A Texas man is to be executed later this week for the murder of his daughter over two decades ago, as his legal team awaits a last-minute bid for clemency.
Robert Roberson, 57, is due to be executed via lethal injection on Thursday despite a number of growing calls to have him exonerated.
He was convicted in 2002 for the death of his two-year-old daughter Nikki, with investigators blaming it on the now-discredited shaken baby syndrome (SBS).
Attorneys for Roberson have been fighting to overturn conviction for years, saying he was wrongfully placed on death row using faulty and outdated information.
The lead detective in the case Brian Wharton, numerous scientists and a bipartisan coalition of 86 state lawmakers have all came forward in support of his final bid for salvation.
On Tuesday, Wharton addressed a demonstration outside the courthouse in Palestine, Texas, where he was convicted, saying: ‘Robert is an innocent man. He is a kind man. He is a gentle man. He is a gracious man.’
Roberson’s legal team are now waiting on an 11th hour ruling by the Texas Board of Pardons and Paroles and a decision in his favor by Governor Greg Abbott.
Abbott can only grant clemency after receiving a recommendation from the parole board. That decision was expected to be published on Wednesday.
Under Texas law, Abbott has the power to grant a one-time 30-day reprieve without a recommendation from the board.
In his nearly 10 years as governor, Abbott has halted only one imminent execution, in 2018 when he spared the life of Thomas Whitaker.
Roberson’s team have filed countless appeals in hope that they can stay his execution.
Two of those last ditch attempts failed on Tuesday, causing them to file a request for stay of execution with the US Supreme Court.
They argued that his due process rights were violated when the Texas Court of Criminal Appeals declined to consider more evidence to support their claims.
Another appeal was also filed earlier this week with the Texas Court of Criminal Appeals, who denied another request to stop the execution on Friday.
On Wednesday, the Texas House Committee on Criminal Jurisprudence held a hearing to look into a law created to help those imprisoned over flawed scientific evidence.
The state became the first state in the country to pass the specific legal avenue into law, dubbed the ‘junk science writ’.
When the law was passed state lawmakers noted infant trauma as being one of the examples of science that the bill was intended to target.
The committee filed a letter with the Court of Criminal Appeals (CCA) on Tuesday asking for a request to stay of execution for Roberson until the end of 2025.
They wrote: ‘We believe that Article 11.073 has not been the pathway to relief—or even a new trial—that the legislature intended in cases like Mr. Roberson’s.
‘Here, significant scientific and medical evidence that no jury has had the chance to hear now shows that natural and accidental causes can explain the death of his chronically ill daughter, Nikki, not just the abusive shaking that the State argued at trial had to have caused her death.
‘It is beyond dispute that medical evidence presented at Mr. Roberson’s trial in 2003 is inconsistent with modern scientific principles. Article 11.073 was meant exactly for cases like this one.’
Wharton, a since retired detective formerly with the police department in Palestine, was involved in the case in 2002.
He has since came forward and called for the state to halt the execution, saying they would be making ‘a tragic, irreversible mistake’.
Wharton has said that the evidence he used to help convict Roberson was now wrong, and Roberson shouldn’t be behind bars for the death of his daughter.
Speaking on Wednesday to the House Committee, he said: ‘Based on what I know, what I believe, I think we should just apologize to Robert and send him home.
‘To those who hold the power to do something here, now is the moment. There is a life hanging in the balance.
‘There is no time or place for half measures. We constructed an appeal system because we understood that we get things wrong.
‘It’s all pointless if nobody will admit, we got it wrong. So please, whoever it maybe. Don’t make my mistake. Listen to Robert, hear his voice. You will hear innocence.’
Wharton, who is now a Methodist minister, said the conclusion by a hospital doctor that the toddler had died after being violently shaken ‘led the investigation from that point forward, to the exclusion of all other possibilities.’
Roberson’s case also has drawn the attention of the Innocence Project, which works to reverse wrongful convictions as well as best-selling American novelist John Grisham.
Grisham, author of the legal thrillers ‘The Firm’ and ‘A Time to Kill,’ said on Tuesday that cases such as Roberson’s ‘keep me awake at night.’
‘When you get into wrongful convictions, you realize how many innocent people are in prison,’ said Grisham, a former attorney.
On Wednesday his lawyer Gretchen Sween said: ‘We have so many highly qualified experts who have looked at Nikki’s medical and autopsy records, and they agree she did not die from head trauma—let alone inflicted head trauma.
‘The State’s theory at trial was based on debunked science, a medical examiner’s woefully inadequate investigation and its theory that a crime occurred relies on the cynical notion that no court will look at the new evidence.’
Prosecutors – and the jury – at the time determined that Nikki had died not from a fall but from being shaken to death by her father.
But in the years since, doctors have stepped away from assigning shaken baby syndrome (SBS) as a cause of death.
The scientist who proposed it himself even admitted that it was being used to ‘put innocent people in prison’, warning in 2012 ‘we have gone badly off the rails.’
Roberson was given custody of Nikki by her maternal grandparents after her mother, who has remained unnamed was denied custody in the hospital after her birth.
In the week prior her death, Nikki had been sick and appeared at a local emergency room where she was prescribed Phenergan and sent home.
After her condition didn’t improve, doctors again prescribed her more Phenergan and codeine, an opioid now restricted from children under the age of 18.
The following night she had gone to sleep beside her father, who woke up to find her unconscious.
Roberson was a parolee at the time of his daughter’s death with previous convictions for burglary and theft and parole violations.
Sween, said his autism spectrum disorder, which was not diagnosed until 2018, was also not taken into account and contributed to his arrest and conviction.
During the medical crisis involving his daughter, Roberson ‘shut down, and his external lack of affect was judged as a lack of caring,’ Sween said.
On Friday, the Texas Court of Criminal Appeals denied an emergency motion to stay Roberson’s execution and order a new trial.