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

Mr. Roberson would be the first person in the U.S. executed based on the discredited shaken baby hypothesis unless the courts or Gov. Abbott intervenes.

Urgent 06.18.24 By Innocence Staff

12/19/23, Livingston, Texas: Robert Roberson photographed through plexiglass at TDCJ Polunsky Unit. Ilana Panich-Linsman for The Innocence Project

12/19/23, Livingston, Texas: Robert Roberson photographed through plexiglass at TDCJ Polunsky Unit. (Image: Ilana Panich-Linsman for the Innocence Project)

(Palestine, Texas, June 18, 2024) Today, attorneys for Robert Roberson, an innocent man on Texas’s death row, filed a brief in opposition to the Anderson County District Attorney’s request for an execution date. Mr. Roberson is 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father who has spent over 20 years on Texas’s death row for a crime that never occurred and a conviction based on the outdated and now debunked shaken baby hypothesis. New evidence shows 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.

Mr. Roberson’s innocence case has attracted widespread support from eminent scientists, medical doctors, faith leaders, former federal judges, best-selling novelist John Grisham, and the former lead detective from the case who now believes no crime took place.

“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.”

Mr. Roberson’s brief opposing the setting of an execution date explains:

Based on the overwhelming new evidence, including evidence developed since Mr. Roberson’s 2021 evidentiary hearing in this Court, Nikki died of natural and accidental causes: a severe undiagnosed pneumonia that caused her to cease breathing, collapse, and turn blue before she was discovered unconscious. It is irrefutable that Nikki’s medical records show that she was severely ill during the last week of her life. Instead of identifying her pneumonia, she was prescribed dangerous medications, no longer given to children her age (she was only two) and in her condition. Those medications (Phenergan and codeine) further suppressed respiration in lungs that were already infected. This unfortunate set of circumstances explains why, less than two days later, she ceased breathing—never to be revived because she had already sustained brain death … There was a tragic, untimely death of a sick child whose impaired, impoverished father did not know how to explain what has confounded the medical community for decades. (Opposition at pp. 3-4.)

“Each of the shaken baby syndrome premises used to convict and sentence Mr. Roberson to death, considered medical orthodoxy in 2003, has since been debunked by evidence-based science. The courts or Governor Abbott must stop this miscarriage of justice before it is too late,” said Gretchen Sims Sween, Ph.D., J.D., one of Mr. Roberson’s attorneys.

“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.

Litigation Re: the New Scientific Evidence Pending in Two State Courts

Still pending before the 3rd Judicial District Court is Mr. Roberson’s Motion for Notice and Opportunity to Be Heard Before Any Execution Date is Set, filed on April 9, 2024, which explicitly requests a court hearing. The Motion for Notice explains that Mr. Roberson’s counsel has been developing new evidence of Mr. Roberson’s factual innocence of his daughter’s death since his previous state habeas application was filed in June 2016.

Mr. Roberson also 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. Today’s opposition motion in the district court and 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.

Mr. Roberson’s Autism Was Misinterpreted by Hospital Staff 

Mr. Roberson was a special education student when he dropped out of school after the ninth grade. He has autism, undiagnosed at the time of his daughter’s collapse. He was unable to explain his chronically ill two-year-old daughter’s complex medical condition when he took her to the emergency room, after she fell out of bed when sick with a high fever, undiagnosed pneumonia, and on drugs that doctors prescribed that we now know are unsafe for children her age and in her condition. The hospital staff did not know Mr. Roberson had autism and misinterpreted his demeanor as a lack of concern for his gravely ill daughter.

In 2003, when Mr. Roberson’s trial occurred, the consensus in the medical community was that a child who presented with Nikki’s set of internal conditions must have been violently shaken or possibly struck against a blunt surface by the last person with the child at the time. Grieving parents, like Mr. Roberson, who said they did not harm their children were branded as callous liars. In the 20 years that have passed, the version of the shaken baby hypothesis put before his jury as “fact” has been entirely debunked by evidence-based science.

Shaken Baby Syndrome and Wrongful Convictions

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 shaken baby causation theory to obtain his conviction. His own trial lawyer ignored his client’s claim of innocence and agreed with the prosecution that Nikki’s death was a “classic” 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, even though no doctor endorsed her belief, the medical examiner saw no sign of abuse during the autopsy, and subsequent testing of a sexual abuse kit failed to confirm her speculations.

In 2013, Texas became the first state in the nation to provide a specific legal avenue to allow prisoners to challenge wrongful convictions by showing that changes in the field of forensic science either undermined the integrity of the criminal trials that led to their convictions or exonerated the defendant. But to date, no one on Texas’s death row, including Mr. Roberson, has succeeded at using this new law to obtain a new trial. In short, the legislative intent behind the law is not being fulfilled.

There is no question that medicine and science have evolved significantly since Mr. Roberson was convicted and sentenced to death in 2003, and that the medical evidence presented at his trial that formed the centerpiece of his conviction would be considered flawed and unreliable today. Despite the clear expression from the Texas Legislature about the importance of getting criminal convictions right and the recognition that our understanding of medicine and science changes over time in response to empirical testing, Texas’s justice system has so far failed Mr. Roberson.

Courts in at least 18 states have exonerated parents and caregivers who were wrongly convicted under the controversial shaken baby hypothesis, according to the National Registry of Exonerations.

Mr. Roberson’s Opposition to Anderson County D.A.’s Motion Requesting Execution Date can be viewed here.

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