Ex-juror in ‘shaken baby’ case tells hearing Texas death row inmate should not face execution

The latest headlines from our reporters across the US sent straight to your inbox each weekday

Your briefing on the latest headlines from across the US

Please enter a valid email address

Please enter a valid email address

SIGN UP

I would like to be emailed about offers, events and updates from The Independent. Read our privacy policy

A juror who helped convict an autistic death row inmate whose execution was dramatically stopped four days ago has told a group of lawmakers she now believes he is innocent and his life should be spared.

Roberson, 57, was blocked from appearing in person before the Texas House of Representatives Committee on Criminal Jurisprudence on Monday.

The committee subpoenaed him to testify the night before his execution, effectively granting him a 90-day reprieve. But the Texas Attorney General’s Office said he could only speak virtually. Roberson is currently at the Allan B Polunsky Unit in Livingston.

In 2003, he was convicted of capital murder in the death of his two-year-old daughter Nikki Curtis the year before. Prosecutors claimed Roberson murdered his daughter by shaking and striking her, resulting in blunt-force trauma, otherwise known as “shaken baby syndrome.”

The death row inmate has always claimed his innocence. Some medical professionals now believe his daughter died from a combination of severe undiagnosed chronic viral pneumonia compounded by a secondary acute bacterial pneumonia that progressed to sepsis.

Terre Compton, an original juror, told the committee the jury was not made aware of Nikki’s medical history, stating she would’ve found Roberson “not guilty” had she known then what she knows now.

At the same hearing, celebrity TV doctor and talk show host Dr Phil – real name Phillip McGraw – said he was “100 percent” certain that a miscarriage of justice would be committed if Roberson is given another execution date.

The hearing does not have the power to stop the execution but is being held in an effort to raise awareness about Roberson’s case. McGraw holds a doctorate degree in clinical psychology and has interviewed Roberson in prison.

“I do not believe that Mr Roberson has had due process in this case,” he told the nine committee members. “I think this is a case where there was no crime committed.” That belief is now also held by the former lead detective who prosecuted Roberson.

McGraw questioned how Roberson’s trial did not mention Nikki’s extensive medical history.

“How was this case tried without all of this stuff being put into the record?” McGraw asked, adding Roberson should get a new trial.

“If we are going to deprive someone of their life, that comes at a very high standard, a very high standard of proof, a very high standard of evidence.”

Roberson most likely would’ve been executed by lethal injection on Thursday had the committee not issued the subpoena as part of a hearing on whether Article 11.073, a 2013 state law dubbed the “junk science statute,” is being applied in criminal cases as intended.

The lawmakers, Roberson’s attorneys and McGraw say it has not been.

Over the weekend, the state attorney general’s office announced it would allow Roberson to testify over Zoom, a decision in defiance of the subpoena, which states the respective parties must agree to alternative accommodations.

Roberson declined to appear virtually for multiple reasons cited by his attorneys, including his lack of experience using Zoom and his autism spectrum disorder, which was diagnosed in 2018. His attorneys argued the move would also deprive him of legal counsel.

During a district court hearing last week, the attorney general’s office acknowledged the subpoena was lawful.

The Independent has emailed the Texas Department of Criminal Justice and attorney general’s office for comment.

The Texas Board of Pardons and Paroles declined against granting Roberson clemency on Wednesday.

A bipartisan group of lawmakers in a pro-death penalty state issued the subpoena that same evening. The following day, a Travis County judge granted a temporary restraining order stopping the execution.

In a dash against the clock, the Texas Attorney General’s Office appealed the court’s ruling in order to make sure the execution went ahead. The state criminal appeals court vacated the restraining order, also pressing for the execution to continue as planned. However, lawmakers who wanted to stop it then appealed that decision to the Texas Supreme Court, which granted the stay.

The US Supreme Court said it could not intervene.

Texas Governor Greg Abbott, the only person with the ability to grant Roberson a 30-day reprieve, had not spoken out on the matter until Monday, when he asked the state supreme court to throw out the subpoena, stating that the power to grant clemency is his alone and lawmakers have “stepped out of line.”

“If the House Committee on Criminal Jurisprudence thinks itself entitled to testimony from a criminal on death row, a point which is not conceded, it could have done so without erasing the authority given exclusively to the Governor,” Abbott wrote in a letter to the court.

“Only at the eleventh hour, when the Constitution empowers the Governor to make the last move, did the House Committee decide to violate the Separation-of-Powers Clause.”

The governor submitted the letter in support of a motion the attorney general’s office filed with the court on Saturday asking to reverse the decision allowing Roberson to testify. The court is now taking up further briefing on the matter.

Elsa Alcala, a former judge on the state criminal appeals court, noted during the hearing that the appeals court could decide to reopen Roberson’s case on its own. The Anderson County District Attorney, the prosecuting body, can now request another execution date for Roberson. His attorneys would get about three months’ notice per Texas law.

Roberson would be the first person in the US to ever be executed in connection with the condition, which has been widely discredited by medical experts.

Days before his daughter’s death, Roberson took Nikki to the emergency room in Palestine, Texas as she’d been suffering from a respiratory infection, diarrhea and vomiting. A doctor prescribed Phenergan and Roberson took Nikki home. The next day, she developed a 104-degree fever and was given another dose of the medication combined with codeine, court records state.

The Federal Drug Administration no longer recommends the combination to children due to risks of induced breathing difficulties and death. Nikki had a long history of chronic health conditions, including breathing apnea.

Roberson later left the hospital with his daughter, took her home and put her to bed.

The following morning, he said he awoke to a strange cry and found Nikki on the floor at the foot of the bed. He said he comforted her and the two fell back asleep, court filings state. When he woke up later that morning, he said Nikki was unconscious with blue lips. He rushed her to the emergency room, but she already had signs of brain damage, including fixed and dilated eyes.

She was taken to the Children’s Medical Center in Dallas, where she died from her injuries on February 1, 2002. Roberson’s attorneys say hospital officials took Nikki off life support without consulting him. Roberson had sole custody of the child at the time.

A physician at the hospital found evidence of the syndrome, which was usually diagnosed when the following symptoms were present: subdural hematoma, brain swelling and retinal hemorrhages.

At the time, the medical community believed the symptoms meant a child had been violently shaken, and possibly struck against a blunt surface. It’s now believed that other medical problems can result in the same symptoms.

The medical examiner ruled Nikki’s death a homicide and Roberson was charged with capital murder the day after she died.

Compton said the jury was not told the entire story. Speaking to committee members, she said she cried upon learning of Roberson’s execution date. The jury did not get it right, she said, noting she no longer thinks Roberson killed his daughter.

“I literally, in my eyes, was killing a man that I knew was innocent and I was gonna have to live with that,” she said, adding the attorney general’s recent statements on the matter have “pissed me off very much.”

While telling legislators about his interview with Roberson, McGraw said: “I asked him point blank, straight up, looking him square in the eye. Did you harm this child? Did you shake this baby? Did you put your hands on this child in anger? Did you neglect this child? Did you fail to get this child to the hospital in a timely fashion?”

Roberson responded he did not.