In Texas, Execution Looms Despite Questions in Shaken Baby Case

Robert Roberson could be the first person put to death in connection with shaken baby syndrome. The state’s highest criminal court ruled in another case that the science had changed.

Texas is preparing for the execution this week of an autistic man, Robert Roberson, who was convicted of killing his 2-year-old daughter in a case that has drawn intense scrutiny for its reliance on a questionable diagnosis of shaken baby syndrome.

A majority of the Republican-dominated Texas House has called for the execution to be halted. The detective who helped obtain the murder conviction now says he is “firmly convinced that Robert is an innocent man.”

Mr. Roberson would be the first person executed in a shaken baby case, his lawyers said. The diagnosis, a medical determination that abuse has caused serious or fatal head trauma, gained prominence more than three decades ago and led to a spate of criminal convictions. As evidence emerged that the diagnosis was not always reliable, some have since been reversed.

In Mr. Roberson’s case, the defense has insisted that no crime was committed at all. Lawyers have presented new evidence and expert testimony since the trial suggesting that Mr. Roberson’s daughter, Nikki, died in 2002 as a result of pneumonia and a prescribed medication she had taken.

So far, the courts in Texas have been unmoved.

With an execution date set for Thursday, Mr. Roberson’s lawyers and his supporters, who include John Grisham, the novelist, have appealed to the state’s Board of Pardons and Paroles to recommend clemency, or a reprieve, and have urged Gov. Greg Abbott to grant it.

Mr. Roberson has sat for a television interview from prison. His supporters have made the case for clemency to Phil McGraw, the television host known as Dr. Phil.

The case has renewed the debate over shaken baby syndrome and how — or even whether — it should be diagnosed.

The diagnosis is recognized by the American Academy of Pediatrics, but some doctors, forensic experts and defense lawyers have questioned its reliability in criminal cases, particularly those from decades ago when the science was less understood. Studies have not produced good evidence of the head trauma caused by shaking alone, according to one scientific review. At the same time, most efforts to challenge convictions have been unsuccessful.

In Mr. Roberson’s case, the diagnosis came in the absence of any history of abuse, his lawyers argued, and did not take into account his daughter’s serious medical problems, which had led him to take her to the emergency room and to see doctors for treatment in the days before her death.

Mr. Roberson, 56, had been living in the small East Texas town of Palestine, between Houston and Dallas, when he gained custody of Nikki in November 2001. He had only a ninth-grade education, his lawyers said, and was supporting himself by delivering newspapers.

In the days before she died, Nikki had been diagnosed with a respiratory infection and had a temperature of up to 104.5. Early in the morning of Jan. 31, 2002, Mr. Roberson woke up to find that she had fallen out of bed, his lawyers said. After comforting her, he and his daughter both fell back asleep. When he awoke again, he found she was not breathing.

At the hospital, scans revealed internal conditions associated with shaken baby syndrome: subdural bleeding, brain swelling and retinal hemorrhages. Together, the three conditions have been used to infer abuse in shaken baby cases.

But relying on those signs alone is no longer accepted as proof of abuse, Kate Judson of the Center for Integrity in Forensic Sciences, a nonprofit that has been supportive of Mr. Roberson, said in an interview. “That’s debunked,” she said.

Those who defend the diagnosis of abusive head trauma, now the preferred term, agree that a child’s medical history and the surrounding circumstances must be taken into account.

“Some of these presenting signs can and should lead to a diagnosis of something other than abusive head trauma,” said Dr. Andrea Asnes, a pediatrician specializing in child abuse who spoke as an expert on behalf of the American Academy of Pediatrics.

Nikki also had signs of having hit her head, which Mr. Roberson’s lawyers said had come from the fall from bed. But it was her underlying medical condition, not the fall, that led to her death, the lawyers said.

An autopsy ruled the death to be a homicide from “shaking” and “blows.” Mr. Roberson, who had been alone with the child, was charged with murder.

Those campaigning to halt the execution say there is no evidence that Mr. Roberson abused his daughter.

“I believe in the core of my being that Robert was convicted on faulty science,” said Representative Kronda Thimesch, a Republican from the Dallas area. She was part of a bipartisan group of state lawmakers who visited Mr. Roberson in prison last month and prayed with him.

Ms. Thimesch said that she remained a supporter of the death penalty, but that it should not be applied to Mr. Roberson: “He’s not guilty of the charges that Texas has leveled against him.”

Mr. Roberson’s execution was halted once before, in 2016, by the state’s highest criminal court, the Court of Criminal Appeals. But a hearing held to consider new evidence did not result in a reversal of his conviction or a change in his sentence.

This week, the same high court ordered a new trial for a Dallas-area man who was convicted in 2000 of injuring a child by shaking, raising new hopes for Mr. Roberson’s supporters.

The court found in the case of the man, Andrew Roark, that the medical understanding had changed regarding shaken baby syndrome, specifically a lack of evidence that shaking alone could produce the kind of under-the-skin bleeding seen in the child.

“Research ranging from mechanical dolls to animal abuse has yet to bridge the gap between theory” and results that can be reproduced, the court wrote in its ruling in favor of Mr. Roark. “Essentially, science has evolved to a degree that has removed ‘Shaken’ from ‘Shaken Baby Syndrome.’”

If the more recent understanding of the science had been part of his trial, the court found in Mr. Roark’s case, “it is more likely than not he would not have been convicted.”

Mr. Roberson’s lawyers have asked the court to use the same reasoning to stay his execution, arguing that the shaken baby expert testimony in both cases was “virtually identical.”

There was, however, a significant practical difference between the cases. In Mr. Roark’s case, the district attorney’s office in Dallas County is no longer standing by its expert testimony. In Mr. Roberson’s, the district attorney’s office in Anderson County has not shifted its position.

On Thursday, the court of criminal appeals denied Mr. Roberson’s lawyers’ latest motion to stay the execution.

Texas was one of the first states in the nation to allow prisoners to challenge their convictions based on changes in the understanding of scientific evidence, often known as the “junk science” law.

The law has been used to successfully challenge forensic evidence used at trial that has since been found faulty, such as testimony about bite marks. And the high criminal court pointed to the law in its decision in the Roark case on shaken baby syndrome.

But the law has not been invoked by the courts, so far, in Mr. Roberson’s case.

“We have been dismayed to learn that this law has not been applied as intended,” the bipartisan group of Texas lawmakers — 86 in all — wrote in their letter to the pardons board seeking clemency for Mr. Roberson.

The effort marks at least the second time in recent years that a bipartisan group of Texas lawmakers has worked together to try to stop an execution.

Two years ago, many of the same members of the Texas House banded together to urge clemency for Melissa Lucio, a woman accused of killing her 2-year-old daughter who died at home; her execution was eventually called off by the Court of Criminal Appeals so that new evidence could be considered.

But the top criminal court has already ruled against Mr. Roberson in his prior appeals. An application to the U.S. Supreme Court was unsuccessful.

The governor’s office did not respond to a request for comment on the case. Mr. Abbott, a Republican and a strong supporter of the death penalty, has only intervened once to stop an execution from being carried out, in 2018.

“All of the obvious avenues have been exhausted multiple times, but we’re not going to stop pounding on the door,” said Gretchen Sween, one of Mr. Roberson’s lawyers.

In what may be a final legal maneuver, his lawyers are seeking to have the death warrant thrown out by arguing that a judge’s rulings on challenges to the execution showed bias against Mr. Roberson. A hearing on that issue is set for Tuesday, two days before his execution.

One other issue defense lawyers are raising is the prosecution’s reliance on testimony about the apparent lack of emotion that police officers observed in Mr. Roberson after his daughter’s death.

His affect, which prosecutors argued was evidence of guilt, was caused not by a lack of grief but by his autism, which was not diagnosed at the time, Ms. Sween said.

The realization that Mr. Roberson had autism helped to convince Brian Wharton, the detective who investigated Nikki’s death, that he had made a mistake.

“He didn’t respond as a distraught father, but he also didn’t respond as a someone guilty of something,” said Mr. Wharton, now a pastor with the United Methodist Church. “Now I understand that he was a person with a developmental disability.”

Mr. Wharton is now one of those lobbying for Mr. Roberson’s release.

“I will be forever haunted by my participation in his arrest and prosecution,” he said. “I sincerely hope the governor and the board will step in.”