Last-minute effort to pause Texas inmate’s execution in shaken baby case sees hurdle as appeals court sides with state | CNN

The scheduled execution of Texas death row inmate Robert Roberson for the murder of his 2-year-old daughter has been halted after the Texas Supreme Court issued a partial stay late Thursday night, according to court documents.

The 11th-hour stay came just over an hour before Roberson’s death warrant was set to expire and followed a remarkable exchange of legal maneuvers as the state and Roberson’s advocates fought over his fate.

The Supreme Court’s decision came swiftly after a splintered Texas Court of Criminal Appeals struck down a lower court’s order halting his execution in a late-night ruling earlier Thursday.

But Roberson’s future is still uncertain. Though the court order allowed his death warrant to expire at midnight Thursday, a legal battle is still underway and a new execution date could be set after his potential testimony before the lawmakers next week, or sooner if ordered by the court.

The delay in Roberson’s execution was set in motion Wednesday when a group of lawmakers with the Texas Committee on Criminal Jurisprudence voted to subpoena Roberson as they reconsider the lawfulness of his conviction.

Roberson’s attorney, Gretchen Sween, said her client “hopes that his experience can help improve the integrity of our criminal legal system.”

“The vast team fighting for Robert Roberson – people all across Texas, the country, and the world – are elated tonight that a contingent of brave, bipartisan Texas lawmakers chose to dig deep into the facts of Robert’s case that no court had yet considered and recognized that his life was worth fighting for,” Sween said.

Roberson’s conviction relied on allegations that his daughter, Nikki Curtis, died of shaken baby syndrome, a diagnosis his attorneys argue has since been discredited.

Though his attorneys have long fought against his execution, Roberson’s fate Thursday was ultimately battled out in a series of last-ditch efforts.

In a matter of days, multiple appeals were rejected in state courts, the Texas pardons board rejected his bid for clemency and the US Supreme Court declined to intervene.

That left the House committee’s unusual subpoena and the request for a temporary restraining order that was granted earlier Thursday.

But a state appeals court later sided with the state and vacated the restraining order Thursday night, with four dissenting judges calling the circumstances of the case “unprecedented” and asking for more study of the legal claims at issue.

Following the appeals court’s decision, the committee fighting for Roberson asked the Texas Supreme Court to issue an injunction against the Texas Department of Criminal Justice and Texas Department of Criminal Justice Correctional Institutions Division.

In its decision Thursday night, the Texas Supreme Court issued a temporary stay halting the execution, but the petition for an injunction is still pending.

The Supreme Court said the state can’t stop Roberson from complying with the subpoena issued by the Texas lawmakers on Wednesday, “including by executing Mr. Roberson, until further order of this Court.”

And in an opinion concurring in the grant of the stay, Texas Supreme Court Justice Evan Young said the district court did not abuse its discretion in granting a restraining order.

State lawmakers celebrated the court’s decision Thursday.

“For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard. And while some courthouses may have failed him, the Texas House has not,” state Reps. Joe Moody and Jeff Leach said in a joint statement.

“We look forward to welcoming Robert to the Texas Capitol, and along with 31 million Texans, finally giving him – and the truth – a chance to be heard,” the lawmakers added.

CNN has reached out to the offices of Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton for comment on the court’s decision.

Roberson had arrived at the Huntsville Unit where the execution was to take place on Thursday afternoon, the criminal justice department confirmed to CNN.

Roberson would have become the first person in the US executed for a conviction that relied on an allegation of shaken baby syndrome, a misdiagnosis in Roberson’s case, his attorneys argue, and one they say has been discredited.

While child abuse pediatricians fiercely defend the legitimacy of the diagnosis, Roberson’s advocates say the courts have yet to consider ample evidence his daughter died not of a homicide, but a variety of causes, including an illness and medicine now seen as unfit for such a sickly child.

Roberson’s attorneys have argued his due process rights were violated when the Texas Court of Criminal Appeals declined to consider additional evidence the inmate says would support his innocence claim.

Roberson’s innocence claim underscores an inherent risk of capital punishment: A potentially innocent person could be put to death. At least 200 people – including 18 in Texas – have been exonerated since 1973 after being convicted and sentenced to die, according to the Death Penalty Information Center.

At the time of her death, Nikki had double pneumonia that had progressed to sepsis, they say, and she had been prescribed two medications now seen as inappropriate for children that would have further hindered her ability to breathe. Additionally, the night before Roberson brought her to a Palestine, Texas, emergency room, she had fallen off a bed – and was particularly vulnerable given her illness, Roberson’s attorneys say, pointing to all these factors as explanations for her condition.

Other factors, too, contributed to his conviction, they argue: Doctors treating Nikki “presumed” abuse based on her symptoms and common thinking at the time of her death without exploring her recent medical history, the inmate’s attorneys claim. And his behavior in the emergency room – viewed as uncaring by doctors, nurses and the police, who believed it a sign of his guilt – was actually a manifestation of autism spectrum disorder, which went undiagnosed until 2018.

“I told my wife last week that I’m ashamed. I’m ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice,” Brian Wharton, the former detective who oversaw the investigation into Nikki’s death, told state lawmakers Wednesday at a hearing featuring the case.

“He’s an innocent man, and we are very close to killing him for something he did not do,” Wharton previously said.

On Thursday night, Wharton said he was relieved when he heard of the court’s decision.

“His wife started crying, and everybody else just kind of took a deeper breath. Because we all know he’s innocent. We’ve been fighting this fight for a while, and trying to get a fair hearing,” Wharton told CNN.

Wharton is one of many supporters of Roberson: More than 30 scientists and medical experts who agree with the doctors cited by the inmate’s attorneys, a bipartisan group of more than 80 Texas legislators, autism advocacy groups and author John Grisham have all called for mercy, a fervent movement that mounted strong opposition to the execution in recent days.

Support in the legislature includes members of the Texas Committee on Criminal Jurisprudence, which on Wednesday held a hearing highlighting Roberson’s case, calling Wharton, Sween and others who gave voice to the doubts surrounding the shaken baby syndrome diagnosis.

The hearing was ostensibly about Texas Article 11.073, a state law commonly referred to as the “junk science writ,” which was meant to give defendants a way to challenge their convictions when there was new scientific evidence unavailable at the time of their trial.

The committee voted Wednesday to subpoena Roberson, calling on him in the motion to “provide all relevant testimony and information concerning the committee’s inquiry.” Though the committee is not totally confident that Roberson’s execution will be delayed, they are hopeful, a source with knowledge of the proceedings told CNN.

Last week, the appeals court ordered a new trial for a man sentenced to 35 years in prison for his conviction of injury to a child in a case that also relied on a shaken baby syndrome argument.

Roberson’s supporters believe he, too, should benefit from this law, which “was meant exactly for cases like this one,” the committee said in a letter brief to the Texas Court of Criminal Appeals.

The committee asked for a stay of execution in Roberson’s case while the legislature considered making changes to it in the coming legislative session. But the appeals court denied Roberson’s appeal on Wednesday, rejecting it on procedural grounds “without reviewing the merits of the claims raised.”

GOP Rep. Leach, a member of the committee, expressed hope the governor and parole board were listening to the hearing, “because the law that the legislature passed and our governor signed into law is being ignored by our courts, and all we’re seeking to do here is to push the pause button to make sure that it’s enforced.”

Roberson’s attorneys are not disputing babies can and do die from being shaken. But they contend more benign explanations, including illness, can mimic the symptoms of shaking, and those alternative explanations should be ruled out before a medical expert testifies with certainty the cause of death was abuse.

Shaken baby syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and supported by child abuse pediatricians who spoke with CNN. The condition, first described in the mid-1970s, has for the past 15 or so years been considered a type of “abusive head trauma” – a broader term used to reflect actions other than shaking, like an impact to a child’s head.

Criminal defense lawyers also have oversimplified how doctors diagnose abusive head trauma, child abuse pediatricians say, noting many factors are considered to determine it.

Still, the diagnosis has been the focus of debates in courtrooms across the country. Since 1992, courts in at least 17 states and the US Army have exonerated 32 people convicted in shaken baby syndrome cases, according to the National Registry of Exonerations.

Child abuse pediatricians such as Dr. Antoinette Laskey, chair of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, dispute these statistics. She pointed to a 2021 paper that found just 3% of all convictions in shaken baby syndrome cases between 2008 and 2018 were overturned, and only 1% of them were overturned because of medical evidence. The thoroughness of that study, however, has been called into question.

“I don’t know what to say about the legal controversy,” Laskey told CNN of the courtroom debate (She did not speak to Roberson’s case). “This is real, it affects children, it affects families … I want to help children; I don’t want to diagnose abuse: That’s a bad day.”

CNN’s Ashley R. Williams contributed to this report.