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:
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.
Following a flood of media coverage and days of intense legal maneuvering, Texas father Robert Roberson is still alive, after the state supreme court issued a temporary reprieve minutes before he was scheduled to be executed last evening.
All of Robert’s appeals and petitions had been denied, but on Wednesday the Criminal Jurisprudence Committee in the state’s House issued a subpoena for Roberson to appear for a hearing next Monday, a move that raised a jurisdictional dispute and led to a series of motions, counter-motions, and, eventually, a stay, for now.
“The vast team fighting for Robert Roberson – people all across Texas, the country, and the world – are elated tonight that a contingent of brave, bipartisan Texas lawmakers chose to dig deep into the facts of Robert’s case that no court had yet considered and recognized that his life was worth fighting for,” Roberson’s attorney Gretchen Sween said Thursday night.
Roberson enjoys the support of the Innocence Project; a number of physicians, scientists, and attorneys who question the SBS hypothesis; a majority of the Texas state legislators; and his own friends and family as well as other wrongly accused families, autism and disability-rights groups, and attorney/novelist John Grisham.
Meanwhile, the case has triggered local, national, and international media coverage, shining a much-needed spotlight on the debate surrounding Shaken Baby Syndrome. Some of the news treatments:
The scheduled execution of convicted father Robert Roberson in Texas on October 17 has inspired a surge of activism from around the world by doctors, lawyers, scientists, journalists, non-profits, and families wrongly accused of child abuse.
This month in D Magazine, in a story titled “Will Texas Kill This Innocent Man?”, best-selling novelist John Grisham lays out the medical complexities of the case, concluding that Roberson’s daughter died of natural and accidental causes, not Shaken Baby Syndrome (SBS).
The Innocence Project has launched a last-chance public petition, and a coalition of wrongly accused parents in Europe, Adikia, has stepped up not only to gather signatures from families internationally but also to promote an on-line symposium on SBS early next month, organized by the Cato Institute in response to the scheduled execution.
In July, The New York Times posted a video opinion piece by Rev. Brian Wharton, once the detective in charge of the investigation and now an advocate for Roberson’s innocence.
Wharton didn’t know at the time, he says, that Roberson is on the autism spectrum, which explains the “flat aspect” that had seemed consistent with the abuse diagnosis. “No other possibilities for her injuries were considered,” he sighs. “I deeply regret that we followed the easiest path.”
Earlier this week, Roberson’s defense team filed a clemency petition with Texas Governor Greg Abbott and the Texas Pardons Board, pulling together the medical, scientific, and legal arguments against the execution and providing a collection of support documents from medical and legal professionals, political and civil liberty organizations, autism and parent-support groups, 84 members of the Texas House of Representatives, and the mother of a former classmate of Roberson’s who describes him as “a gentle soul.”
Robert Roberson, an Autistic Father Wrongfully Convicted and Sentenced to Death in Texas Based on the Debunked “Shaken Baby Syndrome” Hypothesis, Applies for Clemency to Stop his October 17th Scheduled Execution
Medical and Scientific Experts, Bipartisan Texas Lawmakers, Advocates for Parental Rights, Autism Organizations, Best-Selling Novelist John Grisham, Former Lead Detective Brian Wharton, Innocence Groups, the Texas Catholic Conference of Bishops, and Dozens of Others Urge Texas Pardons Board to Recommend, and Gov. Greg Abbott to Grant, Clemency
(Austin, Texas, Tuesday, September 17, 2024) Today, 34 eminent scientists and doctors, a bipartisan group of 84 Texas legislators, 8 advocates for parental rights, 8 organizations that advocate for people with Autism and their families, faith leaders, innocence advocacy groups, former judges, 70 attorneys who have represented people wrongfully accused of child abuse, and former lead detective Brian Wharton, among others, filed letters in support of Robert Roberson’s clemency petition to the Texas Board of Pardons and Paroles and Governor Greg Abbott. (Exhibits 7, 15-23.)
Mr. Roberson’s petition describes the new medical and scientific evidence that his jury never heard showing that no homicide occurred. Mr. Roberson’s two-year-old, chronically ill daughter, Nikki, actually died of severe viral and bacterial pneumonia that medical professionals missed in 2002, not because of any abuse. Her illness progressed to sepsis and then septic shock, a process likely precipitated by the dangerous respiratory-suppressing medications she was prescribed during her last days, all of which has now been established by detailed reports from highly qualified medical specialists.
No court has been willing to consider three new expert reports showing how Nikki died of pneumonia, proof that Mr. Roberson is innocent of any crime.
The power of Mr. Roberson’s innocence claim is attracting diverse and widespread support, including from best-selling novelist John Grisham, who said, “This isn’t a case where the system got the wrong guy, but rather one where no crime took place at all. Something must be done to stop Robert’s execution. Governor Abbott and the Board of Pardons and Paroles can prevent an irreparable injustice by granting him clemency.”
Brian Wharton, the lead detective in charge of investigating Nikki’s death who directed that Mr. Roberson be arrested based on a doctor’s Shaken Baby hypothesis made even before an autopsy was performed, and who testified for the prosecution at trial, has come to believe Mr. Roberson is innocent and has filed a letter of support, urging clemency.
“I will forever be haunted by the role I played in helping the State put this innocent man on death row,” said Brian Wharton. “Robert’s case will forever be a burden on my heart and soul. But it is not too late for Texas to change course and stop his execution. I sincerely hope that Governor Abbott and the Board will step in to do so.” (See also Exhibit 7.)
Mr. Roberson is scheduled for execution on October 17, 2024, and is at risk of being the first person in the United States executed based on the discredited “Shaken Baby Syndrome” hypothesis, unless the courts or Governor Abbott intervenes.
A combination of Nikki’s undiagnosed pneumonia, medications that suppressed her breathing, an accidental fall, and the medical triage undertaken after her collapse entirely explain Nikki’s condition.
Mr. Roberson’s clemency petition states:
“Nikki’s death … was not a crime—unless it is a crime for a parent to be unable to explain complex medical problems that even trained medical professionals failed to understand at the time. We now know that Nikki’s lungs were severely infected and straining for oxygen—for days or even weeks before her collapse. A recent reexamination of lung tissue collected during her autopsy has revealed that both a chronic interstitial viral pneumonia and a secondary acute bacterial pneumonia were ravishing her lungs, causing sepsis and then septic shock.
“In the days before her collapse, Robert repeatedly took Nikki to the local Emergency Room (ER) and to her pediatrician in rural Palestine, Texas, seeking help. But unaware of her severe pneumonia, doctors sent her home with medications that would only have made her condition worse. As an expert in medical toxicology has now explained, the medications prescribed to her—Phenergan (the brand name for promethazine) and codeine—would only have further suppressed Nikki’s ability to take in oxygen. Codeine is a narcotic, not recommended for anyone under age eighteen; Phenergan now has FDA “black box warnings” against prescribing it to children Nikki’s age and in her condition precisely because it can suppress breathing and result in death. These potent, respiratory-suppressing drugs certainly were not designed to treat a toddler’s severe respiratory illness, i.e., pneumonia.” (Petition at pp. 4-5.)
On the night of January 30, 2002, Mr. Roberson heard a “strange cry” and woke up to find Nikki lying on the floor at the foot of the bed. Mr. Roberson comforted Nikki and wiped a small speck of blood off her mouth but did not observe anything else wrong. They eventually fell back asleep. But when he woke up a few hours later, Mr. Roberson found Nikki unconscious with blue lips. He was horrified and tried to revive her. Then he took her to the ER.
More than 30 medical and scientific experts have written to the Board of Pardons and Paroles stating:
“There was no differential diagnosis undertaken at that time because, in 2003, presuming abuse was recommended pursuant to the Shaken Baby Syndrome hypothesis, then treated as medical orthodoxy. Today, no reputable medical doctor would fail to conduct a thorough, multi-disciplined exploration of all possible causes of death because it is now known that many phenomena—including accidental short falls and naturally occurring disease—can cause the same intracranial conditions that ‘mimic’ inflicted head injury.” (Petition at Exhibit 15.) If Nikki died today, instead of presuming Nikki’s condition was caused by abuse, no doctor would consider Shaken Baby Syndrome as the cause of Nikki’s death because SBS is now considered a diagnosis of exclusion; Nikki’s pneumonia, the extreme levels of dangerous medications found in her system during her autopsy, and her fall from the bed explain why Nikki died.
Mr. Roberson’s Autism – which was not known to the hospital staff and was not diagnosed until 2018 – played a pivotal role in the rush to judgment in his case.
Hospital staff interpreted Mr. Roberson’s seemingly blank reaction to Nikki’s serious condition as callousness, when in fact his Autism explained his non-neurotypical response to the emergency. (Petition at Exhibit 17) (Letter of support from eight state and national advocacy groups for people with Autism and their families.)
“Robert Roberson’s Autism, which affects social and emotional processing, led to a lack of visible emotional response—a characteristic misinterpreted during his trial as a sign of guilt,” said Christopher Banks, President and CEO of the Autism Society of America. “This tragic misjudgment, combined with the absence of expert testimony on Autism, culminated in a wrongful conviction, in which we urge Governor Abbott to grant clemency.”
“The prosecution’s reliance on misjudgment and bias against Mr. Roberson’s Autistic behavior suggests a rush to judgment substantially influenced by criminalizing disability,” said Jacquie Benestante, Executive Director of the Autism Society of Texas. “We are calling for justice and clemency, urging Governor Abbott and the Board of Pardons and Paroles to consider the compelling evidence and prevent a wrongful execution.”
A bipartisan group of 84 Texas lawmakers wrote the Board separately this week, urging it to recommend clemency for Mr. Roberson “out of grave concern that Texas may put him to death for a crime that did not occur.”
The lawmakers emphasized that, more than 10 years ago, the Texas House unanimously passed a law to allow challenges to convictions based on disproven or incomplete science. They have been “dismayed to learn that this law has not been applied as intended and has not been a pathway to relief – or even a new trial – for people like Mr. Roberson. In his case, significant scientific and medical evidence now shows that his daughter Nikki, who was chronically ill, died of a combination of natural and accidental causes, not the debunked shaken baby syndrome hypothesis the State used to convict Mr. Roberson.” (Exhibit 16.)
The lawmakers further emphasized that the House also passed a law in 2021 “which now ensures that parents have the right to a second expert medical opinion after allegations of child abuse. Had these events occurred today, Mr. Roberson would have been legally entitled to an additional medical review at his request.” (Exhibit 16.)
Eight advocates for parental rights wrote to the Governor and the Board that Mr. Roberson’s case “demonstrates a shocking disregard for his parental rights.” They explained:
“Abuse was the default – and wrong – assumption before any determination was made about Nikki’s medical condition. Mr. Roberson was viewed with suspicion from the outset because of symptoms associated with his then-undiagnosed autism spectrum disorder.
“Because of these egregious factors, Mr. Roberson was denied the ability to see Nikki in the hospital, and he was arrested before an autopsy was even performed. What’s more, Mr. Roberson was not advised of any end-of-life decisions being made for Nikki despite having full custody … Clemency is necessary to prevent the irreparable harm of executing this innocent parent.” (Exhibit 18.)
Mr. Roberson’s clemency petition includes numerous letters of support from his spiritual advisors, friends, and supporters who attest to his faithful, peaceful and loving nature.
He has completed some 60 different Bible study courses and has had a virtually pristine disciplinary record during his many years in prison. Because of his record of peacefulness, he was selected to be in the very first faith-based program on death row. In addition, he was one of only 13 men selected to participate in an experimental “group rec” program that allowed him to move freely on the pod with others determined to be no threat to anyone. (Petition at p. 38, 52.) Many people attest to his empathy and concern for others over himself. For example, his spiritual advisor, Donna Drake Farmer, has written that Mr. Roberson’s support for her while she was caring for her dying husband gave her peace and that Mr. Roberson “probably knows more of my concerns and worries than my birth children do.” (Petition at p. 56, Exhibit 23.)
An overview of Robert Roberson’s innocence case is here.
A photo of Mr. Roberson can be accessed here. Source: Roberson Family.
Watch New York Times Opinion Video showing meeting between lead detective Brian Wharton and Robert Roberson here.
On Shaken Baby 