With Robert Robertson’s execution hours away, supporters hope desperate measures will spare him

Former Detective Brian Wharton testifies during a Criminal Jurisprudence hearing on death row inmate Robert Roberson on Oct. 16 in Austin. Wharton was an investigator in the case of the death of Nikki Roberson and has expressed his doubts about Roberson's guilt and agrees with stopping his execution. (Credit: Sergio Flores for The Texas Tribune)

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As Texas prison officials ready the death chamber to execute Robert Roberson on Thursday night, a thundering chorus of people who believe the state is about to kill an innocent man hope last-minute measures will buy him more time.

Roberson was convicted of killing his 2-year-old daughter, who was diagnosed with shaken baby syndrome. But experts, lawmakers and the lead detective in the girl’s case say the science supporting Roberson’s death sentence no longer holds up — and the state’s “junk science” law should have already halted his execution.

In an stunning move, a Texas House committee voted unanimously Wednesday to subpoena Roberson ahead of his Thursday execution, a step that sought to give the man a final lifeline after a series of court rejections left him on track to become the first person in the country executed for allegedly shaking a baby to death.

[With little say over Robert Roberson’s fate, Texas lawmakers take extraordinary steps to buy him more time]

That move “sets up a bit of a separation of powers issue that I think would result in him not being executed tomorrow night,” Benjamin Wolff, director of the Texas Office of Capital and Forensic Writs, said on Wednesday, adding that he had not seen this maneuver attempted before, so it was not clear what could happen. “It’s an unprecedented subpoena and an unprecedented case.”

But Roberson set to be executed around 6p.m. Thursday, it’s unclear if that gambit will work.

The Texas House Criminal Jurisprudence Committee approved the subpoena hours after the state’s highest criminal court again declined to stop the execution, and after the Texas Board of Pardons and Parole denied Roberson’s request for clemency. Gov. Greg Abbott cannot defy the board’s recommendation, but he can issue a 30-day reprieve. Abbott has remained silent. Roberson’s lawyers have also asked the U.S. Supreme Court to step in.

The committee’s subpoena — which was offered by state Reps. Brian Harrison, R-Midlothian, and Jeff Leach, R-Plano — calls for Roberson to "provide all relevant testimony and information concerning the committee's inquiry."

Gretchen Sween, Roberson's attorney, said that she had "no knowledge" of a subpoena being used before in an effort to pump the brakes on an execution.

"It shows how strongly the lawmakers who have learned about this case feel about the injustice," she said.

The subpoena could set up competing legal obligations for the Texas Department of Criminal Justice — produce Roberson for testimony at the committee’s Oct. 21 hearing or execute him Thursday.

Roberson’s attorneys and the Texas House could also use the subpoena to request a stay of execution to allow Roberson to appear for testimony before the panel. But Brian Wice, a criminal appeals attorney and former Court of Criminal Appeals clerk, said Attorney General Ken Paxton’s office, which represents the TDCJ in late-stage capital litigation, could move to quash the subpoena. That could escalate the issue up to the state’s highest criminal court.

Wice was skeptical that the legislative subpoena could end up buying Roberson more time.

“It’s a dog and pony show,” Wice said. “There is no way on Earth the Court of Criminal Appeals, the toughest kids in the schoolyard, are going to let this happen.”

The parole board’s six members voted unanimously earlier Wednesday to deny Roberson's clemency application. The decision came amid a forceful bipartisan campaign to spare Roberson’s life, and as lawmakers raised concerns that the courts were not properly implementing a groundbreaking 2013 “junk science” law that was intended to provide justice to people convicted based on scientific evidence that has since changed or been debunked.

Former detective Brian Wharton testifies during a Criminal Jurisprudence hearing on death row inmate Robert Roberson on Wednesday, Oct. 16, 2024 in Austin. (Credit: Sergio Flores for The Texas Tribune)

“It is 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," Sween said in a statement after the board's vote. “We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man.”

Brian Wharton, the lead detective in Roberson’s case who sided with the prosecution at trial, has called for his exoneration, as has bestselling author John Grisham. A large majority of the Texas House has asked the courts to take a second look at his case. Doug Deason, a GOP megadonor and Abbott ally, also publicly said he believes in Roberson’s innocence, according to the Houston Chronicle.

“I felt like God was pushing me and telling me that I needed to get involved in this case,” Deason told the Chronicle. “Let’s not put a man to death when there are some issues and open questions.”

Roberson, who was convicted of capital murder in 2003 for the death of his ailing 2-year-old daughter, Nikki Curtis, has maintained his innocence over 20 years on death row.

Robert Roberson in court for the review of his 2003 conviction in the death of his two-year-old daughter, Nikki Curtis, in Palestine on August 14, 2018. (Credit: Shelby Knowles for The Texas Tribune)

“Governor Abbott, I did not do this,” Roberson said in an interview with NBC News’ Lester Holt that aired Oct. 3. “And I’m just hoping and praying that you do the right thing.”

He has argued that his conviction was based on an unfounded shaken baby syndrome diagnosis given to his daughter, which presumed abuse and did not consider her severe illness before her death. Prosecutors have maintained that Nikki suffered multiple traumas and that there was clear evidence of abuse — conclusions that Roberson’s attorneys dispute.

The four Democrats and five Republicans on the Texas House Committee on Criminal Jurisprudence urged the state’s highest criminal court on Tuesday to stay Roberson’s execution through the 2025 legislative session, saying that the junk science law “has been applied in a manner that raises serious constitutional and equitable concerns.”

“It is beyond dispute that medical evidence presented at Mr. Roberson’s trial in 2003 is inconsistent with modern scientific principles,” the lawmakers wrote to the court, requesting a stay so that the Legislature could consider amendments to the law. “We believe it would be a stain on the conscience of the State of Texas for an execution to proceed while efforts are underway to remedy deficiencies in how the law was applied to this case.”

The courts have rejected all of his appeals so far, with the state’s highest criminal court, on procedural grounds, declining on Wednesday to stop his execution. It previously denied his arguments, without considering their merits.

The refusal by the state’s highest criminal court to consider Roberson’s argument that his conviction relied on a faulty shaken baby syndrome diagnosis, lawmakers said, reflected a breakdown of due process and a failure to implement the junk science law as the Legislature intended.

“This was a pretty clear case where Robert Roberson did not have due process,” state Rep. Lacey Hull, R-Houston, said on CNN on Tuesday. “Texans deserve to know that our justice system is fair and just, and we cannot say that right now.”

The Texas House Criminal Jurisprudence Committee held a hearing spotlighting Roberson’s case and the junk science law on Wednesday as the clemency recommendation loomed. Critics have argued that in the decade since the bill became law, it has rarely provided justice as intended to wrongfully convicted individuals.

“We have one of the best junk science statutes in the nation here in Texas, and unfortunately it doesn’t seem like that was used here,” Hull said on CNN. “Under the junk science statute, Robert Roberson deserves a new trial.”

The parole board has recommended clemency in just one capital case out of the 85 applications it has considered over the past decade.

Dozens of scientists, medical professionals, parental rights groups, organizations that advocate for people with autism and faith leaders submitted letters in support of clemency along with Roberson’s application.

Letters from his friends and loved ones depicted a gentle man of faith who remembered people’s favorite colors and sent handmade birthday cards to everyone he met.

“This man would never harm another person, especially not his small little baby girl!” Manuela Doris Roberson, whom Roberson married in 2022, wrote in one letter. “Robert’s life is worth more to me, his children, his friends and loved ones than all the treasures of this world.”

Correction, Oct. 16, 2024 at 3:54 p.m.: A previous version of this story misidentified Lester Holt’s network. He works for NBC.