Texas death row inmate accused of murdering his daughter is granted hearing in bid to avoid being executed based on widely discredited medical theory

A Texas death row inmate accused of killing his two-year-old daughter has been granted a last-minute hearing in his bid to avoid execution.

Robert Roberson III, 57, will die by lethal injection on October 17 for killing his daughter in 2002 at his home in Palestine, East Texas.

But on Tuesday, a judge announced he will hear Roberson’s request to vacate his execution order on October 15. the Dallas Morning News reports.

His attorneys petitioned the state for the hearing and argued in a lawsuit last week that the now-retired judge, who oversaw his post-conviction pre-sentencing and issued his execution order in July, failed to follow legal procedure and had no jurisdiction over the case.

At the same time, attorneys continue to pressure the Texas Board of Pardons and Paroles to recommend Governor Greg Abbott delay the execution, arguing that the science surrounding so-called shaken baby syndrome has changed.

Prosecutors at Roberson’s original trial argued that Nikki’s 2002 death was consistent with shaken baby syndrome — pointing to the diagnostic “triad” of intracranial hemorrhages, brain swelling and hemorrhage behind the retina.

They rejected Roberson’s claim that his young daughter had simply fallen out of bed the night before and that he found her unconscious, limp and blue.

Instead, medical staff at a Palestinian hospital believed Nikki’s injuries – which included bruises on her face, a bump on the back of her head and bleeding outside her brain – were all caused by abuse and alerted police to the scene. according to the Dallas Morning News.

But Nikki was chronically ill and had a high fever in the days before her death. Lawyers for the Innocence Project argue.

She developed the first of many infections that proved resistant to antibiotics just days after her birth — including a chronic ear infection that persisted even after she had tubes surgically implanted.

The young girl also had a history of unexplained ‘respiratory apnea’, which caused her to suddenly stop breathing, collapse and turn blue.

Then, within just a week of her death, Nikki experienced vomiting, coughing and diarrhea, Roberson’s attorneys said.

When these symptoms persisted for five days straight, Roberson and his mother took Nikki to the local emergency room, where a doctor prescribed Phenergan – a drug that the Food and Drug Administration is now warning against prescribing to children Nikki’s age and in her condition. .

Still, her condition continued to worsen as her temperature rose to about 100 degrees Fahrenheit, for which another doctor prescribed more Phenergan in a cough syrup containing codeine – an opioid now restricted for children under 18 due to the risk of respiratory problems. difficulties and death.

In fact, Nikki’s toxicology report showed lethal levels of Phenergan in her system at the time of her death, attorneys say.

Roberson has maintained his innocence in his daughter’s death during the more than two decades he has spent on death row, and in 2016 he was granted a stay of execution when his lawyers claimed his conviction was based on “junk science” and “false , misleading and scientifically invalid testimonials.

An evidentiary hearing then began in 2018, but was halted after a county clerk found a box of 15-year-old evidence, including Nikki’s CAT scan.

Judge Deborah Oakes Evans then made a recommendation to the Texas Court of Appeals considering whether Roberson should get a new trial. reports the Palestine Herald.

She subsequently retired in December 2022, but continued to preside over Roberson’s case after the state’s highest criminal court decided in 2023 that doubts about his daughter’s cause of death were not enough to overturn his death sentence.

Evans even issued his recent execution order and set his execution date without hearing from the defense.

But Roberson’s attorney, Gretchen Sween, argued in court papers last week that Evans failed to follow the required legal process to make a retired judge eligible to accept assignments to preside over cases rather than elected judges – and therefore everything she has decided since her ruling. pension is invalid.

Sween also asserted that there are other factors which, when viewed in their totality, suggest the appearance of a lack of impartiality, a legal basis for denial.”

These factors include an “opaque process” through which Evans was appointed to oversee the case, the contact she has had with other individuals involved in Roberson’s case over the years and rulings in a similar “shaken baby ” case involving many of the same people – which Evans was also reportedly assigned to after her retirement.

“The totality of the circumstances, including the seriousness of this case, require immediate reassignment to an impartial judge who can vacate the unlawfully entered execution warrant and related orders, which Judge Evans signed without lawful authority,” Sween argued.

Meanwhile, Roberson’s attorneys continue to petition the Board of Pardons and Paroles to recommend a stay of his execution.

They claim that new medical evidence proves that Nikki died of severe viral and bacterial pneumonia, which then progressed to sepsis and ultimately septic shock.

Court records show that Dr. Francis Green, an expert in lung pathology, reviewed Nikki’s medical history and her lung tissue under a microscope.

He discovered that her lungs were infected with two different and virulent types of pneumonia — which clogged her lungs, starved her brain of oxygen and ultimately caused death, Green wrote in a report.

The pneumonia started many days or weeks before her last hospitalization, he added.

Dr. Keenan Bora also concluded that Nikki’s post-mortem toxicology report shows that she had dangerously high levels of promethazine in her system, prescribed by two different doctors on two consecutive days, and Dr. Julie Mack concluded that initial CAT scans of Nikki’s head show only a small impact location – consistent with Roberson’s account that she fell off a bed and possibly hit her head.

Roberson’s attorneys have also raised concerns that shaken baby syndrome may not be a true medical diagnosis.

It was first posited by neurosurgeon Norman Guthkelch in 1971 and has since become an accepted medical fact.

But researchers have questioned the hypothesis that shaking a baby can cause such brain damage since the 1980s, with some studies concluding that it cannot biomechanically cause the injuries Guthkelch described: according to USA Today.

In light of the debate, Roberson’s attorneys say he should have received a review of his conviction under Texas Article 11.073, which was passed a decade ago to allow convicted individuals who are no longer subject to appeal. to seek enlightenment based on changes in scientific understanding since then. the moment of their conviction.

Yet the Court of Criminal Appeals denied his request in September, dismissing it as an “abuse of the subpoena,” or advancing a claim that should have been raised in an earlier petition. ABC News reports.

“The court did not address the merits of Mr. Roberson’s claim of a changed science, based on new, interrelated reports from medical experts from a range of disciplines.” argues the Innocence Project.

‘The new claim was rejected based on an unexplained procedural barrier.’

Lawyers have also highlighted that the Court of Criminal Appeals is currently reviewing another non-death penalty case that raises the same questions about the merits of shaken baby syndrome – but in that case the court ruled that the science has changed enough to warrant a new justify the process. .

“In that case, the state conceded the unreliability of the shaken baby theory and agreed to grant the habeas applicant a new trial,” the Innocence Project noted.

“Yet in Mr. Roberson’s case, the state, represented by the elected district attorney in Anderson County, has consistently resisted the idea that the science has changed in any material way and has defended the testimony of the state’s experts.”