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The Texas House Committee on Criminal Jurisprudence urged the state's highest criminal court on Tuesday to halt death row inmate Robert Roberson's execution, which is set for Thursday, as part of an eleventh-hour blitz by a rare bipartisan coalition to spare Roberson's life as his final chances to block his death warrant dwindled.

The four Democrats and five Republicans on the committee asked the Texas Court of Criminal Appeals to grant Roberson a stay through the end of the 2025 legislative session so that the Legislature may consider amendments to the state's groundbreaking 2013 "junk science law," which Roberson has unsuccessfully sought to use to prove his innocence.

“It is beyond dispute that medical evidence presented at Mr. Roberson’s trial in 2003 is inconsistent with modern scientific principles,” the lawmakers wrote. “We believe it would be a stain on the conscience of the State of Texas for an execution to proceed while efforts are underway to remedy deficiencies in how the law was applied to this case.”

Roberson lost one of his final efforts to stop his execution on Tuesday after a judge in Anderson County rejected his request to vacate his death warrant and recuse the judge who set his execution date.

He filed a new appeal Monday in the Texas Court of Criminal Appeals, reiterating his argument that his conviction was based on a now-debunked shaken baby syndrome diagnosis and deserves a second look — which the court granted this month in what Roberson's lawyers see as a parallel, non-capital shaken baby case out of Dallas County. That appeal was still pending as of Tuesday evening.

The Texas Court of Criminal Appeals denied Roberson's request that it reconsider an earlier appeal based on Texas' 2013 junk science law on Friday, without offering a written opinion and leaving Roberson with few options ahead of his imminent execution. The court’s decision came 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.

Roberson has requested clemency from the Texas Board of Pardons and Paroles and Gov. Greg Abbott. The board is scheduled to make a recommendation to Abbott on whether to grant clemency on Wednesday. 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.”

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.”

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 by the Court of Criminal Appeals was released Friday.

“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.”

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.

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 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 Nikki suffered multiple traumas — a conclusion Roberson's attorneys have disputed.

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 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.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/10/11/robert-roberson-texas-execution-appeal/.

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