PALESTINE — A judge in Anderson County on Tuesday morning denied pleadings from an East Texas man on death row for fatally shaking his daughter, thwarting an 11th-hour attempt by lawyers to stop the execution.
After an hour-long hearing inside a Palestine district courtroom, administrative Judge Alfonso Charles rejected arguments from Robert Roberson III’s attorneys that his death warrant is illegitimate because the judge who oversaw post-conviction proceedings erred.
The state, for now, is barreling toward executing Roberson, 57, by lethal injection on Thursday in Huntsville. If put to death, Roberson will become the first person in the country to be executed for the scrutinized “shaken baby syndrome” theory, according to lawmakers.
“I’m enraged; I’m heartbroken, but we are not giving up this fight,” lawyer Gretchen Sween said outside the Beaux-Arts style courthouse in Palestine. The judge’s decision means thatthe window is closing for Roberson’s legal team to file its final appeals and pursue other recourse, including petitioning the U.S. Supreme Court.
Roberson is also seeking clemency; the state’s highest criminal appeals court has twice denied to stay his death sentence.
The Texas Board of Pardons and Paroles’ recommendation to Gov. Greg Abbott on whether Roberson should be granted clemency is likely to be announced Wednesday, according to Laura Burstein, a spokeswoman for Roberson’s legal team. Abbott last agreed to spare the life of a death row inmate in 2018.
Anderson County District Attorney Allyson Mitchell did not immediately respond to a text message seeking comment. Prosecutors did not make themselves available for comment after the morning hearing.
In 2002, Roberson found 2-year-old Nikki unresponsive. He rushed her blue, limp body to a hospital and said she fell from a bed. Medical staff suspected child abuse and called police, according to court documents.
Roberson’s prosecution centered on doctors’ testimony that Nikki’s death was consistent with shaken baby syndrome, when an infant is severely injured from being violently shaken. Roberson’s lawyers have called the hypothesis “junk science” and said new evidence shows Nikki, who was chronically ill, died from pneumonia and medical error.
Roberson teleconferenced into Tuesday’s hearing from the Polunsky Unit. He wore an all-white uniform, watched intently as lawyers sparred, and appeared to talk to someone off camera during lulls.
Sween argued in open court that retired state District Judge Deborah Evans, who issued Roberson’s execution warrant in July, did not follow statutory procedure and did not have jurisdiction over the case.
Attorneys also questioned Evans’ impartiality because of her friendships with jurists connected to the case and rulings in another “shaken baby syndrome” case. The hearing grew tense; Charles, presiding judge for the 10th Administrative Judicial Region in Longview, chastised Sween for “disparaging” Evans “without any evidence.”
Muffled gasps and sighs erupted from the roughly 70-person crowd in the courtroom gallery as Charles handed down his decision. Roberson’s family, activists, members of the national news media, Rep. Jeff Leach and Dallas County exonerees Ben Spencer and Richard Miles, among others, packed the pews.
Sween wept and whimpered upon hearing the ruling, hastily leaving the courthouse and saying to spectators that she’s “not done yet.”
“I am saddened by what we saw today and what’s been going on up until this point,” Brian Wharton, a former detective whose testimony helped convict Roberson, told a gaggle of reporters. Wharton now believes Roberson is innocent.
“We have a system that’s in place that should catch this stuff and fix it,” he added. “It is incredibly painful to watch the system close in on itself and guard itself.”
Roberson’s execution would haunt Wharton, he said.
When asked about his decision to attend the hearing, Miles — the exoneree and namesake for a state law requiring police verify they’ve turned over all evidence to prosecutors — said “an injustice for one is an injustice to all.”
Miles said the case is a “full showing” for abolishing the death penalty: “Life in prison is a death sentence. … You’ve killed them from society, and you killed them from yourself. That’s enough.”
Leach, a Plano Republican, said the “system has failed.” Leach is part of a bipartisan coalition of lawmakers urging the state to pause Roberson’s execution.
The House committee on criminal jurisprudence is scheduled to convene Wednesday in Austin to discuss Roberson’s case and application of the “Junk Science Writ,” which allows people to challenge convictions by showing changes in science — like DNA, fingerprints and bitemark analysis — undercuts the integrity of their trial.
“We pass bills and we expect them to be followed,” Leach said, “and when we see our junk science statute, which we spent a lot of time on, just being largely ignored — I’ve got a big problem with that.”
Last week, the Court of Criminal Appeals vacated the conviction of a Dallas County man accused of injuring a child because scientific advancements undermined shaken baby syndrome, a move that seemed to signal hope for how the justices would weigh in on Roberson’s case.
More than 30 people who served time in prison after convictions involving shaken baby syndrome have been declared innocent, according to the National Registry of Exonerations.