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By The Vanguard Staff
AUSTIN, TX – Scientists, physicians, the Center for Integrity in Forensic Sciences, retired federal judges and innocence groups filed briefs this week supporting Robert Roberson, who they claim is “an innocent father who has spent 20 years on death row in Texas for a crime that never occurred.”
Supporters insist Roberson has autism, and when his two-year-old, chronically ill daughter, Nikki, was sick with a high fever and suffered a short fall from bed in 2002, “hospital staff did not know Mr. Roberson had autism and judged his response to his daughter’s grave condition as lacking emotion.”
Roberson was later convicted, and sentenced to death under the now-discredited Shaken Baby Syndrome (SBS), said supporters.
In May, attorneys for Roberson filed a petition for certiorari, asking the U.S. Supreme Court to reverse the decision of the Texas Court of Criminal Appeals (CCA), which has “disregarded unrebutted new scientific and medical evidence debunking SBS and showing that (Roberson’s) daughter died of natural and accidental causes.”
Roberson’s Petition for Certiorari can be viewed here and Appendix here, asserts, “To address the layers of due process violations below, Petitioner respectfully asks that the Court issue a writ of certiorari and undertake plenary review or summarily reverse the judgment of the Texas Court of Criminal Appeals (CCA).
“Petitioner pursued this subsequent state habeas proceeding after Texas enacted a new forensic science writ statute specifically intended to address wrongful convictions based on discredited science. In this proceeding, Petitioner established that:
“(1) the State relied on an uncontested SBS causation theory to obtain his conviction; (2) each of the SBS premises considered medical orthodoxy in 2003 have since been undermined by evidence-based science; (3) the jury heard misleading, highly prejudicial testimony from one nurse suggesting that Nikki was sexually abused, even though no doctor endorsed that belief; and…
“(4) the combination of Nikki’s undiagnosed pneumonia, medications prescribed to her, and an accidental fall entirely explain Nikki’s condition. But the little the jury heard about Nikki’s medical history was dismissed as irrelevant; the jury did not hear about her severe pneumonia, only identified during recent re-investigation of the autopsy. Nor did they hear about the lethal quantities of respiratory-suppressing prescription drugs in her system at the time of her collapse.”
According to Concerned Physicians and Scientists in a brief, “The scientific understanding of SBS has shifted seismically over the past two decades. The previously prevailing scientific belief regarding SBS has been discredited, and amici file this brief out of concern that some courts, including those below, continue to rely uncritically on outdated theories and refuse to consider the current state of the science.
“Amici fervently believe … that the courts must meaningfully take into account the evolution in the scientific consensus regarding SBS and carefully consider whether individuals convicted years ago on a now-discredited shaken-baby-syndrome hypothesis are entitled to judicial relief.”
The pleading by The Center for Integrity in Forensic Sciences added, “[Mr. Roberson] was convicted of causing the death of his daughter, a chronically ill child suffering from fever and pneumonia before her collapse. He was sentenced to death based on scientific evidence the forensic community now understands to be outdated and deeply flawed.
“No conviction should be allowed to stand on this foundation, particularly a death sentence. The death of two-year-old Nikki Curtis was a tragedy—a tragedy that will be compounded beyond measure if Mr. Roberson is wrongfully executed due to flawed forensic evidence.”
The Center for Integrity in Forensic Science’s brief provided, claims Roberson’s defense, “a nonexhaustive list of courts that have, over the last two decades, overturned convictions based on SBS or otherwise refused to rely on the outdated science in 12 states, including Alaska, Nevada, North Carolina, Ohio, Wisconsin, and others.”
And, added the defense, the brief for Retired Federal Judges —five retired federal judges—wrote, “The Texas court system failed Roberson. It failed to fully and fairly consider th[e] new evidence. It rubber-stamped a capital conviction based on unreliable medical evidence. It denied Roberson the constitutional process he is due. And his life hangs in the balance as a result. This Court’s review is needed to prevent that miscarriage of justice.”
The brief, notes Roberson’s defense, of Amicus Curiae Witness to Innocence, details “the stories of nine parents or caregivers in seven states who were falsely convicted of harming or killing a child under the discredited SBS theory, only to be exonerated after years or decades in prison.”
WTI, a nonprofit organization of people exonerated from death row, added, “Their struggles, like those of people wrongly convicted based on other unreliable forensic theories, illustrate the human toll of uncritical acceptance of plausible-sounding scientific theories.”
The brief of The Innocence Project of Texas as Amicus Curiae in support of Roberson, explained, “Nearly a decade ago, the Texas Legislature codified the junk science writ to provide a state postconviction procedure to allow additional review of criminal convictions based on outdated or subsequently debunked scientific theories. But despite the original promise of the ‘junk science writ’ in protecting the due process and other constitutional rights of criminal defendants, in practice the writ has been applied in a manner that raises serious constitutional concerns.
“In this capital case, the CCA summarily denied relief, despite overwhelming record evidence that [Mr. Roberson’s] underlying conviction and death sentence rest on tabloid science. As courts in other jurisdictions have held, upholding a conviction in these circumstances violates fundamental due process principles. But the decision…raises a second and independent constitutional concern: the courts failed to engage meaningfully with the postconviction record, and instead uncritically adopted nearly word-for-word the prosecution’s proposed findings.”
The defense argued, in 2002, the “consensus in the medical community was that a child must have been violently shaken, and possibly struck against a blunt surface, whenever a child had the triad of symptoms observed in Nikki: bleeding under the dura membrane and outside of the brain; brain swelling; and bleeding in the eyes. The consensus in the medical community at that time was that naturally occurring illnesses or short falls with an impact to the head could not cause this triad of symptoms.”
The pleading added that “medical consensus also presumed that whoever had been caring for the child when she lost consciousness must have been the culprit because violent shaking caused immediate brain damage. Caregivers, like Robert, who denied doing anything to hurt the child, were perceived as callous liars. None of these SBS principles were grounded in science and, since the time of Mr. Roberson’s trial, each has been debunked.”
The defense charged, “Mr. Roberson’s trial was riddled with unfairness and errors. A doctor’s affidavit about Shaken Baby Syndrome was used to arrest Mr. Roberson, even before the autopsy was performed. His own trial lawyer agreed with the prosecution that Nikki’s death was a shaken baby case and argued only that Mr. Roberson lacked intent to kill.
“The State elicited testimony from a nurse who claimed that she had seen evidence of sexual abuse and offered her views of pedophiles. After the jury was poisoned by this inflammatory testimony, the State dropped the charge of capital murder based on the sexual assault allegation. Yet the State continued to argue that the jury should consider the nurse’s unsubstantiated opinions, even though no doctor endorsed that belief.”
The defense maintains, in 2016, a week before Roberson’s scheduled execution date, the CCA “stayed Mr. Roberson’s execution, relying in part on a new Texas law permitting legal challenges based on changes in science used to obtain convictions and death sentences (and) sent Mr. Roberson’s case back to the trial court, which concluded a nine-day evidentiary hearing in 2021.
“Experts presented by Mr. Roberson explained that Shaken Baby Syndrome has been discredited and provided compelling evidence that Nikki died of natural and accidental causes, not abuse. Mr. Roberson submitted to the court a 302-page proposed findings of fact and conclusions of law that comprehensively summarized the new evidence from six expert witnesses from an array of disciplines.”
However, the defense contends the “trial court rubberstamped the prosecution’s 17-page proposed findings of fact and conclusions of law, which barely mentioned Mr. Roberson’s new scientific evidence and relied almost exclusively on the outdated scientific evidence introduced at the 2003 trial.”
In January of this year, the CCA rejected Roberson’s claims in a short opinion without noting the “voluminous new evidence,” said the defense, adding the state hasn’t set a new execution date for Roberson. 
