Forensics Experts and Shaken-Baby Exonerees File Briefs Supporting Texas Death-Row Prisoner Robert Roberson’s Innocence Claim

Forensics experts and three exonerees wrong­ful­ly con­vict­ed of mur­der based upon junk-sci­ence diag­noses of Shaken Baby Syndrome are urg­ing the Texas Court of Criminal Appeals (TCCA) to over­turn the con­vic­tion of death-row pris­on­er Robert Roberson (pic­tured with his daugh­ter, Nikki). In sep­a­rate friend-of-the-court briefs filed on April 8, 2022, the two groups argue that Shaken Baby Syndrome is an invalid med­ical diag­no­sis that should nev­er be used as the basis of a mur­der con­vic­tion and that Roberson is inno­cent of killing his daughter.

An ami­cus curi­ae brief filed by the Center for Integrity in Forensic Sciences (CIFS) told the court that Nikki was not mur­dered but ​“more like­ly” died from a com­bi­na­tion of acci­den­tal and nat­ur­al caus­es. CIFS, a non-prof­it orga­ni­za­tion that ​“focus­es on ensur­ing the reli­a­bil­i­ty of foren­sic sci­ences,” said the child’s caus­es of death ​“most notably include[ed] com­pli­ca­tions from undi­ag­nosed inter­sti­tial viral pneu­mo­nia, exac­er­bat­ed by pre­scrip­tion drugs, a his­to­ry of breath­ing issues, and an injury sus­tained as the result of a short fall that could, in turn, have been caused by a com­bi­na­tion of the pneu­mo­nia, drugs, and breathing issues.”

The brief of the exonerees high­light­ed the role false diag­noses of Shaken Baby Syndrome played in their wrong­ful mur­der con­vic­tions and explained that ​“SBS is pre­sent­ed as a med­ical ​‘diag­no­sis,’ but it is real­ly noth­ing of the kind.” Instead, they said, it ​“is a doctor’s diag­no­sis of a crime” that has lat­er been exposed as ​“flawed ​‘sci­ence.’”

The exonerees not­ed that, ​“while the lives of many peo­ple have been ruined by this pseu­do-sci­ence, it seems nobody has actu­al­ly been exe­cut­ed based on it. Absent inter­ven­tion by this Court,” they wrote, Robert Roberson ​“may become the first per­son to die.”

Roberson was sen­tenced to death in 2003 on charges he had mur­dered his 2‑year-old daugh­ter, Nikki Curtis. Roberson said he found Nikki injured after falling out of bed. He took her to the hos­pi­tal, where she died the fol­low­ing day. Doctors tes­ti­fied that Nikki had died of Shaken Baby Syndrome, which after crit­i­cism of the diag­no­sis has been renamed ​“Abusive Head Trauma.” The jury was unaware that Nikki had pneu­mo­nia at the time of her death and that she had been pre­scribed med­ica­tion — no longer rec­om­mend­ed for chil­dren her age — that can sup­press breath­ing. CAT scans also showed a sin­gle impact injury to her head, con­sis­tent with impact from a fall. Nikki had no injuries to her neck, which one would expect had she been sub­ject­ed to violent shaking. 

In June 2016, the TCCA stayed Roberson’s exe­cu­tion and direct­ed the tri­al court to con­duct a hear­ing on his claims that he would not have been con­vict­ed had the jury been aware of new sci­en­tif­ic evi­dence debunk­ing Shaken Baby Syndrome and that he ​“is actu­al­ly inno­cent of cap­i­tal mur­der.” The appeals court also grant­ed him a hear­ing on claims that his pros­e­cu­tors ​“relied on false, mis­lead­ing, and sci­en­tif­i­cal­ly invalid tes­ti­mo­ny” to secure his con­vic­tion and that ​“the State’s intro­duc­tion of false foren­sic sci­ence tes­ti­mo­ny that cur­rent sci­ence has exposed as false” denied him a fair tri­al and vio­lat­ed his right to due process. 

The court con­duct­ed an eight-day evi­den­tiary hear­ing that began in March 2018 and end­ed in January 2022 as a result of delays result­ing first from the dis­cov­ery of med­ical evi­dence thought to have been lost and then by the pan­dem­ic. In clos­ing argu­ments on January 31, 2022, Roberson’s lawyer, Gretchen Sween, told the court: ​“Shaken baby became an accept­ed diag­no­sis with­out any­body even think­ing about that. That if you shake an infant, let alone a tod­dler, imag­ine try­ing to pick up 28 pounds, shake them vio­lent­ly enough that sup­pos­ed­ly you’re caus­ing inter­nal brain dam­age, but their neck is not injured? It’s non­sen­si­cal, but it’s the kind of thing that gets momen­tum and peo­ple don’t pause to think about it because the emo­tions are so intense, espe­cial­ly when you’re talk­ing about the death of a child.”

Anderson County First Assistant District Attorney Scott Holden argued to the court that “[m]ost of their sci­en­tif­ic evi­dence is not new. Nothing. Not the pneu­mo­nia, not the injuries.”

On February 14, 2022, Judge Deborah Evans rec­om­mend­ed that the TCCA deny Roberson’s claims, stat­ing that the court had ​“found insuf­fi­cient facts to sup­port grant­i­ng relief.” The defense, she said, had ​“failed to pro­vide any new­ly dis­cov­ered evi­dence that was not avail­able at tri­al that unques­tion­ing­ly estab­lish­es his inno­cence nor any evi­dence that would show that no rea­son­able juror would have con­vict­ed in light of any new­ly discovered evidence.”

With the case back before the TCCA, the Center for Integrity in Forensic Sciences crit­i­cized the evi­dence against Roberson as ​“out­dat­ed and deeply flawed.” ​“No con­vic­tion should be allowed to stand on such a foun­da­tion, much less a sen­tence of death,” CIFS wrote. 

Underscoring the prej­u­di­cial impact in Roberson’s case, CIFS not­ed that the defense offered no evi­dence to con­test this junk-sci­ence diag­no­sis. Instead, ​“Mr. Roberson’s own attor­ney con­ced­ed that his client was fac­ing the ​‘clas­sic’ shak­en baby case, and argued only that his client did not pos­sess the req­ui­site men­tal state to com­mit cap­i­tal mur­der.” The evi­dence pre­sent­ed at the hear­ing ​“pro­vid­ed alter­nate, and more like­ly, expla­na­tions for Nikki’s cause of death,” the brief said.

The exonerees’ brief was sub­mit­ted by three peo­ple wrong­ly con­vict­ed of mur­der as a result of false Shaken Baby Syndrome diag­noses. The brief explained: ​“Sabrina Butler was sen­tenced to death in Mississippi for the death of her nine-month son Walter, acquit­ted at her retri­al, and then ful­ly exon­er­at­ed when it became clear Walter had died of a rare genet­ic dis­or­der. Clarence Jones was sen­tenced to 30 years in prison in Maryland for the death of his three-month son Collin, only to be exon­er­at­ed years lat­er. Drayton Witt was con­vict­ed of sec­ond-degree mur­der in Arizona for the death of five-month old Steven, and spent more than a decade in prison before the tes­ti­mo­ny of sev­er­al experts led to his exoneration.”

After pre­sent­ing evi­dence that SBS is an invalid basis for con­vic­tion, the exonerees not­ed that the pros­e­cu­tion has attempt­ed to hide the ball by rela­bel­ing the diag­no­sis. ​“Now, as in many oth­er cas­es, the pros­e­cu­tion belat­ed­ly rec­og­nizes that his­to­ry is catch­ing up with them and seeks to retreat from the hypoth­e­sis pre­sent­ed at tri­al, while main­tain­ing [Roberson’s] death sen­tence. There can be few injus­tices more in need of cor­rec­tion.” Quoting Dr. Norman Guthkelch, the British doc­tor who first hypoth­e­sized shak­en baby syn­drome and lat­er ​“dis­avowed” the the­o­ry, they write it is ​“high time every case of a par­ent in [prison] for this had his or her case reviewed. We [doc­tors] went bad­ly off the rails … on this matter.”

In a state­ment issued after the February rul­ing, Sween said: ​“We are exceed­ing­ly dis­ap­point­ed that the tri­al court did not address the mas­sive amount of new evi­dence — evi­dence that not only shows Mr. Roberson was wrong­ful­ly con­vict­ed based on junk sci­ence, but that he is actu­al­ly inno­cent because no crime occurred. His daughter’s trag­ic death was from undi­ag­nosed pneu­mo­nia and oth­er acci­den­tal fac­tors, includ­ing exces­sive dos­es of drugs that had been pre­scribed to her and that the FDA now express­ly warns against giv­ing to chil­dren of her age and in her con­di­tion.” Noting the “[w]hen the Texas Court of Criminal Appeals stayed Mr. Roberson’s exe­cu­tion in 2016, it implic­it­ly rec­og­nized prob­lems with the reli­a­bil­i­ty of his con­vic­tion,” Sween said the defense ​“earnest­ly hope[s] the CCA, which will have the ulti­mate say, will dig into the eleven vol­umes of new evi­dence, see the obvi­ous, and grant Mr. Roberson a new tri­al at long last.”