A Texas judge has denied the motion to vacate the death warrant of a man convicted of killing his two-year-old daughter.
Robert Roberson, 57, is set to die by lethal injection on October 17 for killing his daughter Nikki at his home in Palestine, East Texas, in 2002.
His attorneys argued that the now-retired judge who oversaw his post-conviction preceding and issued his execution warrant in July did not follow statutory procedure and did not have jurisdiction over the case.
However, a judge denied their request on Tuesday and Roberson is set to be the first execution in the United States over shaken baby syndrome, reported the Houston Chronicle.
‘It is terrifying that Robert, an innocent, disabled man with the most gracious heart, is scheduled to be executed under an invalid warrant issued by a seemingly biased judge in just two days’ time,’ said Gretchen Sween, Roberson’s attorney.
A Texas judge had denied the motion to vacate the death warrant of Robert Roberson (pictured)
He was convicted of killing his daughter Nikki at his home in Palestine, East Texas, in 2002 by shaken baby syndrome
‘Governor Abbott can prevent an irreparable mistake by commuting Mr. Roberson’s death sentence or, at the very least, granting him a reprieve so that the overwhelming evidence that no crime occurred can be heard.’
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 hemorrhaging, brain swelling and bleeding behind retinas.
But his attorneys have submitted new evidence showing that the doctors may have misdiagnosed the young girl’s cause of death, as they question whether shaken baby syndrome even exists.
Roberson has maintained his innocence in his daughter’s death for the more than two decades he has languished on death row, and on August 1, 2024 his attorneys requested that the district court in Anderson County reopen his case.
The filing states that new medical and scientific evidence shows Nikki died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock.
They claim she was chronically ill and suffered a high fever in the days before her death.
When those symptoms continued for five days straight, Roberson and his mother took Nikki to a local emergency room, where a doctor prescribed Phenergan – a drug that now carries a Food and Drug Administration warning against being prescribed to children of Nikki’s age and in her condition.
His attorneys argued that the now-retired judge who oversaw his post-conviction preceding and issued his execution warrant in July did not follow statutory procedure
Roberson’s team have submitted new evidence showing that the doctors may have misdiagnosed Nikki’s (pictured) cause of death
Still, her condition continued to worsen with her temperature rising about 104 degrees Fahrenheit, for which another doctor prescribed more Phenergan in a cough syrup with codeine – an opioid that is now restricted for children under the age of 18 due to its risks of causing breathing difficulty and death.
Nikki’s toxicology report even showed lethal levels of Phenergan in her system at the time of her death, defense attorneys say.
However, medical staff at a Palestine hospital believed Nikki’s injuries- including bruises on her face, a bump on the back of her head and bleeding outside of her brain – were all caused by abuse and alerted police to the scene, according to the Dallas Morning News.
In 2016 he was granted a stay of execution when his attorneys claimed his conviction was based on ‘junk science’ and ‘false, misleading and scientifically invalid’ testimony.
An evidentiary hearing then began in 2018, but was discontinued after a district 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 as it considered whether Roberson would receive a new trial, the Palestine Herald reports.
Roberson has maintained his innocence in his daughter’s death for the more than two decades he has languished on death row
She then retired in December 2022, but continued to preside over Roberson’s case after the state’s highest criminal court decided in 2023 that doubt over the cause of his daughter’s death was not enough to overturn his death sentence.
Evans even issued his recent execution warrant and set his execution date without granting the defense a hearing.
But Roberson’s attorney argued in court documents last week that Evans failed to follow the required statutory procedure for a retired judge to become eligible to accept assignments to preside over cases in lieu of elected judges – and therefore anything she has ruled on since her retirement is invalid.
More than 80 state lawmakers have since written to the Board of Pardons and Paroles in support of the clemency petition, citing the ‘voluminous new evidence’ and raising ‘grave concern’ that Texas is preparing to execute Roberson ‘for a crime that did not occur.’
Still, prosecutors have maintained that evidence supporting Roberson’s conviction is ‘clear and convincing’ and argue that the science around shaken baby syndrome has not changed as much as the defense claims.
The board can take up to two days before the execution to make its decision, but the final decision will ultimately lay with the governor.
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