Breaking Attorney Statement: Response to Denial of Robert Roberson’s Appeal and Motion for Stay of Execution

(September 11, 2024) Today, without reviewing the merits of the claim, the Texas Court of Criminal Appeals (CCA) denied Robert Roberson’s Subsequent Application for Writ of Habeas Corpus and Motion for Stay of Execution, claiming it did not meet procedural requirements for a subsequent appeal for habeas relief, despite new medical and scientific evidence, unavailable when his previous habeas application was filed in 2016, showing that Mr. Roberson’s two-year-old daughter, Nikki, died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock, not homicide. Mr. Roberson was convicted and sentenced to death in 2003 under the now discredited “Shaken Baby” hypothesis.

Mr. Roberson is scheduled for execution on October 17, 2024.

In response to today’s denial, Gretchen Sims Sween, one of Mr. Roberson’s attorneys, made the statement below. 

Statement from Gretchen Sims Sween, Ph.D., J.D., Robert Roberson’s attorney:

“Robert’s fate is now at the mercy of the Governor. He and the Texas Board of Pardons and Paroles are the only ones standing in the way of a horrific and irreversible mistake: the execution of an innocent man. Robert Roberson lived every parent’s nightmare when his beloved daughter experienced a medical crisis and collapsed in her sleep. Then the State compounded the horror by sending him to death row for more than 20 years for a crime that never occurred. New medical and scientific evidence from three experts from a range of medical specialties — Dr. Francis Green, an expert in lung pathology with over 46 years of experience; Dr. Keenan Bora, an expert in medical toxicology and emergency room medicine; and Dr. Julie Mack, an expert in pediatric radiology — proves that his daughter Nikki died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock, not abuse. This evidence was never previously available. It took years of fighting to get complete medical records. We are devastated by this staggering development but will continue to pursue any avenue to make sure that Mr. Roberson is not the first person in the U.S. executed under the discredited ‘Shaken Baby’ hypothesis.

“Over the past two decades, since Mr. Roberson’s conviction and death sentence, the shaken baby hypothesis has been debunked by evidence-based science, a fact recognized by courts in at least 18 states that have exonerated parents and caregivers like Mr. Roberson who were wrongly convicted under the controversial theory. Brian Wharton, the Lead Detective who investigated Mr. Roberson’s case and testified against him, now believes Mr. Roberson’s daughter died of accidental and natural causes. Mr. Wharton has explained that he deferred to a doctor’s shaken baby diagnosis when he had Mr. Roberson arrested and testified against him. He now publicly urges for relief for Mr. Roberson and has written, ‘I am convinced that [Nikki] was not murdered. Mr. Roberson is innocent. There was no crime. 

“Mr. Roberson was a special education student who dropped out of school after ninth grade. He also has autism, which was undiagnosed at the time of his daughter’s collapse. He was unable to explain his chronically ill two-year-old daughter’s complex medical condition when he took her to the emergency room, after she fell out of bed. She had been sick with a high fever, undiagnosed pneumonia, and on medication that doctors prescribed that we now know are unsafe for children her age and in her condition. The hospital staff did not know Mr. Roberson had autism and misinterpreted his non-neurotypical demeanor as a lack of concern for his daughter.

“In 2003, at the time of Mr. Roberson’s trial, the consensus in the medical community was that a child who presented with Nikki’s set of symptoms must have been violently shaken or struck against a blunt surface by the last person with the child at the time. Grieving parents, who insisted they had not harmed their children, were branded as callous liars. In the 20 years that have passed, the version of the shaken baby hypothesis put before Mr. Roberson’s jury as ‘fact’ has been entirely debunked by actual science. 

“Science now teaches that undiagnosed illnesses that affect breathing, like Nikki’s pneumonia, and short falls that impact the head, can produced the exact same internal head conditions long assumed—incorrectly—to be proof of inflicted head trauma. It is past time to end the nightmare of wrongful conviction for Robert Roberson, before it is too late.” 

— Gretchen Sims Sween, Ph.D., J.D., attorney for Robert Roberson

— September 11, 2024

The Texas Court of Criminal Appeals order can be viewed here.