HUNTSVILLE, Texas — Advocates, including a bipartisan majority of the Texas House of Representatives, are pushing at the eleventh hour to spare a 57-year-old man with autism from execution.
Barring intervention, Texas will kill Robert Roberson after 6 p.m. Thursday. Roberson has been on death row since 2003, when an East Texas jury convicted him of killing his 2-year-old daughter.
Roberson's attorneys will try Tuesday, likely for the final time, to persuade a judge to delay his execution on procedural grounds. Tuesday is also the final day the Texas Board of Parole and Pardons can recommend Roberson for clemency, which would also require the governor's approval.
"There is no doubt in my mind of his absolute innocence," Roberson's attorney, Gretchen Sween, told WFAA Monday.
In 2002, Roberson's 2-year-old daughter, Nikki, fell off her bed in their East Texas home.
Roberson consoled the girl and put her back to sleep, but found Nikki basically braindead the following morning. He took her to the hospital, where she died.
At the time, doctors believed only a car crash, multi-story fall, or shaken baby syndrome could cause the kind of brain damage Nikki sustained. Prosecutors argued Roberson must have shaken Nikki and killed her.
Since Roberson's conviction, researchers have determined other incidents, including short falls, could cause the "triad" of symptoms affecting Nikki's brain. They also determined that a child cannot have Shaken Baby Syndrome without certain neck injuries, which Roberson's attorneys say Nikki did not have.
"I testified at Robert's trial for the state and my testimony helped convict him of murder and send him to death row, but for all the years since I've believed justice was not done," said Brian Wharton, the former Palestine police officer who investigated Roberson's case. "We didn't know that we didn't have the best information, but now we do."
Nikki was chronically ill and went to the emergency room with pneumonia and a 104-degree fever the week she died. Doctors prescribed the 2-year-old Phenergan and cough syrup containing Codeine - medications now deemed too strong for children.
Each prescription could have suppressed the child's respiratory system. A toxicology report showed potentially lethal levels of Phenergan in Nikki's system upon her death, Roberson's attorneys say.
"I don't believe a crime occurred," Sween said. "I believe a tragedy occurred, which devastated his entire family. He's one of the principal victims of this entire tragedy, having lost his precious little girl."
Last week, the Texas Court of Criminal Appeals overturned the conviction of a DeSoto man, Andrew Roark, in a shaken baby case. The court ruled that a jury would likely acquit the man if they heard expert testimony based on modern science.
Sween said the case is almost identical to Roberson's, though the same court that ruled in Roark's favor again refused to delay Roberson's execution last week.
There is at least one difference between the two cases, though: the Dallas County District Attorney's office supported vacating Roark's conviction. In 2023, Anderson County prosecutors argued their evidence against Roberson remains "clear and convincing."
Several courts of appeal have denied Roberson's plea for a new trial, though a judge previously stayed his execution in 2016.
More than 80 state lawmakers have formally asked Gov. Greg Abbott and the Texas Board of Pardons and Paroles to delay or stop Roberson's execution. In September, several legislators met the 57-year-old in prison and prayed with him.
"We shouldn't be executing someone when there is this much doubt about whether a crime was even committed," Rep. Joe Moody, D-El Paso, said during a September news conference.
Moody and other lawmakers have expressed frustration that the courts have not "engaged" with a law they passed in 2013, which gave criminals the right to appeal convictions based on debunked science.
In a rare step, Moody scheduled a special meeting of the House Committee on Criminal Jurisprudence for Wednesday. Lawmakers will discuss Roberson's case, though they cannot take action beyond drawing attention to the matter.