Texas’ highest criminal court has halted the execution of Robert Roberson, who had been scheduled to die via lethal injection next week, after being convicted of killing his 2-year-old daughter Nikki Curtis.
Roberson’s was the latest case from Texas to produce a small explosion of news coverage, one of many featuring celebrities and lawmakers arguing that the state was about to execute an innocent person. His execution was one of eight scheduled across the country in October, part of a boom in executions this year.
In the coming months, Roberson’s biggest claims — that he was wrongly convicted based on faulty scientific testimony — will be fought over in the district court where he was sentenced to death, in Palestine, Texas.
I’ve been covering Roberson’s case for The Marshall Project for more than two years, and have boiled down the most important themes in the case, along with what they tell us about the death penalty in America today.
1. His guilt rests on the shaky science of “shaken baby syndrome.”
Roberson was charged with murder in 2002 after he brought Nikki to an emergency room in Palestine, Texas. She was unresponsive and turning blue. He thought she’d fallen out of bed, but after she died, a pediatrician and pathologist both told police she had been shaken.
This was the heyday of billboards and television ads warning people to “never, ever shake a baby.” At the time, there was a dawning awareness of the danger of shaking, and doctors diagnosed the syndrome based on signs like brain swelling and bleeding in key locations.
But in the years since Roberson’s 2003 trial, many doctors decided the same symptoms could stem from accidental falls and other causes. A new group of medical experts thinks Nikki actually died from a tragic combination of pneumonia, drug complications, and a fall from her bed. Roberson’s lawyers used this analysis to ask the Texas Court of Criminal Appeals for a stay of execution. He would have been the first person executed in the U.S. based on a murder conviction tied to a “shaken baby syndrome” diagnosis.
This is one of countless cases in recent years where new science casts doubt on old convictions. But the death penalty makes the problem less fixable, because someone sent to prison for life can still be freed, but you can’t bring someone back from the dead.
2. Autism played a surprisingly big role in the case.
Autism advocates are among Roberson’s loudest supporters, arguing his case shows how the police and courts can fail autistic people. When Roberson first arrived at the hospital, he didn’t act distraught in the way nurses and doctors had come to expect of worried parents. Afterward, his behavior — like pausing to make a sandwich while taking police around his house — appeared suspicious to detectives.
But years later, psychologists diagnosed him with autism, and argued that this could explain much of his behavior. “At trial, the prosecution highlighted Roberson’s flat affect, a symptom of his autism,” wrote psychologist Natalie Montfort in the Houston Chronicle last year. “Jurors were encouraged to judge him as a callous liar.” But his “outward appearance masked intense distress that he could not express.”
Several years ago, the lead detective in the case, Brian Wharton, admitted that he had misinterpreted Roberson’s behavior and joined those arguing for his innocence.
3. Roberson was diagnosed as a “psychopath” using a controversial test.
Psychologist Thomas Allen testified that Roberson was a “psychopath” and named Adolf Hitler and Ted Bundy as other, more famous examples with the condition, as if to place the father in a pantheon of 20th-century villains.
Allen had relied on a famous and controversial “psychopathy checklist” that has played some role in at least a dozen death sentences since 1998, earning complaints of misuse from another psychologist who created the checklist. Allen also relied on accusations against Roberson of sexual assault that never led to prosecution, due to a lack of evidence.
Allen told me the “psychopath” label likely played a minor role in the jury’s choice to send Roberson to death row, since he’d already been convicted of killing his toddler. But Roberson’s lawyers have argued, “It is impossible to remove the harsh stain from the jury box once a psychologist throws the label ‘psychopath’ at the defendant.”
4. He’s earned support from conservative lawmakers and activists.
Roberson was also nearly executed a year ago. Like other death row prisoners, he was narrowly spared amid a political circus. Dr. Phil McGraw showed up at the Texas Capitol to argue for Roberson’s innocence last year, less than a week before he appeared at Donald Trump’s presidential campaign rally at Madison Square Garden.
That odd timing reflects growing ambivalence about the death penalty in conservative circles. Last year, a bipartisan group of Texas lawmakers turned to a novel strategy to stop Roberson’s execution: They called upon him to testify in person at the capitol building in Austin, after he was scheduled to die. This ultimately led to a series of complicated tussles between all three branches of the Texas government. While Roberson never made it to the capitol, his execution was stayed by the Texas Supreme Court.
This time, there was less political theater, since Roberson was saved by the Texas Court of Criminal Appeals. Although they are not officially swayed by politics, the court’s judges are all elected to their seats. Several received support in their Republican primary campaigns from Texas Attorney General Ken Paxton, the leading public figure pushing for Roberson’s execution.
That may sound like a potential conflict of interest, but it’s par for the course in many states with elected judges. Before the court issued a stay, Roberson’s conservative supporters publicly signaled to these judges that it was politically safe for them to stop the execution.
5. A podcast bombshell
Last week, Roberson received a new megaphone for his innocence claims: An NBC News podcast series hosted by Lester Holt. In the first episode, Holt revealed a conflict of interest that may have marred Roberson’s 2003 trial.
When Nikki was still on life support, Anderson County Judge Bascom Bentley allegedly directed the hospital to defer decisions on her care to her maternal grandparents, rather than Roberson, her father. (Her mother has not been involved in the case publicly.) “Matter of fact, Judge Bentley told ’em we were the parents,” grandfather Larry Gene Bowman told NBC News. Roberson had custody of his daughter at the time, but the grandparents chose to disconnect Nikki from life support.
Bentley went on to preside over Roberson’s capital murder trial. In a new filing to the Court of Criminal Appeals on Oct. 6, Roberson’s lawyers argue that Bentley violated Roberson’s parental rights and was clearly biased against the father when he oversaw his trial. Some of Nikki’s relatives, including her half-brother Matthew Bowman, support Roberson’s execution.
It may sound shocking that such important details would emerge so close to an execution. But it’s common, and that may be because the death penalty can’t be undone, so a certain panicked, no-stone-unturned atmosphere sets in among lawyers, journalists and lawmakers. Because all criminal cases involve human beings, they are susceptible to human error, so after a decade or two, there is often something troubling waiting to be dug up.
