In the case of the death of a “shocked child,” a Texas man could be the first person to be executed

A Texas convict will die this month. It will be the first execution in the country for “shaken baby syndrome” – a closely scrutinized diagnosis that has been successfully challenged in some criminal cases.

After submitting a clemency petition to the state ahead of his execution, which is scheduled for Oct. 17, Robert Roberson told NBC News anchor Lester Holt in an interview Thursday that he is urging Texas Gov. Greg Abbott to pardon him and “let him pardon him.” I’m going home.

“Mr. Governor, look at the support I’m receiving, I hope and pray you will do the right thing,” said Roberson, who was convicted of capital murder in the 2002 death of his 2-year-old daughter.

The Texas Board of Pardons and Paroles, which declined to comment, must first recommend a clemency to the governor.

Abbott used his pardon power sparingly. He did so in May when he pardoned an Army sergeant convicted last year of murder in the fatal shooting of a Black Lives Matter protester in 2020.

His office did not respond to requests for comment.

Texas nearly executed Roberson in 2016, but days earlier the trial was halted by the state’s highest criminal court, which allowed a lower court to hold an evidentiary hearing. Last year, the state Court of Criminal Appeals denied Roberson’s request for a new trial, unconvinced by any new scientific data, and last month it also denied his request for a stay of execution.

Roberson, 57, said he hopes Abbott will be influenced by the support he is receiving, including from a bipartisan coalition of state legislators, medical experts and even the original detective on his case, who testified against him, but now believes ​​no crime occurred.

“I would like the public to know that I am innocent,” Roberson told Holt. – I’m not to blame for this.

Evidence at trial

Roberson said that in the early morning hours of Jan. 31, 2002, he woke up in his East Texas home to the sound of “weird crying” and found that his daughter, Nikki, had fallen out of bed. He comforted her and they went back to sleep, according to court documents.

But a few hours later, Roberson said, he woke up and realized Nikki wasn’t breathing and her lips were blue. He took her to the emergency room, where doctors concluded she was showing signs of brain death. The next day he was pronounced dead.

Based on her condition, which included a head injury that included bleeding, brain swelling and a retinal hemorrhage, a doctor in Dallas concluded she died of what is known as shaken baby syndrome, in which the baby is shaken so violently that the action causes head trauma.

The lead detective on the case, Brian Wharton, agreed with the diagnosis of shaken baby syndrome, and Roberson was arrested before the autopsy was completed.

Wharton testified against Roberson during his 2003 murder trial. Prosecutors emphasized that they believe Roberson intentionally shook Nikki, causing bruises and blunt force trauma, and appeared almost emotionless as he took her to the hospital.

Roberson has since attributed his “seemingly blank response” at the time to autism spectrum disorder, which he was diagnosed with in 2018. Additionally, his defense attorneys were unable at his trial to ask a medical expert to testify about his claims of a “mental disorder “falls” caused by brain injury.

Changing science

The concept of shaken baby syndrome emerged in the 1970s. Scientists have theorized that this could explain severe head injuries in infants if certain symptoms are detected.

But medical science – and the term itself – has evolved over the years, said Kate Judson, executive director of the Center for Integrity in Forensic Sciences, a nonprofit organization. At a recent press conference organized by Roberson’s lawyers, Judson stated that “other phenomena such as falls due to impacts to the head or many naturally occurring diseases such as pneumonia” are now understood to explain many symptoms that were previously thought to be indicating harassment.

In 2009, the American Academy of Pediatrics changed the name of shaken baby syndrome to the broader term “offensive head injury,” which includes injuries caused by mechanisms other than shaking itself.

But even experts who support the scientific validity of violence-related head injuries, such as Dr. Andie Asnes, a professor of pediatrics at the Yale School of Medicine who is also a member of the Executive Council on Child Abuse and Neglect of the American Academy of Pediatrics, caution that the diagnosis is complex and requires extensive analysis.

“When making a head injury diagnosis, context is absolutely key. “Nobody can make that diagnosis unless they have a lot of other important information,” Asnes said. “In other words, just by looking at the injured child, I can’t tell what happened to him unless I hear an explanation from someone who may have seen what happened to him.”

She added that the child’s medical history “is critical to making a diagnosis.”

Although shaking an infant is “extremely dangerous,” Asnes said, simply looking at the symptoms of bleeding, brain swelling and retinal hemorrhage would be “a significant, gross oversimplification of the multi-step, thoughtful process leading to a final diagnosis of violent head injury.” “

Asnes told NBC News she was not familiar with Roberson’s case and could not comment on the details of the verdict.

According to the nonprofit group, hundreds of cases of probable baby shaking or head injuries are admitted to U.S. hospitals each year. While there have been criminal cases involving such injuries that have resulted in convictions, examination of medical testimony has also led to a turnaround: Since 1992, at least 34 defendants have later been acquitted on charges involving shaken baby syndrome or brutal head trauma, according to the National The Register of Exonerations, which records sentences for wrongful convictions.

Roberson would be the first person in the U.S. to be executed because of the child’s shocking diagnosis, said Robert Dunham, director of the independent research program Death Penalty Policy Project and special counsel at the nonprofit law firm Phillips Black. In 2018, after a re-examination of the evidence, a Mississippi man sentenced to death because of his diagnosis of a shaken infant was sentenced to life in prison.

Real causes

Lawyer Gretchen Sween, who joined Roberson’s case about two months before his scheduled execution in 2016, said she was struck by how little investigators took into account Nikki’s past health problems. Nikki was chronically ill and had been hospitalized multiple times in the days before her fall due to persistent breathing problems and a fever.

“The shaken baby concept didn’t work,” Sween said. “But looking at the medical records, it was clear that this was a very, very sick child. And at the trial, everyone rejected it.”

The defense argues, based on re-examined autopsy reports, that Nikki suffered from undiagnosed pneumonia that made it difficult for her to get oxygen and caused swelling in her brain, and that she was given a high dose of a drug that is no longer prescribed to children as young as she was.

Wharton, a former police detective on the Roberson case, said he thought Roberson’s “indifference” during his daughter’s hospital stay meant he was “hiding something.”

Wharton said he had a better understanding of Nikki’s diagnosis since Roberson’s sentencing and regretted not having had more information about her medical history initially.

Wharton is using his knowledge of the case to speak out in Roberson’s defense, he said in an interview with Holt.

“I don’t owe Robert anything else,” said Wharton, who retired as a law enforcement officer to attend a theological seminary. “My life in law enforcement and my life in general has always been about truth and, I hope, justice, and we have reached a point where the truth about Robert is being avoided and justice is not being served.”

Roberson told Holt he was grateful for the support. He no longer feels angry about his years in prison and the way he was treated when his daughter died. He was a single father and took care of Nikki after her mother lost custody due to personal problems.

Prayer and forgiveness, he said, helped him maintain a positive attitude.

“The bitterness just hurts,” Roberson said. “If I don’t forgive, it hurts me because I hold bitterness inside.”