Texas Might Soon Become the First State To Execute Someone Based on Disputed ‘Shaken Baby Syndrome’ Evidence

If Texas follows through with its plans to impose the death penalty on Robert Roberson this October, it will become the first state in the country to execute someone whose conviction was based on what’s commonly known as “shaken baby syndrome.”

The former detective who arrested Roberson for murdering his 2-year-old daughter is no longer convinced that he did it. Roberson’s attorneys say they have new evidence based on previously hidden medical records that his child really died of severe pneumonia, and they argue in a recently filed motion for a stay of execution that, since Roberson’s trial, the theory behind shaken baby syndrome—now called abusive head trauma (AHT)—has “been entirely exposed as devoid of any scientific underpinnings.”

Nevertheless, prosecutors insist that Roberson, who has been on Texas’ death row since 2003, was convicted on sound evidence and should face justice. Earlier this summer, a judge agreed and set an October 17 execution date.

Roberson’s case is only the highest-stakes example of a fight playing out in courtrooms around the country.

Last month, the Michigan Supreme Court overturned a 2006 murder conviction in the death of an infant and ruled that the defendant deserves a new trial. The court found that the defendant’s expert witnesses, including a doctor who had testified for the prosecution at her original trial, had presented enough new evidence during the appeal process for a jury to have reasonable doubt about her guilt.

The Columbus Dispatch reported on two similar cases in Ohio this February. In one, a court dismissed charges in the retrial of a man convicted in 2003 of killing a 2-year-old child, ruling that a “shift in understanding by the medical community” meant there was “a strong probability of a different result on retrial.” In the other case, a court ruled that a woman was eligible for compensation for spending 18 years in prison for the alleged shaking death of a child she was babysitting in 2003. Her conviction was overturned after the pathologist who conducted the autopsy recanted.

In New Jersey, the state supreme court is considering whether AHT evidence should be allowed in courtrooms at all, after a state trial court judge barred testimony from AHT experts in a child abuse trial in 2022. The trial court judge wrote that AHT is “an assumption packaged as a medical diagnosis, unsupported by any medical or scientific testing.” A state appeals court upheld the ruling, writing that “the very basis of the theory has never been proven.”

Even the pediatric neurosurgeon who first popularized the diagnosis in 1971 had grave doubts about how AHT ended up being used in courtrooms.

Some prosecutors and child abuse specialists have dismissed these objections as “fringe courtroom science” that undercuts very real incidents of abuse. But the number of exonerations points to a larger problem, or at least a live controversy. According to the National Registry of Exonerations, at least 33 parents and caregivers in 18 states convicted based on AHT evidence have been exonerated.

Roberson will join either that list or the much longer list of people who have taken the long walk to the execution chamber in Huntsville.

“I’m just adamantly refusing to acknowledge that’s a possibility,” his attorney, Gretchen Sween, says of the latter. “But we have not been able to find anybody that’s come this close” to being executed.

A Definitive Diagnosis

One undisputed fact in this case is that Roberson’s 2-year-old daughter, Nikki Curtis, was ill for much of her short, tragic life. She had chronic, antibiotic-resistant infections.

Roberson and Curtis’ mother were estranged, and Curtis’ maternal grandparents were the child’s primary caregivers until Roberson was awarded custody of her shortly after her second birthday.

Roughly two months later, on January 28, 2002, Roberson took Curtis to the emergency room for vomiting, coughing, and diarrhea. He took her back to a pediatrician the next day, when her fever spiked to 104 degrees. Curtis was prescribed medication and sent home both times.

Curtis was supposed to stay with her grandparents for the next two days. But when one of them fell ill on the night of January 30, Roberson had to pick Curtis up. He was alone with her for the next 12 hours, the last person to see her conscious and breathing.

According to Robersons, he woke up in the middle of the night after hearing a “strange cry” to find that Curtis had fallen out of their bed—a box spring and mattress propped up on cinder blocks. He comforted her until they both fell back asleep. Hours later, Robert woke up again and found that Curtis had stopped breathing and turned blue.

Roberson drove Curtis to the hospital, where she was declared brain-dead. CAT scans revealed a set of internal head conditions: bleeding in the brain, brain swelling, and retinal hemorrhages. Child abuse specialists consider these the definitive “triad” of symptoms for AHT.

Pediatric neurosurgeon Norman Guthkelch released a groundbreaking paper in 1971 theorizing that the whiplash from violent shaking could cause fatal brain injuries in infants, even absent external evidence of abuse such as bruising and broken bones. Shaken baby syndrome not only led to a major shift in public awareness of child abuse; it also provided powerful evidence for criminal charges against abusive parents.

Curtis was taken off life support after two days. Police arrested Roberson for capital murder before an autopsy was performed.

“Instead of exploring all possible causes of the injury sustained by a chronically ill child who had been at the doctor’s office with 104.5-degree temperature only two days before,” Roberson’s lawyers wrote in an August motion for a stay of execution, “a tragedy was deemed a crime and a father, doing the best he could to care for his daughter despite severe cognitive impairments, was falsely branded a murderer.”

‘There Had To Have Been Something More Than Just Impact’

At Roberson’s trial, prosecutors for the state of Texas painted a very different picture.

Roberson’s ex-girlfriend, as well as her daughter and one of her nieces—ages 10 and

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Article from Reason.com

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