PALESTINE, Texas — A judge during a Tuesday hearing ruled that an East Texas death row inmate's execution date of this Thursday will remain in place.
Robert Roberson III, 57, was sentenced to death in 2003 in connection with the death of his 2-year-old daughter Nikki Curtis. He has claimed his innocence for roughly two decades with his lawyer citing junk science as the reason for his conviction. He is set to be executed this Thursday.
According to the Associated Press, Roberson would be the first person in the U.S. to be executed in connection with a "Shaken Baby Syndrome" conviction, a theory that his defense says has been debunked.
The hearing held Tuesday sought to make his execution date null and void by arguing that Judge Deborah Oakes Evans, who oversaw the case, did not follow the proper retirement procedure. She signed the warrant that set Roberson's execution date.
Judge Alfonso Charles, presiding judge of the Tenth Administrative Judicial Region, ruled that Evans was properly appointed as a senior judge and she followed the process correctly. There is nothing in the law saying it wasn't. He denied the defense's request to vacate the execution.
Roberson's attorney Gretchen Sween argued Evans didn't have the jurisdiction over this case and she should be removed under Texas law due to a question of her impartiality.
The defense says they had no way of knowing they could've objected to Evans' appointment because they weren't given proper notice. Sween said she wasn't made aware of Evans' appointment until this summer when the execution date was set.
Charles asked why Sween waited until Sept. 25 to file a motion recuse. She said recusal is fraught and a person shouldn't pop off and do that so quickly.
Sween said Evans must be recused if her impartiality could be questioned. Sween said she didn't file a motion to recuse because the defense was busy fighting off Roberson's execution. The defense claimed they were denied hearings over and over.
Sween claimed Evans has deep relations with judges and the district attorney who have been connected to upholding the conviction against Roberson.
Ultimately, Charles ruled that elected officials knowing each other is the nature of a smaller community, and friendships alone are not enough to justify recusal. Based on that, he also denied the motion to recuse Evans.
According to Roberson's legal team, his daughter Nikki died from an illness, accident and medical error, not because of any abuse.
In January 2002, he rush his daughter's limp, blue body to the hospital after he found her unconscious and seeing that she had fallen from the bed in their Palestine home, according to the Texas Tribune.
In 2013, the Texas Legislature passed the so-called Junk Science Writ, which allows people to challenge wrongful convictions by showing changes in the field of forensic science. This possibly allows the convicted person to receive a new trial.
Sween said this case falls into the category of junk science, and new evidence shows Roberson's daughter died from undiagnosed pneumonia and prescription medications that she was given in the last few days of her life.
After the hearing, Sween said she's filing a motion to challenge Roberson's unlawful detention on the grounds of junk science claims and she intends to file an appeal with the Texas Supreme Court.
State Rep. Jeff Leach (R-McKinney), who is among the representatives who believe Roberson to be innocent, said the Texas Board of Pardons and Paroles is set to give a recommendation regarding clemency to Gov. Greg Abbott.
On Sept. 17, Roberson filed a petition seeking clemency from Gov. Greg Abbott, which documents submitted by the defense say is supported by many.
Additionally, 86 Texas state representatives, including State Rep. Jay Dean, R-Longview, and Jill Dutton, R-Ben Wheeler, have signed a letter to the Board of Pardons and Paroles and Abbott urging clemency for Roberson. Some of those same lawmakers met with Roberson at the prison unit in Livingston to pray with him.
Sween said she knows relying on the executive branch for clemency is a long shot, but she's asking Abbott to at least give 30 more days (if he is unfamiliar with the circumstances) to make Roberson's case known to the public.
Also, the Committee on Criminal Jurisprudence, which Leach is a member of, will be having a hearing Wednesday at 10 a.m. about this case, Leach said. The specific topic will be the criminal procedure related to capital punishment and new science under the Code of Criminal Procedure, according to the agenda.
During a press conference, Brian Wharton, lead detective in charge of investigating Roberson's daughter's death, said he believes Roberson is innocent and he is saddened to see that Roberson could still be executed.
Wharton said as a Christian, he thinks that the death penalty should be abolished and humans cannot determine justice as it's something they will always be seeking.
He said he's been involved in the appeals process for around seven years and has visited Roberson in the Polunsky Unit in Livingston multiple times. During those visits, Roberson has always offered to pray for Wharton.
On Oct. 7, the attorneys filed a motion to stay the execution with the Texas Court of Criminal Appeals. However, on Friday, that appeal was rejected by the CCA, leaving him with fewer options to the stop the execution.
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