Texas is set to become the first state in the country to execute someone convicted for causing a brain injury commonly known as "shaken baby syndrome." Its highest criminal court declined to stop the Oct. 17 execution of a man named Robert Roberson, even after his team argued that the cause of his victim's death, now known as abusive head trauma (AHT), was based on since-debunked pseudoscience. And while Texas passed a first-of-its-kind "junk science law" a decade ago for situations like this, Roberson will not benefit from it.
Questioning the validity of shaken baby syndrome
Roberson has maintained his innocence from death row ever since he was convicted of killing his two-year-old daughter, Nikki Curtis, in 2002. His attorneys said they have uncovered new evidence in previously hidden medical records that indicate she died from severe pneumonia. Also, in the decades since Roberson's trial, the theory behind AHT has "been entirely exposed as devoid of any scientific underpinnings," his team said in the recently denied motion for a stay of execution .
The Texas Court of Criminal Appeals previously halted his execution in 2016 and sent his case back to trial court after the "scientific consensus around shaken baby syndrome diagnoses came into question," said the Texas Tribune . That appeal came three years after a state law passed allowing Texas courts to overturn convictions if the "scientific evidence used to reach a verdict has since changed or been discredited." But in 2023, the court reversed its decision and set his new execution date for this past July.
Child abuse specialists previously assumed that bleeding in the brain, brain swelling and retinal hemorrhages were unequivocal proof that someone violently shook a child. However, several studies in the 2000s and 2010s "challenged the assumption that the triad of AHT symptoms was conclusive evidence of child abuse," said Reason . Research indicated that the AHT diagnosis, previously focused on the triad of symptoms, "now contemplates a wide range of nontraumatic possibilities," said a 2009 Washington University Law Review article summarizing the findings.
Even Norman Guthkelch , the pediatric neurosurgeon who first popularized the diagnosis in 1971, expressed doubts about how prosecutors and child abuse specialists used AHT in courtrooms. In a 2012 paper published in the Houston Journal of Health Law & Policy , Guthkelch urged members of the medical and legal professions to have more restraint when considering if abusive head trauma occurred. He was "struck by the high proportion" of cases where there was a significant history of previous illness, "suggesting that the problem was natural or congenital, rather than abusive," he said. "Yet these matters were hardly, if at all, considered in the medical reports."
A law that 'systematically fails to provide relief to innocent people'
Roberson's case has illuminated the paradox of Texas passing a law allowing people to appeal their convictions based on outdated or debunked forensic methods that no one has successfully been able to use. His ordeal is "typical of Texas courts' failures to implement the law as intended," The Intercept said, according to a new report from the Texas Defender Service . After a comprehensive review of the junk science writ, the Texas Defender Service said that the "law systematically fails to provide relief to innocent people convicted based on false forensic evidence." Roberson is one of 25 people on Texas death row who have challenged their convictions under the law since it passed in 2013. No one has been successful.
"The legislative solution is useless if the courts don't honor it," said Gretchen Sween, one of Roberson's lawyers. The fact no one has successfully appealed under the law is "statistically alarming."
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