Texas death row inmate accused of murdering his daughter is granted hearing in bid to avoid being executed based on widely discredited medical theory

A Texas death row inmate accused of murdering his two-year-old daughter has been granted a last-minute hearing in his bid to avoid execution.

Robert Roberson III, 57, is set to die by lethal injection on October 17 for allegedly shaking his young daughter, Nikki, so violently that he caused irreversible brain damage and death.

But on Tuesday, a judge announced that he will hear Robersons motion to vacate his execution warrant on October 15, the Dallas Morning News reports.

His attorneys petitioned the state for the hearing, arguing in a court filing last week that the now-retired judge who oversaw his post-conviction preceding and issued his execution warrant in July did not follow statutory procedure and did not have jurisdiction over the case.

At the same time, the attorneys are continuing to press the Texas Board of Pardons and Paroles to recommend Gov. Greg Abbott stay the execution, arguing the science around the so-called shaken baby syndrome has changed.

Robert Roberson, 57, is set to be executed on October 17 for murdering his two-year-old daughter in 2002

Prosecutors argued he shook his daughter, Nikki, so forcefully that he caused irreversible brain damage and death from shaken baby syndrome, also known as abusive head trauma

Prosecutors at Robersons original trial argued that Nikkis 2002 death was consistent with shaken baby syndrome - pointing to the diagnostic triad of intracranial hemorrhaging, brain swelling and bleeding behind retinas.

They have rejected Robersons assertion that his young daughter simply fell out of bed the night before, and he found her unconscious, limp and blue.

Instead, medical staff at a Palestine hospital believed Nikkis injuries - including bruises on her face, a bump on the back of her head and bleeding outside of her brain - were all caused by abuse and alerted police to the scene, according to the Dallas Morning News.

But Nikki was chronically ill and suffered a high fever in the days before her death, attorneys for the Innocence Project argue. 

She had the first of many infections that proved resistant to antibiotics just days after her birth - including a chronic ear infection that persisted even after she had tubes surgically implanted.

The young girl also had a history of unexplained breathing apnea that caused her to suddenly stop breathing, collapse and turn blue. 

Roberson claimed that his young daughter simply fell out of bed the night before, and he found her unconscious, limp and blue

Then, within just one week of her death, Nikki had been vomiting, coughing and having diarrhea, Robersons attorneys said.

When those symptoms continued for five days straight, Roberson and his mother took Nikki to a local emergency room, where a doctor prescribed Phenergan - a drug that now carries a Food and Drug Administration warning against being prescribed to children of Nikkis age and in her condition.

Still, her condition continued to worsen with her temperature rising about 104 degrees Fahrenheit, for which another doctor prescribed more Phenergan in a cough syrup with codeine - an opioid that is now restricted for children under the age of 18 due to its risks of causing breathing difficulty and death.

Nikkis toxicology report even showed lethal levels of Phenergan in her system at the time of her death, defense attorneys say. 

He has maintained his innocence in his daughters death or more than two decades

Roberson has maintained his innocence in his daughters death for the more than two decades he has languished on death row, and in 2016, he was granted a stay of execution when his attorneys claimed his conviction was based on junk science and false, misleading and scientifically invalid testimony.

An evidentiary hearing then began in 2018, but was discontinued after a district clerk found a box of 15-year-old evidence, including Nikkis CAT scan.

Judge Deborah Oakes Evans then made a recommendation to the Texas Court of Appeals as it considered whether Roberson would receive a new trial, the Palestine Herald reports. 

She then retired in December 2022, but continued to preside over Robersons case after the states highest criminal court decided in 2023 that doubt over the cause of his daughters death was not enough to overturn his death sentence.  

Evans even issued his recent execution warrant and set his execution date without granting the defense a hearing.

But Robersons attorney, Gretchen Sween argued in court documents last week that Evans failed to follow the required statutory procedure for a retired judge to become eligible to accept assignments to preside over cases in lieu of elected judges - and therefore anything she has ruled on since her retirement is invalid.

Sween also claimed there are other factors that when viewed in the totality suggest the appearance of a lack of impartiality, a statutory basis for recusal.

Those factors include an opaque process by which Evans was appointed to oversee the case, contact she has had with other individuals who have been involved in Robersons case over the years and rulings in a similar shaken baby case involving many of the same people - to which Evans was reportedly also assigned following her retirement.

The totality of the circumstances, including the seriousness of this case, require prompt reassignment to an impartial judge who can vacate the unlawfully-entered execution warrant and related orders, which Judge Evans signed absent lawful authority, Sween argued.

His attorneys were able to get a stay of execution in 2016 when they questioned whether shaken baby syndrome even exists

Meanwhile, Robersons attorneys are continuing to petition the Board of Pardons and Paroles to recommend a stay of his execution.

They claim that new medical evidence proves that Nikki died of severe viral and bacterial pneumonia that then progressed to sepsis and eventually septic shock.  

Court filings show that Dr. Francis Green, an expert in lung pathology, reviewed Nikkis medical history and her lung tissue under a microscope.

He found that her lungs were infected with two different and virulent types of pneumonia - which clogged her lungs, starving her brain of oxygen and ultimately causing death, Green wrote in a report.

The pneumonia started many days or weeks before her final hospitalization, he added.

Dr. Keenan Bora also concluded that Nikkis post-mortem toxicology report shows she had dangerously high levels of promethazine in her system, prescribed by two different doctors on two consecutive days, and Dr. Julie Mack concluded that the initial CAT scans of Nikkis head show only a minor impact site - consistent with Robersons story that she fell off a bed and possibly banged her head.

Robersons attorney, Gretchen Sween, argued that his execution warrant should be rescinded because it was handed down by a retired judge 

Robersons attorneys have also raised their concerns that shaken baby syndrome may not be an actual medical diagnosis.

It was first posited by neurosurgeon Norman Guthkelch in 1971, and has since become an accepted medical fact.

But researchers have challenged the hypothesis that shaking an infant can cause such brain damage since the 1980s, with some studies concluding that it cannot biomechanically cause the injuries Guthkelch described, according to USA Today. 

In light of the debate, Robersons attorneys say he should have allowed to get a review of his conviction under Texas Article 11.073, which was passed 10 years ago to allow convicted individuals who are out of appeals to pursue relief based on changes in scientific understanding since the time of their convictions.

Yet the Court of Criminal Appeals denied his petition in September, dismissing it as an abuse of the writ, or raising a claim that should have been raised in an earlier petition, ABC News reports. 

The court did not address the merits of Mr Robersons changed-science claim, based on new, correlated reports from medical experts from an array of disciplines, the Innocence Project argues.

The new claim was dismissed based on an unexplained procedural barrier. 

Attorneys have also stressed that the Court of Criminal Appeals is currently considering another non-death penalty case that involves the same questions about the merits of shaken baby syndrome - but in that case the court ruled that the science has changed enough to merit a new trial.

In that case, the State conceded the unreliability of the shaken baby theory and agreed that the habeas applicant should get a new trial, the Innocence Project noted.

Yet in Mr. Robersons case, the State, represented by the elected DA in Anderson County, has consistently resisted the notion that the science has changed in any material way and has defended the States trial expert testimony.