Robert Roberson files first new appeal since his execution was delayed

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Texas death row inmate Robert Roberson filed a new appeal with the state’s highest criminal court on Wednesday in his first attempt to overturn his death sentence since an unprecedented intervention by a state legislative committee delayed his execution in October.

Roberson was convicted of capital murder in 2003 for the death of his 2-year-old daughter Nikki, who was diagnosed with shaken baby syndrome. He has maintained his innocence during his 22 years on death row, arguing that new scientific evidence discredits prosecutors’ shaken baby theory and shows that she died of natural and accidental causes.

The appeal, which was first reported by the Austin American-Statesman, includes new expert opinions finding that the shaken baby diagnosis was unsound and that Nikki’s autopsy that ruled her death a homicide was flawed. Those conclusions echo medical and forensic opinions presented in Roberson’s previous appeals.

“This Subsequent Application is supported by additional new evidence establishing that Roberson’s conviction was based on discredited and unreliable forensic science and that he is actually innocent,” Roberson’s attorneys wrote. “There was no homicide, only the tragic death of his very ill little girl.”

Wednesday’s filing also cited the court’s decision in October to overturn the conviction of another man in a shaken baby case out of Dallas County, which recognized that the scientific consensus around shaken baby diagnoses had changed over the last two decades. Roberson’s attorneys called that case “materially indistinguishable” from Roberson’s.

The appeal also argued that Texas lawmakers had made clear over the last several months that they did not believe the courts were properly applying the state’s junk science law, which Roberson has repeatedly tried to use to prove his innocence. That law provides for new trials when the science at the crux of a case has changed.

Roberson’s attorneys argued in the appeal that “no rational juror would find Roberson guilty of capital murder,” and that “unreliable and outdated scientific and medical evidence was material to his conviction.”

The arguments raised in Wednesday’s appeal align with the case Roberson’s attorneys have presented in his appeals since 2016.

Numerous expert medical and forensic opinions cited in his appeals provide a non-criminal explanation for Nikki’s death. Experts found that Nikki had undiagnosed chronic pneumonia and was prescribed medications no longer given to toddlers her age. Those medications suppressed her breathing, which led to brain swelling, according to those experts. Her condition devolved into sepsis, causing a bleeding disorder that made her bruise easily, they said.

“None of these circumstances were identified or even considered, let alone excluded, in assessing her condition,” Roberson’s attorneys wrote.

They argued that the district attorney and the courts have not properly considered the new scientific evidence raised in his appeals. The Anderson County District Attorney has maintained that a judge reviewed those arguments and Attorney General Ken Paxton has argued that evidence of abuse is still convincing.

Roberson’s most recent appeals last year were denied by the state’s highest criminal court on procedural grounds, without considering the merits of his arguments.

Roberson’s case became a political lightning rod last fall after a bipartisan Texas House committee worked to delay his execution, arguing that the courts had not fully considered the evidence presented in his appeals nor properly interpreted the junk science law. Lawmakers have since filed legislation to amend the law to address what they see as shortcomings in its application.

On Oct. 16, less than 24 hours before his scheduled execution, the committee subpoenaed Roberson, ordering him to testify at the Capitol four days after he was set to die. That prompted a separation of powers conflict between the legislative and executive branches, leading the Texas Supreme Court to pause his execution.

Roberson’s execution has not yet been rescheduled. The district attorney has not requested that a new execution date be set.

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