A Texas judge has ruled to uphold the execution of a father convicted of killing his two-year-old daughter — despite a growing number of voices, including the detective who helped send him to death row, demanding the state intervene.
Robert Roberson, 57, is scheduled to be put to death by lethal injection on Thursday after his attorneys were told Judge Alfonso Charles, the Tenth Administrative Judicial Region presiding judge, denied the defense’s motion to vacate their client’s execution warrant on Tuesday, according to the Innocence Project.
Roberson’s potential execution would mark the first ever carried out in the United States for a murder conviction tied to shaken baby syndrome.
“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,” Roberson’s attorney, Gretchen Sween, said.
Charles also denied the motion to vacate the previous judge, Deborah Oakes Evans, from the case. Sween claimed Evans had shown bias in the case and that her rulings should be vacated.
Sween claims the judge repeatedly denied routine hearings on Roberson’s previous motions before and after the execution date was set in July.
Roberson and his defense team have long proclaimed his innocence after he was sentenced to death for the 2002 killing of his 2-year-old daughter, Nikki Curtis.
His attorneys have said Roberson was wrongfully arrested and later convicted when he found his daughter lying on the floor at the foot of the bed one night in 2002.
They claim Roberson comforted Curtis and put her back in bed, only to find her unconscious with blue lips the following morning, and he rushed her to the emergency room, where she was pronounced dead.
Roberson was later found guilty based on the testimony from a pediatrician who told the court there was swelling and hemorrhages in Curtis’ brain, despite there appearing to be limited evidence to support this as an accurate diagnosis.
Sween said the courts have not considered new reports showing severe pneumonia caused Curtis’ death.
Bipartisan Texas lawmakers, medical experts, and advocates have also argued that his conviction was based on faulty and now outdated scientific evidence and that new evidence has pointed to Curtis dying from complications related to severe pneumonia.
Prosecutors, however, maintain the new evidence does not disprove their case that Curtis died from injuries inflicted by her father.
Roberson was also diagnosed with Autism in 2018, which affects how he expresses emotions and may have led the jury to perceive him as unsympathetic during his trial, according to his legal team.
Sween has now called on Gov. Gregg Abbott to grant her client clemency.
“Governor Abbott can 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,” she said.
The lead detective in charge of investigating Curtis’ death and who directed that Roberson be arrested based on a doctor’s Shaken Baby Syndrome hypothesis, Brian Wharton, has also become one of the most prominent voices declaring Roberson is innocent.
“Let me just say, Robert is an innocent man,” Wharton said, according to ABC News. “But more than that, he is a kind man. He is a gentle man. He is a gracious man.”
Wharton, who testified for the prosecution during his murder trial, attended Tuesday’s hearing in support of Roberson.
Texas lawmakers will hold a hearing at the Capitol on Wednesday to highlight Roberson’s case and other issues related to convictions based on “junk science” — a term often used to refer to the diagnosis of “shaken baby syndrome.”
“This was a pretty clear case where Robert Roberson did not have due process,” said Republican state representative from Houston, Lacey Hull, during an appearance on CNN Tuesday.
“Texans deserve to know that our justice system is fair … and we cannot say that right now.”
His defense and advocates also believe Roberson should be granted a stay of execution at the least after the Texas Court of Criminal Appeals overturned the conviction of Andrew Wayne Roark on Oct. 9. The court ruled Roark’s conviction was based on scientific understanding that has since evolved.
He had been sentenced to 35 years in prison after doctors reported injuries to a 13-month-old baby in his care and, according to prosecutors, suffered from shaken baby syndrome.
Roark was convicted based on testimony of the same child abuse expert virtually identical to that used to convict Roberson, according to the Innocence Project.
Roberson has asked the CCA to stay his execution. That request is pending.
Shaken baby syndrome is the hypothesis proposed by medical professionals that an infant can be shaken with such force that it causes a brain hemorrhage without any external trauma or impact.
However, critics say doctors have not considered that things like shortfalls with head impact and naturally occurring illnesses like pneumonia could mimic an inflicted head injury.
In the US, at least 32 parents and caregivers across 18 states have been exonerated after being wrongfully convicted under the shaken baby hypothesis, according to the Innocence Project.