Bipartisan Texas House majority urges clemency for man facing execution in shaken baby case

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A bipartisan majority of the Texas House urged the state on Tuesday to grant clemency to a man who was sentenced to death in 2003 for killing his 2-year-old daughter, but who has consistently maintained his innocence and argued that his conviction was based on an unsound shaken baby syndrome diagnosis.

One month out from Robert Roberson’s execution, 86 lawmakers signed a letter pressing the Texas Board of Pardons and Paroles to recommend clemency, which would be up to Gov. Greg Abbott to grant. The board can take up until two days before the execution, which is slated for Oct. 17, to make its recommendation.

The lawmakers, who comprise just under a supermajority of the Texas House, cited “voluminous new scientific evidence” that they and Roberson’s attorneys argued demonstrates his innocence and explains that the cause of his daughter’s death was natural and accidental.

“It should shock all Texans that we are barreling towards an execution in the face of this new evidence,” the lawmakers wrote to the board. “Other states look to Texas as a leader for both enforcing the rule of law and addressing wrongful convictions. We now look to you to prevent our state from tarnishing that reputation by allowing this execution to proceed.”

Roberson has maintained his innocence while being held on death row for more than 20 years. The Board of Pardons and Paroles recommended clemency in one capital case out of the 85 applications it considered over the past decade.

The Texas Court of Criminal Appeals previously halted Roberson’s execution in 2016. But in 2023, the state’s highest criminal court decided that doubt over the cause of his daughter’s death was not enough to overturn his death sentence, and Roberson’s new execution date, Oct. 17, was set in July. Then, without reviewing the merits of his claims, the Texas Court of Criminal Appeals last week dismissed both a motion to halt the execution and a final application for relief filed by Roberson’s attorneys.

Roberson was convicted in 2003 of killing his severely ill 2-year-old daughter, Nikki Curtis. Roberson had rushed her 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 suspected child abuse.

At trial, doctors testified that Nikki’s death was consistent with shaken baby syndrome — in which an infant is severely injured from being shaken violently back and forth — and a jury convicted Roberson.

The Court of Criminal Appeals stopped Roberson’s execution in 2016 and sent the case back to the trial court after the scientific consensus around shaken baby diagnoses cracked. While medical professionals were trained at the time of Nikki’s death to presume abuse when infants presented certain internal head injuries, Roberson’s attorneys argued that those symptoms have now been linked to various naturally occurring illnesses and accidents.

The stay of execution in 2016 came largely as a product of a trailblazing 2013 state law, dubbed the “junk science law,” which allows Texas courts to overturn a conviction when the scientific evidence used to reach a verdict has since changed or been discredited.

Lawmakers, in passing the bill, 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 have argued that in the decade since the law was codified, it has rarely provided justice as intended for wrongfully convicted individuals.

“We changed the law to give that path. As far as we can tell, though, the courts simply aren't engaging in that process,” Texas Rep. Joe Moody, D-El Paso and co-chair of the Criminal Justice Reform Caucus, said on Tuesday. “We shouldn’t be executing someone when there’s this much doubt about whether a crime was even committed.”

Roberson’s lawyers submitted his petition for clemency on Tuesday, along with letters of support signed by dozens of 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.

Over the course of his appeals, Roberson’s lawyers sought to debunk the shaken baby diagnosis that led to his conviction. They argued that a range of expert opinions and new evidence — including medical records that illustrated Nikki’s illness and medications in the days leading up to her death and a long-lost CAT scan — prove that she died of natural and accidental causes, not of head trauma.

“No informed doctor today would presume abuse based on a triad of internal head conditions, as occurred in Robert’s case,” his attorneys wrote in his petition for clemency. “But 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 — an approach that has since been completely rejected as unsound.”

In Roberson’s last petition for relief that was denied on Sept. 11, his attorneys wrote that Nikki had “severe, undiagnosed” pneumonia that caused her to stop breathing, collapse and turn blue before she was discovered. Instead of identifying her pneumonia in the days leading up to her death, they wrote, doctors prescribed her Phenergan and codeine, drugs that are no longer given to children her age and that further suppressed her breathing.

“It is irrefutable that Nikki’s medical records show that she was severely ill during the last week of her life,” Roberson’s attorneys wrote in court documents, 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’s office, where her temperature was 104.5 degrees.

Prosecutors, meanwhile, have maintained that the evidence supporting Roberson’s conviction is still “clear and convincing” and that the science around shaken baby syndrome has not changed as much as his defense attorneys claimed.

Roberson’s attorneys also argued that his autism — which was not diagnosed until 2018 — “directly contributed” to his conviction, with doctors and law enforcement viewing his “flat demeanor” as a “sign of culpability.”

“This Board has the power to show mercy to a man who will always be profoundly impacted by his disability and who has worked hard to better himself and his community despite those challenges,” his attorneys wrote in his clemency petition.

Brian Wharton, the lead detective who investigated Nikki’s death and sided against Roberson at trial, has said he now believes in Roberson’s innocence, especially after learning of his disability, and has advocated for his exoneration.

“I will be forever haunted by my participation in his arrest and prosecution,” Wharton, who submitted a letter in support of clemency, said on Tuesday. “He is an innocent man.”

Lawmakers urging clemency also seized on Roberson’s treatment after his arrest. Nikki was transported to Children's Medical Center Dallas after he brought her to the emergency room, but Roberson, who was placed in a suicide jail cell when investigators suspected abuse, was not permitted to join her, according to his attorneys, nor was he told when she was taken off life support.

"I and many others are troubled by the facts of this case, not only the rushed and mistaken accusation of child abuse, but the disregard for Robert’s parental rights throughout the investigation,” Texas Rep. Lacey Hull, R-Houston and co-vice chair of the Criminal Justice Reform Caucus, said. “Regardless of our individual positions on the death penalty, I think we can all agree that putting a potentially innocent man to death for a crime that may not have occurred would be a grave miscarriage of justice.”

Letters of support from Roberson’s loved ones, friends and spiritual advisers depicted a gentle man of faith who was concerned most of all about his two grown children with disabilities, and who remembered people’s favorite colors and sent handmade birthday cards to everyone he met.

“What immediately stood out to me was his compassionate character, his joyful demeanor, and [his] genuine interest in the person sitting across from him,” wrote Merel Pontier, who said she met Roberson over four years ago. “For Robert, the glass is always half-full, not half-empty.”