A Texas man set to be the first in the United States to be executed for shaking baby syndrome is making final appeals

HOUSTON (AP) — A Texas man who may be the first person in the U.S. executed for murder related to a diagnosis of shaken baby syndrome will face a lethal injection Thursday night after his lawyers and a diverse coalition of supporters have claimed that he is innocent and was convicted based on flawed scientific evidence.

Robert Roberson was waiting to hear whether his execution could be stopped by either Gov. Greg Abbott or the U.S. Supreme Court – his final two options for a stay. He will be given a lethal injection at the state prison in Huntsville.

Roberson, 57, was convicted of the 2002 killing of his 2-year-old daughter, Nikki Curtis, in the East Texas city of Palestine. Roberson has long maintained his innocence, supported by some notable Republican lawmakers and the case’s lead investigator.

“He is an innocent man and we are on the verge of killing him for something he didn’t do,” said Brian Wharton, the lead Palestinian police investigator who investigated Curtis’ death.

Roberson’s lawyers waited to see whether Abbott would grant Roberson a one-time reprieve of 30 days. That’s the only action Abbott can take in the case, since the Texas Board of Pardons and Paroles rejected Roberson’s request for clemency on Wednesday.

The board voted unanimously 6-0 not to commute Roberson’s death sentence to life in prison or delay his execution. All board members are appointed by the governor. The parole board has recommended a pardon in a death row case only six times since the state resumed executions in 1982.

In his nearly decade as governor, Abbott has only prevented one imminent execution, in 2018, when he spared the life of Thomas Whitaker, whose father had asked that his son not be executed. The father had survived a shooting staged by Whitaker.

“We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man,” Gretchen Sween, one of Roberson’s attorneys, said in a statement.

An Abbott spokesman did not immediately respond to an email seeking comment.

Roberson’s lawyers also have a stay pending before the Supreme Court. The country’s highest court has rarely granted eleventh-hour reprieves to people on death row.

Late Wednesday, a Texas House committee that was holding a daylong session on Roberson’s case issued a subpoena for him to testify at a hearing next week. It was not immediately known whether the committee’s request could delay Thursday’s execution. A spokesman for the Texas Department of Criminal Justice did not immediately respond to an email.

One of those pushing to stop Roberson’s execution is Texas GOP megadonor and conservative activist Doug Deason, who has spoken to Abbott’s staff.

“I believe he is innocent,” Deason wrote in a post on X on Tuesday.

While meeting in Austin, the Texas House Criminal Justice Committee heard testimony about Roberson’s case and whether a 2013 law allowing prison inmates to challenge their convictions based on new scientific evidence was ignored in Roberson’s case.

Anderson County District Attorney Allyson Mitchell, whose office prosecuted Roberson, told the committee that a trial took place in 2022 where Roberson’s lawyers presented their new evidence to a judge, who dismissed their claims. Mitchell said the prosecution’s case shows that Curtis was abused by her father.

“Based on the totality of the evidence, a murder has taken place here. Mr. Roberson took the life of his almost three-year-old daughter,” Mitchell said.

Most members of the committee are part of a bipartisan group of more than 80 state lawmakers, including at least 30 Republicans, who had asked the parole board and Abbott to stop the execution.

Roberson’s planned execution has reignited debate over shaken baby syndrome, known medically as abusive head trauma.

His lawyers, as well as Texas lawmakers, medical experts and others, including best-selling author John Grisham, say his conviction was based on flawed and now outdated scientific evidence. The diagnosis refers to a severe brain injury caused by a child’s head being injured by shaking or other violent impact, such as being thrown against a wall or thrown onto the floor.

Roberson’s supporters do not deny that head injuries and other injuries from child abuse are real. But they say doctors misdiagnosed Curtis’ injuries as being related to shaken baby syndrome and that new evidence showed the girl died as a result of severe pneumonia.

Roberson’s lawyers say he was wrongfully arrested and later convicted after taking his daughter to a hospital. It is said she fell out of bed at Roberson’s house after being seriously ill for a week.

Roberson’s lawyers have also suggested that his autism, which was undiagnosed at the time of his daughter’s death, was used against him because authorities had become suspicious of him because he had no emotions about what happened to her. Autism affects the way people communicate and interact with others.

The American Academy of Pediatrics, other medical organizations and prosecutors say the diagnosis of shaken baby syndrome is legitimate and that doctors look at all sorts of things, including any medical conditions, when determining whether injuries are due to it.

Roberson’s scheduled execution would come less than a month after Missouri killed Marcellus Williams, and questions still remain about his guilt and whether his death sentence should have been commuted to life in prison instead. Williams was convicted in the 1998 killing of Lisha Gayle, a social worker and former St. Louis Post-Dispatch reporter.

Roberson’s execution is scheduled to take place on the same day that Alabama is scheduled to execute Derrick Dearman, who was convicted of killing five people with an ax and a gun in a 2016 drug-fueled rampage.

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