How a stunning 11th-hour race to save a Texas death row inmate from execution in ‘shaken baby’ case unfolded

CNN

By Elizabeth Wolfe, Ashley Killough, Ed Lavandera and Dakin Andone, CNN

(CNN) — Texas death row inmate Robert Roberson sat praying in a cell Thursday night, just feet from the execution chamber where he was set to die by lethal injection for the “shaken baby” death of his toddler.

While he prayed, the state and his advocates were fighting over his fate in a remarkable exchange of 11th-hour legal maneuvers.

Roberson’s life was ultimately spared, for now, by the Texas Supreme Court, which issued a temporary stay of his execution shortly before his death warrant was set to expire at midnight.

A new date must now be set for Roberson’s execution, providing precious time for his attorneys and a bipartisan group of Texas House members who believe he was wrongfully convicted of murder in the death of his 2-year-old daughter, Nikki, which was attributed to shaken baby syndrome.

Shock washed over Roberson as a group of Texas officials informed him of the stay Thursday night, and he began to praise God and “claimed his innocence,” just as he has done for the past two decades, according to Amanda Hernandez, a spokesperson for the Texas Department of Criminal Justice.

The dramatic turn began Wednesday when, in an unusual last-ditch effort to delay Roberson’s death, the bipartisan Texas House Committee on Criminal Jurisprudence issued a subpoena calling for him to testify before the panel next week as it reconsiders the lawfulness of his case.

The committee’s action provided new hope for Roberson’s attorneys as all other avenues to halt the execution failed. In a matter of days, his legal team lost multiple appeals in state courts, the Texas pardons board rejected his bid for clemency and the US Supreme Court declined to intervene.

“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,” Roberson’s attorney, Gretchen Sween said Thursday night.

Under Texas law, when a judge sets a new execution date, it must be at least 90 days in the future.

The earliest a new execution could be set would be in 2025, Sween told CNN.

Having a legislative body step in to prevent a pending execution is unprecedented, experts say.

“We are in uncharted waters legally in Texas,” Barry Scheck, co-founder of the Innocence Project, told CNN’s Erica Hill Friday.

Just over 90 minutes before Roberson’s execution was set to begin, the House committee was able to secure a temporary restraining order against the state, pausing the execution. The victory was short-lived, however, as a divided Texas Court of Criminal Appeals struck down the order.

Following the appeals court’s decision, the House committee 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. Though the high court swiftly issued a temporary stay halting the execution, the petition for the injunction is still pending.

“For over 20 years, 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,” said committee members Rep. Joe Moody and Rep. Jeff Leach in a joint statement following the stay. “And while some courthouses may have failed him, the Texas House has not.”

As the volley of legal challenges played out, Roberson sat in a cell of the Huntsville Unit where his execution was set to take place. He spent time in prayer and also spoke several times to his wife and other family members, according to his sister-in-law, Jennifer Roberson.

“When we spoke to Robert earlier, I was thinking to myself, ‘You need to be strong, you need to comfort him.’ And that’s the exact opposite of what happened,” she said. “I was a nervous wreck and he was comforting me, telling me to be obedient to God, stay strong, keep the faith, keep the hope.”

Roberson’s family is feeling “amazing” after the stay, Jennifer Roberson said. “It’s taken almost 22 years for Texas to step up and do the right thing.”

Among those desperately waiting for news in the case was Brian Wharton, the former Palestine, Texas, detective who led the investigation into Nikki’s death. Wharton has since said the investigation was too narrowly focused and has joined the fight to save Roberson.

“Finally, this evening, they did come and tell us that he got a stay, and his wife started crying, and everybody else just kind of took a deep breath. Because we all know he’s innocent,” Wharton told CNN Thursday. “We’ve been fighting this fight for a while and trying to get a fair hearing.”

Roberson is scheduled to testify before the House committee on Monday, or possibly sooner if ordered by the court.

“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,” Reps. Moody and Leach said in their statement.

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’s case is called into question

Advocates for Roberson insist the diagnosis that his daughter died from shaken baby syndrome is inaccurate and has been discredited.

The Texas House committee voted to subpoena Roberson as it considers the application of a law commonly referred to as the “junk science writ” – which opened a path for people to challenge their convictions if new scientific evidence has emerged since their trial.

The lawmakers said medical evidence presented at Roberson’s 2003 trial “is inconsistent with modern scientific principles.”

While child abuse pediatricians remain firm on the validity of the shaken baby syndrome diagnosis, Roberson’s attorneys say there is ample evidence his daughter, Nikki Curtis, did not die of child abuse.

At the time of her death, she had double pneumonia that had progressed to sepsis, and she was prescribed two medications now seen as inappropriate for children that would have further hindered her ability to breathe, they argue, citing medical experts.

Additionally, she had fallen off a bed, and was particularly vulnerable in her sickly condition, Roberson’s attorneys say.

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. 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, according to his attorneys.

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 that 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.

“The conclusion is simply (Nikki) was a victim of abusive head trauma. Unequivocally,” Dr. Sandeep Narang, a child abuse pediatrician and a lawyer, told CNN after he said he was asked by a supporter of Roberson’s defense to review trial testimony in the case.

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 like 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.

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