Lawyers for Robert Roberson, the condemned man on Texas’ death row who faces execution next week, say the first episode of a “Dateline” podcast about his case includes “highly relevant” evidence that highlights judicial misconduct and supports their petition for a new trial.
The ongoing claim before the Texas Court of Criminal Appeals seeks to halt Roberson’s Oct. 16 execution for the 2002 death of his 2-year-old daughter, Nikki. If he is executed by lethal injection, Roberson, 58, would be the first person put to death in the United States in a case of “shaken baby syndrome.”
For more on this case, listen to episodes of the “Dateline” podcast “The Last Appeal”
In a filing Monday, Roberson’s lawyers wrote that an interview with Nikki’s maternal grandfather conducted by “Dateline” anchor Lester Holt is “directly relevant to the judicial misconduct claim,” which alleges a “serious violation of Mr. Roberson’s fundamental right to a trial before an impartial tribunal — and before a tribunal that appears impartial.”
Gretchen Sween, a lawyer for Roberson, said in a statement, “It’s shocking that we are discovering the truth about this glaring, undisclosed evidence of bias only by chance, from a podcast, days before Robert is scheduled to be executed for a tragedy that has been mislabeled as a crime.”
In January 2002, Roberson and Nikki fell asleep in their East Texas home and he later awoke, he said, after he heard a sound and found Nikki had fallen out of bed, according to court documents.
Later that morning, when Roberson discovered his daughter was unconscious and her lips were blue, he rushed her to an emergency room.
Within three days, a detective arrested Roberson on a capital murder charge.
For the initial episode of “The Last Appeal” podcast, which was released Monday, Holt interviewed Larry Bowman, Nikki’s maternal grandfather.
Bowman identified Anderson County Judge Bascom Bentley as the judiciary official who called the hospital, directing it to contact the Bowmans for permission to authorize removing Nikki from life support.
“Matter of fact, Judge Bentley told ’em we were the parents,” Bowman said.
But Roberson’s lawyers say that the Bowmans did not have that authority and that Roberson had custody of Nikki and was appointed her sole conservator in November 2001, about two months before she died.
Roberson had been a single father caring for Nikki after her mother lost custody because of personal issues.
In addition to Bentley’s providing false information to the hospital, which allowed Nikki to be removed from life-sustaining care, according to the latest filing, he was the judge who signed Roberson’s arrest warrant based on the “shaken baby syndrome” diagnosis and then presided over all but one proceeding in Roberson’s criminal trial.
Roberson’s lawyers say Bentley’s involvement in the early stages of Roberson’s case is material to their larger claims of judicial misconduct that they say tainted his trial.
“Any objective member of the public, with knowledge of the new facts, would reasonably believe that Judge Bentley had prejudged Mr. Roberson’s guilt and, animated by that presumption of guilt, improperly circumvented the law governing parental rights and the guarantees of due process and thus should have recused himself from presiding over Mr. Roberson’s criminal case to preserve the appearance of impartiality,” the court filing says. “Judge Bentley’s failure to do so caused structural error and requires a new trial.”
Bentley died in 2017. The Texas Attorney General’s Office, which is now overseeing the prosecution against Roberson, did not immediately respond to a request for comment. The office of Texas Gov. Greg Abbott declined to be interviewed for the “Dateline” podcast.
Roberson was nearly put to death a year ago, but a bipartisan group of Texas lawmakers used their legislative power to help block his execution in a last-minute maneuver.
State Attorney General Ken Paxton, who has previously said Roberson murdered his daughter by “beating her so brutally that she ultimately died,” vowed to press ahead with an execution date.
In filings this year, Roberson’s legal team has argued that there is new evidence of his innocence and that the medical and scientific methods used to convict him of so-called shaken baby syndrome, in which a child is shaken so violently that the action causes head trauma, have since been largely discredited.
His team also claims that judicial officials in Anderson County, where a jury sentenced him to death in 2003, violated Roberson’s constitutional rights.
Aside from the request in front of the Texas Court of Criminal Appeals, Roberson filed a separate plea this month with the 5th U.S. Circuit Court of Appeals for a stay of execution so he could file a new legal challenge claiming his imprisonment is illegal because of “overwhelming evidence that he was convicted using discredited ‘science.’” That appeal is also ongoing.
Previous attempts to stop Roberson’s execution have been unsuccessful, including as it relates to a 2013 “junk science” law in Texas that allows prisoners to potentially challenge convictions based on advances in forensic science.
While doctors and law enforcement officials concluded that Nikki suffered blunt-force trauma and was shaken, Roberson’s defense team says a new understanding of “shaken baby syndrome” shows that other medical conditions can be factors in a child’s death, as it believes was the case with Nikki.
