Texas inmate Robert Roberson could be first US execution for death of ‘shaken baby’

A convicted Texas man is expected to die this month in what would be the nation’s first execution for “shaken baby syndrome,” a scrutiny diagnosis that has been successfully challenged in some criminal cases.

After filing a pardon request with the state before his execution, scheduled for October 17, Robert Roberson told NBC News anchor Lester Holt in an interview broadcast Thursday that he was urging the Texas governor, Greg Abbott, to forgive him and “let me go home.”

For more on this story, watch “NBC Nightly News with Lester Holt” tonight at 6:30 p.m. ET/5:30 p.m. CT.

“Look at the support I have, Mr. Governor, and I just hope, I pray that you do the right thing,” said Roberson, who was convicted of capital murder in the death of her 2-year-old daughter in 2002.

The Texas Board of Pardons and Parole, which declined to comment, must first recommend clemency to the governor.

Abbott used his pardon powers sparingly. He did so in May, when he pardoned an Army sergeant convicted of murder last year in the 2020 fatal shooting of a Black Lives Matter protester.

His office did not respond to requests for comment.

Texas nearly executed Roberson in 2016, but the process was halted days before by the state’s highest criminal court, allowing a lower court to hold an evidentiary hearing. Last year, the state Court of Criminal Appeals denied Roberson’s request for a new trial, unconvinced by new science, and last month it also denied his request for a stay of execution .

Roberson, 57, said he hopes Abbott will be swayed by the support he receives, including from a bipartisan coalition of state lawmakers, medical experts and even the original detective in his case, who testified against him but now believes no crime was committed.

“I would like the public to know that I am innocent,” Roberson told Holt. “I’m not guilty of this.”

Evidence at trial

Roberson said that in the early morning hours of Jan. 31, 2002, he woke up to a “strange scream” in his East Texas home and discovered that his daughter, Nikki, had fallen out of bed. He comforted her and they went back to sleep, according to court documents.

But a few hours later, Roberson said, he woke up and realized Nikki wasn’t breathing and her lips were blue. He took her to the emergency room, where doctors concluded she had signs of brain death. The next day, she was pronounced dead.

Based on her condition, which included head trauma consisting of bleeding, brain swelling and retinal hemorrhage, a Dallas doctor determined she died from so-called shaken baby syndrome , in which a child is shaken so violently that the action causes head trauma.

The lead detective on the case, Brian Wharton, accepted the diagnosis of shaken baby syndrome, and Roberson was arrested before an autopsy was even completed.

Wharton testified against Roberson during his capital murder trial in 2003. Prosecutors emphasized that they believed Roberson intentionally shook Nikki, causing bruising and blunt force trauma, and that he seemed almost impassive as he shook her. was taken to the hospital.

Roberson has since attributed his “seemingly blank reaction” at the time to autism spectrum disorder, which he was diagnosed with in 2018. Additionally, his defense attorneys were not allowed at his trial to call a witness to testify. medical expert on his allegations of “mental disorders”. failures” caused by brain injury.

An evolving science

The concept of shaken baby syndrome emerged in the 1970s. Scientists hypothesized that it could explain serious head injuries in infants if certain symptoms were detected.

But medical science — and the term — has evolved over the years, said Kate Judson, executive director of the Center for Integrity in Forensic Sciences, a nonprofit organization. At a recent press conference hosted by Roberson’s attorneys, Judson said that “other phenomena, such as short-term falls with impact to the head or many natural illnesses like pneumonia,” are now understood as explaining many symptoms previously considered indicative of abuse.

In 2009, the American Academy of Pediatrics changed the name from shaken baby syndrome to the more broadly defined abusive head injury to include injuries caused by mechanisms other than shaking alone.

But even experts who support the scientific validity of abusive head trauma, like Dr. Andie Asnes, professor of pediatrics at the Yale School of Medicine and member of the American Academy of Pediatrics Executive Council on Child Abuse and Neglect , warn that the diagnosis is complex and requires in-depth analysis.

“When diagnosing violent head trauma, context is absolutely crucial. No one can make this diagnosis in the absence of plenty of other important information,” Asnes said. “In other words, just by seeing an injury on a child, I cannot tell by looking at an injured child what happened to him unless I hear an explanation from someone who was able to see what is happening to him. arrived.”

She added that a child’s medical history is “essential in making the diagnosis.”

Although it is “extraordinarily dangerous to shake an infant,” Asnes said, simply looking at the symptoms of bleeding, brain swelling and retinal hemorrhage would be “a significant oversimplification of the thoughtful process and in several steps that lead to a final diagnosis of abusive head trauma.” “.

Asnes told NBC News she was not familiar with Roberson’s case and could not comment on the details of the sentencing.

Hundreds of possible cases of shaken babies and abusive head injuries are reported in U.S. hospitals each year, according to a nonprofit advocacy group. Although there have been criminal cases involving such injuries that resulted in convictions, review of medical testimony has also resulted in reversals: since 1992, at least 34 defendants have subsequently been exonerated in connection with allegations of shaken baby syndrome or abusive head trauma, according to the National Registry of Exonerations, which tracks convictions for wrongful convictions.

Roberson would be the first person in the United States to be executed based on a shaken baby diagnosis, said Robert Dunham, director of the Death Penalty Policy Project, an independent research program and special adviser to the law firm nonprofit Phillips Black. A Mississippi man sentenced to death for a shaken baby diagnosis was sentenced to life in prison in 2018 after evidence was reexamined.

Actual causes

Attorney Gretchen Sween, who joined Roberson’s case about two months before his execution in 2016, said she was struck by how little consideration investigators had of Nikki’s past health problems. Nikki suffered from a chronic illness and had been taken to hospital several times in the days before her fall due to persistent breathing problems and fever.

“The shaken baby concept didn’t work,” Sween said. “But also, looking at the medical records, it was clear that this was a very, very sick child. And everyone had rejected that at trial.”

The defense claims, based on reanalyzed postmortem reports, that Nikki suffered from undiagnosed pneumonia that prevented her from absorbing oxygen and caused swelling in her brain, and that she was dosed high level of a drug that is no longer prescribed to children. as young as she was.

Wharton, the former police detective in the Roberson case, said he thought Roberson’s “flat affect” while his daughter was in the hospital meant he was “hiding something.”

Since Roberson’s conviction, Wharton said, he has better understood Nikki’s diagnosis and wishes he had initially had more information about her medical history.

Wharton is using his experience in the case to come to Roberson’s defense, he said in an interview with Holt.

“I owe Robert nothing less,” said Wharton, who retired from law enforcement to study at a theological seminary. “My life in law enforcement and my life in general has always been about the truth and hopefully justice, and we are at a point here where the truth about Robert is being avoided and the justice is not done.”

Roberson told Holt he was grateful for the support. He no longer feels anger because of his years in prison and the way he was treated when his daughter died. He was a single father who took care of Nikki after her mother lost custody due to personal issues.

Prayer and forgiveness, he says, help him stay positive.

“Bitterness only hurts,” Roberson said. “If I don’t forgive, it hurts me, I retain bitterness.”