Texas is preparing to execute Robert Roberson, but evidence strongly suggests he is innocent and there was no crime. However, time is running out for him. Roberson is due to be executed on October 17. The 56-year-old has been on Texas death row for over 22 years after being convicted of the death of his two-year-old daughter, Nikki—thought to have died of shaken baby syndrome.
Texas will put Roberson to death unless he is granted clemency. Last week, a bipartisan majority of legislators in the Texas House asked the Texas Board of Pardons and Paroles to recommend clemency. The final decision will rest with Gov. Greg Abbott.
The problem is shaken baby syndrome has been proven to be junk science. I sat down with Roberson this week at the Polunsky Prison Unit in Livingston Texas. That’s where death row is.
Roberson has been diagnosed with autism and he has tested to show he has a very low I.Q.
Roberson’s attorney, Gretchen Sween, describes him as being like the fictional character Forrest Gump.
“He's been described by people who know him as like Forrest Gump. And by that, I mean he has this, a developmental disability, this lifelong [disability], but he also has this sort of childlike innocence and authenticity and is very intuitive and kind about people. He also is very attached to his mama and just very, as with some people with autism, he takes what you tell him very literally and wants to follow the rules,” said Sween.
Shaken baby syndrome: that’s what Roberson is accused of committing. That’s how prosecutors say little Nikki died, and that her death was at the hands of Roberson. This was in 2002 and medical science asserted that shaken baby syndrome was a real thing.
Of course, it’s true: one should never shake a baby, and child abuse is all too real.
But shaken baby syndrome, the idea that a small child can be jostled back and force—even for a few moments—and that is enough to kill or seriously injure that child without any other signs of physical trauma like broken bones or injured neck muscles—this has proven to be false.
Yet it appeared there was an epidemic of shaken baby syndrome in the United States. It was over-diagnosed and thousands of people— like Roberson—were convicted based solely on this shaky medical diagnosis, which is now understood to be junk science.
This week the conservative CATO institute hosted a panel of medical and forensic science experts who reviewed the latest evidence that shows that shaken baby syndrome is, in their words, "scientific sloppiness and groupthink.”
Dr. Jeffrey A. Singer is a senior fellow at the Cato Institute and works in the Department of Health Policy Studies. He has been in private practice as a general surgeon for more than 35 years.
"The medical diagnosis of shaken baby syndrome or abusive head trauma, and usually referred to as SBS or AHT, arose from a hypothesis developed in the early 1970s.
Over the decades, it has led to thousands of criminal court convictions and family court determinations that led to taking children from their parents. The diagnosis has a tainted iconic status within the medical specialty of child abuse pediatrics. Yet for the past few decades, outside of the child abuse pediatrics specialty, the scientific medical and legal literature has been replete with challenges to the reliability of the diagnosis. And in 2023, the New Jersey Court of Appeals, let stand the lower court's decision not to hear cases brought solely based on the shaken-baby diagnosis when there wasn't any other evidence of trauma. The court's opinion stated, the evidence supports the finding that there's a real dispute in the larger medical and scientific community about the validity of shaken baby syndrome. To date, courts have subsequently exonerated and released 33 people convicted and incarcerated based on this diagnosis," said Dr. Singer.
So if Robert Roberson didn’t kill Nikki with shaken baby syndrome, then what did kill her? The two-year-old was very ill and had a chronic medical condition. From time-to-time Nikki would stop breathing—and starving the brain of oxygen does create the same injury pattern that presents like shaken baby syndrome.
“Nikki had chronic health issues starting about eight days into her life. She had an infection that was alarming. It wasn't clear what it was, and she continuously kept having infections that antibiotics couldn't treat. She had a history of breathing apnea where she would just inexplicably cease breathing, collapse and turn blue and have to be revived,” said Roberson’s attorney, Gretchen Sween.
“She was a sick little girl, you know,” Roberson said about Nikki.
The hospital staff immediately suspected Roberson of fatal child abuse. And one of the reasons they were pointing the finger at Roberson was because of his behavior. He wasn’t acting like a distraught father gripped by grief. He didn't have a neurotypical response because he is not neurotypical. He has autism. A neurotypical response is a way of thinking, feeling, and behaving that is considered normal by society. But Roberson reacted by emotionally shutting down. So it didn’t take long before he was arrested.
One of the police officers who arrested Roberson was Brian Wharton. He was the lead detective for the Palestine Police Department. He’s now retired and traded his badge for a bible. Now he is the Reverend Wharton. He admits that they got it wrong that night, and Roberson is innocent.
During Roberson’s trial the jury was not informed about Nikki’s medical history, including her suffering with chronic illness since birth and her pneumonia. And the jury was not informed that Roberson has autism. His odd behavior was seen as evidence of guilt.
But the jury heard from the Dallas County medical examiner that Nikki’s injuries were consistent with shaken baby syndrome. The jury also heard testimony from a nurse who suggested that Nikki had been sexually abused. This nurse was not trained in dealing with sexual abuse in children, and there was no evidence of such abuse. But this accusation provided to the jury was allowed to stand unchallenged.
The jury found Roberson guilty, decided he would forever be dangerous, and sentenced him to death.
The appeal process has refused to look at new evidence or grant Roberson a new trial despite the fact that shaken baby syndrome is now considered junk science. There is a 2013 law in Texas that allows for a new trial in cases based on flawed scientific evidence known as junk science. However, the state’s highest criminal court has rejected most of those junk science challenges, including Roberson’s.
Roberson isn’t giving up hope. Right now, there are many people fighting for him. But it really comes down to one man who will decide Roberson’s fate—Governor Greg Abbott. He can signal to the courts and the Texas Board of Pardons and Paroles, and they would stop the execution and even exonerate Roberson. Abbott has the power of life and death over Roberson.
The Rev. Brian Wharton said he is now convinced that Roberson did nothing wrong and that the Texas judicial system has failed Roberson.
“I'm stunned that we are, at this point, I really am, that we are now dependent upon a clemency hearing to get justice for Robert. There is such clarity in the evidence that his attorney has tried to present to the court. It truly is stunning to me that we have come this far with Robert, that ... some form of relief, hasn't already come. And so, here's another moment in Texas, another moment for the death penalty where we need to be taking long, hard looks at what we think is justice,” he said.
