In an extraordinary and unprecedented action, the Texas Supreme Court halted the execution of Robert Roberson on Thursday in response to a novel filing by Texas lawmakers who argue that Mr. Roberson was wrongly convicted of killing his two-year-old daughter, who doctors, forensic experts, and the lead detective on the case now say died of natural and accidental causes.
Texas passed a landmark law in 2013 that allows courts to overturn convictions based on scientific or forensic evidence that is later revealed to be unreliable “junk science”—like the “shaken baby syndrome” diagnosis used to convict Robert Roberson in 2003. But a Texas Tribune report found that Texas courts have denied most applications for relief under the law, including Mr. Roberson’s.
On Wednesday, the Texas House Committee on Criminal Jurisprudence convened a hearing where the committee’s four Democrats and five Republicans questioned witnesses—including former detective Brian Wharton, medical professionals, forensic science and legal experts, the current prosecutor, and Mr. Roberson’s attorney—about the changing scientific consensus on “shaken baby” diagnoses and the courts’ failure to apply the junk science law, especially in Mr. Roberson’s case.
“If the Legislature can’t exercise oversight over a potential breach of a duly enacted statute that may result in the government taking an innocent person’s life, then there is no subject matter by which the Legislature can exercise oversight,” said state Rep. Brian Harrison, R-Midlothian. “This may be the most quintessential and core function of the Legislature.”
“The issue in front of us is whether our law, which was a first of its kind in the nation and heralded as a landmark legislation, hasn’t been thrown in the garbage in the courts,” state Rep. Joe Moody, D-El Paso and the committee’s chair, said. “We reviewed this case in detail and fully expected that this law would provide relief,” he added. “That has not happened.”
At the end of the all-day hearing, lawmakers voted to subpoena Robert Roberson to testify before the committee on October 21. They argued in court filings that Mr. Roberson’s “testimony on his access to justice and due process are unique because he is a person with autism in a case unlike any other in the State of Texas—the first potential ‘shaken baby syndrome’ execution.”
The unprecedented move created a separation-of-powers issue, since executing Mr. Roberson as ordered by the Texas Court of Criminal Appeals would necessarily prevent him from complying with the legislative subpoena.
On Thursday, the Travis County district court granted lawmakers’ request for a temporary restraining order to stop the execution until the separation-of-powers question is resolved. The Court of Criminal Appeals—the state’s highest criminal court—overruled the district court.
Legislators then asked the Texas Supreme Court to block the execution, arguing that the Court of Criminal Appeals did not have jurisdiction over the legislative subpoena because it is a civil matter.
The Texas Supreme Court agreed. “Whether the legislature may use its authority to compel the attendance of witnesses to block the executive branch’s authority to enforce a sentence of death is a question of Texas civil law, not its criminal law,” Justice Evan A. Young wrote in the order issued late Thursday night.
“The question implicates the distribution of authority among the three branches of government, pitting two branches against each other,” the court continued. “These questions implicate the separation of powers at a high level.”
The court halted Mr. Roberson’s execution and ordered the district court to resolve the underlying merits of the separation-of-powers issue.
“The vast team fighting for Robert Roberson—people all across Texas, the country, and the world—are elated tonight that a contingent of brave, bipartisan Texas lawmakers chose to dig deep into the facts of Robert’s case that no court had yet considered and recognized that his life was worth fighting for,” Gretchen Sween, Mr. Roberson’s attorney, said in a statement. “He lives to fight another day, and hopes that his experience can help improve the integrity of our criminal legal system.”
The extraordinary actions by Texas lawmakers came after every other effort to stop Robert Roberson’s execution failed.
Mr. Roberson’s daughter, Nikki, had been ill for days when he awoke to find her unresponsive and blue on the floor, where she’d fallen from her bed. He rushed Nikki to the emergency room, where doctors were unable to save her. They suspected Mr. Roberson of child abuse, and he was arrested and accused of killing his daughter. At trial, doctors testified Nikki’s injuries were consistent with being violently shaken, known as “shaken baby syndrome.” Mr. Roberson was convicted of capital murder and sentenced to death in 2003.
In 2016, after the passage of the “junk science” law—which identified “shaken baby syndrome” as one of its targets—the Texas Court of Criminal Appeals stayed Mr. Roberson’s execution and remanded the case to the trial court to hear new evidence undermining the reliability of Nikki’s SBS diagnosis. The court decided in 2023 that there was not enough evidence to overturn Mr. Roberson’s death sentence.
After his second execution date was set for October 17, Mr. Roberson’s attorneys told the Court of Criminal Appeals in a last round of filings that Nikki had severe pneumonia that doctors failed to diagnose, according to the Texas Tribune. Instead, they prescribed Phenergan and codeine—medications that are not given to young children today because they can suppress breathing.
“It is irrefutable that Nikki’s medical records show that she was severely ill during the last week of her life,” Mr. Roberson’s attorneys wrote, noting that her father had taken Nikki to the emergency room because she had been coughing, wheezing, and having diarrhea for several days, and to her pediatrician’s office, where her temperature was 104.5 degrees, according to the Texas Tribune.
Further, they argued that Mr. Roberson’s conviction was unreliable because it relied on evidence from doctors and police who found it suspicious that he did not show certain emotions in the ER—they viewed his “flat demeanor” as a “sign of culpability” when it was instead a sign of autism. Mr. Roberson’s autism was not diagnosed until 2018.
The House committee wrote a letter brief to the Court of Criminal Appeals last Tuesday, urging it to stay the execution through the 2025 legislative session so that it could propose amendments to correct the misapplication of the junk science law. “We believe it would be a stain on the conscience of the State of Texas for an execution to proceed while efforts are underway to remedy deficiencies in how the law was applied to this case,” lawmakers wrote.
But the Court of Criminal Appeals dismissed Mr. Roberson’s motion to stay his execution and his application for relief without reviewing the merits, the Texas Tribune reported.
Also on Tuesday, Mr. Roberson’s lawyers submitted a clemency petition with letters of support from “dozens of scientists and medical professionals, parental rights groups, organizations that advocate for people with autism, faith leaders, and attorneys who have represented people wrongfully convicted of child abuse,” the Texas Tribune reported.
The petition argued that a wide range of experts and new evidence (including medical records that showed Nikki’s illness and the medications prescribed to her in the days before her death) prove that she died of natural and accidental causes, not head trauma.
“No informed doctor today would presume abuse based on a triad of internal head conditions, as occurred in Robert’s case,” the petition said. “But in the era when Robert was accused and convicted, conventional medical thinking gave doctors permission to skip consideration of any other factors and presume shaking and inflicted head trauma—an approach that has since been completely rejected as unsound.”
A bipartisan majority of the Texas House urged the Texas Board of Pardons and Paroles to recommend clemency, citing this “voluminous new scientific evidence” demonstrating Mr. Roberson’s innocence.
“It should shock all Texans that we are barreling towards an execution in the face of this new evidence,” the lawmakers wrote to the board. “Other states look to Texas as a leader for both enforcing the rule of law and addressing wrongful convictions. We now look to you to prevent our state from tarnishing that reputation by allowing this execution to proceed.”
But on Wednesday, the Board of Pardons and Paroles—which the Texas Tribune reports has recommended clemency in only one capital case out of 85 applications over the past decade—voted unanimously against clemency.
That evening, with no other options, lawmakers voted to subpoena Mr. Roberson.
Brian Wharton, the lead detective who investigated Nikki’s death, now believes that Mr. Roberson is innocent. He submitted a letter in support of clemency and testified at the House committee hearing.
“I will be forever haunted by my participation in his arrest and prosecution,” he told the Texas Tribune. “He is an innocent man.”
The lawmakers’ actions to stop Mr. Roberson’s execution are a remarkable and rare example of bipartisanship, especially in a body where many members support capital punishment. Texas Rep. Lacey Hull, R-Houston, explained that the imperative to avoid executing an innocent person brought lawmakers together.
“Regardless of our individual positions on the death penalty,” she said, “I think we can all agree that putting a potentially innocent man to death for a crime that may not have occurred would be a grave miscarriage of justice.”