A Texas death row inmate scheduled for execution less than 20 days from now has decided to apply for a new trial rather than a clemency plea. 

In 2003, 58-year-old Robert Roberson was found guilty of killing his two-year-old daughter, Nikki. Prosecutors claimed that the child died due to ‘shaken baby syndrome,’ indicating she was shaken with such force that it resulted in her death.

Roberson has consistently asserted his innocence since his conviction, contending that advances in scientific understanding have disproven the shaken baby diagnosis and revealed that his daughter actually passed away from a longstanding health condition.

The concept of shaken baby syndrome has faced criticism as ‘junk science’ in recent times, and Roberson’s legal team aims to demonstrate that he was not properly represented during his initial trial, and that Nikki’s medical ailments were overlooked as potential causes of her death.

“Mr. Roberson is truly innocent,” stated his attorney, Gretchen Sween. “If executed, despite substantial evidence supporting his innocence, Texas would be committing a grave miscarriage of justice.”

During his initial trial, Roberson was criticized for displaying minimal emotion when he took his daughter to the emergency room. His attorneys have explained that he later received an autism diagnosis, which accounted for his apparent lack of emotional expression.

Jacquie Benestante, the executive director of the Autism Society of Texas, has expressed her desire for Roberson’s diagnosis to be considered in a retrial, as noted in a letter she sent to state legislators along with the Autism Society of America.

Dr. Natalie Montfort, an autism specialist based in Houston, said ‘Robert Roberson’s case is the most extreme example of a persistent problem, in which misperceptions about autistic people contribute to their wrongful convictions and excessive punishments.’ 

Robert Roberson, 58, was convicted of murdering his two-year-old daughter, Nikki, in 2003

Roberson has maintained his innonence since he was convicted

The convicted father’s execution date is scheduled for October 16. His deadline to submit an application for clemency was on Thursday, September 25, but he decided he would instead focus on his application for a new trial. 

Under Texas law, a successfuly clemency plea could mean a reduction of his sentence from execution to life in prison, but it would not remove his conviction. 

A new trial is especially attractive considering Roberson already applied for clemency and was denied last year, and his lawyers are convinced there is enough new evidence to prove his innocence. 

In Texas, a majority of the Texas Board of Pardons and Paroles has to recommend clemency before the governor may grant it. Roberson’s application for clemency last year did not receive that majority recommendation and it was denied the day before he was set to be executed. 

A remarkable bipartisan effort among Texas state lawmakers to delay Roberson’s execution date ensued, and the Texas Supreme Court granted the extension. 

This kicked off a political battle between members of the Texas House of Representatives pushing for a new trial and Texas Attorney General Ken Paxton, whose office represents the state in opposing Roberson’s appeals.

At the time, Paxton said those lawmakers, ‘created a Constitutional crisis on behalf of a man who beat his two-year-old daughter to death.’ 

Roberson’s lawyer, Sween, said she advised her client not to apply for clemency again because it would still be an injustice for him to spend life in prison as an innocent man. 

Roberson’s execution is scheduled for October 16, less than 20 days from now

‘If [Roberson] is executed, despite the overwhelming evidence of his innocence, Texas will commit an extreme miscarriage of justice,’ said Roberson’s lawyer Gretchen Sween

‘A commutation of sentence is not justice for an innocent man who was wrongfully convicted of a crime that never occurred,’ she said in a public statement. 

Sween added that the Texas Board of Pardons and Paroles rejected the application for clemency last year without any explanation, making it impossible to know what kind of information would be persuasive or effective in a future plea. 

Roberson’s legal team filed his original application for a new trial in February, and they submitted an updated application in August, citing new evidence brought to them in June and claiming that the judiciary in the county where he was arrested acted unconstitutionally in his case. 

The application claims that his daughter was taken off life support at the request of her grandparents, even though Roberson was the sole conservator. 

It says that the staff at the hospital did so only after representatives of the Anderson County Judiciary falsely told them that the grandparents were Nikki’s legal conservators. It was only after Nikki died that Roberson was arrested for capital murder. 

The application also claims that then-3rd District Court Judge Jerry Calhoon was improperly involved in the case because he signed off on an order to provide Roberson’s legal counsel despite his son being a prosecutor in the trial. 

Roberson also has an outstanding appeal at Texas’ highest criminal court, the Court of Criminal Appeals, which includes expert opinions that both Nikki’s shaken baby diagnosis and the autopsy ruling her death a homicide were flawed.

The appeal also highlights the court’s decision last year to overturn a different shaken baby conviction of a Dallas man. 

Throughout Roberson’s appeals, state prosecutors have maintained that the evidence behind his conviction remains sound, and they have downplayed the importance of the shaken baby diagnosis in his trial. 

If Roberson is executed, he will become the first person in the US to be put to death based on a shaken baby diagnosis.