Why feature this case? It’s making headlines internationally at this point in time and will set precedent no matter how the story ends. The future of the Shaken Baby Syndrome diagnosis itself hangs in the balance as we wait for the resolution of this case.

The Incident: January 31, 2002

On the morning of January 31, 2002, Robert Roberson III, age 36, wheeled his girlfriend into the emergency room. In her lap was his 2-year-old daughter, Nikki, limp and unresponsive. A nurse rushed the little girl to a trauma room and doctors scrambled to save her life. One doctor recognized her. She’d been to the ER days before. “Did I miss something?” he wondered.

“What happened?” the nurse asked Robert. He told her Nikki had been sick for a week with vomiting and diarrhea. She’d been to the pediatrician two days before with a temperature of 104.5°. She had been staying with her grandparents because his girlfriend was in the hospital for an operation. He’d gotten a call asking him to please come get her because her grandmother was ill. He brought Nikki home and they fell asleep on his bed after watching a movie.

The next morning at about 5:00, he woke to find her lying at the foot of the bed with blood on her lip. Thinking she might have fallen and hit her head, he kept her awake for two hours. She seemed OK. When he awoke at about 10:00, Nikki was unresponsive. He tried to rouse her, then drove her to the hospital. His girlfriend met him at the door.

The circumstances seemed suspicious. A nurse thought bruising on Nikki’s face “looked like a hand print.” Another nurse suspected sexual abuse and took it upon herself to test for it despite no certification or authorization to do so. A mushy spot on the back of Nikki’s head was noted. Medical personnel shaved her head but saw no blood. A CT scan revealed subdural bleeding and significant swelling on the right side of Nikki’s brain, causing midline shift. A detective thought Roberson’s “flat demeanor” indicated guilt.

Nikki was taken by ambulance to Dallas Children’s Hospital, where she died. An ophthalmologist saw retinal hemorrhages and tentatively diagnosed abuse. A Child Abuse Pediatrician suspected Shaken Baby Syndrome. Roberson was arrested prior to the autopsy and charged with “murder in the course of committing or attempting to commit the offense of aggravated sexual assault.” The medical examiner ruled the manner of death to be homicide and the cause of death to be “blunt force head injuries.”

The Trial and Death Sentence, February 2-14, 2003

A year and a day later, Roberson’s jury trial began. He had steadfastly refused offers to plea bargain, insisting he did not hurt his little girl. The defense attorney conceded that Nikki had been shaken. A nurse told the jury about her suspicions of sexual assault despite the fact that both medical experts for the prosecution testified they found no evidence of sexual assault. 

The child abuse doctor, Janet Squires, testified: “There was some component of shaking that happened to explain all the deep brain injury, out of proportion, I would say, to the injury to the skull and the back of the head. There had to have been something more than just impact.” The doctor who performed the autopsy was asked on cross-examination about the discrepancy between what was seen on the outside versus the inside of Nikki’s head. The medical examiner, Jill Urban, explained that children are built differently than adults and don’t necessarily bruise. “They’ve got a lot of fat. There’s a lot of fat between, say, the skin and actual bones of the skull and that can absorb a lot of energy that’s inflicted on the skin. The same thing, the skin is also very elastic. It’s almost more stretchable in little children and that’s another reason why you can actually get a great deal of injury to the head and not see anything on the outside because all that force is transmitted inwards without actually disrupting the skin.”

The sexual assault charge was withdrawn shortly before deliberations due to lack of evidence. It seems unlikely the jurors could forget the nurse’s testimony, however. The defense moved for a mistrial. It was denied.

Robert Roberson was convicted after less than four hours of deliberation and sentenced to death by lethal injection on Valentine’s Day, 2003. The Court of Criminal Appeals affirmed the conviction and sentence, stating doctors had testified that there was no way her injuries could have been caused by a fall.

Stay of Execution, June 16, 2016

The execution was scheduled for June 21, 2016 at 6:00 pm. Six days before, the Texas Court of Criminal Appeals agreed 8-1 that Roberson had been convicted on “false, misleading and scientifically invalid testimony.” The Court remanded for an evidentiary hearing.

Evidentiary Hearing, August 14, 2018, March 8-17, 2021

The post-conviction hearing began on August 14, 2018. That very day, a clerk discovered long-lost medical evidence, including head CT scans, in a basement room, evidence that had never been disclosed to the defense. Both sides agreed to a continuance so the new evidence could be examined.

The hearing resumed two and a half years later, in 2021, delayed in part by COVID. Roberson had been diagnosed with autism spectrum disorder in 2018, which explained the “flat demeanor” noted at the hospital. The original lead detective had come to believe Roberson was innocent. Defense experts testified that Nikki had pneumonia. An exhaustive review of her health records going back to birth revealed that she had stopped breathing on earlier occasions and been resuscitated. She had been to see a doctor 47 times during her 27 months of life. The newly-discovered head CT scans revealed a single blow to the right side of the head at the site of the mushy area doctors described in the ER with unilateral subdural bleeding and swelling underneath.

The judge recommended against a new trial. Roberson’s attorneys, she said, “failed to provide any newly discovered evidence that was not available at trial that unquestioningly establishes his innocence nor any evidence that would show that no reasonable juror would have convicted in light of any newly discovered evidence.”

The case went back up to the Texas Court of Criminal Appeals, which adopted the lower court’s recommendation in a 5-4 vote and denied a new trial. The United State Supreme Court declined to hear the case and an execution date was scheduled for October 17, 2024 at 6:00 pm.

Execution date set for October 17, 2024

Media coverage of the case intensified. Texas legislators questioned whether the “junk science” law they’d passed with little dissent in 2013 was being applied as intended by the courts. Members of the legislature studied transcripts, conducted research, and even visited Roberson personally in prison. A bipartisan majority of the legislature supported commutation of the death sentence to a life sentence.

On October 9, a week before the scheduled execution, the Court of Criminal Appeals overturned a similar conviction. Andrew Wayne Roark had been sentenced to 35 years in a Shaken Baby Syndrome case.

On Wednesday, October 16, a day before the execution, the Texas House Committee on Criminal Jurisprudence hosted an all-day hearing. Eight witnesses testified, including the detective who’d led the original investigation and Roberson’s defense attorney. The following day, the committee subpoenaed Roberson himself to testify on Monday, October 21, four days after his scheduled execution. The Texas Supreme Court, which handles civil but not criminal matters, ruled it to be a valid subpoena. The Governor and Attorney General, however, refused to allow Roberson to testify in person. Other witnesses, including “Dr. Phil” McGraw, novelist John Grisham, and a juror from the original trial, did testify. Some committee members stated their belief that Roberson was actually innocent. All agreed he deserved a new trial so a jury could consider all of the evidence.

The Texas Supreme Court later ruled that a subpoena cannot be used to delay an execution. Three of the five justices who voted against granting a new trial no longer sit on the Court. A new execution date is pending, and at least 90 days must pass between the date being announced and the actual execution.

On November 14, another long-time Texas Death Row inmate, Melissa Lucio, was declared “actually innocent” of killing her daughter Mariah.

At the hearing before the Committee, the District Attorney who scheduled the execution argued that the Roberson case did not rest on the Shaken Baby Syndrome hypothesis. “Yes, we believe [shaking is] a component, but that’s all that it is. It’s not solely a shaken baby case, which distinguishes it from Roark.”

Details from the Autopsy Report

The original autopsy report is posted on the Texas Attorney General’s web page. A close reading reveals the following: 

1. Two old bruises, a faint 2” x 1.5” yellow-brown bruise and a 1½” x 1” bruise on the upper right shoulder with yellow-green discoloration. Both were old and had to have occurred prior to the time of the alleged fatal beating.
2. Five ¼“ bruises on the head that could date to the time the murder is thought to have occurred. Quarter-inch bruises on a toddler can be caused by other than a fatal beating.
3. 2.5” x 1.5” mushy area on the right back area of the scalp associated with unilateral subdural bleeding and edema (brain swelling). This was a definite impact injury.
4. Three subgaleal hemorrhages on the head, ½“, 2”x 1½”, and 2½”x 5”. The large one was associated with the mushy area. Subgaleal means within the scalp and above the skull. Subgaleal hemorrhages in children can be caused by minor head trauma, sometimes hair pulling and are not necessarily evidence of a fatal beating.
5. Torn frenulum and contusion of the lower lip. These were not noted until autopsy and might relate to medical intervention.
6. ½” abrasion on the lower arm and ¼” abrasion on the foot. These were the most visible external injuries. They were not noted until autopsy and could have occurred during medical intervention.

Could these injuries have caused death? Are they strong enough evidence of a fatal beating to sustain a death sentence with no reference to the Shaken Baby Syndrome hypothesis?

Note that Dr. Squires followed the policy guidelines of the 2001 American Academy of Pediatrics Committee on Child Abuse and Neglect which advised doctors to presume abuse(1) and stated that short falls are not fatal (2). The superseding 2009 Position Paper did not advise doctors to presume abuse and acknowledged that short falls can kill, rarely. The Medical Examiner’s decisions were in line with the NAME Position Paper at the time, which was allowed to expire in 2006.

Texas Representative Brian Harrison said on Dr. Phil Primetime: “It isn’t a divide on this case between Republicans or Democrats, guilty or innocent. The divide in this case is very simple. It’s between those who know the facts of the case and those who don’t.”

The Facts of the Case

• Autopsy Report (posted on Texas Attorney General’s web page)
• 2007 Appellate Decision
• 2016 Stay of Execution
• 2023 Denial of Post-Conviction Relief
• 10/3/2024: NBC National News: Texas man set to be executed for a crime many believe never occurred
• 10/14/2024: Dr. Phil Primetime: Shaken Baby Syndrome, Junk Science, and the Man Sitting on Death Row
• 10/15/2024: Dr. Phil Primetime: Robert Roberson: Is He Innocent?
• 10/16/2024: First Hearing of Texas House Committee on Criminal Jurisprudence
• 10/17/2024: Schedule execution, halted 20 minutes before it was to have been carried out.
• 10/21/2024: Second Hearing of Texas House Committee on Criminal Jurisprudence Roberson was expected to testify but Attorney General Ken Paxton did not allowed him to travel to Austin, citing safety concerns.
• 11/6/2024: Dr. Phil Primetime: Execution on Hold
• 12/20/2024: Hearing of Texas House Committee on Criminal Jurisprudence Robert Roberson was scheduled to testify, but a late-night maneuver by Attorney General Ken Paxton prevented it. Members of the committee explain the situation and heard testimony from SBS exoneree Joshua Burns instead.

Footnotes:

1. “Although physical abuse in the past has been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support the need for a presumption of child abuse when a child younger than 1 year has suffered an intracranial injury.” Shaken Baby Syndrome: Rotational Cranial Injuries – Technical Report. Pediatrics. 2001;108:206-210.
2. “The constellation of these injuries does not occur with short falls….” Shaken Baby Syndrome: Rotational Cranial Injuries – Technical Report. Pediatrics. 2001;108:206-210.