Texas’s top criminal court again paused the execution of Robert Roberson, just days before he was scheduled to become the first person in the US put to death for a murder conviction tied to the diagnosis of shaken baby syndrome.
This was the third execution date that Roberson’s lawyers have been able to stay since 2016, including an attempt nearly a year ago that was stopped by an unprecedented intervention from a bipartisan group of Texas lawmakers who believe he is innocent.
The latest execution stay was granted by the Texas court of criminal appeals. Roberson had been scheduled to receive a lethal injection on 16 October.
Since his first execution date more than nine years ago, Roberson’s lawyers have filed petitions with state and federal appeals courts, as well as with the US supreme court, to try to stop his execution. Over the years, they have also asked the Texas board of pardons and paroles and Greg Abbott, the governor, to stop his lethal injection, as part of their efforts to get Roberson a new trial.
Prosecutors at Roberson’s 2003 trial argued that he hit his two-year-old daughter Nikki Curtis and violently shook her, causing severe head trauma. They said she died from injuries related to shaken baby syndrome.
Roberson has long proclaimed his innocence, telling the Associated Press in an interview from death row in Livingston, Texas, that he never abused his daughter.
“I never shook her or hit her,” he said.
Thursday’s decision from the court of criminal appeals sends Roberson’s case back to the original court in Anderson county in which he was tried. He will be granted a hearing to consider whether he should be entitled to a retrial under Texas’s junk science law which was introduced in 2013 to protect prisoners from debunked forensic science.
Roberson’s lawyer, Gretchen Sween, welcomed the stay which was granted exactly a day before he was scheduled to be sent to the death chamber.
“Robert adored Nikki, whose death was a tragedy, a horror compounded by Robert’s wrongful conviction that devastated his whole family. We are confident that an objective review of the science and medical evidence will show there was no crime,” she said.
David Schenck, the presiding judge of the court of criminal appeals, wrote in a concurring opinion that the decision to stay Roberson’s execution was the right one. “It prevents what I see as Roberson’s potentially unconstitutional execution in view of evidence undermining his conviction and sentence.”
Members of the Texas legislature also praised the stay. More than 80 bipartisan lawmakers have campaigned on behalf of Roberson, arguing that the shaken baby syndrome diagnosis used to put him on death row was unreliable.
The case has split Texas’s ruling Republican party, with several Republican legislators backing Roberson while the state’s attorney general, Ken Paxton, continues to aggressively push for the execution to go ahead.
Shortly after the court issued the stay, Brian Harrison, a Republican member of the Texas house, issued a statement in which he said: “It is incumbent on those of us who support capital punishment to ensure that potentially innocent people are never subjected to it. My prayer has been that truth will be revealed, that justice will prevail.”
Harrison pointedly praised the judges who issued the stay, saying they had been brave “even in the face of tremendous – and dishonest – political pressure to execute a potentially innocent person who has never been given a fair trial”.
The diagnosis of shaken baby syndrome refers to a serious brain injury caused when a child’s head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.
His lawyers and some medical experts say his daughter died not from abuse but from complications related to pneumonia. They say his conviction was based on flawed and now outdated scientific evidence.
In their latest appeal with the Texas court of criminal appeals, Roberson’s lawyers had included what they say are new legal and scientific developments and expert analyses that show Nikki’s death was caused by illness and accident and not by abuse.
Roberson’s lawyers also 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”.
His attorneys have also claimed that new evidence shows judicial misconduct in Roberson’s case. They allege the judge who presided over Roberson’s trial never disclosed he was the one who authorized circumventing Roberson’s parental rights and allowing Nikki’s grandparents to remove her from life support.
The office of the Texas attorney general, Ken Paxton, as well as some medical experts and other family members of Nikki, maintain the girl died because of child abuse and that Roberson had a history of hitting his daughter.
In a 26 September op-ed in the Dallas Morning News, three pediatricians, including two with the Yale School of Medicine, said they reviewed the case and “are convinced that Nikki was a victim of child abuse”.
Shaken baby syndrome has come under scrutiny in recent years as some lawyers and medical experts have argued the diagnosis has wrongly sent people to prison. Prosecutors and medical societies say it remains valid.
Roberson’s supporters include both liberal and ultraconservative lawmakers; the Texas Republican mega-donor and conservative activist Doug Deason; bestselling author John Grisham; and Brian Wharton, the former police detective who helped put together the case against him.
The Associated Press contributed to this report
