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November 4, 2024 · 3:09 pm

Texas Governor and AG Push Back Hard in Shaken Baby Syndrome Case

In Texas, where the House Criminal Jurisprudence Committee thwarted the Justice Department’s execution last month of convicted father Robert Roberson, the struggle between the governor’s office and the legislature is now playing out both in the courts and in the headlines.

Roberson was convicted in 2003 of murdering his 2-year-old daughter Nikki by shaking, a diagnosis accepted at the time even by his own defense attorney but now in question, both generally and in this case.

Days after the Texas Supreme Court stayed the execution in October, Governor Greg Abbott’s office filed a brief declaring that the legislative committee had “stepped out of line” by usurping the governor’s sole authority over executions (Texas Tribune treatment). Then Lieutenant Governor Ken Paxton issued a statement criticizing the critics and presenting his arguments for Roberson’s guilt. The Fox 4 News coverage summarizes:

“In a newly released statement, Paxton accused State Rep. Joe Moody, a Democrat from El Paso who chairs the committee, and Plano Republican State Rep. Jeff Leach of lying about the details in the case.

“The attorney general also argued for Roberson’s execution, saying evidence showed his daughter died from being beaten by her father.”

The Committee responded with its own refutation of the AG’s statement, which had included both a “jailhouse confession” rejected at the time by the prosecution as not credible and quotes from a witness whose testimony was contradicted by the medical records. Coverage from the Dallas Morning News, reprinted in the Union Bulletin, offered this observation,

“The News’ review found Paxton’s statement and recent court filings by lawmakers have deviated from the trial record by introducing allegations that were either dropped at trial, not presented by prosecutors or discussed when the jury was outside the courtroom.”

Meanwhile, Roberson has not yet testified in front of the legislature, blocked by AG Paxton (Texas Tribune coverage) as the jurisdiction struggle works its way through the courts. CNN reports that any new execution date will have to be set at least 90 days in advance, meaning Roberson can’t be executed during this calendar year.

The attorney general’s office has pushed back hard against Robert’s supporters. AG Paxton has called for the resignation of legislator Jeff Leach, who admits to having sent a personal email to a Texas criminal appeals judge on the subject, contrary to the rules for attorneys—his confession to the crime appears in the sidebar of this paragraph.

The legislators are arguing that the state consistently refused to take a second look at Roberson’s case despite the 2013 passage of a “junk science” law, Article 11.073, intended to let prisoners appeal their cases when advances in forensic science raise questions about their convictions. While the Texas law was the first of its kind in the nation, inspiring other states to adopt similar measures, critics maintain that Texas courts have resisted appeals filed under Article 11.073 (Texas Tribune coverage). The legislators say their goal is to look into how the law is being implemented

A Texas Court of Criminal Appeals ordered a new look at Roberson’s case in 2016, based on an Article 11.073 filing. The Innocence Project offers this summary of the proceedings that resulted:

“His case was sent back to the trial court, which conducted a nine-day evidentiary hearing in 2021. There, experts explained that SBS had been discredited and provided compelling evidence that Nikki died of natural and accidental causes. A pathologist testified that Nikki suffered from a severe form of undiagnosed viral pneumonia that has since been more widely understood due to COVID-19. Signs of Nikki’s advanced pneumonia were noted in her autopsy but, at the time, were unexplained. Tragically, unaware of Nikki’s pneumonia, her treating doctors prescribed her with high levels of prescription medication (found in autopsy toxicology results) that are now understood to be deadly in children of Nikki’s age and in her condition. And biomechanical evidence now shows that short falls like Nikki’s can cause severe injury and even death, an explanation for Nikki’s condition that was vehemently rejected by every medical witness who had testified at her trial

“The trial court ignored new evidence from six expert witnesses and rubber-stamped the prosecution’s 17-page proposed findings of fact and conclusions of law, which relied almost exclusively on the outdated scientific evidence introduced at the 2003 trial and conducted when the medical establishment accepted unquestioningly that the triad of intracranial conditions observed in Nikki could be used to ‘diagnose’ shaking and abuse.”

The state Supreme Court, which handles civil cases, is looking only at the jurisdictional dispute.

Meanwhile, three of the five criminal appeals court judges who approved Roberson’s execution in the past are leaving the panel this year, ousted in primary challenges pushed by Paxton. Depending on who is elected to fill those seats, the new court that must approve the execution could become either more or less sympathetic to defense arguments, as detailed by an analysis in the Texas Tribune.

Meanwhile, the public struggle has reignited the debate over shaking theory in the state, national, and international arenas:

Robert Roberson’s death row case raises questions over capital punishment fairness, Texas Public Radio
Shaken Baby Has Been Discredited. Why Is Robert Roberson Still on Death Row?, Scientific American (and a follow-up by the same authors, published today, The Law Must Respond When Science Changes)
Why the Shaken Baby controversy is now stalking death row, Telegraph, UK

An entertaining detail: The first Scientific American op ed listed above includes a quote in the near-final paragraph attributed to pioneering pediatric neurosurgeon Norman Guthkelch, the first person who proposed in print, in 1971, that shaking an infant without impact could cause subural hematoma. The authors report Dr. Guthkelch’s regret that his “friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent parents.” Although the article doesn’t identify the source of the quote, the highlighted text links to my 2013 posting on this blog, “Dr. Norman Guthkelch, Still on the Medical Frontier,” written after I travelled to interview him in person. The page includes video of key portions of our talk, so I guess the editors gave it the authenticity nod.

June 2025 update: The state has requested a new execution date for Robert Roberson, event though his case is still under appeal, according to KERA news in north Texas.

If you’re not familiar with the debate surrounding SBS/AHT, please see the home page of this blog.

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Filed under parents accused, wrongly accused

Tagged as abusive head trauma, doubts about shaken baby, parents accused, robert roberson, SBS, Shaken Baby Syndrome, Texas attorney general, Texas governor

October 19, 2021 · 2:11 pm

Grace in Exoneration, After 18 Years

Even as she went to trial in 2003, Tonia Miller says, she expected to be found innocent. She knew she hadn’t abused her baby, she explains, and, “I trusted the justice system.” Her chuckle at her own youthful naïveté is more wry than bitter.

Unfortunately for Tonia, the medical experts at the time were adamant and unanimous. Even though 11-week-old Alicia showed no bruises, grip marks, or fractures, even though the baby had been sick her entire life, with chronic collections of subdural blood possibly dating from birth, and even though no one had ever seen Tonia mistreat either her baby or her toddler, doctors testified at trial that the pattern of bleeding and swelling inside Alicia’s head could mean only one thing: Shaken Baby Syndrome (SBS). The young mother was found guilty of second-degree murder.

But those experts were wrong.

Tonia’s conviction was vacated in 2020, after four new experts brought in by the Michigan Innocence Clinic re-examined the medical records and concluded, unanimously, that Alicia had died from pneumonia.

“There was nothing subtle here,” emphasizes clinical law professor David Moran, co-founder of the Michigan Innocence Clinic and the driving force behind the appeal. “The pneumonia was blindingly obvious. But the presence of the triad closed down critical thinking. No one ever questioned the initial diagnosis.” Moran calls the case “an especially stark example” of shaking theory in the courtroom.

Incredibly, the autopsy report had noted pneumonia in the child’s lungs, and she’d been recovering from a respiratory infection, a well-recognized precursor to pneumonia in newborns. In the weeks before Alicia’s collapse, Tonia had sought medical help for her daughter repeatedly, with reports of weak sucking, breathing problems, and even seizures, witnessed not only by Tonia but also by relatives and neighbors.

Moran’s appeal also argued that the triad of findings—retinal hemorrhage, subdural hematoma, and cerebral edema—underpinning Tonia’s conviction is no longer considered proof of shaking. The appeal judge concluded that SBS has become “controversial” and noted “a shift in the scientific consensus.”

Dr. Steven Gabaeff, a clinical forensic medical specialist and an emergency physician for 40 years, says he finds the shift-in-consensus element ironic, because there has never been any scientific proof that the triad results only from shaking, despite the testimony at Tonia’s trial. “It was false evidence. It was never true,” he points out, “And this case proves that yet again.”

The pneumonia had compromised Alicia’s lungs, reducing the amount of oxygen available to her brain. Breathing, controlled at the brain stem, is one of the first functions to be affected when the brain is in trouble. Weak breathing can compound the oxygen problem just by itself, and on the morning Alicia was rushed to the hospital, her airways were obstructed by the formula she had apparently choked on. As detailed in the new reports, a series of natural processes readily explains how pneumonia in the lungs can lead to bleeding and swelling in the brain.

Even after her conviction was vacated, Tonia remained in prison while the state appealed the decision. She was finally released on bond in April of 2021, with the spectre of a second trial hanging over her. This fall, the state dropped all charges, and now she is free to plan her life.

Tonia seems to hold few grudges. She says she doesn’t take it personally that the relative who eventually adopted her older daughter cut off all contact—although she still hopes to reconnect with her surviving child, now a young woman. And she understands why Alicia’s father quit writing when he married: “I have to put myself in his wife’s shoes,” she says. “I wouldn’t want my husband in touch with a woman convicted of murdering a baby.”

Tonia even offers a positive angle on her time in prison, which she says gave her the chance to reflect and to process. Her early life was difficult, she says, and “prison helped me deal with those issues from my past.”

Not that the path was easy.

The early interrogations left her numb and confused, she remembers. “The detectives isolated me from everybody… I tried to tell them what happened, but they kept interrupting, saying I was lying… After a while I started thinking, ‘If I tell you what you want to hear, will you just leave me alone?'”

Tonia had said from the first that she had shaken Alicia gently to revive her, after the girl seemed to gasp and quit breathing—but her accusers insisted she had shaken Alicia violently, just before the breathing problems.

As she explains in the essay that accompanies this post, Tonia was “petrified” on her way into prison. Since then, she has risen to the occasion and more. Now that she’s out, she has found a job she likes and is looking forward to finishing her BA—she earned most of the credits she needs while in prison.

Please see Tonia’s reflections on her experience of prison and exoneration, written immediately after her release.