Robert Roberson juror says new evidence would have prevented his conviction in shaken baby case

A Texas House panel heard more than nine hours of testimony Monday from a range of people who support death row inmate Robert Roberson, seen at the TDCJ's Polunsky Unit in Livingston on Dec. 19, 2023. (Credit: Ilana Panich-Linsman for The Innocence Project)

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A juror in Texas death row inmate Robert Roberson’s 2003 capital murder trial on Monday told the legislative panel that temporarily stopped his execution that she would not have voted to convict him if presented with the new evidence that his current attorneys have put forward.

Terre Compton’s testimony before the Texas House Committee on Criminal Jurisprudence came hours after Roberson himself was initially expected to appear and speak on his own behalf in response to a legislative subpoena. But Roberson didn’t testify due to a dispute over whether he should answer lawmakers’ questions about his conviction and appeals in person or virtually.

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The unusual, high-profile committee hearing about an already litigated death penalty case lasted over nine hours and featured a range of Roberson’s supporters as lawmakers convinced of his likely innocence drew from his celebrity advocates, including “Dr. Phil” McGraw and novelist John Grisham, to make a public case on his behalf.

“I just finally came to the conclusion he was an innocent man,” Compton, who voted in favor of Roberson’s conviction and death sentence, said on Monday. “In good conscience, I could not live with myself thinking that I had a hand in putting an innocent man to death.”

Compton testified that prosecutors in Roberson’s trial and sentencing focused tightly on the shaken baby diagnosis given to his daughter, Nikki Curtis, and that the jury was never shown various medical records that Roberson has since pointed to as proving that she died of natural and accidental causes.

“Everything that was presented to us was all about shaken baby syndrome,” Compton said. “That was what our decision was based on. Nothing else was ever mentioned or presented to us to consider. If it had been told to us, I would have had a different opinion. And I would have found him not guilty.”

Terre Compton, who was a juror during Robert Roberson’s 2003 trial, testified at a hearing held by the Texas House Committee on Criminal Jurisprudence on Monday. (Credit: Lorianne Willett/The Texas Tribune)

Roberson was convicted in 2003 in the death of his chronically ill 2-year-old daughter, who was given a shaken baby syndrome diagnosis that many experts and lawmakers say is no longer supported by the scientific evidence. He has maintained his innocence over two decades on death row, while prosecutors say evidence of abuse is still convincing.

Prosecutors in recent months have sought to downplay how central Nikki’s shaken baby diagnosis was to Roberson’s conviction. But witnesses on Monday, including Compton and others involved in Roberson’s appeals, said the trial record refuted that characterization.

Medical and forensic experts, in addition to a bipartisan coalition of lawmakers, have argued that Nikki most likely died not from abuse, but from viral pneumonia, which was exacerbated by medications no longer prescribed to children her age because they suppress breathing.

When the committee subpoenaed Roberson last week, saving his life for now, it called for him to testify in person. But Attorney General Ken Paxton, who is representing the state’s prison system, said that “in the interest of public safety,” the 57-year-old inmate would only testify via video. The subpoena also kicked off a legal battle over the separation of powers between the state’s legislative and executive branches.

Both the committee and Roberson’s lawyers objected to a virtual set-up, saying Roberson’s autism and lack of technological experience after more than 20 years on death row would inhibit his ability to effectively testify virtually. Roberson’s lawyers also accused Paxton’s office of misrepresenting several facts in multiple court filings and asked that their client appear in person.

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Gretchen Sween, Roberson’s attorney, testified on Monday that Roberson posed no safety risks, citing his selection by the prison to a program that allows certain inmates to move freely and convene with other inmates. She also noted how Roberson met with Texas lawmakers in recent weeks, unshackled and without incident.

And she said that before Paxton intervened, prison officials seemed open to facilitating Roberson’s in-person testimony. The prison warden called her on Friday after the execution was halted, Sween said, and gave no indication that Roberson’s in-person testimony would pose a challenge for prison personnel.

Bobby Lumpkin, a senior official at the Texas Department of Criminal Justice, called Sween Friday morning, she testified, and said the agency was “doing everything possible” to make Roberson’s testimony “run smoothly.” Sween added that Lumpkin offered to find Roberson street clothes so he would not have to appear before the committee in his prison garb.

TDCJ staff asked Roberson his favorite color so they could find him clothes he would feel comfortable in, Sween said, to which Roberson said he didn’t know after becoming accustomed to his all-white prison uniform over two decades.

Paxton’s office and the TDCJ did not immediately respond to requests for comment.

State Rep. Joe Moody, D-El Paso and chair of the Criminal Jurisprudence Committee, said that the panel is working to ensure the death row inmate’s testimony could be taken soon, such as via the lawmakers visiting with Roberson on death row.

“There's been a lot of discussion about video conferencing Robert in today,” Moody said. “I believe that that'd be perfectly reasonable for most inmate witnesses, but Robert is a person with autism who has significant communication challenges, which was a core issue that impacted him at every stage of our justice system. Our committee simply cannot agree to video conference.”

Moody said the committee was in talks with the attorney general and expected a “quick resolution” that would allow Roberson to testify.

State Rep. Jeff Leach, R-Plano, said earlier Monday that lawmakers were considering a “field trip” to the Polunsky unit if Roberson could not appear in Austin, CNN reported.

The Texas House Committee on Criminal Jurisprudence meets Monday to weigh Texas' "junk science law. Death row inmate Robert Roberson, who was convicted in 2003 of killing his daughter based on a shaken baby diagnosis, was scheduled to testify in person before the committee, but the attorney general blocked the appearance. (Credit: Lorianne Willett/The Texas Tribune)

While most witnesses at the committee’s hearing last week were medical and forensic experts testifying to how shaken baby diagnoses and Nikki’s case had changed, Monday’s witness list featured a number of Roberson’s high-profile supporters who appeared selected to make a broader, more publicly accessible case for his innocence.

“The trial was a farce,” Grisham testified, praising lawmakers’ intervention. “You took a bold stand against injustice at the precise moment when the courts and the leaders of the state seemed hell-bent on executing Robert. If not for you, Robert would be in his grave today.”

The line-up aligned with the reality of the committee’s authority over Roberson’s fate. Though the panel’s legal maneuvering last week bought him more time, and lawmakers have utilized their bully pulpit to press for a new trial, Roberson remains sentenced to death.

Leach, one of the primary drivers of the legal battle the committee has waged on Roberson’s behalf, acknowledged the limits of the committee's jurisdiction in his opening remarks.

“It is not our role as the Legislature to retry this case,” he said. “We have to be very cognizant and careful not to act as some super appellate court. And I hear those concerns, I share those concerns, and we have to be — members — laser focused on staying in our lane.”

In response to the committee’s subpoena of a condemned man and the separation of powers conflict it triggered, the Texas Supreme Court halted Roberson’s execution late Thursday — the first time in Texas history, experts believed, that one high court blocked an execution that was already approved by the other. The Texas Court of Criminal Appeals repeatedly declined to stop Roberson’s execution, clearing the way for it to move forward earlier that same day.

One of Monday’s witnesses was former Court of Criminal Appeals Judge Elsa Alcala, who has criticized the court’s application of the state’s 2013 junk science law and whose experience on the bench turned her against the death penalty.

The Texas House criminal jurisprudence committee tied its intervention in Roberson’s case to concerns that the courts were not properly implementing the junk science law, which was created to allow inmates to obtain new trials when the scientific evidence at the center of their case has since changed or been discredited.

Alcala, who served on the state’s highest criminal court from 2011 to 2018, argued that the court “has not used a common sense approach in applying these statutes.”

“It has been over-technical, and it leans too far to uphold convictions and sentences that I think many other Supreme Courts in other states would reverse.”

Don Salzman, a pro-bono lawyer whose firm analyzed Roberson’s case on his defense attorney’s request, detailed to lawmakers just how incongruous the scientific evidence presented at trial was to the fuller, evidential picture pointing to pneumonia as Nikki’s true cause of death.

“When you read the transcript in this case,” Salzman said, “I think it’s very clear what the jury heard: outdated, unverified, unreliable science that was presented to the jury as fact. And it was essentially, as this committee has expressed, a diagnosis of murder.”

Salzman refuted the state’s claim that Nikki presented at the hospital with widespread bruising, saying that Nikki had a bleeding disorder that made her prone to bruising, including from medical care to save her life. He pointed to trial testimony from the first nurse who encountered the child at the hospital, who said Nikki had only slight bruising on her face and a soft spot on her head when Roberson brought her to the emergency room — consistent, Salzman said, with Roberson’s claim that he had awoken that day to find Nikki fallen from the bed.

And Salzman highlighted the prosecutors’ accusation at trial that Roberson had sexually abused Nikki. A nurse who claimed to be certified as a sexual assault examiner — but who later admitted she was not — discussed pedophilia and testified to the jury that Nikki had three anal tears, leading her to conclude that Roberson had abused her.

Medical records show Nikki suffered from diarrhea throughout the week leading up to her death, and another child abuse expert testified at trial that she found one small tear, and did not take it as evidence of abuse.

“Has there ever been a scintilla of substantiated evidence to support that claim” of sexual abuse, state Rep. Brian Harrison, R-Midlothian, asked.

“Absolutely not,” Salzman replied.

Still, Salzman said, the state, without offering any other evidence of sexual abuse, presented it to the jury as one of two justifications for the death penalty. Later in the trial, the state withdrew sexual abuse as grounds for execution, but still discussed it in its closing statement.

Roberson’s family members traveled from Tyler to the Capitol on Monday morning, hoping he would testify and convince lawmakers that he is innocent.

“We are really thankful to the House for taking a stand and doing the right thing when no one else would,” said Jennifer Martin, Roberson’s sister-in-law.

Days earlier, Martin said she was with Roberson in Huntsville, preparing for his execution. Her son, Nicholas Featherstone, stood outside the prison with a few dozen others protesting against Roberson’s execution.

“I just hope,” Featherstone said, “justice is served.”