Texas ‘shaken baby syndrome’ execution in legal limbo after appeals court reversal

In an 11th-hour turn of events, Robert Roberson, the first person set to be executed in the U.S. based on the largely discredited “shaken baby syndrome” hypothesis, was granted a temporary hold on his death sentence.

On Thursday evening, however, the Texas Court of Criminal Appeals reversed the temporary hold ordered by a Travis County judge earlier in the day, possibly putting the execution back on track.

In light of the reversal, lawmakers are now trying to take the case to the state Supreme Court.

These back-and-forth decisions came just hours after Robertson’s request for a stay of execution and a petition for certiorari with the U.S. Supreme Court was denied Thursday afternoon. SCOTUS denied the stay and petition with no dissents, giving Texas the go-ahead to execute Roberson.

But just before the court’s decision was announced, Travis County Judge Jessica Mangrum had ordered a temporary hold on Roberson’s execution to allow him to testify in a legislative hearing next week — delaying the looming execution, despite the Supreme Court’s ruling.

The delay came through less than two hours before Roberson was scheduled to be executed.

Notably, Roberson’s execution warrant is only valid through Oct. 17.

Roberson was found guilty of the murder of his 2-year-old daughter based on the testimony from a pediatrician who described swelling and hemorrhages in Nikki’s brain to support a “shaken baby syndrome” diagnosis, even though there is limited evidence that this is a credible diagnosis.

The hypothesis has come under serious scrutiny in biomechanical studies, as well as a growing body of medical and legal literature. The medical examiner at the time also suspected that Nikki sustained multiple head injuries and considered the death a homicide in the official autopsy.

Roberson is autistic, according to his legal team, which affects how he expresses emotions — a concern that also arose during the trial.

Since his conviction, newly presented evidence found that Nikki had pneumonia at the time of her death and had been prescribed respiratory-suppressing drugs by doctors in the days leading up to her death.

A medical expert who performed post-mortem toxicology reports and reexamined her lung tissue said they found that chronic interstitial viral pneumonia and acute bacterial pneumonia were damaging her lungs, causing sepsis and then septic shock, likely leading to vital organ failure.

Over 30 medical and scientific experts have written to the Texas Board of Pardons and Paroles, asking it to reconsider Roberson’s sentence because it hinged on the “shaken baby syndrome.”

A bipartisan group of 86 Texas House of Representatives members have also spoken in support of Roberson’s clemency request, arguing that a state law enables reviews of wrongful convictions based on changes in scientific evidence. In Roberson’s case, they believe that the new evidence should have led to a new trial.

In his plea to halt the execution to the Supreme Court, Roberson argued that his federal due process rights were violated when Texas’ highest court refused to consider his bid to reopen the case based on “substantial new scientific and medical evidence.”

The plea itself followed two previous efforts: to have his sentence commuted to life in prison and to have his execution delayed. Both requests were denied by the Texas Board of Pardons and Paroles.

In its statement of opposition to the Supreme Court on Wednesday, the state of Texas claimed that there has been no violation of Roberson’s constitutional rights that would warrant intervention from the higher court.

It said that its own courts have adequately considered and rejected Roberson’s requests to review the evidence, writing: “As noted by the [Criminal Court of Appeal’s] opinion on direct review and Judge [Kevin] Yeary’s recent concurrence, ‘the tiny victim suffered multiple traumas’ that are inconsistent with a short fall from a bed or complications from a virus.”