Execution of Texas father in ‘shaken baby syndrome’ case set to go ahead after parole board votes against clemency

The execution of Robert Roberson , an autistic father at the center of a controversial “shaken baby syndrome” case, is set to proceed after the Texas Board of Pardons and Paroles unanimously voted against granting clemency on Wednesday.

Roberson, 57, is set to be executed by lethal injection on Thursday for the 2002 death of his two-year-old daughter Nikki Curtis. The board’s decision came during a Texas House of Representatives hearing on the case.

According to the board’s voting records, six panelists unanimously ruled against the commutation of a death sentence to a lesser penalty and a 180-day reprieve of execution.

The parole board does not have the power to stop an execution but Governor Greg Abbott can grant clemency upon receiving a recommendation from the board. The governor may also grant a one-time 30-day reprieve of execution without a board recommendation.

A group of 34 medical professionals from all over the world had sent a letter to the panelists stating Nikki died from a combination of severe undiagnosed chronic viral pneumonia compounded by a secondary acute bacterial pneumonia.

“In other words, there was no homicide,” the group wrote. “Mr Roberson should not have been convicted, let alone convicted and sentenced to death.”

On Monday, Roberson’s attorneys filed an emergency motion in the Texas Court of Criminal Appeals to stay the execution, urging the court to consider the medical and scientific evidence proving that Nikki died as a result of illness, accident and improper medications.

The next day, a group of 86 state legislators sent a letter to the court requesting a stay until the end of the 2025 session so legislators can consider amendments to laws impacting the case. In 2013, Texas enacted a law enabling review of wrongful convictions based on junk science. Lawmakers and Roberson’s attorneys say the law has not been applied in his case.

The court of criminal appeals denied all Roberson briefs on procedural grounds the following day. His attorneys asked the United States Supreme Court to stay his execution on Wednesday evening.

Roberson would be the first person ever executed in connection with the syndrome, which has been discredited by the scientific community. Norman Gutkelch, a British pediatrician credited with discovering “shaken baby syndrome”, told The Washington Post in 2015 he believed the reasoning behind some criminal convictions citing the science “was faulty.”

In the US,  at least eight people have been sentenced to death in connection with the syndrome. Two of those individuals have been exornerated. Last Wednesday, the Texas appeals court ruled that a Dallas man, who had been sentenced to 35 years in prison using the discredited science, deserved a new trial, claiming a jury would not convict him today with the same facts.

Days before his daughter’s death, Roberson took Nikki to the emergency room in Palestine, Texas as she’d been suffering from a respiratory infection, diarrhea and vomiting. A doctor prescribed Phenergan and Roberson took Nikki home. The next day, she developed a 104-degree fever and was given another dose of the medication combined with codeine.

The Federal Drug Administration no longer recommends the combination to children due to risks of induced breathing difficulties and death. Nikki had a long history of chronic health conditions, including breathing apnea, court records state.

Roberson later left the hospital with his daughter, took her home and put her to bed.

The following morning, he says he awoke to a strange cry and found Nikki on the floor at the foot of the bed. He says he comforted her and the two fell back asleep, court filings state. When he woke up later that morning, he says Nikki was unconscious with blue lips. He claims he tried to revive her and rushed her to the emergency room, but she already had signs of brain damage, including fixed and dilated eyes.

She was transported to the Children’s Medical Center in Dallas, where she died from her injuries on February 1, 2002.

A pediatrician determined that abuse had played a factor in the girl’s death, after finding signs on her body typically associated with “shaken baby syndrome”, which included subdural hematoma, brain swelling and retinal hemorrhages. At the time, the medical community believed that the symptoms meant a child had been violently shaken, and possibly struck against a blunt surface.

The medical examiner ruled Nikki’s death a homicide. Medical and law enforcement professionals did not further investigate the incident or consider her prescribed medications and prior illnesses, court records detail.

No one else was with Nikki at the time of her death, and Roberson had sole custody. Nikki’s mother was homeless and addicted to drugs. Child Protective Service took her at birth, long before Roberson was identified as the girl’s father.

Authorities charged Roberson with capital murder the day after she died.

Brian Wharton, a former lead detective tasked with prosecuting Roberson, told The Independent he found him in a stoic state at the hospital, not acting as he thought a distraught father should. Roberson was diagnosed with autism in 2018, which Wharton now believes contributed to his demeanor.

It appeared to be a straightforward case, Wharton said. His doubts began to emerge during Roberson’s trial. He didn’t believe the defense was up to par, and suspected the jury had been tainted after the district attorney introduced child sexual assault charges that were later dropped.

After Roberson was sentenced to death, Wharton hoped the ruling would be overturned in appeals. He routinely checked for updates in the case.

“I was, in my own naive way, confident that the system that I was part of would check itself, and clearly it has made no effort to do so in the intervening years,” Wharton said in a phone interview. He no longer thinks the science used to charge Roberson is credible. He left law enforcement in 2006 and is now a reverend in Onalaska, Texas.

When asked how he’d feel if Roberson is executed, he responded: “I’m so mad I could spit nails.

“Oh gosh, the grief. This is the deepest part of my shame. I visit him now and I don’t remember seeing him then the way I see him now. He is a kind and gentle man, a gracious man, a joyful man, a hopeful man.

“There is no kind of meanness in him. There will be this tremendous grief that I had a hand in killing something so beautiful.”

The parole board’s ruling came a day after an Anderson County court decided against vacating Roberson’s execution warrant. His attorneys argued that a judge who rejected his motion for relief in 2022 had been improperly assigned to the case.

Following the parole board’s ruling, one of Roberson’s attorneys, Gretchen Sween, vowed to continue fighting the case.

“It’s not shocking that the criminal justice system failed Mr Roberson so badly. What’s shocking is that, so far, the system has been unable to correct itself... We will ask Governor Abbott to issue a 30-day reprieve so we can continue to pursue Mr Roberson’s innocence claim. We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man.”