Texas Supreme Court rejects stay of execution for man in shaken baby case

Texas' highest criminal court on Wednesday refused to stop next month's execution of Robert Roberson, who was sentenced to death in 2003 for the murder of his two-year-old daughter but had repeatedly appealed his verdict, claiming it was based on questionable scientific evidence.

Without considering the merits of Roberson's claims, the Texas Court of Criminal Appeals on Wednesday rejected both a request for a stay of execution and a new appeal by his lawyers. Roberson is now scheduled to be executed on October 17 unless he can obtain clemency from the state Board of Pardons and Parole.

“Robert's fate is now in the hands of the governor,” Gretchen Sween, one of Roberson's attorneys, said in a statement. “We are devastated by this shocking development, but will continue to use all means to ensure that Mr. Roberson is not the first person in the United States to be executed based on the discredited 'Shaken Baby' hypothesis.”

Roberson maintained his innocence while on death row for more than 20 years. The Texas Court of Criminal Appeals had previously stayed his execution in 2016. But in 2023, the state's highest criminal court ruled that doubts about the cause of his daughter's death were not enough to overturn his death sentence. His new execution date, October 17, was set for July.

Roberson was convicted in 2002 of killing his ailing 2-year-old daughter, Nikki Curtis. He had taken her blue, limp body to the hospital and said Nikki had fallen out of bed while they were sleeping in their home in the East Texas town of Palestine and when he awoke she was unconscious. But doctors and nurses who were unable to resuscitate her did not believe such a deep fall could have caused the fatal injuries and suspected child abuse.

At trial, doctors ruled that Nikki's death was consistent with shaken baby syndrome – a condition in which an infant is seriously injured by violent shaking – and the jury found Roberson guilty.

The Court of Criminal Appeals halted his execution in 2016 and sent the case back to trial after questioning the scientific consensus on the diagnosis of shaken baby syndrome. Many doctors believe that this condition is too often used in criminal cases as an explanation for an infant's death without considering other possibilities and the baby's medical history.

The appeals court's decision in 2016 was largely the result of a 2013 state law dubbed the “junk science law,” which allows Texas courts to overturn a conviction if the scientific evidence used to reach a verdict has since changed or been disproved. As examples of the cases the law was intended to target, lawmakers highlighted infant trauma cases in which faulty science was used to convict defendants. Critics argue that in the decade since it was passed, the law has rarely delivered the justice it intended for wrongfully convicted individuals.

In his latest habeas corpus petition, which was denied Wednesday, Roberson's lawyers cited new evidence and three expert opinions that they said proved Nikki died of natural accidents – and not from traumatic brain injury.

They said Nikki had “severe, undiagnosed” pneumonia that caused her to stop breathing, collapse and turn blue before she was discovered. Instead of diagnosing her pneumonia, doctors then prescribed her Phenergan and codeine, drugs no longer given to children her age, which suppressed her breathing even further, they argued.

“It is irrefutable that Nikki's medical records show that she was seriously ill during the last week of her life,” Roberson's lawyers wrote in their appeal against the setting of an execution date. They pointed out that Roberson had taken Nikki to the emergency room the week before her death because she had been coughing, wheezing and struggling with diarrhea for several days. She had also visited her pediatrician's office where she had a fever of 102 degrees.

“There was a tragic, premature death of a sick child whose disabled, impoverished father did not know how to explain what has baffled the medical community for decades,” Roberson's lawyers wrote.

They also argued that new scientific evidence showed that it was impossible to shake a toddler to death without causing severe neck injuries, which Nikki did not suffer.

And they argued that Roberson, who was later diagnosed with autism, was “treated with suspicion” because he had not shown “enough emotion” in the hospital. Brian Wharton, the lead investigator who looked into Nikki's death and testified against Roberson, has since stated that he no longer believes Roberson is guilty of Nikki's death and urged relief.

Roberson's lawyers also pointed to developments in a similar case in Dallas County in which a man was convicted of child abuse. His conviction was based in part on the now partially retracted testimony of a child abuse expert who made similar statements about shaken baby syndrome in Roberson's case. Prosecutors in Dallas County have said the defendant should get a new trial.

When the criminal appeals court denied Roberson a retrial in 2023, prosecutors argued that the evidence supporting Roberson's conviction was still “clear and compelling” and that the science on shaken baby syndrome had not changed as much as his defense attorneys claimed.

The scheduling of Roberson's execution sets in motion a series of final deadlines for filing appeals and clemency petitions in state and federal courts.