Judge Denies Request to Vacate Oct. 17^th Execution Date for Robert Roberson: He Now Awaits Clemency Decision from Gov. Abbott

Update: The Texas Board of Pardons and Paroles denied clemency for Robert Roberson on October 16, 2024.

On October 15, 2024, the Anderson County Circuit Court held a hearing for Robert Roberson, who is set to be executed on October 17^th. Mr. Roberson’s attorneys asked Presiding Judge Alfonso Charles to vacate his execution warrant because Judge Deborah Oakes Evans, who oversaw a post-conviction proceeding and issued the October 17 execution warrant, violated statutory procedure. Counsel for Mr. Roberson also alleged that the judge’s bias and partiality interfered with her ability to make a proper ruling. Judge Charles denied motions to remove Judge Evans from Mr. Roberson’s case and to vacate the execution warrant and related orders. Following Judge Charles’ denial, Gretchen Sween, an attorney for Mr. Roberson said that “it is terrifying that Robert, an innocent, disabled man with the most gracious heart, is scheduled to be executed under an invalid warrant issued by a seemingly biased judge in just two days’ time.” Ms. Sween called on Governor Greg Abbott to “prevent an irreparable mistake by commuting Mr. Roberson’s death sentence, or at the very least, granting him a reprieve so that the overwhelming evidence that no crime occurred can be heard.”

Just four days earlier, the Texas Court of Criminal Appeals (TCCA), without a written opinion, denied Mr. Roberson’s emergency motion for a stay of execution, as well as a request that the court reconsider its previous denial of post-conviction relief. Mr. Roberson’s counsel argued that a stay is first necessary to allow the court to consider new evidence indicating that the Texas Legislature intended Article 11.073—a law designed to review wrongful convictions tied to junk science—to apply to cases like Mr. Roberson’s. The motion also highlights the fact that the TCCA recently granted relief in another, non-capital case involving the discredited “Shaken Baby Syndrome” (SBS) hypothesis, which was also used to convict Mr. Roberson. In that case, Ex parte Andrew Wayne Roark, the State acknowledged the unreliability of SBS and agreed that Mr. Roark deserved a new trial. However, in Mr. Roberson’s case, the State has consistently opposed the idea that science has materially changed and continues to defend the testimony of the state’s trial expert, who also testified in Mr. Roark’s trial.

Mr. Roberson’s lawyers are emphasizing an “outpouring of bipartisan support from Texas lawmakers, prominent doctors and scientists, disability rights groups, and innocence organizations.” 86 members of the Texas House of Representatives wrote a letter supporting Mr. Roberson’s clemency request, stating that if properly applied, Article 11.073 should result in a new trial for Mr. Roberson. Ms. Sween said that “several of these lawmakers visited with Robert on death row recently and prayed with him.” During this visit, these lawmakers “saw with their own eyes that [Mr. Roberson] is a kind, gentle, devout man who also has a palpable disability: Autism.” Ms. Sween added that “manifestations of the disability, along with a medical hypothesis that no responsible doctor would espouse today, resulted in hasty allegations and then the conviction of an innocent man.” 

Counsel for Mr. Roberson filed a writ of certiorari with the United States Supreme Court on October 15, asking the court to stay his execution, and to determine whether the TCCA’s unexplained use of a procedural rule violates federal due process when a death row prisoner has an actual innocence claim based on significant new scientific and medical evidence unavailable during a prior appeal. In 2016, Mr. Roberson challenged his conviction under Article 11.073, based on new understanding of SBS since his daughter’s death in 2002. The TCCA summarily denied relief for Mr. Roberson under Article 11.073 without any explanation. In August 2024, attorneys for Mr. Roberson filed a subsequent petition under Article 11.073, relying on even more changes in the relevant science since 2016, as well as new expert reports that had not been reviewed by a court. Just a month later, the TCCA dismissed the subsequent petition without reviewing the merits of Mr. Roberson’s claim. His attorneys allege that the TCCA, in their refusal to review Mr. Roberson’s case, “did not even cite any existing state law as a basis for refusing to review the case.”

Attorneys for Mr. Roberson filed a clemency petition in September 2024, asking the Texas Board of Pardons and Paroles and Governor Greg Abbott to reduce Mr. Roberson’s sentence. Along with the petition, counsel filed letters from hundreds of supporters, including former lead Detective Brian Wharton, who has been an outspoken supporter of Mr. Roberson’s innocence and no longer believes a crime occurred. In a letter urging the governor to grant clemency to Mr. Roberson, Mr. Wharton writes that he “will forever be haunted by the role he played in helping the State put this innocent man on death row.” Mr. Wharton added that “Robert’s case will forever be a burden on my heart and soul. But it is not too late for Texas to change course and stop his execution.”

Mr. Roberson was convicted and sentenced to death in 2003 for the death of his two-year-old daughter, Nikki, who medical experts have since determined died from severe viral and bacterial pneumonia that doctors failed to diagnose, not from abuse or SBS. Despite three new expert reports showing Nikki died of pneumonia, no court has been willing to consider the evidence that clears Mr. Roberson of any crime. His clemency petition states that “Nikki’s death…was not a crime—unless it is a crime for a parent to be unable to explain complex medical problems that even trained medical professionals failed to understand at the time.” With the reexamination of lung tissue collected during Nikki’s autopsy, experts determined “that both a chronic interstitial viral pneumonia and a secondary acute bacterial pneumonia were ravishing [Nikki’s] lungs, causing sepsis and then septic shock.” In the days leading to Nikki’s death, Mr. Roberson repeatedly brought her to the local Emergency Room and her pediatrician, both of whom sent them home with medications that would only make Nikki’s condition worse. Doctors prescribed Nikki with Phenergan and codeine—both of which are no longer prescribed to children because they are known to suppress one’s ability to breathe.