent execution.<\/p>\n\n\n\n
After the decision, state Rep. Joe Moody, D-El Paso and chair of the Texas House Criminal Jurisprudence Committee, called a hearing of the committee for Oct. 16.<\/p>\n\n\n\n
\u201cWe\u2019re barreling towards an execution when a strong bipartisan majority of #txlege reps aren\u2019t even sure a crime occurred \u2014 and are very sure due process didn\u2019t,\u201d Moody wrote on social media Friday after hearing news of the court\u2019s decision. \u201cWe have to do all we can to pump the brakes before this stains Texas justice for generations.\u201d<\/p>\n\n\n\n
If he is executed, Roberson would become the first person in the country put to death on the basis of a shaken baby syndrome diagnosis.<\/p>\n\n\n\n
In a concurring opinion, Texas Court of Criminal Appeals Judge Kevin Yeary wrote on Thursday that the case was \u201cnot just a \u2018shaken baby\u2019 case,\u201d pointing to evidence presented by the prosecution at trial suggesting that Roberson\u2019s daughter \u201csuffered multiple traumas.\u201d<\/p>\n\n\n\n
Roberson\u2019s attorneys have disputed that conclusion, saying that the state\u2019s claim that Nikki suffered multiple impacts is \u201cerroneous\u201d and \u201cflatly misrepresents what was established during the evidentiary hearing.\u201d<\/p>\n\n\n\n
\u201cEven more evidence supporting Mr. Roberson\u2019s innocence, proving the actual causes of Nikki\u2019s death, has been submitted to the CCA more recently, yet the court clearly has elected not to consider it,\u201d Gretchen Sween, Roberson\u2019s attorney, said in a statement on Friday. \u201cInstead, the CCA is relying on a deceptive and unsubstantiated argument the State clings to in its zeal to execute an innocent man and turn the spotlight off this gross miscarriage of justice.\u201d<\/p>\n\n\n\n
The court\u2019s decision comes amid a drumbeat of public advocacy on Roberson\u2019s behalf, including calls for his exoneration from the lead detective in his case and support for clemency from a bipartisan majority of the Texas House.<\/p>\n\n\n\n
Roberson has a pending motion in Anderson County Court, where he was tried, to vacate his execution warrant and recuse the judge who set his execution date. He alleged that the judge, who is retired, lacked jurisdiction to handle his case and had given reason to question her impartiality. The court has a hearing set for Tuesday to consider his motion.<\/p>\n\n\n\n
He has also requested clemency from the Texas Board of Pardons and Paroles and Gov. Greg Abbott. The board has until Oct. 15, two days before Roberson\u2019s scheduled execution, to decide whether to recommend clemency, which would be up to Abbott to grant.<\/p>\n\n\n\n
\u201cTexas must stop its relentless pursuit of Robert Roberson\u2019s wrongful execution,\u201d Sween said. \u201cIf the courts will not fulfill their role as the neutral arbiters of justice, then the Board and Governor Abbott must step in to prevent an irreparable injustice.\u201d<\/p>\n\n\n\n
In January 2002, Roberson rushed Nikki\u2019s limp, blue body to the hospital after waking to find her unconscious and fallen from the bed in their Palestine home in East Texas. But doctors and nurses, who were unable to revive her, did not believe such a low fall could have caused the fatal injuries, and they suspected child abuse.<\/p>\n\n\n\n
At trial, doctors testified that Nikki\u2019s death was consistent with shaken baby syndrome \u2014 in which an infant is severely injured from being shaken violently back and forth \u2014 and a jury convicted Roberson.<\/p>\n\n\n\n
Throughout his appeals, Roberson\u2019s lawyers sought to disprove his daughter\u2019s shaken baby diagnosis. Citing a range of expert opinions and new evidence \u2014 including medical records illustrating Nikki\u2019s severe illness and medications in the days leading up to her death and a long-lost CAT scan \u2014 his attorneys argued that the toddler died from natural and accidental causes, not from head trauma.<\/p>\n\n\n\n
\u201cNo informed doctor today would presume abuse based on a triad of internal head conditions, as occurred in Robert\u2019s case,\u201d his lawyers wrote in his clemency application. \u201cBut in the era when Robert was accused and convicted, conventional medical thinking gave doctors permission to skip consideration of any other factors and presume shaking and inflicted head trauma \u2014 an approach that has since been completely rejected as unsound.\u201d<\/p>\n\n\n\n
Roberson\u2019s lawyers wrote in filings that, at the time of her death, Nikki had \u201csevere, undiagnosed\u201d pneumonia that caused her to stop breathing, collapse and turn blue before she was discovered. Instead of identifying her pneumonia in the days before her death, they wrote, doctors prescribed her Phenergan and codeine \u2014 drugs that are no longer given to children her age, and which they argued further suppressed her breathing.<\/p>\n\n\n\n
\u201cIt is irrefutable that Nikki\u2019s medical records show that she was severely ill during the last week of her life,\u201d Roberson\u2019s lawyers wrote, noting that in the week before her death, Roberson had taken Nikki to the emergency room because she had been coughing, wheezing and struggling with diarrhea for several days, and to her pediatrician\u2019s office, where her temperature was recorded at 104.5 degrees.<\/p>\n\n\n\n
Prosecutors, meanwhile, maintained that the evidence supporting Roberson\u2019s conviction was still \u201cclear and convincing\u201d and that the science around shaken baby syndrome has not changed as much as his defense attorneys claimed.<\/p>\n\n\n\n
The Texas Court of Criminal Appeals denied Roberson\u2019s appeal outlining new medical evidence on Sept. 11 on procedural grounds, without reviewing the merits of his claims.<\/p>\n\n\n\n
The court previously halted Roberson\u2019s execution in 2016 after the scientific consensus around shaken baby diagnoses cracked. While medical professionals were trained at the time of Nikki\u2019s death to presume abuse when infants presented certain internal head injuries, Roberson\u2019s attorneys argued that the medical community now recognizes those symptoms as potentially caused by various naturally occurring illnesses and accidents.<\/p>\n\n\n\n
The 2016 stay was issued on the basis of Texas\u2019s groundbreaking 2013 \u201cjunk science law,\u201d which allows the court to overturn a conviction when the scientific evidence used to convict someone has since changed or been discredited.<\/p>\n\n\n\n
In passing the bill, lawmakers highlighted cases of infant trauma that used faulty science to convict defendants as examples of the cases the legislation was meant to target. But critics argued that in the decade since the bill became law, it has rarely provided justice as intended to wrongfully convicted individuals.<\/p>\n\n\n\n
In 2023, the Texas Court of Criminal Appeals decided that doubt over the cause of his daughter\u2019s death was not enough to overturn Roberson\u2019s death sentence, and his new execution date, Oct. 17, was set in July.<\/p>\n\n\n\n
In his most recent appeal denied on Friday, Roberson\u2019s attorneys pointed to a shaken baby syndrome case out of Dallas County, in which the Texas Court of Criminal Appeals on Wednesday overturned the conviction of a man whose 2000 prosecution for injuring a child relied on a flawed shaken baby syndrome diagnosis.<\/p>\n\n\n\n
Roberson\u2019s attorneys argued that the testimony about shaken baby syndrome presented in that Dallas case and in Roberson\u2019s trial were \u201cvirtually identical,\u201d and both cases \u201chinge on the same hypothesis.\u201d<\/p>\n\n\n\n
His attorneys have also argued that his autism, which was not diagnosed until 2018, \u201cdirectly contributed\u201d to his conviction, with doctors and law enforcement viewing his \u201cflat demeanor\u201d as a \u201csign of culpability.\u201d<\/p>\n\n\n\n
After learning about Roberson\u2019s disability and Nikki\u2019s illness, Brian Wharton \u2014 the lead detective in Nikki\u2019s death who sided with the state at trial \u2014 said that he believed in Roberson\u2019s innocence and regretted his role in the trial.<\/p>\n\n\n\n
\u201cI will be forever haunted by my participation in his arrest and prosecution,\u201d Wharton, who offered a letter in support of clemency, said on Sept. 17. \u201cHe is an innocent man.\u201d<\/p>\n\n\n\n
Roberson\u2019s clemency petition was submitted alongside letters of support signed by dozens of his friends and loved ones, scientists and medical professionals, parental rights groups, organizations that advocate for people with autism, faith leaders and attorneys who have represented people wrongfully convicted of child abuse.<\/p>\n\n\n\n
Those letters depicted a gentle man of faith, who was concerned most of all about his two grown children with disabilities, and who remembered people\u2019s favorite colors and sent handmade birthday cards to everyone he met.<\/p>\n\n\n\n
\u201cThis man would never harm another person, especially not his small little baby girl!\u201d Manuela Doris Roberson, whom Roberson married in 2022, wrote in one letter. \u201cRobert\u2019s life is worth more to me, his children, his friends and loved ones than all the treasures of this world.\u201d<\/p>\n\n\n\n
A bipartisan majority of the Texas House \u2014 86 out of 150 members \u2014 urged the Board of Pardons and Parole on Sept. 17 to recommend clemency, citing \u201cvoluminous new scientific evidence\u201d that they said suggested Roberson\u2019s innocence and explained that the cause of his daughter\u2019s death was natural and accidental.<\/p>\n\n\n\n
Some of those lawmakers visited Roberson on death row on Sept. 27, and described him afterward as hopeful and devoted to his faith and helping others.<\/p>\n\n\n\n
\u201cI thought I\u2019d be bringing Robert a message of hope today, but instead, I left inspired myself,\u201d Moody, the state representative, said in a statement. \u201cHe\u2019s clearly suffered greatly, but he was still optimistic and future-focused as he told us about the good he wants to do for other people who\u2019ve gone through what he\u2019s experienced. His faith and spirit just reinforced my commitment to fighting for him so that he has that chance \u2014 and so that this injustice never happens to another Texan.\u201d<\/p>\n\n\n\n
This article originally appeared in The Texas Tribune at https:\/\/www.texastribune.org\/2024\/10\/11\/robert-roberson-texas-execution-appeal\/.<\/p>\n\n\n\n
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.<\/p>\n\n\n\n