Scheduled execution of Texas inmate faces uncertainty as he is ordered to appear before the state legislative committee
The situation surrounding Roberson's execution is now uncertain after a Texas House committee made an unusual decision on Wednesday night to summon him for testimony. This move comes as they reconsider the legitimacy of his conviction. Republican state Rep. Jeff Leach, who voted in favor of the subpoena, stated, "It's a historic, unprecedented step. We'll see what happens next."
The Texas Department of Criminal Justice hasn't announced if Roberson's execution will be postponed due to the subpoena from the Texas Committee on Criminal Jurisprudence. They mentioned discussing "appropriate next steps" with the state attorney general's office.
If executed, Roberson's legal team assert that he would be the first person in the US due to a conviction based on a shaken baby syndrome claim, which they argue is a misdiagnosis in his case, and has since been debunked.
While child abuse pediatricians strongly defend the legitimacy of this diagnosis, Roberson's supporters contend that the courts have yet to examine substantial evidence suggesting Nikki Curtis, his daughter, died from a range of causes, including an illness and medication now thought unsuitable for a sickly child.
Despite the pleas from Roberson's numerous supporters, his execution continues to approach, with his conviction upheld on appeal until now. However, his lawyers persist in presenting their case in the courts, filing a petition for a temporary stay of execution with the US Supreme Court, claiming his due process rights were violated during the trial.
Texas filed a response Wednesday evening to deny Roberson's emergency appeal, dismissing his arguments as "unworthy of the court's attention." The courts, according to Texas officials, provided Roberson with the means and opportunity to present his case, yet denying him no longer signifies a lack of due process.
"The record demonstrates that the state habeas proceedings sufficiently adhered to due process," Texas told the Supreme Court.
Before his lawyers could secure a recommendation for clemency from the Texas Board of Pardons and Paroles, they requested that Roberson's death penalty be commuted to a lesser punishment or granted a 180-day respite to allow his appeals to be argued in court. Without the parole board's recommendation, Republican Gov. Greg Abbott is only authorized to grant a one-time, 30-day delay for the execution to permit court appeals. CNN has reached out for comment from Abbott's office.
Roberson's claim of innocence highlights a fundamental danger associated with capital punishment: the possibility of executing an innocent individual. Since 1973, at least 200 individuals – including 18 in Texas – have been exonerated after serving time and facing the death penalty, according to the Death Penalty Information Center.
"I am ashamed," ex-detective admits
At the time of her death, Nikki was reportedly suffering from double pneumonia that had advanced to sepsis. She was also prescribed medications now deemed unsuitable for children, further impeding her breathing. The night prior to Roberson bringing her to a Palestine, Texas, emergency room, she had fallen off a bed – already vulnerable due to her illness. These factors, according to Roberson's legal team, could explain her condition.
Additional factors contributed to his conviction, they claim: Doctors treating Nikki presumed abuse based on her symptoms and prevailing beliefs at the time of her death without considering her recent medical history. Furthermore, Roberson's behavior in the emergency room – perceived as uncaring by doctors, nurses, and police – was actually a manifestation of autism spectrum disorder, undiagnosed until 2018.
"I told my wife last week that I'm ashamed. I'm ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice," Brian Wharton, the former detective who oversaw Nikki's case investigation, told Texas legislators during a hearing.
"He's an innocent man, and we are very close to killing him for something he did not do," Wharton stated.
Wharton, allegedly – alongside Roberson's attorney, Gretchen Sween – is among his most vocal advocates. Tuesdays saw the former detective turning Methodist pastor learn that Roberson had included him on his list of potential witnesses, should the execution proceed.
"There's a part of me that wants to just run away from that. I don't want to be there, I don't want to watch it happen," Wharton told CNN. "But it is, again, it's a moment that I owe him. If he's asked me to be there, I owe him that much."
Lawmakers lobby for a stay of execution
Wharton now stands among numerous supporters of Roberson, including over 30 scientists and medical experts who endorse the doctors cited by his legal team, a bipartisan group of more than 80 Texas legislators, autism advocacy groups, and bestselling author John Grisham, all who have espoused mercy, vehemently opposing the execution in recent days.
The legislative support includes members from the Texas Committee on Criminal Jurisprudence, who held a hearing on Wednesday, emphasizing Roberson's situation. They raised concerns about Wharton, Sween, and others who raised doubts regarding the shaken baby syndrome diagnosis when testifying.
The hearing predominantly centered around Texas Article 11.073, a state law commonly referred to as the "junk science writ." This law was designed to allow defendants to challenge their convictions using new scientific evidence that wasn't available during their initial trial.
On Wednesday, the committee voted to issue a subpoena for Roberson, requesting him to provide all relevant testimony and information concerning the committee's investigation. While they're not entirely certain that Roberson's execution will be delayed, they remain hopeful, a source informed CNN.
Last week, the appeals court ordered a retrial for an individual sentenced to 35 years in prison for a child injury conviction that relied on a shaken baby syndrome argument.
Roberson's advocates believe he too should benefit from this law, as it was explicitly intended for cases like his, the committee stated in a letter brief to the Texas Court of Criminal Appeals.
The committee petitioned for a stay of execution in Roberson's case, requesting a legislative session to make necessary changes. However, the appeals court denied Roberson's latest appeal on Wednesday, dismissing it on procedural grounds without evaluating the merit of the claims raised.
Committee member Leach expressed optimism that the governor and parole board were paying attention to the hearing, as the legislation passed and signed into law is being disregarded by the courts. They aim to pause the execution to ensure the law is enforced.
Shaken baby syndrome topic of courtroom dispute
Roberson's legal team acknowledges that babes can in fact die due to shaking. However, they argue that less harmful explanations, including illness, can mimic shaking symptoms. They believe alternative explanations should be thoroughly investigated before a medical expert can confidently assert that the cause of death was abuse.
Shaken baby syndrome is recognized as a valid diagnosis by the American Academy of Pediatrics and supported by child abuse pediatricians who collaborated with CNN. The syndrome, first described in the 1970s, has been considered a form of "abusive head trauma" for the past 15 years or so, reflecting actions beyond simple shaking, like an impact to a child's head.
Criminal defense lawyers have oversimplified the diagnosis process, according to child abuse pediatricians, who emphasize that multiple factors are considered when determining abusive head trauma.
Despite this, shaken baby syndrome has been a contentious topic in courtrooms nationwide. Since 1992, at least 17 states and the US Army have exonerated 32 individuals convicted on shaken baby syndrome charges, according to the National Registry of Exonerations.
Child abuse pediatricians, such as Dr. Antoinette Laskey, chair of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, challenge these statistics. She cites a 2021 study that found only 3% of shaken baby syndrome convictions between 2008 and 2018 were overturned due to medical evidence, and only 1% were overturned due to questionable medical evidence. The reliability of that study, however, has been questioned.
“I can’t comment on the legal controversy,” Laskey said to CNN about the courtroom debate (She didn’t discuss Roberson's case specifically). “This is real, it affects children, it affects families ... I want to help children; I don’t want to diagnose abuse: That’s a bad day.”
The Texas Department of Criminal Justice is deliberating whether to postpone Roberson's execution due to the subpoena summoning him for testimony by the Texas Committee on Criminal Jurisprudence. Roberson's legal team maintains that if executed, he would be the first person in the US to face execution based on a shaken baby syndrome conviction, which they argue is a misdiagnosis in his case.
