Robert Roberson’s Attorneys Ask Courts to Reopen His Actual Innocence Case Before Oct. 17 Execution

(Palestine, Texas, August 1, 2024) New medical and scientific evidence shows that Robert Roberson’s two-year-old daughter, Nikki, died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock. There was no homicide, according to a Subsequent Application for Writ of Habeas Corpus  and a Motion for Stay of Execution filed on Mr. Roberson’s behalf today in the state district court in Anderson County. Mr. Roberson is at risk of being the first person in the U.S. executed based on the discredited “Shaken Baby” hypothesis, unless the courts or Governor Greg Abbott intervene in time.

“The new evidence in Robert Roberson’s case proves that his daughter Nikki died of natural and accidental causes and that no crime occurred,” said Gretchen Sween, one of Mr. Roberson’s attorneys. “All across the country, courts are exonerating convicted parents and caregivers or recommending new trials based on the recognition that the shaken baby hypothesis has been discredited by contemporary scientific inquiry. In Mr. Roberson’s case, the courts must step in to prevent the execution of an innocent man before it is too late.”

What is new today is that three experts from a range of medical specialties can now explain exactly how Nikki died. This new evidence was not previously available. Specifically:

•  Dr. Francis Green, an expert in lung pathology with over 46 years of experience, recently reviewed Nikki’s medical history and her lung tissue under a microscope. His detailed report explains that Nikki’s lungs were infected with two different and virulent types of pneumonia – a viral and bacterial infection – which clogged Nikki’s lungs, starving her brain of oxygen and causing her death. Dr. Green’s detailed analysis shows that Nikki’s pneumonia started many days or weeks before her final hospitalization. His report also makes clear that Nikki’s lung condition could not have been caused by inflicted trauma nor can it be explained by the fact that she was on a ventilator during her final hospitalization, thoroughly rebutting the State’s prosecution theory that Mr. Roberson abused his daughter. (Application at pp. 3-4, 63-69, Exhibit 5.)

• Dr. Keenan Bora, an expert in medical toxicology and emergency room medicine, has concluded that a post-mortem toxicology report shows that Nikki had dangerously high levels of promethazine in her system, prescribed by two different doctors on two consecutive days. Promethazine is a drug no longer prescribed to children Nikki’s age and in her condition because it impairs their ability to breathe and can be fatal. Dr. Bora has concluded that this drug exacerbated Nikki’s breathing problems and likely hastened her death from her pneumonia infection, which her body was unable to fight off, leading to sepsis and then septic shock, such that vital organs shut down. (Application at pp. 4, 70-74, Exhibit 7.)

• Dr. Julie Mack, an expert in pediatric radiology, has concluded that the initial CAT scans of Nikki’s head show only a single minor impact site on her head. Dr. Mack reviewed CAT scans discovered in the courthouse basement in 2018 – on the day that the convicting court’s evidentiary hearing was supposed to begin – which had been lost for 15 years. As interpreted by the only type of expert qualified to read them, the scans corroborate Mr. Roberson’s statement at the hospital that Nikki had fallen out of bed and possibly hit her head. Dr. Mack has also reviewed chest x-rays of Nikki, some produced to Mr. Roberson’s counsel only in 2018 and others only in 2024. Dr. Mack has concluded that these chest x-rays corroborate Dr. Green’s conclusion that Nikki died of a fatal lung infection (pneumonia). (Application at pp. 5-6, 59-63, Exhibit 6.)

In 2016, a week before Mr. Roberson’s last scheduled execution, the Texas Court of Criminal Appeals (CCA) stayed his execution, relying in part on a then-new state law permitting legal challenges based on changes in the science used to obtain criminal convictions. After many delays, the convicting court conducted an evidentiary hearing, mostly in 2021, where six medical and scientific experts showed that the shaken baby hypothesis used to convict Mr. Roberson had been discredited and that Nikki died of natural and accidental causes, not abuse. But at the time of the 2016 stay, Mr. Roberson’s counsel had not yet obtained access to crucial medical records and components of the autopsy file. Gaining access took years. By the time of the 2021 hearing, multiple experts had identified many factors that had been overlooked and found the “homicide” finding indefensible. But pinpointing the precise cause of Nikki’s death required input from doctors with an array of subspecialties. (Application at pp. 1-2.)

The Application explains:

Nikki was seriously ill for a week before she died—coughing, vomiting, suffering from diarrhea, with a high fever (up to 104.5 degrees). When Robert took her to multiple doctors, she was diagnosed with a “respiratory infection,” “likely viral” and given prescriptions. Early in the morning on January 31, 2002, Robert found Nikki had fallen out of bed. He comforted her, and they both fell back asleep. Hours later, Robert awoke to find Nikki had stopped breathing and turned blue. After he brought Nikki to the hospital, CAT scans were made of her head and doctors observed a set of internal head conditions: subdural bleeding, brain swelling, and retinal hemorrhages (“the triad”). At that time, the medical consensus permitted presuming that a child with the triad must have been the victim of an inflicted head injury caused by a combination of “shaking” and “blunt impact.” And whoever was with the child when she collapsed was considered the perpetrator. That medical consensus, central to Robert’s conviction, was known as “Shaken Baby Syndrome” (SBS), later renamed “Abusive Head Trauma” (AHT). The version of SBS/AHT used to convict Robert has since been entirely discredited. (Application at pp. 1-2.)

The Application further explains that the lead detective who investigated Nikki’s death as a homicide deferred to a doctor’s shaken baby diagnosis and on that basis had Mr. Roberson arrested and testified against him for the State. But this same detective has now utterly disavowed his previous testimony:

Brian Wharton was the lead detective with the Palestine police department who investigated Nikki’s death in 2002. He testified for the State in Robert’s 2003 trial. Medical experts had informed Detective Wharton that Nikki’s condition was caused by violent shaking and inflicted head trauma. He accepted the SBS diagnosis made by the child abuse expert in the Dallas hospital where Nikki was transported; based on that diagnosis, Detective Wharton authorized Robert’s arrest—even before an autopsy was performed. Since then, Detective Wharton has learned about the evolution in the medical understanding of SBS/AHT. He insists that no crime occurred and has publicly urged relief for Robert to prevent a horrible miscarriage of justice: the execution of an innocent man: “I am asking for those who care deeply about justice to urge another look at this case.” (Application at p. 2, Exhibit 2. See also Exhibits 1 and 3.)

Significantly, hospital staff did not know that Mr. Roberson had autism and misinterpreted his flat reaction to Nikki’s serious condition as callousness. It was not until 2018 that a neuropsychologist evaluated Mr. Roberson and diagnosed him with autism, a disability that explains his non-neurotypical response to Nikki’s collapse. (Application at pp. 15, 24.) Mr. Roberson was a special education student when he dropped out of school after the 9^th grade. He lacked the ability to explain his daughter’s complex medical condition when he brought her to the hospital – a condition that only now medical experts, with decades of experience, are able to explain. 

Mr. Roberson’s innocence case is attracting growing and widespread support from eminent scientists, doctors, faith leaders, innocence groups, former federal judges, bestselling novelist John Grisham, in addition to Brian Wharton, the lead detective who testified for the prosecution at trial who has come to believe that Nikki died of accidental and natural causes.

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. 

Texas law does not impose the same procedural bars on habeas applicants who claim to be able to prove their actual innocence. But the burden is still considered “Herculean.” Yet, Mr. Roberson has met the burden here. The entire body of compelling evidence developed in the years since his last execution date up to the present shows that no reasonable juror would convict.