Robert Roberson Execution on Hold in Texas Shaken Baby Case: What We Know

With his execution on hold, Robert Roberson is set to testify at a Texas House hearing about his conviction, which was based in part on a questionable diagnosis of shaken baby syndrome.

The execution of Robert Roberson, an autistic Texas man convicted of killing his 2-year-old daughter, was halted at the last minute after a novel legal move by a bipartisan group of Texas House members who questioned the diagnosis of shaken baby syndrome that helped lead to his conviction.

The lawmakers effectively delayed the execution, which had been scheduled for Oct. 17, by issuing a subpoena for Mr. Roberson to testify before them on Monday. The move was highly unusual: The Texas Supreme Court said no precedent exists for how to address a legislative subpoena for a man who faces imminent execution, and it blocked it from going any further just before Mr. Roberson was set to die.

Mr. Roberson remains on death row while the courts consider how to handle the Legislature’s demand — though the judges said they would not be considering the larger question of whether his conviction should be set aside. Still, his supporters are hopeful that the postponement may afford time for a new consideration of the evidence.

In what is sure to be an extraordinary session, Mr. Roberson is scheduled to appear in person before a Texas House committee at noon Central time on Monday.

Who is Robert Roberson?

Mr. Roberson dropped out of high school and had some convictions for nonviolent crimes. He had a job delivering newspapers in the small town of Palestine, Texas, his lawyers said, when he got custody of his 2-year-old daughter, Nikki, in the fall of 2001.

A few months later, in January, his lawyers said, he was sleeping at home with Nikki when he woke up to find she had stopped breathing and was turning blue. She had been sick with a high fever, visiting doctors and the emergency room in the previous days, and had been prescribed medications including codeine and Phenergan. Earlier that night, she had fallen out of bed.

He took her to the emergency room, where she was pronounced dead. Scans found that she had internal conditions that have been associated with shaken baby syndrome: subdural bleeding, brain swelling and retinal hemorrhages. She also had some bruising, which Mr. Roberson explained as having come from the fall from bed.

An autopsy concluded the death to be a homicide from shaking and blows. And Mr. Roberson, because he had been alone with her, was charged with murder.

Mr. Roberson did not appear to show emotion about her condition, which police investigators and prosecutors pointed to as a sign of his guilt. Later, he was diagnosed with autism, which could have explained his response. He was convicted after a trial in 2003, and then sentenced to death.

Why have so many people tried to stop his execution?

For years, Mr. Roberson’s lawyers have been raising questions about his conviction, particularly its reliance on what they have said is an outmoded understanding of the conditions that his daughter presented at the hospital and the belief at the time that those conditions almost certainly pointed to shaken baby syndrome.

As his execution approached this year, Mr. Roberson gained a wide range of supporters, including the police detective who investigated his case and helped convict him; John Grisham, the novelist; and more than half of the members of the Republican-dominated Texas House.

The supporters have either argued that Mr. Roberson is innocent — as the former detective, Brian Wharton, has said — or that there is enough uncertainty about his conviction that he should be granted clemency.

Based on medical records unearthed since the trial and expert testimony, they have argued that Nikki died from a combination of viral pneumonia and the prescribed medications she was taking, particularly Phenergan, which can suppress breathing.

Rather than shaken baby syndrome, his lawyers contend, her condition could have been explained by a lack of oxygen, which could cause brain swelling, and efforts at the hospital to restart her heart after there were already signs of “brain death,” a situation that could cause blood to pool in the skull.

His execution was delayed once before, in 2016, to hold hearings on new evidence and expert testimony. The conviction and death sentence were upheld. Mr. Roberson’s subsequent appeals, including those filed this week, failed in Texas state court and at the U.S. Supreme Court.

The state has maintained that the case against Mr. Roberson did not rely entirely on a shaken baby diagnosis and that Nikki died as a result of abuse that consisted not only of shaking but also blunt force.

“This is not a shaken baby case,” a lawyer for the Texas attorney general’s office said in a hearing hours before the execution was scheduled to take place. “He was indicted for blunt-force trauma murder of a 2-year-old.”

Is shaken baby syndrome considered ‘junk science’?

Mr. Roberson would be the first person put to death after a conviction based in part on a diagnosis of shaken baby syndrome, which has since come under scrutiny from some doctors and defense attorneys who have called it “junk science.”

The diagnosis of shaken baby syndrome, now called abusive head trauma, is still recognized by the American Academy of Pediatrics. But even those who support the diagnosis say that it cannot be determined based on scans or internal conditions alone.

Texas has, in some ways, been at the forefront of cracking down on junk science in the courtroom. In 2005, it established the Texas Forensic Science Commission, which recommended a moratorium on the use of bite-mark evidence. In 2013, Texas became the first state in the country to pass a “junk science” law. It provides an avenue of appeal for people whose convictions rested on forensic evidence that has since been discredited.

But according to a recent analysis by the Texas Defender Service, the Texas Court of Criminal Appeals, the state’s highest criminal court, has held people to an unrealistic standard of proof that is higher than what the law intended. The court has granted relief in one in five cases brought under the statute, the report said, and never in a death penalty case.

The high criminal court declined to apply the state’s junk science law to Mr. Roberson’s case. The court agreed with the lower court, which found, after the new hearing on the evidence, that shaken baby syndrome was still a recognized diagnosis, and that the controversy over it was known at the time of the trial.

But earlier this month, in a different shaken baby case, the Court of Criminal Appeals did apply the law and ordered a new trial for Andrew Roark, who was convicted in 2000 of injuring a child by shaking.

The court found that the medical understanding had changed regarding shaken baby syndrome. It specifically cited the lack of evidence that shaking alone could produce the kind of under-the-skin bleeding seen in the child.

The Roark decision represented “a landmark opinion,” Justice Sonia Sotomayor of the U.S. Supreme Court said this week.

What happens next?

Mr. Roberson’s execution was halted in an unexpected and unorthodox way.

After the state’s Board of Pardons and Paroles declined to recommend clemency for Mr. Roberson, his lawyers attempted to get the Supreme Court to intervene and asked Gov. Greg Abbott of Texas to grant a one-time, 30-day reprieve.

Justice Sotomayor, who agreed with the Supreme Court’s decision that it could not intervene in the Roberson case for legal reasons, said Mr. Abbott could and should grant a reprieve.

“The testimony as to shaken-baby syndrome in Roark had been nearly indistinguishable from the testimony” in Mr. Roberson’s case, she wrote.

But the governor declined to step in.

Instead, a bipartisan group of Texas House members — led by Joe Moody, an El Paso Democrat, and Jeff Leach, a Dallas-area Republican — took a different approach.

On Wednesday, the Committee on Criminal Jurisprudence, led by Mr. Moody, issued a subpoena compelling Mr. Roberson to testify as part of the committee’s work of looking at the junk science law and how it was being applied, including in Mr. Roberson’s case.

Because the subpoena was legally issued, it created a conflict between the power of the Legislature to secure testimony and the power of the executive branch to carry out the execution, the Texas Supreme Court found.

“If the sentence is carried out, the witness obviously cannot appear,” one of the justices wrote. “If the other two branches cannot reach an accommodation on their own — and perhaps they still can — the district court may continue the litigation.”

The Texas Supreme Court remanded the case to a district court in Travis County, in Austin.

The court’s decision did not affect Mr. Roberson’s conviction, and the renewed court process will not include a reconsideration of the evidence against him. His execution, at this point, will be rescheduled for a later date.

Still, his supporters have taken solace. “He lives to fight another day,” his lawyer, Gretchen Sween, said after the execution was postponed.

In the meantime, Mr. Moody’s office is working with the Texas Department of Criminal Justice to make Mr. Roberson available for testimony on Monday for the unusual hearing at the Texas Capitol.

Shaila Dewan contributed reporting.