The state of Texas was authorized on Thursday night to resume preparations for the execution of Robert Roberson, a Texas man convicted of killing his 2-year-old daughter, after a criminal appeals court tossed out a lower-court order that had caused a temporary delay.
The decision by the Court of Criminal Appeals, the state’s highest criminal court, came amid a flurry of legal maneuvers and decisions. It included a hastily convened court hearing in which members of the State House sought to halt the execution by compelling Mr. Roberson to testify at a legislative hearing on Monday.
A lower court had granted their request for a restraining order earlier in the evening, but the criminal appeals court lifted it hours later. In response, legislators filed a last-ditch motion to the Texas Supreme Court, the state’s highest civil court, arguing that the matter should be decided by that court instead.
The execution by lethal injection, which was set to occur before midnight at a prison in Huntsville, Texas, would be the first of a person convicted in a shaken baby case, death penalty experts said.
Mr. Roberson’s case had been moving forward after the state’s Board of Pardons and Paroles denied a request for clemency for Mr. Roberson on Wednesday.
Also on Thursday evening, the U.S. Supreme Court issued a separate order declining to stay the execution. Justice Sonia Sotomayor, in a statement along with the court’s order, said that while the court could not stop the execution, Gov. Greg Abbott of Texas could and should grant a temporary reprieve.
“An executive reprieve of 30 days would provide the Texas Board of Pardons and Paroles with an opportunity to reconsider the evidence of Roberson’s actual innocence,” the justice wrote. “That could prevent a miscarriage of justice from occurring.”
Mr. Roberson’s execution was one of two scheduled in the country on Thursday. In Alabama, officials carried out the execution of Derrick Dearman, who had admitted to killing five of his girlfriend’s relatives in 2016. Mr. Dearman, 36, died by lethal injection. He had stopped fighting his death sentence this year and said he wanted to be executed so that his victims’ family members could have justice.
Mr. Roberson’s looming execution has drawn intense national scrutiny because of the role that the shaken baby diagnosis played in his conviction. His lawyers maintain that no crime was committed at all and have presented evidence and expert testimony that his daughter, Nikki, most likely died in 2002 from pneumonia exacerbated by medication that she had been prescribed.
“It is not shocking that the criminal justice system failed Mr. Roberson so badly,” one of his lawyers, Gretchen Sween, said on Wednesday in response to the clemency denial. “What’s shocking is that, so far, the system has been unable to correct itself.”
Shaken baby syndrome is a medical determination that abuse has caused serious or fatal head trauma, and it has played a role in criminal convictions for decades.
The American Academy of Pediatrics still recognizes the diagnosis, but it has come under scrutiny in recent years as some doctors and defense lawyers have challenged its reliability, particularly in cases where little other evidence of abuse exists.
Mr. Roberson’s lawyers have also said that his autism, diagnosed after his trial, played a role in the conviction because investigators saw his apparent lack of emotion or grief as evidence of guilt.
More than half of the Republican-dominated Texas House has lobbied for the case to be reviewed. The detective who helped convict him now says he believes Mr. Roberson is innocent. John Grisham, a novelist who has been supporting Mr. Roberson, pleaded this week for the execution to be halted.
Mr. Roberson, 56, has granted several television interviews from death row, including one this week with Phil McGraw on “Dr. Phil Primetime.”
With few options left, Mr. Roberson’s lawyers had appealed to the U.S. Supreme Court and had requested that Governor Abbott step in and order a one-time, 30-day reprieve to allow for further legal challenges.
Under Texas law, the governor cannot grant clemency now that the state board has recommended against it.
Members of the Texas House, urging the courts to reconsider the case, began their attempt to intervene on Wednesday, when they issued a subpoena seeking to delay the execution by compelling Mr. Roberson to testify before a legislative committee on Monday.
Hours before the execution, two State House members — Jeff Leach, a Dallas-area Republican, and Joe Moody, an El Paso Democrat — sought the court order to temporarily halt the execution so that Mr. Roberson could respond to the subpoena. Mr. Leach appeared in the video hearing sitting in his car, an indication of how quickly the proceeding had been arranged.
“This is an extraordinary remedy that the Legislature is seeking,” Mr. Leach said, But he argued that it fell within the powers granted to the Texas House under the State Constitution.
The court ruled on the validity of the legislators’ subpoena but did not address the merits of the arguments in defense of Mr. Roberson. Soon after, the criminal appeals court overruled the lower-court decision on the subpoena, Mr. Leach’s office said.
The attorney general had also filed a brief with the U.S. Supreme Court, opposing the defense’s unsuccessful request for a stay of execution.
“Roberson has repeatedly challenged the validity of his conviction and death sentence, and he has been properly rejected in each instance,” the state wrote in the brief to the high court.
The attorney general, in defending the state’s case, said there was testimony from Mr. Roberson’s girlfriend that before his daughter’s death, Mr. Roberson was “violent towards Nikki; he had paddled the toddler, shaken and thrown her, threatened her and screamed at her.”
In response, Ms. Sween, Mr. Roberson’s lawyer, said that the attorney general’s description was an “inaccurate summary of testimony from wholly incredible witnesses manufactured for trial” and that the accusations were “unsupported by any contemporaneous records.” She said Mr. Roberson had no history of violence.
Mr. Roberson’s lawyers have argued that the understanding of shaken baby syndrome has changed in the two decades since his trial, and that he was convicted under a narrow understanding of the medical condition when Nikki stopped breathing and Mr. Roberson took her to the emergency room on Jan. 31, 2002.
Mr. Roberson said at the time that a bruise on Nikki’s head could be explained by her having fallen from the bed where they were both sleeping.
Scans taken at the hospital showed subdural bleeding, brain swelling and retinal hemorrhages. The three conditions, taken together, have been used in the past to infer abuse in shaken baby cases.
But those conditions can also appear as a result of disease. Mr. Roberson’s lawyers have argued that Nikki’s condition was more likely explained by the respiratory infection that she had been fighting in the days before her death, and the medication prescribed to her that could have suppressed her breathing.
Mr. Roberson has had his execution delayed once before, in 2016. At that time, the Court of Criminal Appeals intervened so that new medical and expert evidence could be presented by his lawyers.
But the court ultimately ruled against him. It has also denied appeals to reconsider his conviction under the state’s “junk science” law, which allows for convictions to be challenged based on changes to the science that was relied upon in their cases.
“I now believe the criminal justice system in the state of Texas has catastrophically failed from beginning to end in this case,” Representative Brian Harrison, a Republican member of the State House, said in a radio interview on Thursday. “I believe that our existing state laws are being violated to such a grotesque extent that it is going to cause a potentially innocent person to die.”
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