Texas Sets October Execution Date for Robert Roberson, An Innocent Man Wrongly Convicted Under Debunked Shaken Baby Hypothesis

Palestine, Texas (July 1, 2024)  — A broad and diverse group of eminent scientists, medical doctors, faith leaders, former federal judges, best-selling novelist John Grisham, and the former lead detective on the case oppose the execution of Robert Roberson, an innocent father who has spent over 20 years on Texas’s death row for a crime that never occurred and a conviction based on the outdated and now debunked shaken baby hypothesis.

At the request of the Anderson County District Attorney, the 3^rd Judicial District Court in Anderson County today set an execution date of October 17, 2024 for Mr. Roberson, despite overwhelming new evidence showing that Mr. Roberson’s daughter, Nikki, died of natural and accidental causes. Mr. Roberson would be the first person in the U.S. executed based on the discredited shaken baby hypothesis unless the courts or Governor Greg Abbott intervenes. The court set the execution date without granting Mr. Roberson’s previously-filed request for a hearing.

“I was a police officer in Palestine, Texas for 14 years and the lead detective on the case where Robert Roberson was accused of shaking his two-year-old daughter, Nikki, to death,” said Brian Wharton, an Ordained Elder in the United Methodist Church, who was the Assistant Chief of the Palestine Police Department when he retired in 2006. “I testified for the prosecution and helped send Mr. Roberson to death row in 2003. For over 20 years, I have thought that something went very wrong in Mr. Roberson’s case and feared that justice was not served. I have come to believe that Nikki died of accidental and natural causes and that there was no crime. I am convinced that Mr. Roberson is innocent.”

“When a child dies, there’s often a rush to judgment. Since 2003, each of the shaken baby syndrome premises used to convict and sentence Robert Roberson to death has been debunked by evidence-based science. The courts or Governor Abbott must intervene to prevent an irreversible tragedy from coming to pass,” said Gretchen Sims Sween, Ph.D., J.D., one of Mr. Roberson’s attorneys.

In 2002, Mr. Roberson’s two-year-old, chronically ill daughter, Nikki, was sick with a high fever and undiagnosed pneumonia and suffered a short fall from bed. Hospital staff did not know Mr. Roberson had autism and judged his response to his daughter’s grave condition as lacking emotion. Mr. Roberson was prosecuted, convicted, and sentenced to death under the now-discredited Shaken Baby Syndrome hypothesis.

“Science now teaches that undiagnosed illnesses that affect respiration, like Nikki’s pneumonia, and unbraced falls that impact the head can be fatal. What happened to Robert Roberson should not happen to any parent who is simply incapable of explaining a child’s condition—especially when many trained medical professionals barely understand the phenomenon,” said Ms. Sween.

Robert Roberson: A Case of Innocence

In January 2002, Robert Roberson was a father with undiagnosed Autism Spectrum Disorder and a ninth-grade education. He was trying to support his family working multiple paper routes in his hometown of Palestine, Texas. He was working to turn his life around after gaining custody of his daughter Nikki in November 2001.

Nikki was born on October 20, 1999, to a young woman who had already had two other children taken from her by CPS; she was homeless and addicted to drugs. She did not identify a father at that time.

Nikki, a Medicaid recipient, was ill most of her short life. She had a history of unresolved infections, starting at 8 days old. She had severe ear infections that persisted even after she had tubes surgically implanted in both ears. She had “breathing apnea” spells, starting at age one, when she would inexplicably cease breathing, collapse, and turn blue. Mr. Roberson was not aware of most of this history because he did not enter Nikki’s life until she was almost two. Nikki’s maternal grandparents voluntarily relinquished custody of her to him in November 2001.

Mr. Roberson took Nikki to the ER and her pediatrician during the week of her final collapse on January 31, 2002. On January 29, 2002, her temperature was measured at 104.5 degrees in the doctor’s office. She was diagnosed with “respiratory illness, possibly viral” but was sent home. She was given a second prescription for Phenergan/promethazine (the ER had prescribed this same drug in suppository form the day before). The second Phenergan/promethazine prescription was in cough syrup form and included codeine, a narcotic.

Phenergan now has an FDA “black box warning” against prescribing it to children in Nikki’s age and condition. These medications suppress breathing; they do not treat a respiratory illness.

Later, a toxicology report revealed that Nikki had a high quantity of promethazine still in her blood stream. But the medical examiner who did the autopsy did not consider her recent illness or wait for the toxicology results before declaring Nikki’s death a homicide. Later, she told defense counsel that “promethazine” was just something Nikki was given while in the hospital, which was incorrect. Defense counsel did not investigate because he himself believed that Nikki had died from “Shaken Baby Syndrome.”

Mr. Roberson was the only person with Nikki when she collapsed. She was supposed to be staying with her maternal grandparents. But the night of January 30, 2002, they demanded that he come pick her up—because the grandmother was now supposedly sick too. Although Nikki, only two, was tired and fussy, they insisted that he take her. Father and daughter did not arrive back at his house until around 10 PM.

Some time in the night, Mr. Roberson heard a “strange cry” and woke up to find Nikki lying on the floor at the foot of the bed. The bed was simply a mattress and box springs, propped up on two layers of cinder blocks. Mr. Roberson comforted Nikki, wiped a small speck of blood off her mouth, but did not observe anything else wrong. They eventually fell back asleep. But when he woke up a few hours later, Mr. Roberson found Nikki unconscious with blue lips. He was horrified and grabbed her face to try to revive her. Then he took her to the ER.

In the ER, it was observed that Nikki’s eyes were “fixed and dilated,” an indication that she had already experienced brain death from lack of oxygen. (Brain death occurs after 10-12 minutes without oxygen.) The police were called in immediately.

Mr. Roberson was treated with suspicion. His trial later included a great deal of testimony about how his story about a fall out of bed did not make sense and how he did not show sufficient emotion. No one in the hospital knew that he has Autism. 

After finding a bump on the back of Nikki’s head, the ER personnel sent her to radiology for a head scan. After a small subdural bleed and brain swelling were observed, the doctor concluded that this had to be head trauma. But she had no skull fractures, no broken bones, no signs of any battery.

Dr. Janet Squires submitted an affidavit with her Shaken Baby diagnosis to the Palestine police on February 1, 2002, before an autopsy was even performed. That affidavit was used to arrest Mr. Roberson. Meanwhile, he had been told he was not allowed to drive to Dallas to see his own daughter.

Nikki was transferred by ground to Children’s Medical Center of Dallas. Another set of scans was made. The in-house “child abuse pediatrician,” Dr. Janet Squires, saw subdural bleeding, brain swelling, and retinal hemorrhages—the “triad” then associated with “Shaken Baby” or “Shaken Impact” Syndrome. She “diagnosed” Shaken Baby.

The autopsy was performed on February 2, 2002, with local law enforcement from Palestine in attendance. The medical examiner, Jill Urban, claimed that Nikki’s death was caused by “blunt force head injuries,” which, at trial, she described as an unknown combination of “shaking” and “blows.” She ruled the death a homicide.

Dr. Urban did not review Nikki’s medical history. She relied on the triad of subdural bleeding, brain swelling, and retinal hemorrhages as markers of head trauma. She told the jury that the subdural blood itself showed “multiple impact sites.” But the long-lost head scans, finally discovered in the courthouse basement in 2018, show only a single, minor impact site—entirely consistent with the report of a fall from bed with head impact.

Also, Dr. Urban identified as an “impact site” the place on the top of Nikki’s head where a pressure monitor had been surgically screwed into her skull during her final hospitalization. Dr. Urban made no effort to reconstruct the extraordinary medical intervention that had been undertaken to try to resuscitate Nikki during the two days before the autopsy was performed. The jury was not told about the pressure monitor or about the fact that Nikki had a clotting disorder, making her especially susceptible to bruising. The jury was instead misled with gruesome autopsy photos that revealed blood under Nikki’s scalp, outside of the brain. These images were taken after Dr. Urban made an incision and lifted the scalp off of the child’s head and flipped it over.

Meanwhile, no scientific study has ever demonstrated that shaking a toddler can cause that triad. Violent shaking would, if anything, injure a child’s neck and possibly spinal cord. This is the teaching of biomechanics, the scientific field specifically devoted to studying the injury-potential of certain events—from car crashes to football head injuries.

A thorough reexamination of Nikki’s medical records and the autopsy evidence by highly qualified specialists has revealed (1) Nikki had no significant head trauma, no skull fractures, no spinal cord damage, no neck injuries and thus her condition cannot be reasonably attributed to shaking or impact; (2) Nikki’s lung tissue reveals that she had severe, advanced, interstitial viral pneumonia that had to have existed days, if not weeks, before her collapse; and (3) the medications she was prescribed during her final days would likely have accelerated her collapse—as she was already struggling to breath from the undiagnosed pneumonia.

Mr. Roberson languishes on death row because Texas courts have ignored advancements in science and compelling new medical evidence not heard by the jury that prove his innocence. 

In 2002, the consensus in the medical community was that a child must have been violently shaken, and possibly struck against a blunt surface, whenever a child had the triad of symptoms observed in Nikki: bleeding under the dura membrane outside of the brain; brain swelling; and bleeding in the eyes. The consensus in the medical community at that time was that naturally occurring illnesses or short falls with an impact to the head could not cause this triad of symptoms.

The medical consensus also presumed that whoever had been caring for the child when she lost consciousness must have been the culprit because violent shaking caused immediate brain damage. Caregivers, like Mr. Roberson, who denied doing anything to hurt the child, were perceived as callous liars.

Each of the SBS premises considered medical orthodoxy in 2003, when Mr. Roberson’s trial occurred, have since been undermined by evidence-based science. In other words, none of these SBS principles were grounded in science and, long after Mr. Roberson’s trial, each has been debunked.

Since 1992, at least 32 parents and caregivers in 18 states have been exonerated after being wrongfully convicted under the shaken baby hypothesis, according to the National Registry of Exonerations. 

Mr. Roberson’s trial was riddled with unfairness and errors.

One doctor’s preliminary hunch about Shaken Baby Syndrome was used to arrest Mr. Roberson, even before the autopsy was performed.

The State relied on an uncontested SBS causation theory to obtain his conviction. Because 20 years ago, it was believed that shaking was the only cause of the triad of symptoms, Mr. Roberson’s own trial lawyer agreed with the prosecution that Nikki’s death was a shaken baby case and argued only that Mr. Roberson lacked intent to kill.

The jury heard misleading, highly prejudicial testimony from one nurse suggesting that Nikki was sexually abused, when no one else saw any signs of such abuse; and

The combination of Nikki’s undiagnosed pneumonia, medications prescribed to her that suppress breathing, and an accidental fall entirely explain Nikki’s condition. But the little the jury heard about Nikki’s medical history was dismissed as irrelevant; the jury did not hear about her severe pneumonia, only identified during recent re-investigation of the autopsy. Nor did they hear about the lethal quantities of respiratory-suppressing drugs (Phenergan and codeine) that doctors had prescribed to Nikki and that were in her system at the time of her collapse. The medicine Nikki was taking is no longer properly prescribed to children Nikki’s age and in her condition because it can cause fatal breathing suppression.

Despite a new Texas statute enacted expressly to allow revisiting flawed trials tainted by false or misleading scientific evidence, Texas courts disregarded unrebutted scientific evidence proving Mr. Roberson’s innocence and establishing serious due process violations infecting the jury’s verdict.

In 2016, a week before Mr. Roberson’s scheduled execution date, the CCA, Texas’s highest criminal court, stayed Mr. Roberson’s execution, relying in part on a new Texas law permitting legal challenges based on changes in science used to obtain convictions and death sentences.

The CCA sent Mr. Roberson’s case back to the trial court in 2016, which finally conducted a nine-day evidentiary hearing largely in 2021. Mr. Roberson’s experts explained that Shaken Baby Syndrome has been discredited and provided compelling evidence that Nikki died of natural and accidental causes, not abuse. The combination of Nikki’s undiagnosed pneumonia, medications prescribed to her, and an accidental fall entirely explain her condition.

Mr. Roberson submitted to the court a 302-page proposed findings of fact and conclusions of law that comprehensively summarized the new evidence from six expert witnesses from a range of disciplines.

On January 11, 2023, the CCA was wrong to summarily reject Mr. Roberson’s claims in a short opinion without mentioning any of the voluminous new evidence. The trial court rubberstamped the prosecution’s 17-page proposed findings of fact and conclusions of law, which barely mentioned Mr. Roberson’s new scientific evidence and instead invoked the outdated scientific evidence introduced at the 2003 trial.

The trial court’s copy-and-paste approach shows a lack of judicial independence and care. The rubberstamping is a violation of Mr. Roberson’s due process rights and is especially alarming because an innocent man’s life is at stake.

The CCA then uncritically accepted the trial court’s proposal—based entirely on the State’s proposal, ignoring virtually all of the new science and all evidence of Mr. Roberson’s actual innocence.

In a series of recent cases, the U.S. Supreme Court has recognized a systematic problem with the fair review of death penalty cases in Texas. Yet, Mr. Roberson’s plea to the Court asking for a comprehensive review of his case was summarily denied on October 2, 2023 in a single sentence, declining to consider the case.

Litigation Pending at TX CCA Re: New Scientific Evidence 

Mr. Roberson has pending, before the Texas Court of Criminal Appeals (CCA), a Suggestion to Reconsider on Court’s Own Initiative and Motion to Hold for Adjudication of Ex Parte Roarke, filed on April 24, 2024. The Suggestion to Reconsider at the CCA argue that another case, Ex parte Roark, is pending before the CCA where the State conceded the falsity of virtually identical expert testimony on the shaken baby hypothesis. Both Mr. Roberson and Mr. Roark were convicted over two decades ago under this debunked theory using the testimony of the same child abuse expert.

In Dallas County, the prosecutor conceded that Mr. Roark should get a new trial because of the changes to scientific understanding, and the trial court agreed. In contrast, in Anderson County, the District Attorney has insisted that the science has not changed, even in the face of new evidence. Mr. Roberson argues that the CCA should reconsider its decision to deny Mr. Roberson a new trial because the State has conceded the falsity of nearly identical shaken baby testimony in another pending case.