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.