Melinda Henneberger

Within hours of Robert Roberson’s scheduled execution Thursday evening, the Texas Supreme Court temporarily halted the state from going through with it — for now, anyway.

On Wednesday, a subpoena was issued for Roberson to testify next week in Austin. This came after lawmakers heard hours of testimony as they sought to understand if Roberson’s case had been dutifully re-examined under the junk science law. Ninety minutes before Roberson would’ve been executed, a judge issued a temporary restraining order honoring the subpoena. Despite the effort, that TRO was blocked by the Texas Court of Criminal Appeals hours later. However, late Thursday, an emergency motion to the Texas Supreme Court to delay the execution was granted, temporarily saving his life.

The decision by Travis County District Judge Jessica Mangrum to grant a TRO was in response to the bipartisan group of Texas House members who had voted to subpoena Roberson. Naturally, the Texas AG’s office appealed the decision, but those 86 lawmakers deserve a lot of credit for preventing, at least temporarily, the death of yet another innocent man at the hands of what often looks to me like our rampaging legal system.

Roberson was convicted of murdering his 2-year-old daughter Nikki in 2003, based on the junk science of what we used to call “shaken baby syndrome.” In a July interview, the lead police investigator on the case, Brian Wharton, told me he’s not only come to believe that Roberson is innocent, but that he left law enforcement and became a minister because of his moral misgivings about this and another case.

Texas lawmakers did something extraordinary a decade ago. They passed a “junk science law” that allows Texas courts to overturn convictions based on discredited scientific evidence. Shaken baby cases were among those that had convinced lawmakers to pass that law.

This is why both Republicans and Democrats in Austin wanted the 30-day stay of execution, because they want to see their law applied by the court as intended.

Those who have spoken out against putting Roberson to death include John Grisham, Dr. Phil, who interviewed Roberson in prison, Republican donors in Texas and advocates for those with autism. And if facts don’t matter in matters of life and death, then when?

Innocent parents and caregivers across the country continue to be prosecuted for deaths that were the result of natural causes, as Roberson’s daughter’s was. Yes, even as reports of all-too-real child abuse are still too often ignored until it’s too late. “We went from never recognizing child abuse to ‘child abuse is everywhere,’” one of Roberson’s attorneys, Gretchen Sween, told me months ago.

When Roberson rushed his daughter to the hospital after she had collapsed, and was limp and blue, he said she’d fallen off the bed where they’d been asleep in their home in Palestine in East Texas. But she’d also been quite sick, with undiagnosed pneumonia, and earlier that week, he’d already taken her both to the pediatrician with a high temperature and to the ER.

There were no signs of violence in Roberson’s home, Wharton told me, and Nikki didn’t look like she’d been beaten. But “at the hospital, it seemed like guilt,” in part because Roberson, who has autism, didn’t show the expected outpouring of emotion. “When a parent doesn’t behave ‘correctly’…,’ Wharton said. Then, after a CAT scan, “the hospital came with all the ‘shaken baby’ stuff, so all of the focus was on him. At the hospital, it was all verbal that this was just what this is, and we didn’t have any expertise to question any of that.”

Wharton did have some doubts about some of what they were told: “My initial concern was in the ER, there was a sexual assault nurse who said she’d seen ‘anal tearing.’ I didn’t see anything I would classify as unusual. Nothing else in the investigation supported sexual assault,” either. “Then a snitch comes forward and says (Roberson) confessed to the sexual assault. When (prosecutors) told me the name of the snitch I said, ‘You’ve got to be kidding me.’ He was a known quantity and not someone you’d depend on for anything.”

Still, “the minuscule evidence of sexual assault did get before the jury. It was just jury manipulation, I’m sorry.” Then, right before the jury was given its instructions, the prosecutor withdrew the sexual assault charge. “I thought it wasn’t fair and it wasn’t right, but I thought a decent appellate attorney would have it overturned.” Obviously, that never happened.

Experts have since found and testified that Nikki actually died of severe pneumonia. And we know now that many medical conditions, including pneumonia, can cause the brain bleeding, brain swelling and bleeding in the eyes that still are often seen, incorrectly, as proof positive of child abuse. We also now know that it is impossible to shake a toddler to death without causing serious neck injuries, which Nikki did not have.

Given all this, why is Roberson still on death row, you ask? Because we have a system that values finality over truth.

Courts in Texas have kept blocking Roberson on procedural grounds but have never looked at how “shaken baby” science has evolved, which again is what Texas lawmakers intended when they passed the “junk science” law way back in 2013.

Thursday’s late ruling says that the law still matters, sometimes, anyway. And I hope that will be enough to allow Roberson and his attorneys to get some sleep tonight.