Robert Roberson’s Attorneys File Motion to Remove Judge From Case and Vacate Execution

Citing the invalid assignment of retired judge Deborah Oakes Evans to his case and circumstances that create an appearance that she is biased, attorneys for Robert Roberson filed a motion today asking the Presiding Judge for the region to remove Judge Evans and vacate the unlawful execution warrant and all related orders. 

Judge Evans issued an execution warrant and set Mr. Roberson’s execution date for October 17, 2024, without permitting a hearing. Yet new medical and scientific evidence proves his young daughter, Nikki, died from illness, accident, and medical error, not a homicide. 

The Motion to Vacate Unlawful Execution Warrant and All Related Orders and to Recuse Judge Deborah Oakes Evans, available here states: 

“Mr. Roberson is an indigent, disabled father, diagnosed with Autism Spectrum Disorder in 2018. He has maintained his innocence since first being wrongly accused of causing his daughter Nikki’s death in 2002 based on a “Shaken Baby Syndrome” diagnosis. He has been fighting to be heard from Texas’s death row since 2003. This case is truly a matter of life and death—with a pending execution date of October 17, 2024. That date was set by Judge Evans, a retired judge sitting by assignment, without first permitting Mr. Roberson a hearing. See EX1-EX3. Thereafter, Judge Evans again denied Mr. Roberson a hearing on his Motion to Withdraw Execution Date even after he provided support for the fact that hearings on such motions are routine and that such motions are generally granted under the circumstances that were presented to her. See EX4-EX7. 

Now it has come to light that Judge Evans failed to follow the required statutory procedure for a retired judge to become eligible to accept assignments to preside over cases in lieu of elected judges. Because this is a jurisdictional issue that cannot be remedied retroactively, all actions that Judge Evans has taken in this matter are null and void. She cannot and should not serve as the presiding judge.

Moreover, the following factors, viewed in the totality, suggest the appearance of a lack of impartiality, a statutory basis for recusal:

• the opaque process whereby Judge Evans—who presided over Mr. Roberson’s previous habeas proceeding and recommended that he be denied a new trial—was assigned to this matter even before any case was pending

• the deep personal relationships Judge Evans has with numerous individuals who have been involved in Mr. Roberson’s case over the years, including an attorney (now judge) who originally prosecuted the case, the judge who terminated Mr. Roberson’s parental rights, and the current Anderson County District Attorney who opposed habeas relief and sought the pending execution date; and

• arbitrary rulings in Mr. Roberson’s previous habeas proceeding and in a markedly similar “Shaken Baby” case involving many of the same people, to which Judge Evans was also purportedly assigned, after her retirement, when she had no authority to act as a judicial officer.

The totality of the circumstances, including the seriousness of this case, require prompt reassignment to an impartial judge who can vacate the unlawfully entered execution warrant and related orders, which Judge Evans signed absent lawful authority.” (Motion at pp. 2-3)

Mr. Roberson’s clemency petition is pending before Governor Greg Abbott and the Texas Board of Pardons and Paroles, and has generated overwhelming support, including from a bipartisan group of 86 Texas legislators. A press release about the widespread support and the clemency petition can be accessed here

An overview of Mr. Roberson’s innocence case is here.