Judge issues dramatic 11th-hour delay in execution of Texas father in ‘shaken baby syndrome’ case
It’s not clear how long the execution will be delayed
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A judge in Travis County, Texas, has granted a temporary restraining order stopping the execution of Robert Roberson, an autistic father at the center of a controversial “shaken baby syndrome” case.
It’s not clear how long the execution – due to be carried out at 7pm est on Thursday – will be stayed. The state is appealing the ruling.
Roberson, 57, is set to be executed at the Huntsville Unit in Huntsville, Texas for the 2002 death of his two-year-old daughter Nikki Curtis.
The decision follows a vote from the Texas House of Representatives Committee on Criminal Jurisprudence to subpoena Roberson for a hearing on October 21, an unprecedented effort to delay the execution.
Roberson would be the first person to ever be executed in connection with the syndrome, which has been widely discredited by scientists.
Prosecutors maintain that Roberson “brutally murdered his own child” by shaking and striking her, resulting in blunt-force trauma, court records show.
But a chorus of attorneys, medical experts and state legislators rejected that position, instead claiming that Nikki died from a combination of severe undiagnosed chronic viral pneumonia compounded by a secondary acute bacterial pneumonia that progressed to sepsis.
“In other words, there was no homicide,” a group of medical professionals wrote to the Texas Board of Pardons and Paroles, which voted against granting Roberson clemency on Wednesday. “Mr Roberson should not have been convicted, let alone convicted and sentenced to death.” Governor Greg Abbott has the power to issue a 30-day reprieve.
The Independent has reached out to Abbott’s office for comment. The parole board’s vote came during a hearing in the Texas House of Representatives on the case, which included testimony from medical experts, Roberson’s lead attorney, and Anderson County District Attorney Allyson Mitchell, who set Roberson’s execution date.
In a heated exchange with a legislator, viewed online by The Independent, Mitchell declined to say whether she was 100 per cent certain Roberson murdered his child and said she would have to review the trial transcript before answering certain questions about the case. She admitted that the criminal justice system sometimes fails, but said she trusted the process in Roberson’s case.
Republican Representative Brian Harrison checked Mitchell. “To be clear, you trust in the process that one moment ago you admit sometimes does fail,” he said.
Following the parole board’s vote, Roberson’s attorneys filed a petition to stay the execution with the US Supreme Court, asking the judges to consider whether the Texas criminal appeals court denied him due process by refusing to consider new scientific and medical evidence of his innocence. The judges declined to intervene.
Days before his daughter’s death, Roberson took Nikki to the emergency room in Palestine, Texas as she’d been suffering from a respiratory infection, diarrhea and vomiting. A doctor prescribed Phenergan and Roberson took Nikki home. The next day, she developed a 104-degree fever and was given another dose of the medication combined with codeine, court records state.
The Federal Drug Administration no longer recommends the combination to children due to risks of induced breathing difficulties and death. Nikki had a long history of chronic health conditions, including breathing apnea, court records state.
Roberson later left the hospital with his daughter, took her home and put her to bed.
The following morning, he said he awoke to a strange cry and found Nikki on the floor at the foot of the bed. He said he comforted her and the two fell back asleep, court filings state. When he woke up later that morning, he said Nikki was unconscious with blue lips. He claims he tried to revive her and rushed her to the emergency room, but she already had signs of brain damage, including fixed and dilated eyes.
She was transported to the Children’s Medical Center in Dallas, where she died from her injuries on February 1, 2002.
A pediatrician determined that abuse had played a factor in the girl’s death, after finding signs on her body typically associated with “shaken baby syndrome”, which include subdural hematoma, brain swelling and retinal hemorrhages. At the time, the medical community believed that the symptoms meant a child had been violently shaken, and possibly struck against a blunt surface. It’s now believed that other medical problems can result in the same symptoms.
The medical examiner ruled Nikki’s death a homicide. Medical and law enforcement professionals did not further investigate the incident or consider her prescribed medications and prior illnesses, court records detail. No one else was with Nikki at the time of her death, and Roberson had sole custody.
Nikki’s mother was homeless and addicted to drugs. Child Protective Services took her at birth, long before Roberson was identified as the girl’s father. She’d been with Roberson for less than a year.
Authorities charged Roberson with capital murder the day after she died. He was convicted the following year.
In 2013, Texas enacted Article 11.073, dubbed the “junk science statute” enabling the review of wrongful convictions based on junk science. The law was the subject of a nine-day evidentiary hearing in March 2021 for Roberson’s case. The following year, the convicting court recommended against granting relief.
Lawmakers and Roberson’s attorneys say the law has not since been applied in his case.
Last week, the Texas appeals court ruled that a Dallas man, who had been sentenced to 35 years in prison using the discredited science, deserved a new trial, claiming a jury would not convict him today with the same facts. Roberson’s prosecutors argued that the Dallas man’s case was different because the only evidence of any injury came from alleged shaking by the defendant.
On Wednesday, the appeals court denied an emergency motion and briefs related to Roberson on procedural grounds.
Brian Wharton, a former lead detective tasked with prosecuting Roberson, told The Independent he found him in a stoic state at the hospital, not acting as he thought a distraught father should. Roberson was diagnosed with autism in 2018, which Wharton now believes contributed to his demeanor.
It appeared to be a straightforward case, Wharton said. His doubts began to emerge during Roberson’s trial. He didn’t believe the defense was up to par, and suspected the jury had been tainted after the district attorney introduced child sexual assault charges that were later dropped.
After Roberson was sentenced to death, Wharton hoped the ruling would be overturned in appeals. He routinely checked for updates in the case.
“I was, in my own naive way, confident that the system that I was part of would check itself, and clearly it has made no effort to do so in the intervening years,” Wharton said in a phone interview. He no longer thinks the science used to charge Roberson is credible.
He left law enforcement in 2006 and is now a reverend in Onalaska, Texas.
When asked how he’d feel if Roberson is executed, he responded: “I’m so mad I could spit nails.
“Oh gosh, the grief. This is the deepest part of my shame. I visit him now and I don’t remember seeing him then the way I see him now. He is a kind and gentle man, a gracious man, a joyful man, a hopeful man.
“There is no kind of meanness in him. There will be this tremendous grief that I had a hand in killing something so beautiful.”
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