Robert Roberson loses one of his final chances to stop Texas execution

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Death row inmate Robert Roberson lost one of his final efforts to stop his execution, which is scheduled for Thursday, after a county judge on Tuesday rejected his request to vacate his execution warrant and recuse the judge who set his execution date.

Roberson had alleged his death warrant was invalid because the judge, who is retired, did not follow the required procedure to preside over his case.

Roberson has requested clemency from the Texas Board of Pardons and Paroles and Gov. Greg Abbott. The board has until the end of Tuesday, two days before Roberson’s scheduled execution, to decide whether to recommend clemency, which would be up to Abbott to grant. Abbott can also issue a 30-day reprieve, regardless of the board's recommendation.

“Texas must stop its relentless pursuit of Robert Roberson’s wrongful execution,” Gretchen Sween, Roberson's attorney, said. “If 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.”

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.

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.

On Friday, the Texas Court of Criminal Appeals declined to halt Roberson's execution, again rejecting his long-standing claim of innocence and argument that his conviction was based on a now-debunked shaken baby syndrome diagnosis.

Roberson had asked the court 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.

Roberson had also urged the court to reconsider an earlier appeal based on Texas’ 2013 junk science law — an appeal that the court previously denied without reviewing its merits — citing concerns from a majority of the Texas House that the law was not being properly implemented by the judiciary.

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. The court’s decision comes amid a drumbeat of public advocacy on Roberson’s 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.

State Rep. Joe Moody, D-El Paso and chair of the Texas House Criminal Jurisprudence Committee, called a hearing of the committee for Wednesday after the decision was released.

“We’re barreling towards an execution when a strong bipartisan majority of #txlege reps aren’t even sure a crime occurred — and are very sure due process didn’t,” Moody wrote on social media Friday. “We have to do all we can to pump the brakes before this stains Texas justice for generations.”

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.

In a concurring opinion, Texas Court of Criminal Appeals Judge Kevin Yeary wrote on Thursday that the case was “not just a ‘shaken baby’ case,” pointing to evidence presented by the prosecution at trial suggesting that Roberson’s daughter “suffered multiple traumas.”

Roberson’s attorneys have disputed that conclusion, saying that the state’s claim that Nikki suffered multiple impacts is “erroneous” and “flatly misrepresents what was established during the evidentiary hearing.”

“Even more evidence supporting Mr. Roberson’s innocence, proving the actual causes of Nikki’s death, has been submitted to the CCA more recently, yet the court clearly has elected not to consider it,” Sween said in a statement on Friday. “Instead, 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.”

In January 2002, Roberson rushed Nikki’s 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.

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.

Throughout his appeals, Roberson’s lawyers sought to disprove his daughter’s shaken baby diagnosis. Citing a range of expert opinions and new evidence — including medical records illustrating Nikki’s severe illness and medications in the days leading up to her death and a long-lost CAT scan — his attorneys argued that the toddler died from natural and accidental causes, not from head trauma.

“No informed doctor today would presume abuse based on a triad of internal head conditions, as occurred in Robert’s case,” his lawyers wrote in his clemency application. “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.”

Roberson’s lawyers wrote in filings that, at the time of her death, 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 before her death, they wrote, doctors prescribed her Phenergan and codeine — drugs that are no longer given to children her age, and which they argued 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 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’s office, where her temperature was recorded at 104.5 degrees.

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

The Texas Court of Criminal Appeals denied Roberson’s appeal outlining new medical evidence on Sept. 11 on procedural grounds, without reviewing the merits of his claims.

The court previously halted Roberson’s execution in 2016 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 the medical community now recognizes those symptoms as potentially caused by various naturally occurring illnesses and accidents.

The 2016 stay was issued on the basis of Texas’s groundbreaking 2013 “junk science law,” which allows the court to overturn a conviction when the scientific evidence used to convict someone has since changed or been discredited.

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.

In 2023, the Texas Court of Criminal Appeals decided that doubt over the cause of his daughter’s death was not enough to overturn Roberson’s death sentence, and his new execution date, Oct. 17, was set in July.

In his most recent appeal denied on Friday, Roberson’s 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.

Roberson’s attorneys argued that the testimony about shaken baby syndrome presented in that Dallas case and in Roberson’s trial were “virtually identical,” and both cases “hinge on the same hypothesis.”

His attorneys have 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.”

After learning about Roberson’s disability and Nikki’s illness, Brian Wharton — the lead detective in Nikki’s death who sided with the state at trial — said that he believed in Roberson’s innocence and regretted his role in the trial.

“I will be forever haunted by my participation in his arrest and prosecution,” Wharton, who offered a letter in support of clemency, said on Sept. 17. “He is an innocent man.”

Roberson’s 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.

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’s favorite colors and sent handmade birthday cards to everyone he met.

“This man would never harm another person, especially not his small little baby girl!” Manuela Doris Roberson, whom Roberson married in 2022, wrote in one letter. “Robert’s life is worth more to me, his children, his friends and loved ones than all the treasures of this world.”

A bipartisan majority of the Texas House — 86 out of 150 members — urged the Board of Pardons and Parole on Sept. 17 to recommend clemency, citing “voluminous new scientific evidence” that they said suggested Roberson’s innocence and explained that the cause of his daughter’s death was natural and accidental.

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.

“I thought I’d be bringing Robert a message of hope today, but instead, I left inspired myself,” Moody, the state representative, said in a statement. “He’s 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’ve gone through what he’s experienced. His faith and spirit just reinforced my commitment to fighting for him so that he has that chance — and so that this injustice never happens to another Texan.”