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IN THE
TEXAS COURT OF CRIMINAL APPEALS
) Trial Cause No. 26,162
EX PARTE )
ROBERT LESLIE ROBERSON III, ) Writ Cause No. WR-63,081-03, -04
)
APPLICANT. )
EXECUTION DATE
OCTOBER 17, 2024
EMERGENCY MOTION FOR STAY OF EXECUTION
BASED ON NEW GROUNDS
Robert Leslie Roberson III, through counsel, respectfully moves this Court to
enter a stay of his execution, which is currently scheduled for October 17, 2024. This
Motion is filed, not for the purpose of delay, but so that justice can be served. It is
based on the following three new grounds:
• A habeas case is pending before this Court, Ex parte Roark, that involves the
same issue of whether the “science” used to obtain the conviction (the since
discredited Shaken Baby Syndrome hypothesis) has changed so as to merit a
new trial. The Roark and Roberson cases are markedly similar. Yet Roberson
came to this Court with an adverse recommendation from the convicting court
in rural Anderson County and the Roark case thereafter came to this Court
will a favorable recommendation based on an agreement on the State’s part
that a new trial was warranted. As this Court is likely to issue an opinion in
Roark at any time, Mr. Roberson should not be executed when a change in
Texas law might provide him a new avenue for obtaining habeas relief.
• An outpouring of bipartisan support from Texas lawmakers, eminent doctors
and scientists, disability rights groups, and innocence groups demonstrates
that there can be no confidence in the integrity of an execution in the face of
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so much new evidence that no crime even occurred—evidence that has not yet
been considered by any court. See Appendix A (Support Letters).
• A Suggestion to Reconsider on the Court’s Own Initiative has been filed. It is
based primarily on Texas lawmakers’ recent letter of support sent to the Texas
Board of Pardons and Paroles and Governor Abbott expressing the opinion
that the legislative intent underlying Article 11.073 has not been fulfilled with
respect to Mr. Roberson’s case and that he should have been awarded a new
trial.
In support of this Emergency Motion, we respectfully show the following:
BASIC FACTUAL BACKGROUND
I. The Underlying Case
Robert Roberson’s daughter Nikki experienced chronic health challenges in
her short life, including a history of unresolved infections and breathing apnea. In
the last week of her life, Nikki suffered from a respiratory infection, vomiting, and
diarrhea. She was taken to the emergency room on January 28, 2002, and was
prescribed Phenergan in suppository form.
1 The next day, she developed a high
fever—measured at 104.5 at her pediatrician’s office—and was given another
prescription for Phenergan, this time combined with codeine. The FDA now restricts
administering Phenergan and codeine to children because of risks with induced
breathing difficulties and death.
On the night of January 30, 2002, Robert retrieved Nikki from her
grandparents’ house, took her home, and put her to bed. In the early morning of
1
Phenergan is the brand name for promethazine.
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January 31, 2002, Robert was awoken by a strange cry and found Nikki on the floor
at the foot of the bed. After comforting Nikki, the two eventually fell back asleep.
But when Robert awoke later that morning, he found Nikki unconscious with blue
lips.
Robert tried to revive Nikki then rushed to the local ER, but her eyes were
already fixed and dilated (a grave sign of brain death). Despite efforts to reverse
Nikki’s condition, she died in Dallas on February 1, 2002, after being transferred to
the Children’s Medical Center and then taken off life support. A child abuse
pediatrician in Dallas, upon finding a triad of medical conditions then associated
with Shaken Baby Syndrome (SBS), diagnosed abuse. That abuse diagnosis was
used to arrest Robert even before an autopsy was performed on February 2, 2002.
In 2002-2003, when Robert was accused, tried, and convicted, the medical
consensus permitted presuming that a child had sustained inflicted head trauma
whenever three internal head conditions were found: (1) bleeding under the dura
membrane outside of the brain (aka subdural hematoma); (3) brain swelling; and (3)
retinal hemorrhages. The assumption was that, where this “triad” of symptoms was
present, a child must have been the victim of intentionally inflicted abuse involving
shaking and perhaps blunt impact and that whoever had been caring for that child
when the symptoms became manifest must have been the culprit—absent some
verified major trauma such as a car wreck or a fall from a multistory building.
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Moreover, the medical community then believed that short falls, like the one
Robert had described, could never cause severe injury or death. Based on the
presumption that the triad was indicative of abuse, and the belief that short falls
could not explain Nikki’s collapse, no other explanation for her death was even
considered.
In light of the triad, no one considered Nikki’s recent illness relevant. No one
investigated her lungs or the medications she had been prescribed.
The Shaken Baby hypothesis used to convict Robert has since been entirely
discredited by evidence-based science. Today, the medical consensus is that many
naturally occurring phenomena, such as Nikki’s pneumonia, can cause the triad of
intracranial conditions. Today, even those who still believe that shaking, with or
without impact, can produce the triad have accepted that a differential diagnosis is
required and that abuse can only be a diagnosis of exclusion.
Recognizing the pronounced social problem of premature and insufficiently
substantiated allegations of child abuse, in March 2021, Texas law changed to reflect
an understanding of problems of bias and unfairness with professional “child abuse
specialists,” like Dr. Squires—the child abuse specialist who made a Shaken Baby
diagnosis in and then testified in both the Roberson and Roark cases. The new law
requires giving parents and caregivers, like Mr. Roberson, access to their own
experts when they are accused by hospital personnel, as Mr. Roark and Mr. Roberson