PALESTINE, Texas — A judge during a Tuesday hearing ruled that an East Texas death row inmate's execution date of this Thursday will remain in place.
Robert Roberson III, 57, was sentenced to death in 2003 in connection with the death of his 2-year-old daughter Nikki Curtis. He has claimed his innocence for roughly two decades with his lawyer citing junk science as the reason for his conviction. He is set to be executed this Thursday.
According to the Associated Press, Roberson would be the first person in the U.S. to be executed in connection with a "Shaken Baby Syndrome" conviction, a theory that his defense says has been debunked.
The hearing held Tuesday sought to make his execution date null and void by arguing that Judge Deborah Oakes Evans, who oversaw the case, did not follow the proper retirement procedure. Evans signed the warrant that set Roberson's execution date.
Judge Alfonso Charles, presiding judge of the Tenth Administrative Judicial Region, ruled that Evans was properly appointed as a senior judge and she followed the process correctly. He denied the defense's request to vacate the execution.
Roberson's attorney Gretchen Sween argued she didn't know she could object to Evans' appointment because she wasn't given proper notice. Sween said she wasn't made aware of Evans' appointment until this summer when the execution date was set.
Charles asked why Sween waited until Sept. 25 to file a motion to recuse.
Sween said Evans must be recused if her impartiality could be questioned. Sween said she didn't file a motion to recuse because the defense was busy fighting off Roberson's execution. The defense claimed they were denied hearings over and over.
Sween claimed Evans has deep relationships with judges and the district attorney who have been connected to upholding the conviction against Roberson.
Ultimately, Charles ruled that elected officials knowing each other is the nature of a smaller community, and friendships alone are not enough to justify recusal. Based on that, he also denied the motion to recuse Evans.
JUNK SCIENCE
According to Roberson's legal team, his daughter Nikki died from an illness, accident and medical error, not because of any abuse.
In January 2002, he rushed his daughter's limp, blue body to the hospital after he found her unconscious and seeing that she had fallen from the bed in their Palestine home, according to the Texas Tribune.
In 2013, the Texas Legislature passed the so-called Junk Science Writ, which allows people to challenge wrongful convictions by showing changes in the field of forensic science. This possibly allows the convicted person to receive a new trial.
Sween said this case falls into the category of junk science, and new evidence shows Roberson's daughter died from undiagnosed pneumonia and prescription medications that she was given in the last few days of her life.
NEXT STEPS
After the hearing, Sween said she's filing a motion to challenge Roberson's unlawful detention on the grounds of junk science claims and she intends to file an appeal with the Texas Supreme Court.
On Oct. 7, the attorneys filed a motion to stay the execution with the Texas Court of Criminal Appeals, which was rejected last week, leaving him with fewer options to stop the execution.
On Sept. 17, Roberson filed a petition seeking clemency from Gov. Greg Abbott, which documents submitted by the defense say is supported by many.
State Rep. Jeff Leach (R-McKinney), who is among the representatives who believe Roberson to be innocent, said Tuesday the Texas Board of Pardons and Paroles is set to give a recommendation regarding clemency to Gov. Greg Abbott.
The clemency decision from the Board of Pardons and Paroles will be given on Wednesday. Leach said Abbott normally waits until having that decision before making his own.
Abbott also has authority to issue a 30-day reprieve, regardless of the board's recommendation.
Sween said she knows relying on the executive branch for clemency is a long shot, but she's asking Abbott to at least give those 30 more days (if he is unfamiliar with the circumstances) to make Roberson's case known to the public.
Leach said that from everything he has read, the 2013 junk science law has been largely ignored by the trial and appeals courts.
"I've been doing this long enough to know when the system fails someone, and I strongly believe that the system has failed Mr. Roberson in this case," Leach said. "And it's our obligation and our duty to speak up and step up."
Leach, who is a supporter of the death penalty, said supporters and opponents alike in the legislature are simply asking for the pause button to be pushed before Thursday.
"The Texas Capitol is the people's house, and that includes inmates on death row who have been, I believe in this case, wrongfully accused and wrongfully convicted," Leach said.
Also, the Committee on Criminal Jurisprudence, which Leach is a member of, will be having a hearing Wednesday at 10 a.m. about this case, Leach said. The specific topic will be the criminal procedure related to capital punishment and new science under the Code of Criminal Procedure, according to the agenda.
Leach said it's the legislature's obligation to step in when there's been such a "failure" as seen in Roberson's case.
Additionally, 86 Texas state representatives, including State Rep. Jay Dean, R-Longview, and Jill Dutton, R-Ben Wheeler, have signed a letter to the Board of Pardons and Paroles and Abbott urging clemency for Roberson. Some of those same lawmakers met with Roberson at the prison unit in Livingston to pray with him.
During a press conference, Brian Wharton, lead detective in charge of investigating Roberson's daughter's death, said he believes Roberson is innocent and he is saddened to see that Roberson could still be executed.
Wharton said as a Christian, he thinks that the death penalty should be abolished and humans cannot determine justice because it's something they will always be seeking.
Wharton also agreed with others that the courts have ignored the junk science law.
"We have to make it our passion to seek justice, and it will always be seeking. It will never be there. Will never find the day when we've got it OK? So we are asking, we're pleading for your help," Wharton said. "Help us seek justice for Robert and all the rest of those who are held in prison unjustly."
He said he's been involved in the appeals process for around seven years and has visited Roberson in the Polunsky Unit in Livingston multiple times. During those visits, Roberson has always offered to pray for Wharton.
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