Motion filed to block setting of execution date for Robert Roberson

Apr. 23—A motion was filed Wednesday, April 10 to block Anderson County from setting an execution date for Robert Roberson.

Gretchen Sween, Roberson's attorney, filed the motion and exhibits April 10 in response to her concerns that Anderson County District Attorney Allyson Mitchell intends to seek an execution date for Roberson. Sween said she will be seeking a new trial for Roberson.

Mitchell confirmed she will be setting an execution date at some point.

"Our job, in the Office of the District Attorney, is to follow the rule of law," she said. "The law says that after all appeals are exhausted we are to set a date for execution."

It will be up to Judge Deborah Oakes Evans to approve the date, Mitchell said.

Roberson was convicted of capital murder and sentenced to death in 2003 in Anderson County for killing his two-year-old daughter, Nikki Curtis. Roberson has long maintained he does not understand what happened to his daughter and he had no intent to harm her or cause her death.

The case has drawn national attention from people and organizations questioning whether there was even a murder, or whether the death of the child was accidental.

"The way state law works, the sole authority to ask for an execution date lies with the local DA," Sween said. "She doesn't have to ask for it, but she has made it clear that is her plan, which is why I filed that motion."

Her motion asks for a hearing before any execution date is set, and points to the recent exoneration of an Ohio man, Alan Butts, who was tried the same year as Roberson (2003). His case, like Roberson's, was based on the same "shaken baby" child abuse theory. In Butts' case, a toddler — the same age as Roberson's daughter — had undiagnosed pneumonia, just like Roberson's daughter. That pneumonia was missed during the autopsy, as it was with Roberson's daughter, and both girls' physical conditions were misinterpreted as being caused by shaking and trauma. In 2022 — after Roberson's last hearing — an Ohio court ruled that Butts should get a new trial.

Sween said that as of this month, because of the new science, Ohio decided not to prosecute Butts again and he has been exonerated.

"The Ohio court's decision was based on opinions, reports and testimony provided by some of the same experts who testified regarding Mr. Roberson's wrongful conviction," Sween said. "The current motion notes the recent trend across the country that should apply equally to Mr. Roberson here in Anderson County. Executing him for a crime that did not occur would be a grave miscarriage of justice."

Sween said there is a plan to bring another appeal based on yet more new scientific developments and new legal cases, and once filed, that becomes a reason to withdraw an execution date.

Sween said when she approached Mitchell about foregoing setting a date for execution, because there was a clear plan to file another appeal based on yet more new evidence that Nikki's death was not a homicide, Sween said Mitchell told her she was not interested in waiting.

Mitchell said she has not spoken with Sween and there has been no prior discussion between the two attorneys with regard to setting a date. She did say Sween did email her, and asked her not to set a date.

"The way it works is, we get a date from the Attorney General's Office after all appeals are exhausted," Mitchell said. "The AG also sends the proper paperwork to file. Ultimately, the judge has the final word."

"My hope is that the larger community can learn about this case and see why the national Innocence Project, numerous doctors and scientists, former federal judges, and many others believe that a miscarriage of justice has occurred here. There was no crime — let alone a murder," Sween said.

Sween said the goal is to get a new trial for Roberson.

"All we are asking for now is a chance to have a new trial because the trial record shows that information was presented as 'facts' to the jury that no doctor, even these child abuse experts, would support today — such as the idea that the child's very serious health issues did not need to be considered," Sween said. "Back then, doctors were taught that, where there was a set of three internal conditions, they could simply assume that abuse, through violent shaking and impact, had occurred. Today, actual scientific inquiry has established that those same three conditions — subdural bleeding, brain swelling, and bleeding into the eyes — are associated with a range of naturally occurring illnesses, including viral pneumonia. Not traumatic injury, let alone inflicted injury. The source of the problem is oxygen deprivation; today, you must investigate what might have caused a very sick child with a history of breathing apnea and a fever over 104 degrees to stop breathing."

The Texas Court of Criminal Appeals stayed a 2016 execution and sent Roberson's case back to the trial court to consider the merits of four distinct claims, including a "junk science" claim.

An evidentiary hearing initially began in August 2018 but was continued after the District Clerk found a box of 15-year old evidence, including lost CAT scans of Curtis in the Anderson County Courthouse basement.

"The misplaced evidence was not admitted in the original trial record," Sween said. "I had no clue where it was and it seemed like the state didn't either. The only reason it came to light was because of Terese Coker. So that was a genuine shock, but what is equally shocking is that that evidence really does confirm what Robert was saying, that she had fallen out of bed. She had one small bump on the back of her head, but she had no head injury.

"What caused the internal bleeding was from the fact that she stopped breathing and she stopped breathing because she was very sick and had pneumonia and stopped breathing and they were giving her all these drugs that suppressed breathing. There is no sign of violence on her. You can't beat someone and not leave marks. They looked at the interior blood, from two days later, after she had all this stuff pumped into her system and all the blood that couldn't go into her brain because she was brain dead, sadly, and they see blood, and they think trauma, but (that's) not the way it works and the brain expert made this very clear in our proceedings."

That hearing was finally conducted in 2021 during the COVID pandemic using a combination of Zoom and in-person testimony.

District Court Judge Deborah Evans then made a recommendation that was sent back to the Texas Court of Appeals to determine whether Roberson would receive a new trial. In January 2023, the Texas Criminal Court of Appeals upheld the death penalty based on the findings from that new hearing.

Sween said Evans' recommendation did not mention the finding of the "long lost CAT scans."

"The science has not changed, however the medical terms used are different," Mitchell said. "The term 'shaken baby syndrome' is now referred to as 'abusive head trauma,' however, Baby Niki died from blunt force trauma to the head."