Texas Court of Criminal Appeals Dismisses New Evidence of Innocence and Denies Robert Roberson Habeas Relief

On September 11, 2024, the Texas Court of Criminal Appeals (TCCA) dismissed Robert Roberson’s request for habeas relief without reviewing the merits of any of his five claims, citing a failure to meet procedural requirements, despite the inclusion of new, previously unavailable medical and scientific evidence in the application. The TCCA also denied Mr. Roberson’s motion for a stay of execution, which remains scheduled for October 17, 2024. 

“Robert’s fate is now at the mercy of the Governor. He and the Texas Board of Pardons and Paroles are the only ones standing in the way of a horrific and irreversible mistake: the execution of an innocent man,” wrote his attorney Gretchen Sims Sween in a press release. “Robert Roberson lived every parent’s nightmare when his beloved daughter experienced a medical crisis and collapsed in her sleep. Then the State compounded the horror by sending him to death row for more than 20 years for a crime that never occurred.” 

Mr. Roberson’s most recent application for writ of habeas corpus included three new expert opinions precisely explaining the circumstances of his 2-year-old daughter Nikki’s death, for which he was sentenced to death in 2003. After examining the new evidence, unavailable during Mr. Roberson’s previous application for habeas relief in 2016, these three experts concluded that Nikki’s death was caused by severe viral and bacterial pneumonia that progressed to sepsis and then septic shock and was not the result of “Shaken Baby Syndrome,” the now discredited prosecution theory. 

Dr. Francis Green, a lung pathology expert, examined Nikki’s lung tissue, the only expert to do so, and found bacterial and viral pneumonia, the latter resulting in thickened cell walls of tiny air sacs in her lungs inhibiting her ability to breathe. Dr. Keenan Bora, a medical toxicology and emergency room medicine expert, concluded after examining a post-mortem toxicology report that the medicine prescribed to Nikki was “far beyond any appropriate therapeutic dose and likely hastened her respiratory depression and death,” according to the application. Dr. Julie Mack, a pediatric radiologist, examined CAT scans of Nikki’s head, which were lost for 15 years and subsequently found in the courthouse basement in 2018. She determined there to only be a ”single minor impact site on her head,” which contradicts the 2003 testimony of the medical examiner who cited “multiple [sic] impacts.” The application explains, “the short fall with head impact might not have been fatal if experienced by a healthy child; but Nikki was profoundly ill.” Furthermore, Dr. Mack examined a series of Nikki’s chest x-rays, including ones only available to defense counsel as of 2024, and agreed with Dr. Green’s conclusion of fatal pneumonia. 

“We are devastated by this staggering development but will continue to pursue any avenue to make sure that Mr. Roberson is not the first person in the U.S. executed under the discredited ‘Shaken Baby’ hypothesis,” says Ms. Sween in a press release.