The Texas attorney general's office has asked a state court to set an execution date for a man convicted based on a diagnosis of shaken baby syndrome, despite his case pending on appeal before the state's highest criminal court.

In a 14-page motion filed in Anderson County, Texas, on Tuesday, Robert Leslie Roberson III said the attorney general's office "all but ignores" that he has a case pending before the Texas Court of Criminal Appeals that includes "new evidence of innocence." His filing was in response to a motion the state filed Monday requesting the court set an execution date in Roberson's case based on the fact that the high court "denied Roberson's initial state habeas proceeding."

Roberson was convicted of killing his 2-year-old daughter, Nikki, and sentenced to death in February 2003 after doctors and a medical examiner found she had internal injuries caused by what is known as shaken baby syndrome, which is caused by violently shaking a child. His conviction was affirmed by the state's highest criminal court in 2007.

Roberson's initial relief motion was denied by the Texas Court of Criminal Appeals in September 2009, according to the state's motion. He continued to fight his conviction through various court proceedings over the next decade.

As his October 2024 execution date approached, Roberson's case garnered national attention and was questioned by lawmakers based on the state's Junk Science Law, which gives defendants a pathway to challenge their convictions based on debunked scientific research. Roberson has maintained that the expert testimony used to convict him has since been discredited.

"The subsequent application is supported, inter alia, by an affidavit from a nationally recognized pathologist with expertise in bleeding disorders," Roberson told the Anderson County court Tuesday. "That expert has concluded that infection and a serious bleeding disorder made Mr. Roberson's daughter Nikki highly susceptible to internal bleeding and bruising; this condition, not any physical trauma, explains the minor bruising and her internal bleeding observed during her 2002 autopsy."

The appeal is also supported by 10 independent pathologists who say "the conclusions of the medical examiner who performed the 2002 autopsy are deeply flawed and unreliable," Roberson wrote.

Roberson added that the same expert who testified in his 2002 case was also involved in another shaken baby syndrome conviction, Ex parte Roark, which the Court of Criminal Appeals vacated in 2024.

Ellen Stewart-Klein of the Texas attorney general's office, who filed a notice of appearance in Roberson's case Monday notifying the court that she had been "deputized" in as an assistant district attorney for the proceedings, wrote in Monday's motion that the state was requesting that Roberson's execution be set for Oct. 16.

In objecting to the state's request, Roberson argued that the Texas Code of Criminal Procedure "expressly grants a district court the discretion not to set an execution date under the circumstances presented here."

"Setting a date at this juncture would further no legitimate purpose and would instead be contrary to state law, judicial economy, and the interest of justice," Roberson wrote.

Roberson's motion included a request to be heard before the court on his motion. According to Roberson, no judge is currently assigned to the Anderson County case, as the previous judge recused herself in November.

Gretchen Sween, Roberson's attorney, said in a statement Tuesday that his attorneys "have amassed overwhelming innocence evidence."

"Robert Roberson is innocent," Sween said. "Yet Attorney General [Ken] Paxton, whose office just recently took over the state's representation, is trying to execute him even though Robert has presented powerful new evidence of his innocence to the Texas Court of Criminal Appeals. The AG's unjustified rush to seek an execution date while that new evidence of innocence is before the court is outrageous."

She added that she is "unaware of any death-penalty case where the AG's office has been deputized to take over — after the local DA's office handled all state-court proceedings in the case for the entire duration."

The Texas attorney general's office did not immediately return a request for comment.

Roberson is represented by Gretchen Sween, as well as Vanessa Potkin and Jane Pucher of The Innocence Project and Donald P. Salzman of Skadden Arps Slate Meagher & Flom LLP.

The state is represented by Ellen Stewart-Klein of the Texas attorney general's office.

The case is The State of Texas v. Robert Leslie Roberson III, case number 26162-A, in 3rd District Court of Anderson County, Texas. The appeal is Ex Parte Robert Leslie Roberson III, case number WR-63,081-03, in the Texas Court of Criminal Appeals.

--Editing by Kelly Duncan.