New Report Reveals Texas Junk Science Statute Fails to Adequately Provide Relief for Innocent Prisoners, Including Robert Roberson

A July 2024 report from the Texas Defender Service (TDS), An Unfulfilled Promise: Assessing the Efficacy of 11.073, the first-ever com­pre­hen­sive review of Texas’ junk sci­ence writ, revealed that the ​“law sys­tem­at­i­cal­ly fails to pro­vide relief to inno­cent peo­ple con­vict­ed based on false foren­sic evi­dence.” In 2013, the Texas Legislature passed a first-of-its-kind law, Texas Code of Criminal Procedure Article 11.073, cre­at­ing a pro­ce­dur­al path­way for con­vict­ed indi­vid­u­als to seek new tri­als if they can show the foren­sic sci­ence used to achieve their con­vic­tion was flawed, and that with­out this flawed evi­dence, they like­ly would not have been con­vict­ed. In a review of 74 cas­es filed under Article 11.073 between September 2013 and December 2023, TDS deter­mined that the statute ​“is not oper­at­ing as the Texas Legislature intend­ed.” The report holds that ​“the Texas Court of Criminal Appeals’ (CCA) imple­men­ta­tion of the statute has shown incon­sis­ten­cy in appli­ca­tion, a dis­re­gard for dis­cred­it­ed sci­en­tif­ic meth­ods, a heavy inves­tiga­tive bur­den for peo­ple seek­ing relief (espe­cial­ly peo­ple with­out coun­sel), and a strik­ing absence of relief in cap­i­tal cas­es — mean­ing that poten­tial­ly inno­cent peo­ple will be executed.”

Of the 74 cas­es filed dur­ing this peri­od, just 15 (20%) appli­cants received relief from the courts. Individuals sen­tenced to death con­sti­tute approx­i­mate­ly a third of all fil­ings under Article 11.073, but the courts have not grant­ed relief to any death-sen­tenced pris­on­ers under this statute. Individuals who are not death-sen­tenced have received relief in 15 of 49 cas­es (31%). Of the 25 appli­ca­tions filed by indi­vid­u­als on death row, 18 were dis­missed or denied by the CCA with­out review of the under­ly­ing claims and 64% of appli­cants ​“were dis­missed or denied by an order no longer than a page and with no substantive discussion.”

TDS’ report also found that the CCA has applied a high­er stan­dard of proof than orig­i­nal­ly intend­ed by law, requir­ing pris­on­ers to prove their inno­cence in order to receive relief. This bar is much high­er, and hard­er to reach, than prov­ing that one’s con­vic­tion was based on unre­li­able sci­ence by ​“the pre­pon­der­ance of evi­dence.” In 73% of the cas­es in which the CCA grant­ed relief to pris­on­ers, the indi­vid­ual seek­ing relief ​“affir­ma­tive­ly proved their actu­al inno­cence.” Of the 15 indi­vid­u­als who have been grant­ed relief under Article 11.073, ​“10 were either simul­ta­ne­ous­ly grant­ed relief on an actu­al inno­cence claim or pre­sent­ed evi­dence indica­tive of actu­al inno­cence.” TDS report­ed that ​“peo­ple seek­ing relief under 11.073 might need to go beyond prov­ing the State’s reliance on flawed sci­ence — they might need to pro­vide evi­dence affir­ma­tive­ly show­ing inno­cence… As a result of the CCA’s inter­pre­ta­tion, 11.073 does not do enough to con­sis­tent­ly pro­tect all peo­ple who have been con­vict­ed on false and dis­cred­it­ed scientific evidence.”

The report also dis­cov­ered that the court reject­ed at least 38% of appeals for pro­ce­dur­al rea­sons. In some instances, the court ruled that the new evi­dence could have been found dur­ing a pre­vi­ous appeal or that it would not have influ­enced the jury’s ver­dict. As a result, indi­vid­u­als con­vict­ed based on ​“junk” sci­ence claims, includ­ing those on death row, are left with­out any sub­stan­tive eval­u­a­tion of their cas­es and have no remain­ing avenues for relief. TDS found that the CCA ​“large­ly restricts” relief to cas­es involv­ing new DNA evi­dence, despite the fact that a major­i­ty of wrong­ful con­vic­tions do not involve DNA evi­dence. Although DNA claims account­ed for just 43% of 11.073 appli­ca­tions, 73% of those grant­ed relief were based on DNA claims.

Among the death row pris­on­ers who have been denied relief under Article 11.073 is Robert Roberson. Mr. Roberson has spent more than 20 years on death row after being con­vict­ed of caus­ing the death of his two-year-old daugh­ter, Nikki, despite his stead­fast main­te­nance of inno­cence. In 2003, at the time of Mr. Roberson’s tri­al, there was a med­ical con­sen­sus that a child with a spe­cif­ic set of inter­nal con­di­tions, all of which were present in Nikki’s case, must have been shak­en or struck with a blunt object. Mr. Roberson brought Nikki to the hos­pi­tal and was unable to explain ade­quate­ly his daughter’s con­di­tion. At the hos­pi­tal, staff were unaware that Mr. Roberson has autism and mis­con­strued his demeanor as a lack of con­cern for his daugh­ter. Following the hypoth­e­sis of one physi­cian that Nikki’s death was the result of ​‘Shaken Baby Syndrome (SBS)’, law enforce­ment arrest­ed Mr. Roberson pri­or to the per­for­mance of an autopsy.

At tri­al, State med­ical experts tes­ti­fied that vio­lent shak­ing or blunt force trau­ma were the only expla­na­tions for the cause of Nikki’s death, dis­miss­ing any pri­or health issues Nikki had expe­ri­enced. Nikki, who was chron­i­cal­ly ill since birth, suf­fered from high fever and undi­ag­nosed pneu­mo­nia ahead of her death. Mr. Roberson took Nikki to both the emer­gency room and her pedi­a­tri­cian in the days lead­ing up to her death, but she was treat­ed with med­ica­tion that today’s sci­ence knows is not suit­able for chil­dren her age, as it sup­press­es the res­pi­ra­to­ry sys­tem. In 2016, Mr. Roberson faced a sched­uled exe­cu­tion date for his daughter’s death, but the CCA grant­ed him a stay of exe­cu­tion to allow his tri­al court to hear both an actu­al inno­cence claim and a chal­lenge to ​“Shaken Baby Syndrome” under Article 11.073. At this time, coun­sel for Mr. Roberson iden­ti­fied changes in the sci­en­tif­ic under­stand­ing of SBS and pre­sent­ed infor­ma­tion at a hear­ing ​“show­ing Nikki’s con­di­tion could be explained entire­ly by her ill­ness and the dan­ger­ous med­ica­tions she had been pre­scribed rather than abuse.” Despite the evi­dence pre­sent­ed at the evi­den­tiary hear­ing sup­port­ing Mr. Roberson’s inno­cence, the tri­al court rec­om­mend­ed deny­ing him relief under 11.073 and the CCA agreed with the low­er court’s find­ings in 2023. According to TDS, ​“nei­ther the tri­al court nor the CCA acknowl­edge the sig­nif­i­cant sci­en­tif­ic advance­ments and the excul­pa­to­ry evidence presented.”

On July 1, 2024, a Texas court set an exe­cu­tion date of October 17, 2024, for Mr. Roberson, despite the new sci­en­tif­ic and med­ical evi­dence debunk­ing the the­o­ry of SBS. According to a writ of habeas cor­pus and a motion for a stay of exe­cu­tion, filed on August 1, 2024, Nikki died of ​“severe viral and bac­te­r­i­al pneu­mo­nia that pro­gressed to sep­sis and sep­tic shock.” Three med­ical experts, from a range of med­ical spe­cial­ties, reviewed records asso­ci­at­ed with Mr. Roberson’s case and deter­mined that Nikki did not die from abuse, but rather from a fatal lung infec­tion. Gretchen Sween, an attor­ney for Mr. Roberson said that ​“the evi­dence in Robert Roberson’s case proves that his daugh­ter Nikki died of nat­ur­al and acci­den­tal caus­es and that no crime occurred.” Ms. Sween added that ​“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.”

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 is at risk of being the first per­son exe­cut­ed in the United States under the now-debunked shak­en baby hypothesis.