At the time of her death, the Innocence Project reports, Nikki “was ill, had a high fever and briefly fell out of bed. Hospital staff were unaware that Mr. Roberson had autism and judged his response to his daughter’s serious condition as a lack of emotion.” They called the police.

In 2003, when Roberson was on trial, shaken baby syndrome, as Judge Sonia Sotomayor wrote in a statement accompanying the Supreme Court’s refusal Thursday to hear his case, was “so undisputed that Roberson’s own counsel told the jury in his opening statement that it was “unfortunately a shaken baby case,” that the evidence would “show that Nikki suffered injuries that are entirely consistent with those caused by rotational forces, commonly known as shaken baby syndrome,” and that he you wouldn’t ‘tell them that there is simply no responsibility here at all.’ ”

Sotomayor explains that “if the experts at Roberson’s trial were to testify again today to the same theory, they ‘would be confronted with twenty years of reputable scientific evidence that contradicts their trial testimony.’ She points out that the Texas Court of Criminal Appeals this week granted a new trial to a defendant whose child molestation conviction rested on the same shaken baby syndrome testimony, from the same expert witness, that led to Roberson’s conviction. conviction.”

That’s why it’s incomprehensible that it hasn’t done the same for Roberson. His case, as the Innocence Project puts it, “is riddled with unscientific evidence, inaccurate and misleading medical testimony, and adverse treatments.” It also says that “the overwhelming medical and scientific evidence now shows that Nikki died of natural and accidental causes.”

It’s bad enough that we regularly convict people in this country for crimes they didn’t commit, but it’s truly Kafkaesque to execute someone for what the Intercept calls “a crime that never happened.”

Not surprisingly, the serious miscarriage of justice in his case has attracted national and international attention and made it a cause for anti-death penalty advocates and many death penalty advocates. Roberson has joined the pantheon of people whose treatment in the Texas death penalty system has made it a pariah and an example of the excesses and injustices of capital punishment around the world.

Among those now opposing the execution of Robert Roberson are renowned scientists such as Patrick Barnes of Stanford. Barnes is no newcomer to lawsuits in which shaken baby syndrome has played a key role.

In 1997 he worked as a prosecution expert in the high-profile case of Louise Woodward, a British nanny prosecuted and convicted in Massachusetts for allegedly shaking and killing Matthew Eappen, a baby in her care. She was sentenced to life in prison, but her conviction was later overturned.

Barnes explains: “Over the past twenty years there has been a revolution in the understanding of internal head disorders in children, revealing that numerous naturally occurring diseases can affect a child in the ways previously attributed to SBS. … But the law in many cases has not kept pace with science.”

Roberson’s is one of those cases. As the novelist John Grisham, another person who has rallied behind Roberson’s cause, warned more than a year ago, he would soon “run out of options unless Texas authorities overturn the injustice of the man’s conviction and death sentence.” Mr. Roberson, reverse course and grant him a new trial.”

Texas authorities did no such thing. That’s why last month a bipartisan group of more than 80 Texas lawmakers, including many staunch supporters of the death penalty, wrote a letter to the Texas Board of Pardons and Paroles in support of Roberson’s request for clemency. They noted that they were “gravely concerned that Texas could put him to death for a crime that did not occur.” ”

But their letter fell on deaf ears. That left Roberson’s fate in the hands of Texas Governor Greg Abbott, who has the authority under state law to grant a reprieve. That authority generally rests with executive officials at the state or federal level.

Like the pardon and parole committee, Abbott remained unmoved. But that didn’t stop members of the Texas Committee on Criminal Jurisprudence, several of whom signed the letter to the pardon board, from throwing a Hail Mary pass.

They scheduled an Oct. 21 hearing to consider whether the state should strengthen its laws on the use of junk science. They then issued a subpoena summoning Roberson to appear at that hearing.

They hope Roberson’s execution will be postponed until the end of the 2025 legislative session, giving the Legislature time to consider whether the law should be changed. In the meantime, the committee acted as if it knew it was about to make history and stir up a hornet’s nest of problems, passing the subpoena unanimously within four minutes without debate.

That wasn’t the end of the matter. It is up to the courts to decide whether this delay in the law will be honored.

As the clock ticked toward the time of Roberson’s execution, two members of the Legislature asked a state court to do so. They initially got their wish. But the Court of Criminal Appeals overturned that decision and left a life-or-death decision before the Texas Supreme Court.

That court sided with lawmakers even as it recognized that honoring the subpoena and upholding the validity of a legislative stay raised profound questions about the separation of powers. As Judge Evan Young explained, “whether the legislature may use its authority to compel the presence of witnesses to block the executive branch’s power to enforce a death sentence… involves the division of authority among the three branches of government, pitting two branches against each other. other.”

Those questions include whether the executive “must yield when the legislature invokes its authority”—that is, would proceeding with an execution under these circumstances constitute an executive intrusion on the broad authority of the entail legislative power? Or, conversely, would allowing various committees of the legislature to subpoena a prisoner subject to a threatened death sentence constitute an interference by the legislature in the orderly operation of the law, thereby allowing manipulation of the judicial process and the executive function at risk?”

“If the other two branches,” Young wrote, “cannot achieve accommodation on their own — and perhaps they still can — the district court may proceed with the lawsuit,” but “should proceed with maximum diligence to the underlying merits.”

For now, Roberson is safe. But anyone who believes in the simple statement that innocent people should not be punished cannot rest easy.

Abolitionists and others who embrace that principle have for too long relied on a fairly standard playbook. Now they should take inspiration from what Texas lawmakers did in the Roberson case. They must use the powers and resources they already have in a new way. For lawmakers, this could mean threatening to withhold funding for corrections services if they can’t find other ways to prevent the execution of an innocent person. Governors should threaten to fire executive branch officials who do not do what they can in such cases.

Whatever they do, they and all of us must recognize that our fate is inextricably linked to the fate of people like Roberson.