With only hours to spare, the Texas Supreme Court, the state’s highest civil court, granted a stay of execution, temporarily halting the death by lethal injection of Robert Roberson. This ruling puts the Court in direct conflict with the Texas Court of Criminal Appeals (TCCA), the state’s highest criminal court, which earlier overturned a stay of execution granted by a Travis County judge. The battle over Roberson’s life has expanded beyond a struggle between the two highest courts and now includes a bipartisan coalition of lawmakers and celebrities fighting for Roberson to receive a new trial from an unwilling Attorney General.
In an October 23 press release designed to “set the record straight” in the face of public outcry, the Attorney General’s office detailed the evidence that led to Roberson’s 2003 conviction for the murder of his two-year-old daughter Nikki. The girl was brought to the hospital by Roberson with “extensive bruising,” and doctors observed “subdural bleeding, brain swelling, and retinal hemorrhages,” known as the “triad.” Hospital doctors noted additional signs of abuse such as the back of the child’s skull being “bruised and ‘mushy,” and the medical examiner presented evidence that her head had been “repeatedly struck leaving clear impact wounds.” Witnesses at the trial testified that Roberson “had a history of violently abusing his daughter” and had previously attacked his ex-wife, strangling her, breaking her nose, and hitting her with a fireplace shovel. Finally, the AG cited Roberson’s changing story surrounding the cause of Nikki’s injuries.
At the time, the “triad” of symptoms cited by doctors indicated “Shaken Baby Syndrome” (SBS), renamed “Abusive Head Trauma” (AHT), meaning Nikki’s brain injuries resulted from violent shaking. Despite questions about alternate causes of the “triad of symptoms,” the American Academy of Pediatrics and “Most Doctors” still accept SBS as a cause of death. Out of a total of 1,431 SBS/AHT convictions between January 2008 and December 2018, only 3% have been subsequently overturned, 1% of which were overturned on “medical evidence-related grounds.”
During the trial, the defense sought to discredit the SBS claim and argued that Roberson awoke to find that his two-year-old daughter Nikki had fallen out of her bed. He “comforted her,” and went back to sleep, before waking a second time, hours later, to discover that Nikki had stopped breathing and turned blue. Roberson claims he then immediately delivered the girl to the hospital.
Co-chairmen Joe Moody (D) and Jeff Leach (R), and vice co-chairmen Rhetta Bowers(D) and Lacey Hull(R) of the Texas House Criminal Justice Reform Caucus provided a point-by-point rebuttal to the October 23 release on the following day. Their 16-page report challenged key parts of the evidence presented and stated the AG “fails to acknowledge any of the additional evidence discovered since the trial.” CT scans prove that Nikki’s skull was not mushy and that the impact site was consistent with a “shortfall out of bed.” Due to her rare blood clotting disorder, Nikki should have presented with extensive bruising if the abuse allegations were true. However, witnesses during the trial testified that there was very little outward trauma. The child abuse allegations came from Roberson’s then-girlfriend Teddie Cox who had a plethora of mental issues including recovering from a suicide attempt and an intellectual impairment. Meanwhile, his ex-wife Della Gray did not allege abuse during their “lengthy and nasty” divorce and admitted that she only mentioned abuse at the trial to make Robert “pay.” Nor was there physical evidence of any abuse of his daughter or ex-wife. Roberson only minimally altered his story from testifying that she fell off the bed so she hit her head on one of the cinderblocks supporting the bed, an explanation that “was consistent with both medical staff and law enforcement.” SBS, the cornerstone of the Prosecution’s case, was acknowledged by the TCCA “only weeks ago” in Ex parte Roark as incorrect. Dr. Norman Guthkelch, the neurosurgeon who first proposed SBS, was moderately successful in campaigning to free innocent caregivers wrongfully convicted before his 2016 death.
The Innocence Project, a nonprofit legal organization that “works to exonerate the wrongly convicted through … forms of post-conviction relief,” claims that Nikki died of “viral and bacterial pneumonia that progressed to sepsis and then septic shock.” In addition, the victim was prescribed Phenergan a week before her death. That medication now carries an “FDA black-box warning” against being given to children of Nikki’s age and with her condition because it is “respiratory-suppressing.” Promethazine, another drug that impairs a child’s ability to breathe and is no longer prescribed, was found at dangerously high levels within her system. Alternatively, her death may have been the result of an accidental fall from her bed.
Since his 2003 conviction, Roberson has sought habeas relief, requesting that a judge hear new evidence that challenges his conviction. In 2016 the TCCA stayed the execution and granted Roberson a hearing that was conducted during the COVID pandemic; in January 2023, the TCCA relied on the information from that hearing to uphold the death penalty. On October 15, lawyers for Roberson filed a writ of certiorari with the United States Supreme Court (SCOTUS), asking them to review Roberson’s case because of alleged violations of due process by the TCCA. On October 16, one day before his scheduled execution, the Texas Board of Pardons and Parole denied his request for clemency, and, on the following day, SCOTUS denied Roberson’s writ of certiorari. While a Travis County judge issued a temporary restraining order to allow Roberson to testify in front of the Texas House, as previously mentioned, the TCCA overturned that order. Finally, the Texas Supreme Court intervened with a stay so that Roberson could testify in front of the Texas Committee on Criminal Jurisprudence which subpoenaed him in a last-ditch effort to delay the execution.
Roberson’s case has gained support from 34 scientists and doctors and a bipartisan group of 86 Texas legislators. The lead detective in the original case, Brian Wharton, has since stated that he is “convinced that Mr. Roberson is innocent.” Most recently, Dr. Phil and author John Grisham testified at the Roberson hearings after his October 17 stay of execution. Next week’s election could determine Roberson’s fate with three seats on the TCCA up for grabs. Three judges who were part of the 5-4 majority that ruled against Roberson lost their March primaries and if only one of their replacements is partial to Roberson, he may receive a new trial. For now, Roberson has at least 90 days before a new execution date can be scheduled.
