Texas set to execute man in the face of enormous opposition due to conviction by shaken-baby syndrome

As Texas prison officials ready the death chamber to execute Robert Roberson tonight, a thundering chorus of people who believe the state is about to kill an innocent man hope last-minute measures will buy him more time, reported The Texas Tribune.

Roberson was convicted of killing his 2-year-old daughter, who was diagnosed with shaken baby syndrome. But experts, lawmakers and the lead detective in the girl’s case say the science supporting Roberson’s death sentence no longer holds up — and the state’s “junk science” law should have already halted his execution.

In an stunning move, a Texas House committee voted unanimously Wednesday to subpoena Roberson ahead of his Thursday execution, a step that sought to give the man a final lifeline after a series of court rejections left him on track to become the first person in the country executed for allegedly shaking a baby to death.

That move “sets up a bit of a separation of powers issue that I think would result in him not being executed tomorrow night,” Benjamin Wolff, director of the Texas Office of Capital and Forensic Writs, said on Wednesday, adding that he had not seen this maneuver attempted before, so it was not clear what could happen. “It’s an unprecedented subpoena and an unprecedented case.”

But Roberson set to be executed around 6p.m. Thursday, it’s unclear if that gambit will work.

The Texas House Criminal Jurisprudence Committee approved the subpoena hours after the state’s highest criminal court again declined to stop the execution, and after the Texas Board of Pardons and Parole denied Roberson’s request for clemency. Gov. Greg Abbott cannot defy the board’s recommendation, but he can issue a 30-day reprieve. Abbott has remained silent. Roberson’s lawyers have also asked the U.S. Supreme Court to step in.

The committee’s subpoena — which was offered by state Reps. Brian Harrison, R-Midlothian, and Jeff Leach, R-Plano — calls for Roberson to "provide all relevant testimony and information concerning the committee's inquiry."

Gretchen Sween, Roberson's attorney, said that she had "no knowledge" of a subpoena being used before in an effort to pump the brakes on an execution.

"It shows how strongly the lawmakers who have learned about this case feel about the injustice," she said.

The parole board’s six members voted unanimously earlier Wednesday to deny Roberson's clemency application. The decision came amid a forceful bipartisan campaign to spare Roberson’s life, and as lawmakers raised concerns that the courts were not properly implementing a groundbreaking 2013 “junk science” law that was intended to provide justice to people convicted based on scientific evidence that has since changed or been debunked.

“It is not shocking that the criminal justice system failed Mr. Roberson so badly. What’s shocking is that, so far, the system has been unable to correct itself," Sween said in a statement after the board's vote. “We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man.”

Brian Wharton, the lead detective in Roberson’s case who sided with the prosecution at trial, has called for his exoneration, as has bestselling author John Grisham. A large majority of the Texas House has asked the courts to take a second look at his case. Doug Deason, a GOP megadonor and Abbott ally, also publicly said he believes in Roberson’s innocence, according to the Houston Chronicle.

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Creators: The Efficacy of Shaken Baby Syndrome Remains Unresolved

Matthew T. Mangino
Creators
May 7, 2024

Robert Roberson's story is a tragic one. He is sitting on death row in Texas for killing his 2-year-old daughter Nikki Curtis by shaking her so violently that it caused her death. John J. Lennon, an incarcerated journalist who works with the Prison Letters Project at Yale Law School, recently wrote about Roberson for Slate.

The theory behind Roberson's conviction is what is commonly known as shaken baby syndrome.

Proponents of the theory of shaken baby syndrome claim that shaking a baby produces a so-called "triad" of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks or damage to the baby's neck.

Injuries from shaken baby syndrome are so severe, these experts say, the baby would immediately collapse. According to The Appeal, the last person with the baby — a parent, babysitter or day care worker — is the person often accused. That person is then left to prove they're innocent of a crime that may not have occurred.

The presence of shaken baby syndrome often pits the accused against the testimony of physicians, who say with certainty that the baby's injuries are comparable to those sustained from falling out of a window or being thrown from a car, reported The Appeal. In comparison, the defendant's explanation falls short of making an impression on an investigator or jury.

However, as with many types of forensic evidence — shaken baby syndrome is under scrutiny. Convictions are supposed to be final, but science is evolving. In recent years, prisoners and their lawyers have challenged a number of forensic disciplines: from eyewitness identification, to fingerprints as well as analysis of blood spatter, hair, bitemarks, toolmarks and a host of other traditionally "reliable" investigative techniques.

Since the 1980s, nearly a quarter of overturned convictions have featured "false or misleading forensic evidence," according to the national Registry of Exoneration.

"We believed anyone in a lab coat with letters after their names," M. Chris Fabricant, a lawyer for the Innocence Project, which works to overturn wrongful convictions across the country, told the Marshall Project. "But these methods were developed by law enforcement to solve possible crimes, not in laboratories."

A. Norman Guthkelch, a British pediatric neurosurgeon whose 1971 paper first posited the shaken baby syndrome, later reviewed a number of cases where defendants claimed their innocence. Patrick D. Barnes, MD of the Stanford University Medical Center, wrote in Bloomberg Law, Guthkelch was struck by the high proportion of cases in which the child had a history of illnesses, indicating their injuries were the result of natural causes, not abuse. In 2015, shortly before his death, Guthkelch told The Washington Post, "I am doing what I can so long as I have a breath to correct a grossly unjust situation."

According to Barnes, over the last two decades, courts in at least 12 states, including Alaska, Nevada, North Carolina, Ohio, and Wisconsin, have overturned shaken baby syndrome convictions, or rejected outdated science.

Some medical organizations have pushed back, including the American Academy of Pediatrics, which fears marginal medical theories are gaining too much traction in the courts, allowing people who abuse infants to go free. In 2009, according to the Boston Globe, the academy did acknowledge the controversy brewing over the role that excessive shaking plays in creating extreme injuries.

The academy now tells doctors to use the term "abusive head trauma," rather than shaken baby syndrome, to indicate that traumatic blows to the head, not just shaking, are often behind the brain swelling and eye damage that afflict some 1,000 children each year, often causing permanent neurological damage if not death.

But the fact remains that at least 32 people have been exonerated for crimes based on shaken baby syndrome, according to The Guardian. In addition, last fall, Superior Court of New Jersey Judge Pedro J. Jimenez Jr. ruled that shaken baby syndrome was "junk science" and "scientifically unreliable".

A definitive answer for shaken baby syndrome remains elusive. Roberson's petition to the U.S. Supreme Court seeking review of his shaken baby syndrome conviction was denied without explanation.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Judge calls 'shaken baby syndrome' junk science

When Michelle Heale was sentenced for shaking to death 14-month old Mason Hess, she told the courtroom: “Innocent people are being sent to prison based on this flawed theory…This needs to stop.”

More than six years later, a New Jersey judge agreed with her, reported The Appeal.

In January of this year, Superior Court of New Jersey Judge Pedro J. Jimenez, Jr. ruled in a different case that prosecutors could not introduce evidence of the scientifically dubious theory used to convict Heale—”Shaken Baby Syndrome.” In that case, a father was accused of shaking his 11-month-old son, who was identified as D.N. in the judge’s opinion.

Jimenez wrote that the diagnosis of Shaken Baby Syndrome, also known as Abusive Head Trauma, is “an assumption packaged as a medical diagnosis” and “lacks scientific grounding.” The parents had brought D.N. to the hospital because he appeared to be having seizures. Although he had a documented history of medical problems, including a hospital stay for the first seven months of his life, doctors concluded that he had been shaken.

“No study has ever validated the hypothesis that shaking a child can cause the triad of symptoms associated with AHT,” Judge Jimenez continued. “This diagnosis is akin to ‘junk science.’”

In February, Colin Miller, a professor at the University of South Carolina School of Law, submitted an application to the New Jersey Attorney General’s Conviction Review Unit asking that they “correct an injustice and set Michelle Heale free.” Last month, he sent the office a letter detailing Jimenez’s ruling. Miller began work on Heale’s application after he read The Appeal’s investigation into her case, which was published in 2020.

Proponents of the Shaken Baby Syndrome diagnosis claim that shaking a baby produces a so-called “triad” of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage, and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks, or damage to the baby’s neck.

The injuries are so severe, these experts say, that the baby would immediately collapse. The last person with the baby — a parent, babysitter, or daycare worker — is often the prime (if not the only) suspect. The person accused is then left to prove they’re innocent of a crime that likely never occurred. They are up against damning testimony, often from physicians, who say with certainty that the baby’s injuries are comparable to those sustained from falling out of a window or being thrown from a car. In comparison, the defendant’s account — that the baby went limp — often seems farcical.

On Aug. 28, 2012, Heale was babysitting Hess in her New Jersey home. She says she was feeding him when he suddenly went limp.

Heale called 911. “His whole body is lifeless,” she told the operator. Hess was then rushed to the hospital.

The emergency room doctor diagnosed him with pneumonia and found evidence of a possible bacterial infection. Hess was airlifted to Children’s Hospital of Philadelphia. Their doctors quickly came to a different conclusion: Hess must have been shaken.

Hess was pronounced dead on Sept. 1. Although Heale, a mother of two, had no history of abuse, she was convicted of aggravated manslaughter and child endangerment and sentenced to 15 years in prison. At the time, her twins were six years old.

Studies and several exonerations have shown that there are many other explanations for the so-called triad, including accidental, seemingly inconsequential short-distance falls that may have occurred days or weeks before a baby’s collapse; trauma sustained during childbirth; or illness.

In Heale’s case, Hess was sick and had fallen in his home about a week before his collapse. The fall caused a bruise on his head that was visible during the autopsy.

Before Heale’s trial, her attorneys had contacted Chris Van Ee, a biomechanical engineer and accident reconstruction specialist, about her case. He wrote and sent them a report, but never heard back. The report was not introduced at her trial and he was not called to testify. In his report on Hess’s death, Van Ee wrote that the child did not have any bruises, skull fractures, or other injuries that would have indicated he was shaken.

Van Ee has testified as an expert in several criminal cases, including at the hearing held before Judge Jimenez to determine if the prosecution could introduce evidence of SBS against D.N.’s father.

Jimenez is not the first judge to question the SBS diagnosis. Another New Jersey judge acquitted a father who was accused of shaking his infant son. The father had said the baby unexpectedly went limp, at which point he’d taken him to the hospital. In the judge’s ruling he wrote that it was widely accepted in the scientific community that other causes can “‘mimic’ findings commonly associated with SBS.” His decision came down in the summer of 2018, about two months after the state Supreme Court refused to hear Heale’s appeal.

“There have now been two New Jersey courts that have deemed the same type of testimony used to convict Michelle Heale unreliable and inadmissible,” USC’s Miller wrote to the Attorney General’s conviction review unit in April. The most recent ruling further strengthens Heale’s innocence claim, Miller said, and he “again respectfully asks that her convictions be overturned.”

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Shaken-Baby Syndrome in question, court orders new trial

The Massachusetts Supreme Judicial Court ordered a new trial for a man convicted of violently shaking his girlfriend’s toddler in 2007, the second ruling in six weeks that vacated guilty verdicts in shaken-baby cases, reported the Boston Globe. 

Taken together, the two court rulings underscored the court’s view that the “shaken-baby syndrome” diagnosis has become controversial, and defense lawyers who fail to challenge it could be depriving their clients of a fair trial.

In one case, the Supreme Judicial Court said the defense lawyer should have presented medical evidence challenging prosecutors who had depicted the child as a victim of shaken-baby syndrome.

In its unanimous ruling, the court found that jurors should have heard about the possibility that the 2-year-old’s catastrophic eye and brain injuries — which left her blind in one eye, cognitively impaired, and moving around in a wheelchair — could have been caused by a short fall of about 3 feet, like one that might have occurred from a kitchen stool.

Doubts have grown about shaken-baby syndrome among defense lawyers and some professional groups in recent years. Three state medical examiners in less than two years, for example, backed off earlier rulings that a baby died of shaken-baby syndrome, choosing instead after hearing from defense experts to say the cause was “undetermined.”

Several organizations submitted briefs, including The Innocence Network, the American Civil Liberties Union of Massachusetts, and the Committee for Public Counsel Services.

Some medical organizations have pushed back, including the American Academy of Pediatrics,which fears marginal medical theories are gaining too much traction in the courts, allowing people who abuse infants to go free. In 2009, however, the academy did acknowledge the controversy brewing over the role that excessive shaking plays in creating extreme injuries.

The academy now tells doctors to use the term “abusive head trauma,” rather than shaken-baby syndrome, to indicate that traumatic blows to the head, not just shaking, are often behind the brain swelling and eye damage that afflict some 1,000 children each year, often causing permanent neurological damage if not death, the group said.

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