HUNTSVILLE — A Travis County judge granted a temporary restraining order Thursday, pausing the scheduled execution of Robert Roberson.
The order was quickly followed by an appeal from the Texas Attorney General to the Texas Court of Criminal Appeals, according to the Texas Department of Criminal Justice. If that appeal is granted, the execution will move forward. That court has previously denied on multiple occasions requests by Roberson to delay his execution.
Protesters outside the execution site in Huntsville
Jay Johnson/CBS News Texas
The restraining order came after Texas lawmakers issued a subpoena to 57-year-old Roberson Wednesday night in a last-minute legal effort to stop his execution, which would be the first in the country connected to a shaken baby syndrome diagnosis. Roberson was scheduled to receive a lethal injection at 6 p.m. Thursday for the 2002 death of his 2-year-old daughter, Nikki Curtis, in the East Texas city of Palestine.
"This is an extraordinary remedy," Republican state Rep. Jeff Leach of Plano said during arguments Thursday. "But it is not undue."
Republicans and Democrats on the House Criminal Justice Committee believe Roberson deserves a new trial based on the medical theory that the death of his chronically ill daughter was caused by violent shaking, known as shaken baby syndrome, which has been widely dismissed by many experts as junk science.
Leach said over 80 legislators signed a letter "calling for the pause button into Roberson's execution," believing his testimony is vitally necessary.
Robertson's lawyers also asked the U.S. Supreme Court to stay his execution on Wednesday. The court denied that application Thursday, with Justice Sonia Sotomayor writing in her ruling that the "Supreme Court is powerless to act without a colorable federal claim, and because the Texas Board of Pardons and Paroles declined to recommend clemency, only one remedy remains: an executive grant of a reprieve delaying Roberson's execution by thirty days."
Such a reprieve would need to come from Texas Gov. Greg Abbott.
"An executive reprieve of thirty days would provide the Texas Board of Pardons and Paroles with an opportunity to reconsider the evidence of Roberson's actual innocence," Sotomayor wrote. "That could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence."
Over the last two days, Roberson's attorney with The Innocence Project expressed confidence that his life would be spared.
"We asked the Supreme Court to stop Texas from committing a devastating, irreparable mistake because Robert Roberson has not received due process," Roberson's attorney Gretchen Sween said in response to the decision from SCOTUS. "Yesterday, the Texas House of Representatives heard a full day of testimony documenting the failure of that process. No one who heard that testimony could be left with any doubt that Robert is completely innocent and never received a fair process."
Roberson's lawyers and supporters don't deny that head and other injuries from child abuse are real, claiming doctors misdiagnosed Curtis' injuries as being related to shaken baby syndrome. They also claim that Roberson's conviction was based on faulty and now outdated scientific evidence related to shaken baby syndrome.
The diagnosis refers to a serious brain injury caused when a child's head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.
His supporters said new evidence has shown the girl died not from abuse but from complications related to severe pneumonia.
Those protesting Thursday's scheduled execution included the police detective who helped send Roberson to death row, Brian Wharton.
"Let me just say, Robert is an innocent man," said Wharton. "But more than that, he is a kind man. He is a gentle man. He is a gracious man."
The American Academy of Pediatrics, other medical organizations and prosecutors say the diagnosis is valid and that doctors look at all possible things, including any illnesses, when determining if injuries were attributable to shaken baby syndrome.
The Anderson County District Attorney's Office, which prosecuted Roberson, has said in court documents that after a 2022 hearing to consider the new evidence in the case, a judge rejected the theories that pneumonia and other diseases caused Curtis' death.
Prosecutors maintain Roberson's new evidence does not disprove their case that Curtis died from injuries inflicted by her father.
What courts have said about shaken baby syndrome
In recent years, courts around the country have overturned convictions or dropped charges centered on shaken baby syndrome, including in California, Ohio, Massachusetts and Michigan.
In a ruling last week in a different shaken baby syndrome case out of Dallas County, the Texas Court of Criminal Appeals ordered a new trial after finding scientific advancements related to the diagnosis would now likely result in an acquittal in that case.
But the appeals court has repeatedly denied Roberson's request to stay his execution, most recently last week.
In the U.S., at least eight individuals have been sentenced to death because of shaken baby syndrome, said Robin Maher, executive director of the Death Penalty Information Center. Two of these eight have been exonerated and Roberson is the only one to have received execution dates.
"According to the National Registry of Exonerations, at least 30 people across the country have been exonerated based on this discredited scientific theory," Maher said.
But Danielle Vazquez, executive director of the Utah-based National Center on Shaken Baby Syndrome, said a 2021 research article found that 97% of more than 1,400 convictions related to shaken baby syndrome/abusive head trauma from 2008 to 2018 were upheld and that such convictions were rarely overturned on the grounds of medical evidence.
