Robert Roberson Asks Texas Court to Stay Oct. 17 Execution and Reconsider Innocence Claim Based on New Scientific Evidence

Emergency Stay Motion Cites Three Grounds for Preventing a Wrongful Execution

Mr. Roberson’s stay motion [here], identifies three urgent and related reasons why the Court of Criminal Appeals should not allow him to be executed on October 17.

First, a stay is needed so the court can address his Suggestion to Reconsider [here], also filed today, based on new evidence that the Texas Legislature intended Article 11.073, a law passed to enable review of wrongful convictions based on junk science, to apply to cases like Mr. Roberson’s and do not understand why he has not been granted a new trial.

The motion also stresses that the Court of Criminal Appeals is currently considering another markedly similar habeas (non-death-penalty) case that involves the same issue of whether the “science” used to obtain Mr. Roberson’s conviction, the discredited “Shaken Baby Syndrome” hypothesis, has changed so as to merit a new trial. In that case, the State conceded the unreliability of the shaken baby theory and agreed that the habeas applicant should get a new trial. Yet in Mr. Roberson’s case, the State, represented by the elected DA in Anderson County, has consistently resisted the notion that the science has changed in any material way and has defended the State’s trial expert testimony.

Finally, the stay application points to the “outpouring of bipartisan support from Texas lawmakers, eminent doctors and scientists, disability rights groups, and innocence groups” (p.1) demonstrating that the court can have no confidence in the integrity of Mr. Roberson’s conviction based on the wealth of new evidence that his daughter’s death was not the result of any crime at all.

Legislators Provide Clear Evidence That Junk Science Law Applies to Mr. Roberson’s Case

Last month, the Court of Criminal Appeals summarily denied Mr. Roberson’s petition for post-conviction relief based on Article 11.073, a Texas law passed ten years ago that allows convicted individuals who are out of appeals to pursue relief based on changes in scientific understanding since the time of their conviction. The court did not address the merits of Mr. Roberson’s changed-science claim, based on new, correlated reports from medical experts from an array of disciplines. The new claim was dismissed based on an unexplained procedural barrier.

But thereafter, on September 17, a bipartisan group of 86 members of the Texas House of Representatives wrote a letter supporting Mr. Roberson’s clemency request and stating their view that Article 11.073, if properly applied, should have resulted in a new trial for Mr. Roberson. Today’s filings urge the court to credit this clear evidence of legislative intent and stay Mr. Roberson’s execution so that it can reconsider the merits of his previously rejected changed-science claims.

“Texas law expressly requires the courts, when interpreting state law, to look at any available evidence of what the Legislature intended in passing a given law so that it is accurately interpreted,” said Gretchen Sween, an attorney for Mr. Roberson. “A majority of the Texas House of Representatives has now left no doubt that they intended Article 11.073 to apply to circumstances like Mr. Roberson’s where evidence has been amassed that their convictions hinge on unreliable scientific evidence.”

Ms. Sween added, “Several of these lawmakers visited with Robert on death row recently and prayed with him. They saw with their own eyes that he is a kind, gentle, devout man who also has a palpable disability: Autism. Manifestations of that disability, along with a medical hypothesis that no responsible doctor would espouse today, resulted in hasty allegations and then the conviction of an innocent man. We hope the CCA will credit the lawmakers’ clear statement of legislative intent and pause to reconsider his changed-science claims. It would be a travesty for Texas to gain notoriety as the first government anywhere to execute one of its citizens based on a wholly discredited version of the “Shaken Baby” hypothesis.”

The lawmakers’ press release and photos about their September 27 visit with Mr. Roberson can be accessed here. A video is available here.

The lawmakers’ letter urging the Texas Board of Pardons and Paroles to recommend clemency for Mr. Roberson and for Governor Greg Abbott to grant it can be accessed here.

Without a Stay, Ruling in Similar “Shaken Baby Syndrome” Case Could Come After Mr. Roberson’s Wrongful Execution

Mr. Roberson’s motion for a stay also explains that another case, Ex parte Roark, is pending before the Court of Criminal Appeals in which the State conceded the falsity of virtually identical expert testimony on the shaken baby hypothesis. Both Mr. Roberson and Mr. Roark were convicted over two decades ago using this debunked abuse diagnosis using the testimony of the very same child abuse expert.

In Dallas County, the State conceded that Mr. Roark should get a new trial because of the changes to scientific understanding, and the trial court agreed. In contrast, in Anderson County, the District Attorney has insisted that the science has not changed, even in the face of new evidence.

In today’s filing, Mr. Roberson asks the court to enter a stay to ensure that he is not executed for a crime that did not occur while it is poised to potentially grant habeas relief to another man, in a markedly similar case, tried in the same era using the same, since discredited expert opinions.

“It would be a tragedy and a failure of the justice system to allow Robert to be executed for a non-existent crime before the Court of Criminal Appeals completes its review of a case in which the State has conceded the unreliability of the very type of evidence used to convict him,” said Attorney Sween.

There is Overwhelming, Bipartisan Support for Mr. Roberson’s Clemency Request

In addition to the 86 Texas legislators, letters supporting Mr. Roberson’s clemency petition, filed on September 17, have been submitted by 34 eminent scientists and doctors, 8 advocates for parental rights, 8 organizations that advocate for people with Autism and their families, faith leaders, innocence advocacy groups, former judges, 70 attorneys who have represented people wrongfully accused of child abuse, and former lead detective Brian Wharton, among others. Their letters can be accessed here.

A supplemental letter of support was filed last week by the Parental Rights Foundation and the Family Justice Resource Center, which focused on another change in Texas law that came too late for Mr. Roberson. In their letter, available here, these groups wrote: “In 2005, Roberson stood convicted on the testimony of just one doctor. This is itself an egregious miscarriage of justice which the Texas legislature and this governor have since remedied, through the passage of Texas Senate Bill 1578 in 2021. That law, inspired by medically fragile children like [Mr. Roberson’s daughter] Nikki, gives parents accused of child abuse the right to have their own medical expert heard in their defense.

“This law does not apply retroactively to Mr. Roberson. But it should. And while the legislature lacks the authority to make it so, you hold that authority in your hand.”

Hearing Set For October 15 on Motion to Vacate Execution Warrant

In a separate proceeding, Mr. Roberson recently filed a motion to vacate his unlawful execution warrant based on the invalid assignment of retired judge Deborah Oakes Evans to his case and circumstances that create the appearance that she is biased and should be recused.

On October 15 at 10:00 a.m., Judge Alfonso Charles, the Presiding Judge of the Tenth Administrative Judicial Region, will hold a hearing on this motion in the Anderson County District Courthouse in Palestine, Texas. Judge Charles will decide whether to remove Judge Evans from the case and vacate the unlawful execution warrant and all related orders.