HOUSTON — A Texas man this week could become the first person executed in the U.S. for a murder conviction tied to the diagnosis of shaken baby syndrome but in an unexpected move less than 24 hours before he was set to die, a Texas House committee asked death row inmate Robert Roberson to testify.
The Texas Board of Parole on Wednesday voted 6-0 against recommending clemency for Roberson, who is scheduled to receive a lethal injection on Thursday. The board also denied him a 180-day reprieve.
Republican Gov. Greg Abbott can only grant clemency after receiving a recommendation from the board, which had come under public bipartisan pressure in recent weeks to spare Roberson's life.
Roberson, 57, is set to be executed for the 2002 killing of his 2-year-old daughter, Nikki Curtis. His attorneys have asked the U.S. Supreme Court to stay the execution.
At Wednesday's clemency hearing, the lead detective who helped convict Roberson, Brian Wharton, spoke in his defense.
"He is an innocent man and we are very close to killing him for something he did not do," Wharton said.
Roberson has long proclaimed his innocence. His lawyers as well as a bipartisan group of Texas lawmakers, medical experts and others don't deny that head and other injuries from child abuse are real. But they argue his conviction was based on faulty and now outdated scientific evidence and say new evidence has shown Curtis died from complications related to severe pneumonia.
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Prosecutors maintain Roberson’s new evidence does not disprove their case that Curtis died from injuries inflicted by her father.
After Wednesday’s hearing, the Texas House Committee on Criminal Jurisprudence voted to subpoena Roberson to testify as it considers the application of the law in his case.
KHOU 11 legal analyst Carmen Roe said that unexpected move could be connected to developments in the case of Andrew Roark. The Dallas man was previously convicted in “shaken baby case” in 2000 but was recently granted a new trial by the Texas Court of Criminal Appeals (CCA).
Roe said the intent of the subpoena was clear, but it’s unclear how it could impact Roberson’s case.
“It’s a clear message from the house committee, they believe the state is moving too fast and they want the impact of Roark to be considered for Roberson’s case. Still, it’s likely to be quashed. A subpoena can’t trump a death warrant,” she said.
Roberson's scheduled execution renewed debate over shaken baby syndrome. On one side of the debate are lawyers and some in the medical and scientific communities who argue the shaken baby diagnosis is flawed and has led to wrongful convictions. On the other side are prosecutors and medical societies from the U.S. and around the world who say the diagnosis is valid, has been scientifically proven and is the leading cause of fatal head injuries in children younger than 2 years of age.
Here’s what to know about the highly scrutinized diagnosis ahead of Roberson’s scheduled execution:
The diagnosis refers to a serious brain injury caused when a child’s head is injured through shaking or some other violent impact, like being slammed against a wall or thrown on the floor, usually by an adult caregiver, said Dr. Suzanne Haney, a child abuse pediatrician and member of the American Academy of Pediatrics Council on Child Abuse and Neglect.
The term was changed in 2009 to abusive head trauma, a more inclusive diagnosis, Haney said.
There are about 1,300 reported cases of shaken baby syndrome/abusive head trauma in the U.S. each year, according to the National Center on Shaken Baby Syndrome.
Critics allege doctors have been focused on concluding child abuse due to shaken baby syndrome whenever a triad of symptoms — bleeding around the brain, brain swelling and bleeding in the eyes — was found. Critics say doctors have not considered that things like short falls with head impact and naturally occurring illnesses like pneumonia, could mimic an inflicted head injury.
Roberson's attorneys and other supporters are not saying that child abuse doesn't exist or that shaking a baby is safe, said Kate Judson, executive director of the Center for Integrity in Forensic Sciences, a Wisconsin-based nonprofit that seeks to improve the reliability of forensic science evidence.
“This is a case about whether someone was misdiagnosed and justice wasn’t served,” Judson said.
While Haney declined to comment on Roberson’s case, she said there is no disagreement within a vast majority of the medical community about the validity and science behind the diagnosis.
Haney said doctors are not just focused on a triad of symptoms to determine child abuse, but instead look at all possible things, including any illnesses, that could have caused the injuries.
“I worry the pushback against abusive head trauma as a diagnosis is going to interfere with the prevention efforts that are out there and therefore allow more children to get harmed,” Haney said.
Judson said she believes that doctors in Roberson's case did not consider all possible causes, including illness, to explain what happened to his daughter and used the triad of symptoms to only focus on child abuse.
Roberson’s attorneys say he was wrongly arrested and later convicted after taking his daughter to a hospital. She had fallen out of bed in their home in the East Texas city of Palestine after being seriously ill for a week.
New evidence gathered since his 2003 trial shows his daughter died from undiagnosed pneumonia that progressed to sepsis and was likely accelerated by medications that should not have been prescribed to her and made it harder for her to breathe, said Gretchen Sween, Roberson’s attorney.
The Anderson County District Attorney’s Office, which prosecuted Roberson, has said in court documents that after a 2022 hearing to consider the new evidence, a judge rejected the theories that pneumonia and other diseases caused Curtis’ death.
In recent years, courts around the country have overturned convictions or dropped charges centered on shaken baby syndrome, including in California, Ohio, Massachusetts and Michigan.
A Texas law is supposed to allow cases where science has changed to be reconsidered.
"The law that the legislature passed, and our governor signed into law is being ignored by our courts. And all we're seeking to do here is push the pause button to make sure that it's enforced," Collin County Rep. Jeff Leach said.
In the U.S., at least eight individuals have been sentenced to death because of shaken baby syndrome, said Robin Maher, executive director of the Death Penalty Information Center. Two of these eight have been exonerated and Roberson is the only one to have received execution dates.
“According to the National Registry of Exonerations, at least 30 people across the country have been exonerated based on this discredited scientific theory,” Maher said.
But Danielle Vazquez, executive director of the Utah-based National Center on Shaken Baby Syndrome, said a 2021 research article found that 97% of more than 1,400 convictions related to shaken baby syndrome/abusive head trauma from 2008 to 2018 were upheld and that such convictions were rarely overturned on the grounds of medical evidence.
Vazquez said her organization is worried that doubts that have been raised about the diagnosis could cause some parents or caregivers to wrongly think that shaking a baby is not harmful.