Texas determined to kill man with autism, convicted on debunked ‘shaken baby’ science | Opinion

On Monday, a Texas court set an October execution date for a man named Robert Roberson, despite overwhelming evidence that he was wrongly convicted of killing his 2-year-old daughter in 2003, based on the junk science of what we used to call “shaken baby syndrome.”

In an interview, the lead police investigator on the case, Brian Wharton, told me that he’s not only come to believe that Roberson is innocent but that he ultimately left law enforcement because of his moral misgivings about this and another case. Today, Wharton is a minister in the First United Methodist Church in Onalaska, Texas, 10 miles outside Livingston, where Roberson is on death row.

I have written about the shaky science behind “shaken baby” before. And will again, because innocent parents and caregivers here and across the country continue to be prosecuted for deaths that were the result of natural causes, as Roberson’s daughter’s was.

Yes, even as reports of all-too-real child abuse are still too often ignored until it’s too late. “We went from never recognizing child abuse to ‘child abuse is everywhere,’” one of Roberson’s attorneys, Gretchen Sween, told me. He is believed to be the only person facing capital punishment in such a case.

I never have grasped the thinking that executing anyone with a serious innocence claim is somehow “tough on crime.” No, that is a crime. And if Texas does put this innocent man to death, it will be because both the medical community and criminal justice system stubbornly refuse to admit their own wrongs.

I’m going to let Wharton, the former police investigator, tell you how Roberson wound up being sentenced to death in 2003, because he was there from the beginning, which was January 31, 2002.

That’s the night Roberson rushed his daughter, Nikki Curtis, to the hospital. She had collapsed, was limp and blue, and he said she’d fallen off the bed where they’d been asleep in their home in Palestine, in East Texas. But she’d also been quite sick, with undiagnosed pneumonia, and earlier that week, he’d already taken her both to the pediatrician with a high temperature and to the ER.

Father didn’t behave ‘correctly’ at hospital

There were no signs of violence in Roberson’s home, Wharton said, and Nikki didn’t look like she’d been beaten, either. But “at the hospital, it seemed like guilt,” in part because Roberson, who has autism, didn’t show the expected outpouring of emotion. “When a parent doesn’t behave ‘correctly’…’’

Then, after a CAT scan, “the hospital came with all the ‘shaken baby’ stuff, so all of the focus was on him. At the hospital, it was all verbal that this was just what this is, and we didn’t have any expertise to question any of that.”

He did have some doubts about some of what they were told: “My initial concern was in the ER, there was a sexual assault nurse who said she’d seen ‘anal tearing.’ I didn’t see anything I would classify as unusual. Nothing else in the investigation supported sexual assault,” either.

“Then a snitch comes forward and says he’d confessed to the sexual assault. When (prosecutors) told me the name of the snitch I said, ‘You’ve got to be kidding me.’ He was a known quantity and not someone you’d depend on for anything.”

Still, “the minuscule evidence of sexual assault did get before the jury. It was just jury manipulation, I’m sorry.” Then, right before the jury was given its instructions, the prosecutor withdrew the sexual assault charge.

“I thought it wasn’t fair and it wasn’t right, but I thought a decent appellate attorney would have it overturned.” And that was even before he learned more about “shaken baby” cases, and ultimately decided that that was hooey, too. He kept checking on Roberson’s case, and kept feeling terrible that the conviction had not been overturned.

Finally, in 2017, Roberson’s attorney “Gretchen knocked on my door, and I said, ‘I’ve been expecting you.’ ’’

That’s when he saw medical testimony that Nikki had actually died of severe pneumonia — “something that was not shared with us during the investigation.” Nor did he know then, he said, that many medical conditions, including pneumonia, can cause the brain bleeding, brain swelling and bleeding in the eyes that still are often seen, incorrectly, as proof positive of child abuse. We also now know that it is impossible to shake a toddler to death without causing serious neck injuries, which Nikki did not have.

Ex-police investigator: ‘The system protects itself’

As Wharton sees it now, “the system protects itself. It’s the conviction rate that runs the machinery on the courts side. We know more about head trauma now, but there’s a whole lot of pride involved. The ME refused to change her findings based on what she missed, and the DA is hanging her hat on that.”

In 2016, the Court of Criminal Appeals sent the case back to the trial court because the scientific consensus around shaken baby syndrome diagnoses had started to fall apart. That decision stemmed from the 2013 “junk science law” that allows Texas courts to overturn convictions based on discredited scientific evidence. Shaken baby cases were among those that had convinced lawmakers to pass that law.

So why, more than a decade later, is the state still so determined to kill Roberson?

In 2023, the Court of Criminal Appeals denied Roberson a new trial after prosecutors argued that there was still “clear and convincing” evidence that he’d abused his daughter and caused her death. They say this isn’t really a “shaken baby” case anyway, though that’s what it was called at trial, and what the death certificate says. The science around shaken baby cases, prosecutors said, has not changed as much as Roberson’s defense attorneys claimed.

The way I would say that is that discredited science is still being used to prosecute parents and others who have done nothing wrong.

When I asked Gretchen Sween how Roberson was taking the news that his execution date had been set, she said she had not been able to talk to him: “The prison would not give me a legal phone call to break the news, or even speak to him, until next Tuesday. Meanwhile, their fax machine is down — yes, as you know, they still require faxed communications.” So, in what she can’t help but see as another symbol of the system’s cruelty, “he learned of the news from an ‘emessage’ sent by a stranger.”

The fax machine is down, but the execution chamber still works as intended. Even if you think the death penalty is justified in some cases, how could this possibly be one of them?