A Texas death row inmate accused of murdering his two-year-old daughter has been granted a last-minute hearing in his bid to avoid execution.
Robert Roberson III, 57, will die by lethal injection on October 17 for killing his daughter in their home in Palestine, east Texas, in 2002.
But on Tuesday, a judge announced that he will hear Roberson’s motion to vacate his execution order on October 15. reports the Dallas Morning News.
His lawyers requested the hearing from the state, arguing in a court filing last week that the now-retired judge who oversaw his previous conviction and issued his execution order in July did not follow legal procedure and had no jurisdiction over the case.
At the same time, lawyers continue to pressure the Texas Board of Pardons and Paroles to recommend Gov. Greg Abbott stay the execution, arguing that the science around so-called shaken baby syndrome has changed.
Robert Roberson, 57, will be executed on October 17 for murdering his two-year-old daughter in 2002.
Prosecutors argued that he shook his daughter, Nikki, so hard that it caused irreversible brain damage and death from shaken baby syndrome, also known as abusive head trauma.
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 hemorrhage, swelling of the brain and bleeding behind the retinas.
They have rejected Roberson’s claim 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 Palestinian hospital believed Nikki’s injuries (including bruises on her face, a blow to the back of her head, and bleeding outside her brain) were caused by abuse and alerted police to the scene. . according to the Dallas Morning News.
But Nikki was chronically ill and suffered a high fever in the days before her death. Innocence Project lawyers argue.
He had the first of many infections that proved resistant to antibiotics within days of his birth, including a chronic ear infection that persisted even after tubes were surgically implanted.
The young woman also had a history of unexplained “respiratory apnea” which caused her to suddenly stop breathing, collapse and turn blue.
Roberson claimed his young daughter simply fell out of bed the night before and he found her unconscious, limp and blue.
Then, just a week after her death, Nikki had been vomiting, coughing and having diarrhea, Roberson’s lawyers said.
When those symptoms continued for five days straight, Roberson and her 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 prescribing it to children. Nikki’s age and condition. .
Still, his condition continued to worsen with his temperature rising to around 104 degrees Fahrenheit, so another doctor prescribed him more Phenergan in a cough syrup with codeine, an opioid now restricted to children under 18 due to its risks of causing respiratory problems. 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.
He has maintained his innocence in his daughter’s death for more than two decades.
Roberson has maintained his innocence in his daughter’s death during the more than two decades he has languished on death row, and in 2016, he was granted a stay of execution when his attorneys claimed his conviction was based on ” junk science” and “false, misleading and scientifically invalid testimony.
An evidentiary hearing then began in 2018, but it was suspended after a district clerk found a 15-year-old box of evidence, including Nikki’s CAT scan.
Judge Deborah Oakes Evans then made a recommendation to the Texas Court of Appeals as she considered whether Roberson would receive a new trial. reports the Palestine Herald.
He then retired in December 2022, but continued to preside over Roberson’s case after the state’s highest criminal court decided in 2023 that questions about the cause of his daughter’s death were not enough to overturn her death sentence.
Evans even issued his recent execution order and set his execution date without granting a hearing to the defense.
But Roberson’s attorney, Gretchen Sween, argued in court papers last week that Evans did not follow the legal procedure required for a retired judge to be eligible to accept assignments to preside over cases instead of elected judges and, therefore, all which she has ruled since her retirement is invalid.
Sween also stated that there are other factors that, “viewed in their entirety, suggest the appearance of a lack of impartiality, a legal basis for recusal.”
Those factors include an “opaque process” by which Evans was appointed to oversee the case, contact she has had with others who have been involved in Roberson’s case over the years and rulings in a similar baby case. shakeup that involves many of the same people. to which Evans was also reportedly assigned after her retirement.
“The totality of the circumstances, including the seriousness of this case, require a prompt reassignment to an impartial judge who can vacate the unlawfully issued writ of execution and related orders, which Judge Evans signed in the absence of legal authority,” Sween argued. .
His lawyers won a stay of execution in 2016 when they questioned whether shaken baby syndrome existed.
Meanwhile, Roberson’s attorneys continue to ask the Board of Pardons and Paroles to recommend a stay of his execution.
They claim that new medical evidence shows that Nikki died of severe viral and bacterial pneumonia that then progressed to sepsis and finally septic shock.
Court documents show that Dr. Francis Green, an expert in lung pathology, reviewed Nikki’s medical history and her lung tissue under a microscope.
He discovered that his lungs were infected with two different, virulent types of pneumonia, which clogged his lungs, deprived his brain of oxygen and ultimately led to death, Green wrote in a report.
The pneumonia began many days or weeks before his final hospitalization, he added.
Dr. Keenan Bora also concluded that Nikki’s post-mortem toxicology report shows that she had dangerously high levels of promethazine in her system, prescribed by two different doctors on two consecutive days, and Dr. Julie Mack concluded that the initial CAT scans of Nikki’s head show only a minor impact site, consistent with Roberson’s story that she fell off a bed and possibly hit her head.
Roberson’s attorney, Gretchen Sween, argued that his execution order should be rescinded because it was issued by a retired judge.
Roberson’s attorneys have also expressed concern that shaken baby syndrome may not be a real medical diagnosis.
It was first proposed by neurosurgeon Norman Guthkelch in 1971 and has since become accepted medical fact.
But researchers have questioned the hypothesis that shaking a baby can cause such brain damage since the 1980s, with some studies concluding that it cannot biomechanically cause the injuries Guthkelch described. according to USA Today.
In light of the debate, Roberson’s lawyers say he should have allowed a review of his conviction under Texas Section 11.073, which was passed 10 years ago to allow convicted people who cannot appeal to seek relief based on changes in the scientific understanding from the moment of their convictions.
However, the Court of Criminal Appeals denied his petition in September, dismissing it as “an abuse of the court order” or raising a claim that should have been raised in an earlier petition. ABC News reports.
“The court did not address the merits of Mr. Roberson’s claim of modified science, based on new and correlated reports from medical experts from a variety of disciplines,” argues the Innocence Project.
“The new lawsuit was dismissed based on an unexplained procedural barrier.”
Lawyers have also emphasized that the Court of Criminal Appeals is considering another non-death penalty case involving the same questions about the merits of shaken baby syndrome, but in that case the court ruled that the science has changed enough to to deserve a new trial. .
“In that case, the State admitted the unreliability of the shaken baby theory and agreed that the habeas applicant should receive a new trial,” the Innocence Project noted.
“However, in Mr. Roberson’s case, the State, represented by the elected district attorney in Anderson County, has consistently resisted the notion that science has materially changed and has defended expert testimony of the State’s judgment”.
