Roberson trial continues

Mar. 13—The evidentiary hearing in the death penalty case of Robert Leslie Roberson III, continued through Friday, March 12 in a hybrid of Zoom and in-person testimony at the Anderson County Courthouse.

Roberson, of Palestine, was found guilty of capital murder in connection with the death of his daughter, 2-year-old Nikki Curtis, who died of blunt-force head injuries at a Dallas hospital on Feb. 1, 2002.

He was sentenced to die by lethal injection by a 12-person Anderson County jury after his February 2003 trial.

In a 2007 appeal to the Court of Criminal Appeals, Roberson raised 13 points of error, but each was determined to have no merit.

Roberson's legal team, lead by Gretchen Sween, called its first witness, Dr. Janice Ophaven Monday. Ophaven, a forensic pathologist with expertise in pediatric deaths has been practicing since 1971, and testified by Zoom from her home in Minnesota.

Ophaven had to be dismissed that afternoon for a medical emergency and her testimony continued Tuesday.

She testified that Nikki had been treated for several episodes during her life where she would stop breathing and turn blue. Two days prior to her death, Nikki was taken to the emergency room with a

a 104 degree fever, vomiting and diarrhea.

Ophaven said she was prescribed Imodium and Phenergan.

"Both strong medications and to my knowledge she was also still taking those medications at time of her becoming unresponsive," she said. "The ER did not determine the cause of the fever and to my knowledge the jury was not given any of that information based on my review of the transcripts."

Ophaven went over a published study that said a short fall could cause death, citing a video on a security camera of a little girl falling less than three feet that caused her death.

When District Attorney Allyson Mitchell conducted her cross examination, she question Ophaven on her credentials and the doctor agreed she was not certified in pediatrics, radiology, or bio-mechanics and had not seen a pediatric patient since the '70s.

However, Ophaven testified she has performed "hundreds and hundreds and hundreds of children under 4 autopsies."

The prosecution asked her to read Roberson's statement and asked if she knew that Roberson said that he grabbed Nikki's face and slapped her face when she was unresponsive.

Ophaven said she did, and when asked if those factors alone, in her opinion would not cause Shaken Baby Syndrome, she said very few forensic pathologists were willing to testify for the defense because that normally means they are going against the medical community.

Ophaven said Imodium stops bowel movements by neurological effect. Phenergan effects central nervous system and now has a warning about using it on children under 2 because it can stop a child from breathing.

In her general opinion the medications suppressed Nikki's nervous system. She noted that Nikki's pediatricians of record prescribed a cough syrup with Codeine, which also concerned her and again said that none of this information from the transcripts appear to have been presented to the jury.

Court recessed at 4:40 p.m. Tuesday, March 9 to continue Wednesday with new witness.

Wednesday, the defense called Dr. Kenneth Munson, a bio-mechanical engineer. Munson testified that Nikki's injuries and death could have been caused by a short fall. Munson also testified that some of the testimony in Roberson's trial was consistent with the possibility of what caused Nikki's death.

Dr. Carl Wigren, a forensic pathologist with specialty training in Anatomic Pathology and two years training in forensic pathology at King County Medical Examiners office in Seattle, Washington and Tarrant County Medical Examiners office in Fort Worth, gave a similar testimony to Ophaven Wednesday afternoon and Thursday morning.

Wigren was followed by Kimberly Basinger, a Sexual Assault Nurse Examiner, who testified that indications of sexual assault could be explained away by other medical possibilities.

Larry and Verna Bowman, the maternal grandparents of Nikki, also testified Thursday. The grandparents spoke of their relationship to Nikki in the days before her death.

Larry Bowman testified he remembered putting Nikki in the car seat and telling her goodbye for the last time. He also said that when he heard of her death he immediately went looking for Roberson, but could not find him.

Casey Brownlow, a school friend, who started writing Roberson in 2018 in prison, was called as a character witness on Friday.

During his cross examination by the state, Mitchell asked him if he knew Roberson admitted at the punishment phase of the trial that he "snapped" and shook Nikki because she wouldn't stop crying. Brownlow said he did not.

Brownlow was followed by Detective Brian Wharton who spoke about the investigation.

The week's list of testimony concluded with Dr. Diane Mosnik, PhD of Wisconsin, a neuroforensic psychologist, who testified Roberson is autistic and this would explain his odd behavior and response to death and investigation.

The Texas Court of Criminal Appeals stayed his scheduled June 21, 2016 execution and sent Roberson's case back to the trial court level to consider the merits of four distinct claims, including a "junk science" claim.

This evidentiary hearing initially began back in August 2018 but was placed on continuance Aug. 14, 2018 after District Clerk Teresia Coker found 15-year-old evidence, including Nikki's lost head CAT scans in the Anderson County Courthouse basement.

Anderson County District Attorney Allyson Mitchell is prosecuting the hearing with Assistant District Attorney Scott Holden.

The case is pending in the Third District Court and is being presided over by Judge Evans.

The delay in the hearings was initially for prosecutors and the defense to review the "found" evidence and develop expert witnesses. The COVID-19 pandemic added to the delay.

The hearings will continue Monday, March 15 at the Anderson County Courthouse.

The evidentiary hearing could continue through Tuesday, March 16.

When the hearings are concluded, Mitchell, Roberson's attorney, and Judge Evans will write Findings of Facts and conclusions of law and submit back to Court of Criminal Appeals.

The CCA will review these finding and conclusions, which could take over a year, before a decision is rendered by the highest appeals court in Texas.