Attorneys for Robert Roberson are petitioning the United States Supreme Court to step in and issue a stay on his execution and to consider whether the Texas Court of Criminal Appeals (CCA) denied him due process by refusing to even consider the substantial new scientific and medical evidence of his actual innocence, according to his legal team Wednesday afternoon.
The move follows the Texas Board of Paroles and Pardons decision to deny recommending clemency for Robert Roberson III one day before his scheduled execution, according to NBC News.
Roberson is scheduled to be executed by lethal injection on Thursday at 6 p.m. On Tuesday, a district court ruled they would not dismiss the execution warrant for Roberson.
In 2003, he was convicted of shaking his 2-year-old daughter to death, also known as shaken baby syndrome. Roberson's attorneys said new evidence suggests that's not what killed the little girl and that his life should be spared.
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Now, after Roberson was denied clemency, there are only a few ways to delay it. The U.S. Supreme Court can block an execution at the final hour, but it rarely does, according to NBC News. Without the recommendation from the board of pardons, Texas Gov. Greg Abbott cannot grant clemency and can only issue a one-time 30-day stay of execution.
"We urge Governor Abbott to grant a reprieve of 30 days to allow litigation to continue and have a court hear the overwhelming new medical and scientific evidence that shows Robert Roberson’s chronically ill, two-year-old daughter, Nikki, died of natural and accidental causes, not abuse," one of Roberson's attorney's Gretchen Sween said.
Dallas appellate lawyer Chad Ruback told NBC5 that a subpoena isn't enough to stop an execution.
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“I can’t remember him having ever granted a 30-day reprieve in a situation where the Board of Pardons and Parole recommended unanimously that he take no action. There’s also an application for stay pending before the U-S Supreme Court. Is the U-S Supreme Court likely to take action tonight or early tomorrow morning? They don’t do it terribly often. But if they’re ever going to do it, this seems like this might be a case for them to do it in light of the things we’ve discussed," said Ruback.
In a hearing on Wednesday, the Texas House Committee on Criminal Jurisprudence made a motion to subpoena Roberson after hours of testimony from experts who recently reviewed the 2003 conviction. Many said it was their opinion, that based on advances in scientific opinion, Roberson is not guilty.
Dr. Francis Green, a lung pathologist, who reviewed the case and the child’s medical records, testified he is confident Curtis died of natural causes related to bacterial pneumonia and not shaken baby syndrome. Green detailing what medical research over the past two decades has found.
“We are finding that these types of pneumonia are relatively common in the so-called shaken baby deaths and that was not known at the time of her death, this is fairly recently discovered,” said Green.
Asked by a lawmaker if he believes the child was ‘murdered,’ Green responded, “No. No. This was a natural death and cause of death was the viral and bacterial pneumonias that led to her death.”
The Texas House committee also heard testimony from medical experts, attorneys, advocates and some involved in the 2002 investigation.
In compelling testimony, Brian Wharton, the former chief of detectives for the Palestine Police Department who investigated the case in 2002, described his own fault and "failure" in handling the case.
"I told my wife last week that I'm ashamed. I'm ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice. He's an innocent man and we are very close to killing him for something he did not do," Wharton told the committee Wednesday.
The committee hearing also discussed the state’s ‘changed science’ law, which is supposed to allow prisoners to challenge convictions based on science that is proven wrong.
"The question is what do we do as the legislature when we have a defendant, Mr. Roberson, who is 24 hours away from facing what I believe is a wrongful execution by the state, what tools we have our disposal to ensure the court of criminal are enforcing the statute and that we don’t on our watch, members, allow another wrongful execution in this state," said Leach during the day-long hearing.
Various groups and political leaders are also calling for the delay of Roberson's execution. Among them is State Rep. Jeff Leach (R-Collin County), who stood alongside activists and attorneys on the Anderson County courthouse steps on Tuesday.
“I join with death penalty supporters, like myself, and death penalty opponents in the legislature who are asking and imploring and doing everything we possibly can to simply push the pause button before Thursday,” Leach said.
I think we should apologize to Robert and send him home," Wharton said. "Please, whoever it may be...don't make the same mistake I made ... listen to Robert. Listen and you will hear innocence.
Brian Wharton, former chief of detectives for the Palestine Police Department during the 2002 investiagation
