Roberson’s lawyers say their own scientific experts believe that his daughter died of pneumonia and changed science warrants a new trial.
AUSTIN, Texas — With less than two weeks until he is set to be executed, state lawmakers and advocates rallied at the Texas Capitol on Saturday to save death row inmate Robert Roberson’s life.
Roberson, who was convicted of killing his 2-year-old daughter, Nikki, in 2003, is scheduled to be executed on Oct. 16.
The rally featured some of those closest to him, including his longtime attorney, Gretchen Sween, spiritual advisor Donna Farmer and the former lead detective who investigated the case. All say new evidence warrants a reexamination of his case, and they want the state to stop his execution.
“We call on Texas leaders to confront the realities of Robert Robertson’s case, recognize these very serious concerns and intervene to save his life because executing Robert Robertson would not be justice,” Nan Tolson with Texas Conservatives Concerned About the Death Penalty said. “It would be a mistake. It would be a murder at the hands of the state of Texas and an affront to truth, reason and common sense.”
During Roberson’s trial, the medical examiner and a pediatrician claimed Nikki’s death was due to the “shaken baby hypothesis,” which has since been debunked.
“It was not shaking,” Sween said. “It was her chronic, serious health conditions that doctors missed. It was missed. A crime didn’t occur.”
Roberson has maintained his innocence in the case. His appeals since 2016 have presented evidence that Nikki died of severe viral and bacterial pneumonia that medical professionals missed in 2002. Her illness progressed to sepsis and then septic shock, exacerbated by the respiratory-suppressing medications she was prescribed, they argue.
On the night of her death, Nikki fell out of her bed. Roberson found her unconscious and turning blue. When he brought her to the hospital, Roberson’s attorneys said that’s when the accusations started.
“The medical examiner, who still works for Dallas County in the very same job, has admitted under oath she never looked at any of Nikki’s medical history, she never looked at the CT scans of her head, showing no significant trauma,” Sween said. “She never looked at the toxicology report she’d ordered showing serious medications still in this child’s bloodstream that had been prescribed to her that week by doctors who missed a severe pneumonia that was ravaging her lungs.”
During Roberson’s trial, the medical examiner and a pediatrician claimed Nikki’s death was due to the “shaken baby hypothesis,” which has to do with severe brain injury caused by shaking or violent impact on a child’s head.
“We cobbled together a story that we felt like, as professionals and experts, made sense. It fit our perceptions. It fit our understandings,” former Palestine Police Chief of Detectives Brian Wharton said. “The science that we have come to understand is drastically flawed. All of us who made the system came up with the story, and we made it stick.”
“We – the police, the courts, the doctors, the medical examiners – all of us made mistakes which have put an innocent man in danger of execution,” he added.
Wharton, the lead detective on Roberson’s case, who testified for the state during his trial, delivering testimony that largely landed Roberson on death row, told the crowd at the rally on Saturday he now believes they got the case wrong.
“There is no shame for any of us who’ve been involved in the system with Robert, in other cases, to admit our errors and to participate in the redress,” Wharton said. “However, there is shame and there will be enduring culpability for all of those who, because of pride or just indifference, participate in compelling this execution of an innocent man.”
The science behind shaken baby syndrome diagnosis has undergone substantial changes in recent years. In 2013, Texas became the first state to pass a “Junk Science Law,” which allows prisoners to challenge possible wrongful convictions in cases involving flawed scientific evidence, like cases that involved infant trauma.
“Robert needs that new trial to review the evidence where experts can come forward and he can have a proper defense,” Josh Burns, who was convicted and then exonerated in a shaken baby syndrome case in Michigan, said.
Burns, who now lives in Texas, said he feels he has a duty to speak out and support Roberson.
“Shaken baby syndrome is a hypothesis that has never been proven, that has come under a lot of scrutiny, especially in biomechanical engineering science,” he said. “Biomechanical engineers, the people who make it safe with seat belts in cars, have conducted studies and refuted a lot of the theories and hypotheses around shaken baby syndrome.”
In 2016, Roberson was set to be executed. He began writing letters to the court, pleading with them to appoint new counsel to investigate his innocence. It was at that time that Sween got the resources to start investigating Nikki’s death further. But Roberson has remained on death row.
Detectives on Roberson’s case perceived his lack of emotion at the hospital as a sign of a lack of care or empathy. Still, it wasn’t until after he was convicted that a late diagnosis of autism was found to be the reason for his behavior.
“Too often, people with autism are misunderstood and misjudged when they come into contact with the criminal justice system,” Jacquie Benestante, executive director of the Autism Society of Texas, said. “They didn’t know that his body language, his posture, his lack of eye contact, so easily misjudged by the observers, masked deep distress and heartbreak.”
Roberson’s attorneys claim his demeanor in the hospital and in interviews with detectives after his daughter’s death played a significant role in how the jury perceived him.
“If we let this execution go forward, we are saying that misunderstanding someone’s neurology is enough to kill them,” Benestante said. “If the state proceeds with this execution, it will not only be executing an innocent man, it will be sending a message that being autistic in America can be a death sentence when the system fails to understand you.”
Last year, Attorney General Ken Paxton clashed with Texas lawmakers over Roberson’s execution and argued the evidence in the case still points to abuse.
Last October, the Texas House Committee on Criminal Jurisprudence subpoenaed Roberson, which halted his execution. The Texas Supreme Court ruled the committee could hear from Roberson as long as the hearing didn’t interfere with his execution.
“We got a miracle a year ago. That miracle can’t be repeated,” Sween said. “The lawmakers were trailblazers, but now there’s a new law saying you can’t do that again, so we need a different miracle.”
Ongoing legal fight
On Wednesday, Roberson’s attorneys filed motions asking the U.S. Court of Appeals for the Fifth Circuit to stay his execution and authorize him to file a new writ of habeas corpus petition in federal court. Roberson asserts he has a due process claim based on the overwhelming evidence that he was convicted using discredited “science” and proving his innocence.
With the looming executive date, Roberson is asking the federal court to intervene because the Texas Court of Criminal Appeals has not yet acted on a habeas application he filed earlier this year.
“It’s very, very rare,” Sween said. “This is one of those rare cases where the facts fit the circumstances, where you have very strong evidence of innocence and very strong evidence of due process violations, in that the conviction is based on discredited science.”
In the federal court filing, Roberson’s attorneys say Nikki’s severe pneumonia devolved to the point of sepsis, and her history of unresolved infections caused a bleeding disorder known as DIC, which made her more susceptible to internal bleeding and bruises.
The filing includes analysis by Dr. Michael Laposata, a nationally recognized pathologist, who found “the most plausible explanation for Nikki Curtis’ bleeding and bruising is the development of DIC starting months before the event which took her life.”
The motion also includes a joint statement from 10 independent pathologists who reviewed the case and rebuked the medical examiner’s methodology while pointing out that pneumonia, sepsis and DIC are “medical diseases which can mimic” internal head conditions associated with accidental or inflicted head trauma.
“How is it a message that improves anybody’s safety, anybody’s confidence in our government, to kill a man when so many people think he’s innocent and the people who don’t have never looked at the case?” Sween said.
Sween said Roberson will not seek clemency before his execution. Instead, they are focusing on obtaining a new trial, arguing that new evidence could lead to his exoneration. Last year, Roberson appealed for and was denied clemency by the Texas Board of Pardons and Paroles ahead of his planned execution. Sween now says clemency is a “grossly inadequate remedy” for what they believe is his wrongful conviction.
In August, Roberson and his team filed a new appeal, saying new evidence shows the judge in Anderson County acted unconstitutionally multiple times in his case. The petition claims that Nikki was taken off life support at the direction of her grandparents, even though Roberson was her sole conservator. The petition says representatives of the Anderson County judiciary lied and told hospital staff that the couple was Nikki’s legal conservators.
It also argues that then-Third District Court Judge Jerry Calhoon was improperly involved in the case and signed off on an order to provide Roberson’s legal counsel despite his son being a prosecutor in Roberson’s trial.
Seven months ago, Roberson filed an appeal in Texas’s highest criminal court, the Court of Criminal Appeals. The petition presents more opinions from experts who doubt the shaken baby diagnosis and the ruling of Nikki’s death as a homicide in the autopsy. Roberson’s attorneys highlighted how a different October 2024 decision from the same court overturned the shaken baby conviction of a Dallas man.
“We’ve also filed several motions to reconsider the old appeals that had been dismissed without explanation, so maybe they want to take another look at that in light of all the new evidence,” Sween said. “None of that has been ruled on yet.”
While it is her understanding that the state will not execute an inmate who still has pending appeals, there is no deadline. Sween said that means they could wait until five minutes before the execution scheduled to take place, limiting their ability to challenge whatever the ruling is.
“At some point, there has to be a ruling. The scary thing for us is that each day that passes, we have less and less chance to try then the only remaining option, which would be to go to the Supreme Court of the United States,” Sween said. “As you get closer, you get to the situation where you’re stuck doing a Hail Mary that the court does not favor. They do not like late-stage litigation like that. This is no fault of Robert’s. We have, since February, met all the procedural hurdles, have all this evidence sitting before the court, and just aren’t getting a ruling.”
Throughout his previous appeals, the state has maintained that the evidence supporting his conviction remains intact. However, prosecutors have tried to downplay the centrality of Nikki’s shaken baby diagnosis in his trial.
If Texas goes through with the execution, Roberson will become the first person in the U.S. to be put to death based on a shaken baby syndrome diagnosis.