Texas lawmakers meet with Robert Roberson at a prison in Livingston, Texas, Sept. 27, 2024. (Criminal Justice Reform Caucus via AP, File)
HUNTSVILLE, Texas (AP) — A last-ditch effort to stop Texas from executing an autistic man in a shaken baby case stretched into the final hours Thursday night as one judge granted an extraordinary maneuver by lawmakers to delay the lethal injection while the U.S. Supreme Court cleared the way for it to proceed.
The judge granted a Texas House committee’s request for a temporary restraining order to delay the execution of Robert Roberson so the condemned man could testify next week about his case at a hearing by lawmakers.
Roberson was scheduled Thursday evening to become the first person in the U.S. executed for a murder conviction tied to a diagnosis of shaken baby syndrome.
The lawmakers on the committee, both Republicans and Democrats, are part of a diverse coalition who say Roberson is innocent in the 2002 death of his 2-year-old daughter and was convicted on faulty scientific evidence.
The order by state District Judge Jessica Mangrum was expected to be quickly appealed by the Texas Attorney General’s Office to the state’s top criminal appeals court, which has previously denied requests by Roberson to delay his planned lethal injection.
The state’s legal fight to get the execution carried out faced a midnight CDT deadline when the death warrant authorizing Roberson’s execution would expire.
It was likely, however, the case would need to be resolved well before that since officials must conduct procedures such as attaching intravenous needles and allow time for an injection to take effect and a physician to pronounce him dead.
“This is an extraordinary remedy the Legislature is seeking. But it is not undue. The Legislature is allowed this constitutional authority,” state Rep. Jeff Leach, a Republican and member of the Texas House Criminal Jurisprudence Committee, said during the Zoom court hearing.
The order was granted around the same time the U.S. Supreme Court refused to halt the execution plan, though Justice Sonia Sotomayor wrote to urge Texas Gov. Greg Abbott to grant a 30-day delay.
“That could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence,” Sotomayor wrote.
Roberson, 57, was convicted of killing of his daughter, Nikki Curtis, in the East Texas city of Palestine.
Roberson has long proclaimed his innocence, backed by some notable Republican lawmakers, Texas GOP megadonor and conservative activist Doug Deason and the lead detective on the case.
Roberson’s lawyers and some medical experts say his daughter died not from abuse but from complications related to pneumonia.
“He’s an innocent man and we’re very close to killing him for something he did not do,” said Brian Wharton, the lead detective with Palestine police who investigated Curtis’ death.
Lawyers ask Texas governor and Supreme Court to intervene
Roberson’s lawyers waited to see if Abbott would grant Roberson a one-time 30-day reprieve.
It’s the only action Abbott can take in the case as the Texas Board of Pardons and Paroles on Wednesday denied Roberson’s clemency petition.
The board voted unanimously, 6-0, to not recommend that Roberson’s death sentence be commuted to life in prison or that his execution be delayed.
All members of the board are appointed by the governor.
The parole board has recommended clemency in a death row case only six times since the state resumed executions in 1982.
In his nearly 10 years as governor, Abbott has halted only one imminent execution, in 2018 when he spared the life of Thomas Whitaker.
“We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man,” Gretchen Sween, one of Roberson’s attorneys, said in a statement.
A spokesperson for Abbott did not immediately reply to an email seeking comment.
Bipartisan committee takes extraordinary step to try to stop execution
The Texas committee on Wednesday held an all-day meeting on Roberson’s case.
In a surprise move at the end of the hearing, the committee issued a subpoena for Roberson to testify next week.
During its meeting in Austin, the committee heard testimony about Roberson’s case and whether a 2013 law created to allow people in prison to challenge their convictions based on new scientific evidence was ignored in Roberson’s case.
Anderson County District Attorney Allyson Mitchell, whose office prosecuted Roberson, told the committee a court hearing was held in 2022 in which Roberson’s attorneys presented their new evidence to a judge, who rejected their claims.
“Based on the totality of the evidence, a murder took place here. Mr. Roberson took the life of his almost 3-year-old daughter,” Mitchell said.
Most of the members of the committee are part of a bipartisan group of more than 80 state lawmakers, including at least 30 Republicans, who had asked the parole board and Abbott to stop the execution.
Execution puts spotlight on shaken baby syndrome
Roberson’s case has renewed debate over shaken baby syndrome, known in the medical community as abusive head trauma.
His lawyers as well as the Texas lawmakers, medical experts and others including bestselling author John Grisham say his conviction was based on faulty and now outdated scientific evidence.
The diagnosis refers to a serious brain injury caused when a child’s head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.
Roberson’s supporters don’t deny head and other injuries from child abuse are real.
But they say doctors misdiagnosed Curtis’ injuries as being related to shaken baby syndrome and that new evidence has shown the girl died from complications related to severe pneumonia.
Roberson’s attorneys say his daughter had fallen out of bed in Roberson’s home after being seriously ill for a week.
Roberson’s lawyers also suggested his autism, which was undiagnosed at the time of his daughter’s death, was used against him as authorities became suspicious of him because of his lack of emotion over what had happened to her.
Autism affects how people communicate and interact with others.
The American Academy of Pediatrics, other medical organizations and prosecutors say the diagnosis of shaken baby syndrome is valid and doctors look at all possible things, including any illnesses, when determining if injuries were attributable to it.
Roberson’s scheduled execution would come less than a month after Missouri put to death Marcellus Williams amid lingering questions about his guilt and whether his death sentence should have instead been commuted to life in prison.
Roberson’s execution was scheduled to take place on the same day Alabama was set to execute Derrick Dearman, condemned for killing five people with an ax and gun during a 2016 drug-fueled rampage.