A Texas death row inmate convicted of murdering his two-year-old daughter has at least temporarily avoided execution.
Robert Roberson, 58, had been scheduled to receive a lethal injection on October 16 for the death of his daughter Nikki Curtis, whom prosecutors have said died of ‘shaken baby syndrome’ – meaning she was shaken so violently that she died.
But Roberson has maintained his innocence since he was convicted, arguing that modern scientific evidence has disproved the shaken baby diagnosis and showed his daughter actually died from chronic illness.
His attorneys have even filed a number of motions to stay his execution, citing Texas’ 2013 junk science law – which provides for a second look when the science driving a conviction has been debunked.
The Texas Court of Criminal Appeals ultimately voted five to four on Thursday to grant Roberson’s a stay of execution.
In the order, judges cited their decision last year to overturn the shaken baby conviction of fellow Texan Andrew Roark based on the evolving medical research on shaken baby diagnoses.
The Court exonerated Roark – in a case that Roberson’s attorneys called ‘materially indistinguishable’ from that of their client.
Texas death row inmate Robert Roberson, 58, was granted a stay of execution on Thursday
He had been scheduled to receive a lethal injection on October 16 for the death of his daughter Nikki Curtis, whom prosecutors have said died of ‘shaken baby syndrome’ – meaning she was shaken so violently that she died
In that case, the appeals court found that the science had changed enough to undermine the prosecution’s theory of a case involving shaken baby syndrome, and that Roark likely would not have been convicted under the ‘evolved scientific evidence.’
The Dallas County District Attorney´s Office subsequently dropped the charges against Roark.
‘That’s the insight we have today: There were enough members of the court who are troubled by the inconsistency between granting relief under [the junk science law] to Andrew Roark, but denying it a week later to Robert Roberson,’ attorney Gretchen Sween told reporters following the ruling, according to the Texas Tribune.
‘Roark changed the legal landscape in Texas, and it should mean relief for Robert.’
But the Court of Criminal Appeals did not decide on the merits of Roberson’s appeal – instead directing the trial court to consider whether he should be granted a new trial in light of the Roark decision.
It also dismissed on procedural grounds Roberson’s other appeals claiming judicial misconduct in his trial and actual innocence.
‘There is a delicate balance and tension in our criminal justice system between the finality of judgment and its accuracy based on ever-advancing scientific understanding,’ Judge Bert Richardson wrote in the concurring opinion.
‘A death sentence is clearly final and, once carried out, hindsight is useless,’ he noted.
Roberson has maintained his innocence since he was convicted, arguing that modern scientific evidence has disproved the shaken baby diagnosis and showed his daughter actually died from chronic illness
His attorneys say he adored his little girl and would not hurt her
Prosecutors at Roberson’s original trial argued that Nikki’s 2002 death was consistent with shaken baby syndrome – pointing to the diagnostic ‘triad’ of intracranial hemorrhaging, brain swelling and bleeding behind retinas.
They have rejected Roberson’s assertion that his young daughter simply fell out of bed the night before, and he found her unconscious, limp and blue.
Instead, medical staff at a Palestine hospital believed Nikki’s injuries – including bruises on her face, a bump on the back of her head and bleeding outside of her brain – were all caused by abuse and alerted police to the scene, according to the Dallas Morning News.
Attorneys representing Roberson, though, have argued Nikki was chronically ill and suffered a high fever in the days before her death.
They noted that she had the first of many infections that proved resistant to antibiotics just days after her birth – including a chronic ear infection that persisted even after she had tubes surgically implanted.
The young girl also had a history of unexplained ‘breathing apnea’ that caused her to suddenly stop breathing, collapse and turn blue.
Then, within just one week of her death, Nikki had been vomiting, coughing and having diarrhea, Roberson’s attorneys said.
When those symptoms continued for five days straight, Roberson and his mother took Nikki to a local emergency room, where a doctor prescribed Phenergan – a drug that now carries a Food and Drug Administration warning against being prescribed to children of Nikki’s age and in her condition.
Still, her condition continued to worsen with her temperature rising about 104 degrees Fahrenheit, for which another doctor prescribed more Phenergan in a cough syrup with codeine – an opioid that is now restricted for children under the age of 18 due to its risks of causing breathing difficulty and death.
Nikki’s toxicology report even showed lethal levels of Phenergan in her system at the time of her death, defense attorneys say.
Roberson’s attorneys argued that his then-undiagnosed autism helped convict him, as authorities and medical personnel felt he didn´t act like a concerned parent because his flat affect was seen as a sign of guilt
Attorney Gretchen Sween has maintained that her client is actually innocent
In their request to stay the execution, Roberson’s defense attorneys included a joint statement from 10 independent pathologists who said the medical examiner´s autopsy report, which concluded Nikki died from blunt force head injuries, was ‘not reliable.’
They also argued that Roberson’s then-undiagnosed autism helped convict him, as authorities and medical personnel felt he didn´t act like a concerned parent because his flat affect was seen as a sign of guilt. He was diagnosed with autism in 2018.
Further, Roberson’s lawyers alleged there was judicial misconduct at his trial, saying the judge did not disclosed he previously authorized the circumvention of Roberson´s parental rights and allowed Nikki´s grandparents to remove her from life support.
‘He is actually innocent,’ Gretchen Sween, one of Roberson’s attorneys, told reporters of her client following the court ruling on Thursday. ‘I would like to prove that and get him home one day.’
She said she is ‘confident that an objective review of the science and medical evidence will show there was no crime.
‘Robert adored Nikki, whose death was a tragedy, a horror, compounded by Robert’s wrongful conviction that devastated his whole family.’
Texas Attorney General Ken Paxton may now challenge the ruling
But prosecutors including embattled Attorney General Ken Paxton have insisted that the evidence of Roberson’s guilt remains convincing.
In a dissenting opinion on Thursday, Judge Gina Parker even argued that Roberson’s case was ‘not a “shaken baby” case,’ citing trial testimony describing the toddler’s injuries and arguing that ‘the obvious conclusion to draw is that the child was beaten to death.’
Three pediatricians, including two with the Yale School of Medicine also wrote in a September 26 op-ed in The Dallas Morning News that they reviewed the case and ‘are convinced that Nikki was a victim of child abuse.’
Following Thursday’s ruling, Matthew Bowman, Nikki´s half-brother, said he and his family are disappointed and that they think Roberson should be executed.
Bowman told The Associated Press he believes the evidence shows Roberson caused Nikki´s injuries by repeatedly hitting her.
‘In my opinion, he´s the only one that could have done it that night. So we´re hoping that the execution comes back,’ he said.
It now remains unclear whether the Texas Attorney General’s Office will challenge the ruling, which marked the third time Roberson’s lawyers have been able to stay an execution since 2016.
Since his first execution date more than nine years ago, Roberson´s lawyers have filed multiple petitions with state and federal appeals courts, as well as with the U.S. Supreme Court, to stop his execution.
Last year, just two hours before Roberson was set to be put to death, Travis County Judge Jessica Mangrum blocked Roberson’s execution so that he could testify before the Texas legislature.
It came after unprecedented intervention from a bipartisan group of Texas lawmakers who spoke with the death row inmate and believe he is innocent.
Roberson´s supporters include liberal and ultraconservative lawmakers, Texas GOP megadonor and conservative activist Doug Deason, bestselling author John Grisham, and Brian Wharton, the former police detective who helped put together the case against him.
GOP state Rep. Brian Harrison, one of the more conservative lawmakers in the Texas Legislature, praised the stay.
‘For over two decades, Mr. Robert Roberson has never, not once, been afforded due process and he has never had a fair trial,’ Harrison told reporters on Thursday.
The Daily Mail has reached out to Paxton’s office for comment.
