Shocking new evidence suggests that a Texas man set to be executed in a matter of days may be innocent.
Robert Roberson, 57, was convicted in 2003 of murdering his two-year-old daughter, Nikki, by shaking her so forcefully that he caused irreversible brain damage and death from shaken baby syndrome, also known as abusive head trauma.
He is now set to be executed on October 17.
But his attorneys have submitted new evidence showing that the doctors may have misdiagnosed the young girl’s cause of death, as they question whether shaken baby syndrome even exists.
A bipartisan majority of 86 Texas lawmakers and the state Board of Pardons and Paroles have now recommended clemency – though the final decision lies with Texas Gov. Greg Abbott.
Prosecutors have argued that Nikki’s 2002 death was consistent with shaken baby syndrome – pointing to the diagnostic ‘triad’ of intracranial hemorrhaging, brain swelling and bleeding behind retinas.
They have rejected Roberson’s assertion that his young daughter simply fell out of bed the night before, and he found her unconscious, limp and blue.
Instead, medical staff at a Palestine hospital believed Nikki’s injuries- including bruises on her face, a bump on the back of her head and bleeding outside of her brain – were all caused by abuse and alerted police to the scene, according to the Dallas Morning News.
But Nikki was chronically ill and suffered a high fever in the days before her death, attorneys for the Innocence Project argue.
She had the first of many infections that proved resistant to antibiotics just days after her birth – including a chronic ear infection that persisted even after she had tubes surgically implanted.
The young girl also had a history of unexplained ‘breathing apnea’ that caused her to suddenly stop breathing, collapse and turn blue.
Then, within just one week of her death, Nikki had been vomiting, coughing and having diarrhea, Roberson’s attorneys said.
When those symptoms continued for five days straight, Roberson and his mother took Nikki to a local emergency room, where a doctor prescribed Phenergan – a drug that now carries a Food and Drug Administration warning against being prescribed to children of Nikki’s age and in her condition.
Still, her condition continued to worsen with her temperature rising about 104 degrees Fahrenheit, for which another doctor prescribed more Phenergan in a cough syrup with codeine – an opioid that is now restricted for children under the age of 18 due to its risks of causing breathing difficulty and death.
Nikki’s toxicology report even showed lethal levels of Phenergan in her system at the time of her death, defense attorneys say.
Roberson has maintained his innocence in his daughter’s death for the more than two decades he has languished on death row, and on August 1, 2024 his attorneys requested that the district court in Anderson County reopen his case.
The filing states that new medical and scientific evidence shows Nikki died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock.
It says Dr. Francis Green, an expert in lung pathology with more than 46 years of experience, reviewed Nikki’s medical history and her lung tissue under a microscope.
He found that her lungs were infected with two different and virulent types of pneumonia – which clogged her lungs, starving her brain of oxygen and ultimately causing death, Green wrote in a report.
The pneumonia started many days or weeks before her final hospitalization, he added.
Dr. Keenan Bora also concluded that Nikki’s post-mortem toxicology report shows she had dangerously high levels of promethazine in her system, prescribed by two different doctors on two consecutive days, and Dr. Julie Mack concluded that the initial CAT scans of Nikki’s head show only a minor impact site – consistent with Roberson’s story that she fell off a bed and possibly banged her head.
Roberson’s attorneys have even questioned whether shaken baby syndrome is an actual medical diagnosis.
It was first posited by neurosurgeon Norman Guthkelch in 1971, and has since become an accepted medical fact.
But researchers have challenged the hypothesis that shaking an infant can cause such brain damage since the 1980s, with some studies concluding that it cannot biomechanically cause the injuries Guthkelch described, according to USA Today.
A 2016 systematic review by the Swedish Agency for Health Technology Assessment and Assessment of Social Services, for example, concluded there is ‘limited scientific evidence that the triad, and therefore its components, can be associated with traumatic shaking’ and there is ‘insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking.’
Another study published in Forensic Science International also found that a significant number of patients were misdiagnosed with abusive head trauma, citing other conditions that can cause clinical and imaging ‘findings commonly associated with AHT.’
Even Dr. Guthkelch himself has since expressed doubts about shaken baby syndrome.
In 2011, he told a National Public Radio reporter he ‘worried that it is too often applied by medical examiners and doctors without considering other possible causes for a child’s death or injury.’
The following year, he also called his hypothesis into question in the Houston Journal of Health Law and Policy, saying he was concerned about the medical community’s ‘level of emotion and divisiveness on shaken baby syndrome/abusive head trauma’ which he said ‘interfered with our commitment to pursue the truth.’
Shortly before he died, Guthkelch also told the Washington Post he was struck by the high proportion of diagnoses of shaken baby syndrome that could be attributed to natural causes and not abuse.
‘I was absolutely horrified when I came back 20 years later to hear all this rubbish about incarcerating mothers,’ he said in 2015.
The legal argument previously worked in 2016, when Roberson was granted a stay of execution after his attorneys claimed his conviction was based on ‘junk science’ and ‘false, misleading and scientifically invalid’ testimony.
However, in 2023, Texas’ highest criminal court decided that doubt over the cause of his daughter’s death was not enough to overturn his death sentence – and scheduled his execution for October 17, the Texas Tribune reports.
The Texas Court of Criminal Appeals also dismissed both a motion to halt the execution and a final application for relief filed by Roberson’s attorneys earlier this month without reviewing the merits of the claims.
That forced the attorneys to file a petition for clemency on September 17.
‘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,’ they wrote, according to KLTV.
‘No informed doctor today would presume abuse based on a triad of internal head conditions, as occurred in Robert’s case,’ the petition continued.
‘But in the era when Robert was accused and convicted, conventional medical thinking gave doctors permission to skip consideration of any other factors and presume shaking and inflicted head trauma – an approach that has since been completely rejected as unsound.’
More than 80 state lawmakers have since written to the Board of Pardons and Paroles in support of the clemency petition, citing the ‘voluminous new evidence’ and raising ‘grave concern’ that Texas is preparing to execute Roberson ‘for a crime that did not occur.’
‘It should shock all Texans that we are barreling towards an execution in the face of this new evidence,’ they wrote.
‘Other states look to Texas as a leader for both enforcing the rule of law and addressing wrongful convictions.
‘We now look to you to prevent our state from tarnishing that reputation by allowing this execution to proceed.’
Still, prosecutors have maintained that evidence supporting Roberson’s conviction is ‘clear and convincing’ and argue that the science around shaken baby syndrome has not changed as much as the defense claims.
The board can take up to two days before the execution to make its decision, but the final decision will ultimately lay with the governor.