Lawmakers and advocates are calling on the state to stop the execution of a possibly innocent man

Robert Roberson, whose controversial execution is scheduled for today, could be spared from state lawmakers who say his conviction in the 2003 killing of his infant daughter was based on “bad science” and posed unusual procedural hurdles.

Roberson is set to become the first person to be executed after being convicted of murder based on the “shaken baby syndrome” theory.

On Wednesday, October 16, the Texas House of Representatives’ bipartisan Criminal Justice Committee issued a subpoena for Roberson, forcing him to testify at a hearing on October 21. Lawmakers called for the death penalty while determining whether their sentence violated the state’s so-called “junk science writ.” . Texas became the first state in the country to pass a law allowing prisoners to appeal their convictions based on new forensic science. But lawmakers say the state’s highest criminal appeals court has been reluctant to implement the decades-old law.

“While our focus is on Robert Roberson, we are here because his case has shined a light on our new science justice law,” Democratic state Rep. Joe Moody said at Wednesday’s hearing in the Capitol. “Frankly, we studied this case extensively and had every confidence that this law would provide relief, but that has not happened.”

Roberson was convicted based on a controversial method of diagnosing “shaken baby syndrome,” later renamed “abusive head trauma.” In the decades since, experts have begun to argue that things like illness and brief falls — both present in the case of Roberson’s daughter, Nikkis, according to medical records — can mimic what were once considered telltale signs of shaking and abuse.

In September, the Texas Court of Criminal Appeals ruled that Roberson’s appeals, based on expert reviews of his daughter’s medical records and changes in diagnostic protocols, did not warrant relief under the state’s junk science law.

Several key figures in Roberson’s case were scheduled to speak at Wednesday’s hearing, including Brian Wharton, the case’s original lead investigator, who now believes there was no crime; Anderson County District Attorney Allyson Mitchell, who still supports the execution; Keith Findley, professor and expert on the multidisciplinary debate surrounding shaken baby syndrome; and Roberson’s defense attorney Gretchen Sween.

The legislative efforts come as courts repeatedly refuse to hear Roberson’s appeals. On Wednesday, the Texas Board of Pardons and Paroles declined to recommend a pardon for Roberson, despite a bipartisan majority of the Texas Legislature urging the panel to do so based on state law. However, the final decision rests with the governor, and lawmakers are now making their final appeals to him. More than 80 lawmakers signed a letter last month in support of Roberson’s clemency petition.

Also on Wednesday, Roberson’s defense team appealed to the U.S. Supreme Court, seeking an emergency stay of execution after the Texas Court of Appeals declined to consider new evidence about the death of Roberson’s daughter without explanation.

“The Texas Court of Criminal Appeals has abdicated its responsibility to fairly apply the law as it was written and as the legislature intended,” Sween said in a statement. “We can only hope that the Supreme Court intervenes to show how justice is supposed to work and to prevent this clear violation of Mr. Roberson’s due process rights, which would otherwise result in Texas losing an innocent man executed.”

Earlier this month, the CCA approved a new trial for Andrew Roark, a Dallas man who was convicted of shaken baby syndrome around the same time as Roberson based on similar evidence. Lawyers argue that this alone means Roberson should be given the same chance.

“It is not shocking that the criminal justice system has failed Mr. Roberson so badly,” Sween wrote in a separate statement on Oct. 16. “What’s shocking is that the system has so far been unable to correct itself – once Texas lawmakers recognized the problem with wrongful convictions based on discredited ‘science’ over a decade ago.”