Attorney General Ken Paxton requests death row inmate Robert Roberson be executed Oct. 16

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Attorney General Ken Paxton has requested death row inmate Robert Roberson, whose execution date was delayed last year after his case became a political lightning rod, be executed on Oct. 16.

A hearing is set for 10 a.m. on Wednesday in the 3rd District Court in Palestine where Smith County District Judge Austin Reeve Jackson will decide whether to proceed with the Paxton's request.

"There is no justification for the Attorney General's relentless effort to kill an innocent human being -- and no state law or moral law that authorizes seeking an execution date under these circumstances," Gretchen Sween, Roberson's attorney, said in a new release last week.

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 over two decades on death row, arguing that new scientific evidence debunks Nikki’s shaken baby diagnosis and shows that she died of severe illness worsened by prescribed medications that are no longer given to children.

Roberson faced an October execution date last year, but state lawmakers — some persuaded of his innocence and others convinced that the courts had not properly considered his appeals — managed to force a delay after subpoenaing Roberson to testify at a House committee meeting scheduled a few days after his execution date.

That triggered a separation of powers conflict between the state executive and legislative branches, leading to a Texas Supreme Court order that temporarily paused Roberson’s execution.

Paxton’s office took over the case in June after Anderson County District Attorney Allyson Mitchell requested it — an unusual move, according to a criminal defense attorney who requested anonymity because they are employed by the state.

The attorney general’s office generally does not have prosecutorial power in state court on criminal cases, unless a local prosecutor requests their involvement. That typically happens when prosecutors have a conflict of interest or lack the resources or expertise to handle a particular case.

But Mitchell had been deeply engaged in Roberson’s case for the past several years. Mitchell handled an evidentiary hearing for Roberson’s case in 2021, sought his October execution date and litigated his appeals. She also testified before a House panel last year to answer questions about the case.

“I have never heard of the AG taking over a state court representation after the local DA’s office has been handling the case for years,” Roberson’s attorney, Gretchen Sween, said. “The AG’s office has not been involved in this case and plainly does not know the case in light of all of the shocking misrepresentations that were made in filings and press releases by that office when state lawmakers sought to use their subpoena power to hear from Robert directly.”

After Roberson’s execution was delayed last year, Paxton continued to insist that the sentence should be carried out, and he blocked a second attempt by House lawmakers to bring Roberson to the Capitol for testimony. The attorney general’s office also put out a graphic press release maintaining Roberson’s guilt and accusing the House committee of pursuing “eleventh-hour, one-sided, extrajudicial stunts that attempt to obscure the facts and rewrite his past.”

In response to Paxton’s request — the state’s first move since the Texas Supreme Court delayed Roberson’s execution — a judge could set his new execution date for no sooner than three months from now.

In an objection, Roberson’s attorneys argued that the district court was barred from scheduling a new execution date while Roberson has a pending appeal and “if additional proceedings are necessary.”

Roberson filed a new appeal in February that includes new expert opinions finding that Nikki’s shaken baby diagnosis was unsound and that the autopsy that concluded her death was a homicide was flawed. Those conclusions support other medical and forensic opinions presented in Roberson’s previous appeals, which were repeatedly denied.

“Robert Roberson is innocent,” Sween said. “The AG’s unjustified rush to seek an execution date while that new evidence of innocence is before the court is outrageous.”

Roberson’s appeal also cites an October decision by Texas’ top criminal court overturning the conviction of another man in a shaken baby case out of Dallas County. That decision 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.

Legislation this session to bolster the state’s junk science law, which lawmakers and advocates argued was not being properly applied by the courts in Roberson’s case and others, died in the Senate after winning broad approval in the House. The junk science law, which Roberson tried repeatedly to use to win a new trial, is meant to provide justice in criminal cases whose convictions rest on since-discredited science.

“Legislators across the entire political spectrum are certain Robert didn’t get a full and fair trial,” state Rep. Joe Moody, D-El Paso, who chaired the House panel that led the effort to give Roberson a new trial, said in a statement to the Tribune. “Many of us believe he’s innocent. What I know is that we’re no closer to truth or fairness today than we were one year ago — all we’ve added to this is politics, which should never have any role in our justice system.”

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