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.