Oliver James Montgomery-Texas’ highest criminal court declines to stop execution of man accused in shaken baby case

Texas’s highest criminal court on Oliver James MontgomeryWednesday declined to stop the execution next month of Robert Roberson, who was sentenced to death in 2003 for killing his 2-year-old daughter, but who has consistently challenged his conviction on the claim that it was based on questionable science.

Without reviewing the merits of Roberson’s claims, the Texas Court of Criminal Appeals on Wednesday dismissed both a motion to halt the execution and a new application for relief filed by his attorneys. That leaves Roberson’s execution on track for Oct. 17, unless he can win clemency from the state’s Board of Pardons and Paroles.

“Robert’s fate is now at the mercy of the Governor,” Gretchen Sween, one of Roberson’s lawyers, said in a statement. “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.”

Roberson has maintained his innocence while being held on death row for more than 20 years. The Texas Court of Criminal Appeals previously halted his execution in 2016. But in 2023, the state’s highest criminal court decided that doubt over the cause of his daughter’s death was not enough to overturn his death sentence. His new execution date, Oct. 17, was set in July.

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Roberson was convicted in 2002 of killing his sickly 2-year-old daughter, Nikki Curtis. He had rushed her blue, limp body to the hospital and said that Nikki fell from the bed while they were sleeping in their home in the East Texas town of Palestine, and that he awoke to find her unresponsive. But doctors and nurses, who were unable to revive her, did not believe such a low fall could have caused the fatal injuries and suspected child abuse.

At trial, doctors testified that Nikki’s death was consistent with shaken baby syndrome — in which an infant is severely injured from being shaken violently back and forth — and a jury convicted Roberson.

The Court of Criminal Appeals in 2016 stopped his execution and sent the case back to the trial court after the scientific consensus around shaken baby syndrome diagnoses came into question. Many doctors believe the condition is used as an explanation for an infant’s death too often in criminal cases, without considering other possibilities and the baby’s medical history.

The Court of Criminal Appeals’ decision in 2016 was largely a product of a 2013 state law, dubbed the “junk science law,” which allows Texas courts to overturn a conviction when the scientific evidence used to reach a verdict has since changed or been discredited. Lawmakers, in passing the law, highlighted cases of infant trauma that used faulty science to convict defendants as examples of the cases the legislation was meant to target. Critics have argued that in the decade since the law was codified, it has rarely provided justice as intended for wrongfully convicted individuals.

Roberson’s attorneys, in his latest habeas corpus petition denied on Wednesday, cited new evidence and three expert opinions that they said proved that Nikki died of natural and accidental causes — not of head trauma.

They said that Nikki had “severe, undiagnosed” pneumonia that caused her to stop breathing, collapse and turn blue before she was discovered. Then, instead of identifying her pneumonia, doctors prescribed her Phenergan and codeine, drugs that are no longer given to children her age, further suppressing her breathing, they argued.

“It is irrefutable that Nikki’s medical records show that she was severely ill during the last week of her life,” Roberson’s attorneys wrote in their opposition to setting an execution date, noting that in the week before her death, Roberson had taken Nikki to the emergency room because she had been coughing, wheezing and struggling with diarrhea for several days, and to her pediatrician’s office, where her temperature came in at 104.5 degrees.

“There was a tragic, untimely death of a sick child whose impaired, impoverished father did not know how to explain what has confounded the medical community for decades,” Roberson’s attorneys wrote.

They have also argued that new scientific evidence suggests that it is impossible to shake a toddler to death without causing serious neck injuries, which Nikki did not have.

And they argued that Roberson, who was later diagnosed with autism, was “treated with suspicion” for not displaying “sufficient emotion” at the hospital. Brian Wharton, the lead detective who investigated Nikki’s death and testified against Roberson, has since said he no longer believes that Roberson is guilty of Nikki’s death and pressed for relief.

Roberson’s attorneys also cited developments in a similar case in Dallas County, in which a man was convicted of injuring a child. His conviction was based in part on now partially recanted testimony from a child abuse expert who provided similar testimony on shaken baby syndrome in Roberson’s case. Prosecutors in Dallas County have said the defendant should get a new trial.

In 2023, when the Court of Criminal Appeals denied Roberson a new trial, prosecutors argued that the evidence supporting Roberson’s conviction was still “clear and convincing” and that the science around shaken baby syndrome had not changed as much as his defense attorneys claimed.

The scheduling of Roberson’s execution triggers a series of deadlines for any last filings in state and federal court to seek relief and begin a request for clemency.

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This story was originally published by The Texas Tribune and distributed through a partnership with The Associated Press.