UPDATE (Nov. 15, 2024, 12:43 p.m. ET): The Texas Supreme Court on Friday ruled that the state legislative committee couldn’t use a subpoena to delay an execution. The decision followed a judge’s granting of a temporary injunction last month to allow death row inmate Robert Roberson to testify before state lawmakers, therefore delaying his execution. A new execution date has not been set.
UPDATE (Oct. 17, 2024, 7:34 p.m. ET): Hours before Robert Roberson was set to be executed on Thursday, a Texas judge granted a temporary injunction allowing him to testify before state lawmakers next week and therefore delaying his execution. The Texas attorney general’s office said it will appeal.
Texas intends to break new ground Thursday with the first execution of someone sent to death row based on so-called shaken baby syndrome. The since-disputed theory led to Robert Roberson’s conviction in the death of his 2-year-old daughter in 2002. But the man who maintains his innocence appears headed to the death chamber despite bipartisan doubts about his guilt.
Roberson has unsuccessfully pressed state and federal courts for relief. His lawyers said in court papers that the hypothesis used to convict him in 2003 reflected the medical consensus at the time “that, absent something like a massive car accident, a child in [his daughter] Nikki’s condition must have been violently shaken and, possibly, struck against a blunt surface.”
But his lawyers continued in the petition, which was rejected last year by the U.S. Supreme Court:
‘Shaking’ (thus abuse) was thought to explain why a child, with no significant external signs of trauma, would have the following ‘triad’ of internal symptoms: bleeding inside the head under the dura membrane, brain swelling, and retinal hemorrhages (bleeding in the eyes). The medical consensus was that naturally occurring illnesses or short falls with an impact to the head could not cause this triad. The medical consensus also presumed that whoever had been caring for the child when she lost consciousness must have been the culprit because the violent shaking would have caused immediate brain damage. Caregivers, like Robert, who denied doing anything to hurt the child, were perceived as callous liars. These premises were collectively known as ‘Shaken Baby Syndrome’ (SBS).
Roberson’s lawyers further said that scientific inquiry has since “exposed the lack of empirical evidence supporting SBS.” They also said the state hadn’t rebutted “new evidence of Nikki’s severe, undiagnosed pneumonia and of the respiratory-suppressing medications in her system, phenomena that can cause fatal hypoxia (oxygen deprivation), which in turn causes the triad previously thought to prove abuse.”
Among Texas’ points in successfully opposing Roberson’s high court bid was a jarring statement: The Supreme Court “has never recognized a standalone actual innocence ground for relief.” That is, a person could be innocent and that wouldn’t matter to the justices, especially if enough procedural hurdles stand in the way.
Roberson’s cause has gained support from innocence groups, forensic scientists, physicians and retired judges, as well as a bipartisan coalition of Texas lawmakers who are pushing for clemency. Even the lead detective who investigated Nikki’s death has since spoken out in Roberson’s favor.
Notably, Texas’ Court of Criminal Appeals recently cited the evolving science to side with a different defendant in a “shaken baby” case. Yet the state court declined to grant Roberson relief, with one of its judges writing that it’s “not just a ‘shaken baby’ case” but a “beating” case, too, because while Roberson “has suggested the possibility that the two-year-old child victim had been ill and simply fell out of the bed,” the evidence “showed that the tiny victim suffered multiple traumas.” Roberson’s legal team has disputed that analysis and said the court “is relying on a deceptive and unsubstantiated argument the State clings to in its zeal to execute an innocent man and turn the spotlight off this gross miscarriage of justice.” The planned execution comes as the Republican-appointed Supreme Court majority allowed the execution of Marcellus Williams to go forward in Missouri last month despite innocence concerns there. And it follows the justices’ recent hearing over whether to give a new trial to Oklahoma death row prisoner Richard Glossip, who also maintains his innocence and is even supported by the state’s top prosecutor in his new trial request. Despite the rare state support, it’s unclear what the justices will do in Glossip’s case. That uncertainty is itself an indictment of the court and the legal system writ large — as is the possibility that a system purportedly concerned with justice would even contemplate allowing the execution of another potentially innocent man this week. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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