If Texas follows via with its plans to impose the demise penalty on Robert Roberson this October, it should turn into the primary state within the nation to execute somebody whose conviction was primarily based on what’s generally often called “shaken child syndrome.”
The previous detective who arrested Roberson for murdering his 2-year-old daughter is now not satisfied that he did it. Roberson’s attorneys say they’ve new proof primarily based on beforehand hidden medical information that his little one actually died of extreme pneumonia, and so they argue in a not too long ago filed movement for a keep of execution that, since Roberson’s trial, the speculation behind shaken child syndrome—now known as abusive head trauma (AHT)—has “been solely uncovered as devoid of any scientific underpinnings.”
Nonetheless, prosecutors insist that Roberson, who has been on Texas’ demise row since 2003, was convicted on sound proof and may face justice. Earlier this summer season, a choose agreed and set an October 17 execution date.
Roberson’s case is just the highest-stakes instance of a struggle taking part in out in courtrooms across the nation.
Final month, the Michigan Supreme Court docket overturned a 2006 homicide conviction within the demise of an toddler and dominated that the defendant deserves a brand new trial. The court docket discovered that the defendant’s professional witnesses, together with a health care provider who had testified for the prosecution at her unique trial, had introduced sufficient new proof through the attraction course of for a jury to have affordable doubt about her guilt.
The Columbus Dispatch reported on two related circumstances in Ohio this February. In a single, a court docket dismissed prices within the retrial of a person convicted in 2003 of killing a 2-year-old little one, ruling {that a} “shift in understanding by the medical group” meant there was “a robust likelihood of a distinct outcome on retrial.” Within the different case, a court docket dominated {that a} lady was eligible for compensation for spending 18 years in jail for the alleged shaking demise of a kid she was babysitting in 2003. Her conviction was overturned after the pathologist who carried out the post-mortem recanted.
In New Jersey, the state supreme court docket is contemplating whether or not AHT proof needs to be allowed in courtrooms in any respect, after a state trial court docket choose barred testimony from AHT specialists in a toddler abuse trial in 2022. The trial court docket choose wrote that AHT is “an assumption packaged as a medical analysis, unsupported by any medical or scientific testing.” A state appeals court docket upheld the ruling, writing that “the very foundation of the speculation has by no means been confirmed.”
Even the pediatric neurosurgeon who first popularized the analysis in 1971 had grave doubts about how AHT ended up being utilized in courtrooms.
Some prosecutors and little one abuse specialists have dismissed these objections as “fringe courtroom science” that undercuts very actual incidents of abuse. However the variety of exonerations factors to a bigger drawback, or at the very least a reside controversy. In accordance with the Nationwide Registry of Exonerations, at the very least 33 parents and caregivers in 18 states convicted primarily based on AHT proof have been exonerated.
Roberson will be a part of both that checklist or the for much longer checklist of people that have taken the lengthy stroll to the execution chamber in Huntsville.
“I am simply adamantly refusing to acknowledge that is a risk,” his legal professional, Gretchen Sween, says of the latter. “However now we have not been capable of finding anyone that is come this shut” to being executed.
A Definitive Analysis
One undisputed truth on this case is that Roberson’s 2-year-old daughter, Nikki Curtis, was ailing for a lot of her quick, tragic life. She had persistent, antibiotic-resistant infections.
Roberson and Curtis’ mom have been estranged, and Curtis’ maternal grandparents have been the kid’s major caregivers till 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 again to a pediatrician the following day, when her fever spiked to 104 levels. Curtis was prescribed remedy and despatched dwelling each instances.
Curtis was supposed to stick with her grandparents for the following two days. However when one in all them fell ailing on the evening of January 30, Roberson needed to decide Curtis up. He was alone together with her for the following 12 hours, the final particular person to see her aware and respiratory.
In accordance with Robersons, he awakened in the midst of the evening after listening to a “unusual cry” to search out that Curtis had fallen out of their mattress—a field spring and mattress propped up on cinder blocks. He comforted her till they each fell again asleep. Hours later, Robert awakened once more and located that Curtis had stopped respiratory and turned blue.
Roberson drove Curtis to the hospital, the place she was declared brain-dead. CAT scans revealed a set of inner head situations: bleeding within the mind, mind swelling, and retinal hemorrhages. Youngster abuse specialists think about these the definitive “triad” of signs for AHT.
Pediatric neurosurgeon Norman Guthkelch launched a groundbreaking paper in 1971 theorizing that the whiplash from violent shaking might trigger deadly mind accidents in infants, even absent exterior proof of abuse similar to bruising and damaged bones. Shaken child syndrome not solely led to a serious shift in public consciousness of kid abuse; it additionally supplied highly effective proof for legal prices in opposition to abusive dad and mom.
Curtis was taken off life help after two days. Police arrested Roberson for capital homicide earlier than an post-mortem was carried out.
“As an alternative of exploring all doable causes of the damage sustained by a chronically ailing little one who had been on the physician’s workplace with 104.5-degree temperature solely two days earlier than,” Roberson’s attorneys wrote in an August motion for a stay of execution, “a tragedy was deemed against the law and a father, doing the most effective he might to take care of his daughter regardless of extreme cognitive impairments, was falsely branded a assassin.”
‘There Had To Have Been One thing Extra Than Simply Affect’
At Roberson’s trial, prosecutors for the state of Texas painted a really completely different image.
Roberson’s ex-girlfriend, in addition to her daughter and one in all her nieces—ages 10 and 11, respectively—testified that Roberson would shake and spank Curtis when she would not cease crying. Roberson’s ex-wife from a previous marriage additionally testified that he bodily beat and abused her. (Roberson’s attorneys argue in his habeas corpus petition that the witnesses have been biased, weren’t credible, and contradicted one another, and that the accusations solely got here out effectively after Roberson’s arrest, following prodding and main questions from police.)
Hospital employees testified that Curtis had bruises on her chin and jaw. An emergency room nurse testified at size, with out corroborating proof or certification as a sexual assault examiner, that Roberson had sexually abused his daughter.
Nurses, police, and docs additionally testified for the state about Roberson’s odd, impassive, and lackadaisical conduct. He took the time to decorate Curtis and discover a parking spot on the hospital, regardless that she had stopped respiratory.
Roberson, who struggled with speech delays rising up and dropped out of highschool in ninth grade, was identified with autism in 2018, which his attorneys say led to police and docs misinterpreting his conduct.
However probably the most damning proof got here from two medical specialists who testified that Curtis’ accidents appeared to have been brought on by shaking and blunt power impacts. AHT performed a big half in each docs’ testimonies.
“It’s my opinion…that there was some part of shaking that occurred to clarify all of the deep mind damage out of proportion, I might say, to the damage to the cranium and the again of the pinnacle,” testified Janet Squires, a licensed professional in Youngster Abuse Pediatrics who has testified in a whole bunch of child-abuse trials. “There needed to have been one thing extra than simply impression.”
By the late Nineteen Nineties, the medical and law-enforcement consensus was not simply that shaking an toddler might produce the triad of signs related to AHT. If the triad of signs was current, the default conclusion was abuse by a mother or father or caretaker.
A 2002 guide to investigating little one abuse from the Division of Justice’s Workplace of Juvenile Justice and Delinquency Prevention mentioned retinal hemorrhages have been, “for all sensible functions, conclusive proof of shaken child syndrome within the absence of an excellent clarification.”
In a legal justice system the place convictions have to be primarily based on proof past an affordable doubt, an professional’s testimony {that a} kid’s accidents might solely have been brought on by abuse is devastating to a defendant’s case, particularly a defendant already going through a extremely prejudicial cost.
Religion within the analysis was so entrenched on the time that Roberson’s trial legal professional didn’t even problem it, describing the incident in his opening arguments as a “basic shaken child case.” Roberson’s present attorneys wrote in his current petition for a writ of habeas corpus that the assertion was an “enormously prejudicial and misguided concession.”
In 2003, a Texas jury convicted Roberson of capital homicide and sentenced him to demise by deadly injection.
Shifting Science and Polarized Debate
Even on the time Roberson was convicted, cracks have been beginning to kind within the orthodoxy round AHT.
A rising physique of analysis over the 2000s and 2010s challenged the belief that the triad of AHT signs was conclusive proof of kid abuse. Research confirmed that different situations, similar to blood issues, might mimic AHT signs. A 2009 Washington College Regulation Evaluation article summarized the findings: “Relying upon the scientific image introduced, the differential analysis for signs beforehand related completely with [shaken baby syndrome] now contemplates a variety of nontraumatic potentialities: medical or surgical interventions; prenatal, perinatal and pregnancy-related situations; delivery results; infections; ailments; issues; malformations; post-vaccinal situations; re-bleeds; and hypoxia (lack of oxygen to the mind).”
Guthkelch, the physician who first popularized shaken child syndrome, grew to become a critic of the way it was being utilized in courtrooms after he reviewed the case of an Arizona man convicted of homicide primarily based on AHT proof and concluded the person was harmless. In a 2012 paper printed within the Houston Journal of Well being Regulation & Coverage, Guthkelch urged pediatric abuse specialists to query their findings.
“Usually, there appears to have been insufficient inquiry into the likelihood that the image resulted from pure causes,” Guthkelch wrote. “In reviewing circumstances the place the alleged assailant has continued to proclaim his/her innocence, I’ve been struck by the excessive proportion of these by which there was a major historical past of earlier sickness or of abnormalities of construction and performance of the nervous system, suggesting that the issue was pure or congenital, moderately than abusive. But these issues have been hardly, if in any respect, thought of within the medical stories.”
Guthkelch, who died in 2016, spent his final years attempting to amicably resolve the unusually fierce debates between the 2 camps—pediatric organizations and abuse specialists, who nonetheless represented a majority view, and the skeptics who typically labored with protection attorneys and innocence teams.
In 2018, Pediatric Radiology printed a consensus statement from 9 pediatric and radiology organizations. It declared that there “is not any controversy in regards to the medical validity of the existence of AHT,” nevertheless it went on to say that a health care provider’s workup “should exclude medical ailments that may mimic AHT.”
In 2020, the American Academy of Pediatrics launched a revised policy statement on AHT stating that the group “continues to embrace the ‘shaken child syndrome’ analysis as a sound subset of the AHT analysis.” It acknowledged the talk over the analysis however framed it as “a philosophical one, not a scientific one”—an argument over the diploma of certainty physicians attribute to their AHT findings on the stand.
A significant purpose for the notion that AHT is a flawed idea is that exonerations maintain occurring. In 2021, the Georgia Supreme Court docket overturned the life sentences of a person and lady convicted of murdering their new child daughter after discovering they’d obtained ineffective counsel. The couple introduced proof that their daughter had a critical delivery defect and that county prosecutors had illegally withheld CAT scans that might have supported their protection.
Critics of how AHT is utilized in courtrooms say that is the rub—not that it is not possible to harm a child by shaking it, however that cognitive bias causes docs to inadequately think about different potentialities and dismiss opposite proof.
“I’ve had circumstances within the final a number of years the place physicians assume {that a} case is abuse,” says Kate Judson, government director of the Middle for Integrity in Forensic Sciences, a gaggle that works in opposition to what it considers unreliable forensic methods. “They order assessments, and people assessments come again outdoors of the conventional limits. So a child’s blood is taking too lengthy to clot or it is clotting too rapidly, which may each result in important issues, together with inner bleeding and stroke and issues like that. After which they are saying, ‘Properly, these assessments usually are not related as a result of we already knew it was trauma.'”
One other drawback, Judson says, is that the adversarial nature of the court docket system would not give docs the type of suggestions that makes them higher diagnosticians.
“A doctor I do know instructed me you solely miss the identical horrible most cancers as soon as in case you’re an excellent physician,” Judson says. “You miss it, you get caught, you’re feeling horrible, after which that is all the time in your thoughts. You do not make that mistake once more, one hopes, proper? However in these circumstances, there is not any significant alternative for suggestions, as a result of as soon as the doctor decides that it is little one abuse, a lot of the opposite investigation ceases.”
And since the U.S. justice system closely values finality in verdicts, courts lag behind the instances with regards to science. It might probably take years to get courts to query the validity of established forensic strategies and even pure quackery as soon as they’re launched. For instance, Texas solely not too long ago banned prosecutors from utilizing statements obtained by police via “investigative hypnosis.”
Texas is one thing of a paradox, although, as a result of in 2013 it additionally grew to become the primary state within the nation to go a legislation permitting inmates to problem convictions primarily based on outdated or debunked forensic strategies.
The so-called “junk science writ” already helped Roberson narrowly keep away from a visit to the execution chamber as soon as. In 2016, the Texas Court docket of Prison Appeals (CCA) granted Roberson a keep of execution to permit him a listening to to problem his conviction on each precise innocence grounds and underneath the junk science writ.
But a trial court docket and the CCA each denied Roberson reduction and agreed with prosecutors that as a result of the specialists at Roberson’s trial had not completely relied on an AHT analysis however a mix of shaking and blunt impacts, the state’s cause-of-death idea had not been disproven.
“I’m a local Texan,” says Sween, “and one of many maddening issues about this state is there could be these very daring strikes in the correct path to reform legal justice after which simply absolute recalcitrance and unfairness baked into the identical system.”
A July report by the Texas Defender Service, the primary complete overview of the junk science writ, concluded that the “legislation systematically fails to supply reduction to harmless individuals convicted primarily based on false forensic proof.”
“The legislative resolution is ineffective if the courts do not honor it,” Sween continues. “Not a single particular person on Texas’s demise row who has tried to get reduction underneath the statute has gotten it, not one. And that’s statistically alarming.”
New Proof and Outdated Acquaintances
What’s completely different with Roberson’s new spherical of last-ditch appeals is that his attorneys now say they’ve proof, not obtainable in 2016, that Curtis died from undiagnosed viral and bacterial pneumonia so extreme that it progressed to sepsis—not from shaking or blunt power head trauma.
CAT scans, X-rays, and an entire post-mortem file have been rediscovered in a courthouse basement in 2018, and Roberson’s attorneys recruited an professional in pediatric radiology, a lung pathologist, and an professional in medical toxicology to overview the information.
After inspecting the pictures and post-mortem proof, the three specialists concluded that the signs attributed to abuse might all be defined by Curtis’ extreme pneumonia, issues from her oxygen-starved situation, and unintended effects of medicines she was improperly prescribed through the two physician visits previous to her demise. A kind of drugs was codeine cough syrup, which depresses respiratory perform, and the opposite, Phenergan, now has a “black field” warning by the Meals and Drug Administration in opposition to prescribing it to youngsters youthful than 2 as a result of it will possibly trigger extreme respiratory issues.
“The situation of Nikki’s lung tissue can’t be reconciled with the conclusion that her demise was brought on by blunt power head accidents, inflicted or in any other case,” the lung pathologist, Francis Inexperienced, wrote within the habeas petition.
The radiologist additionally concluded that there have been not “a number of impacts” to Curtis’ cranium, as a health care provider testified at Roberson’s trial—only a single, minor impression that was inadequate to trigger her demise.
Among the many most sudden believers in Roberson’s innocence is the person who arrested him: Bryan Wharton, the lead detective in Palestine, Texas, on the time of Curtis’ demise.
In a video interview with The New York Instances this July, Wharton, who’s now a minister, mentioned that primarily based on what he now is aware of of the controversy over AHT and Roberson’s autism analysis, there may be “unassailable doubt” that Roberson dedicated the crime.
“No different potentialities for [Curtis’] accidents have been thought of,” Wharton instructed the Instances. “I remorse deeply that we adopted the simplest path.”
As Roberson’s October 17 execution date approaches, the window of alternative for the state of Texas to decide on one other path grows smaller and smaller.
