Standing up for Robert Roberson

Sep. 20—On Tuesday, Robert Roberson's legal team was joined at a press conference that included Kate Judson, executive director of The Center for Integrity in Forensic Science; best-selling author and former defense attorney John Grisham, who serves on the Innocence Project board; and Brian Wharton, the lead detective that helped put Roberson on death row; all of whom are standing up and asking for clemency.

Roberson was convicted of capital murder and sentenced to death in 2003 in Anderson County for killing his 2-year-old daughter Nikki Curtis. He has long maintained he does not understand what happened to his daughter and that he had no intent to harm her or cause her death.

The Texas Court of Criminal Appeals denied Roberson's latest request for a stay of execution on Sept. 11.

His execution date is set for Oct. 17.

Roberson's petition for clemency argues that new medical and scientific evidence his jury never heard support his claim that Curtis died of severe viral and bacterial pneumonia that progressed to sepsis and septic shock, not homicide, said Gretchen Sween, an attorney on Roberson's legal team.

"No court has been willing to consider three new expert reports showing how Nikki died of pneumonia, proof that Roberson is innocent of any crime," Roberson's legal team said in a statement.

Brian Wharton, the lead detective in Roberson's case, does not believe a crime was committed. Wharton, who investigated Nikki's death, said Tuesday that Roberson was arrested based on a doctor's assessment of "shaken baby" before an autopsy was performed.

"As investigator, I deferred my understanding of the circumstances of what happened to those that I believed to be experts in the field, the pediatricians and medical examiner in Dallas," he said. "I followed their lead and simply accepted their explanation of what had happened to Nikki."

Wharton said Roberson's unemotional, detached demeanor at the time, now attributed to autism but undiagnosed at the time, seemed to be an unnatural response to his child's death and lead emergency room and medical staff, as well as members of law enforcement, to believe he killed his child.

"He didn't respond as a distraught father, but he also didn't respond as someone guilty of something," Wharton said. "Now I understand that he was a person with a developmental disability. And his outward affect masked his profound distress for daughter's condition and eventual death."

Wharton said there were no signs of violence found at Roberson's home and Nikki did not have the "appearance of a beaten child."

Wharton, who testified for the prosecution at the trial and helped send Roberson to death row, now believes Roberson is innocent.

"Eventually I learned the truth about what happened to Nikki, that she died because of illness and medical mistakes. I also learned that this so called shaken baby theory that we had used to convict Robert that been widely debunked by evidence based science," Wharton said. "Dozens of people have been convicted on this dubious theory. My understanding is that Robert is the only person, in the whole United States, that faces execution because of this theory."

Wharton, who has visited Roberson in recent months, said today that despite everything he has been through, Roberson is a "very gentle man, a graceful man, a thoughtful man."

Wharton said he believes Roberson is an innocent man.

"Knowing everything that I know now, I am firmly convinced that Robert is an innocent man. There has been no crime committed here," Wharton said. "Nikki died of accidental and natural causes. I will be forever haunted by my participation in his arrest and prosecution. He is an innocent man. I sincerely hope the governor and the board will step in and grant clemency in this case."

Grisham is convinced that "no crime occurred and Texas is poised to execute an innocent man."

The author said he respected Wharton for speaking out for Roberson.

"I want to say to Brian, I respect what you are doing and how much it means to the defense and Robert, because you never hear that," he said.

Grisham, who has served on the Innocent Project board for 17 years and with Centerian Ministries for the past five years, said he had been involved a number of wrongful conviction cases. He said his soon to be released book is about 10 wrongful convictions cases — not Roberson's — but four from Texas with "some really astonishing and unbelievable stories about wrongful convictions."

Through all of it, Grisham said he had met dozens of exhonories, but in all the cases he's been involved in or researched he never heard the police, prosecutors or judges say, "Hey, we got it wrong, we're sorry."

"It's a coverup with every one of them," he said. "The mistakes are too big and the stakes are too big for people to say, 'We were wrong.' So, Brian, it's heartwarming to hear you say that and see how much you are struggling with this and my heart goes out to you."

Grisham compared Roberson's case to Cameron Todd Willingham, who was also on death row for 20 years after being convicted for setting a fire at his house with his three children inside. Grisham said that by the time he was executed, all the "junk science had been debunked," the true experts had weighed in, and that information was given to the courts, the governor and the TBPP and "nobody listened."

"Here we are 20 years later and we are now down to another execution, when everyone is saying there was no crime, because the science is wrong," he said. "The science has been debunked and these are not scientific theories that are being used, especially shaken baby. That's the amazing thing. In most wrongful conviction cases, you've got a murder, you have a crime and somebody did it, so you can't say there was never a crime. But in Robert's case, again, the amazing part is that there was not crime and we are about to kill somebody again in Texas. That's why it's so infuriating."

Judson said in 2002 and 2003, when Roberson was accused of committing a crime based on a shaken baby determination and then convicted and sentenced to death, the hypothesis was considered established medical wisdom, even though it had never been validated with actual scientific testing.

She said the SBS hypothesis emerged in the 1970s when a pediatric neurosurgeon named Norman Guthkelch wondered why children he was seeing in his practice had bleeding inside the head and outside of the brain but zero or minimal signs of external injury. She said his hypothesis that "maybe parents were shaking their babies too vigorously" was soon treated as an established fact and then applied to older children even though their bodies are quiet different from infants.

Judson said that for a time, in regard to children who were seen in a hospital with one or more of three internal conditions, doctors were taught to presume the infant or child had been violently shaken — "in other words, abused."

Judson said Guthkelch came to express "alarm" about how his untested hypnosis was being used to "cause so much harm, prosecuting parents for crimes that had not likely occurred."

Judson said that when Roberson was tried and convicted, medical professionals were being taught that child abuse could be presumed when one or more internal head conditions were present, even when the child had been exhibiting serious medical problems. She said doctors in that time period were unaware that other phenomenas, such as short falls with head impacts, or many naturally occurring diseases like pneumonia, could cause the same triad or constellation of internal head conditions as Nikki had.

"Evidence-based medicine has now shown us these triad of these internal conditions observed in Nikki, Mr. Roberson's daughter, is associated with a host of naturally-occurring illnesses and conditions, often associated with oxygen deprivation that's not trauma at all, let alone inflicted trauma."

Judson said studies by engineers and other scientists have shown that shaken baby-related issues is not a likely cause of the findings often attributed to it.

Judson said that today, proponents of the current version of the shaken baby hypothesis, known as abusive head trauma, would never suggest abuse can be diagnosed without a differential diagnosis that first excludes all other possible causes of these internal conditions.

"And today we know that all of Nikki's symptoms can be explained by severe undiagnosed pneumonia, improper medications that were prescribed by her doctors and an accidental fall, likely precipitated by her illness and struggle to breath during the night," she said. "Nikki's death was absolutely a tragedy, but there is no evidence that her father abused her. He committed no crime. And still he is scheduled to be executed on Oct. 17."

According to Judson, the Center works to end the abuse of unreliable forensic theories that are far too often used to charge and convict people of crimes they didn't commit, including crimes that never occurred.

"Robert Roberson's case is one of the most egregious examples of this problem," Judson said. "That's why 34 evident medical professionals and scientists have signed a letter urging clemency for Mr. Roberson. Also 70 attorneys that have represented people wrongfully accused and convicted of child abuse have signed anther letter. And both letters are part of the clemency petition filed. The shaken baby syndrome, abusive head trauma hypothesis that was used against Mr. Roberson is not science; it's plain and simple. Our office consults on hundreds of cases every year, many of which involve people who were wrongfully convicted using this now-discredited hypothesis and his case represents one of the most extreme examples."

Judson said that in trial, Roberson's lawyer did not try to challenge the state's theory.

"While we knew far less about SBST at the time of Mr. Roberson's trial, there were still opportunities for lawyers to challenge the evidence, but now, no one who is well informed about these issues would give the kind of testimony that was leveled against Mr. Roberson at his trail," Judson said. "Experts would no longer claim that only shaking can cause the kind of findings that Nikki had. They could not responsibly tell a jury that Nikki was a healthy child. And they could not credibly assert that only abuse and never accident or illness could cause Nikki's condition. That's because in the two decades that have passed since Mr. Roberson's trial, evidence-based science has debunked the version of the shaken baby hypothesis that was put before his jury. Courts in at least 18 states have exonerated parents and caregivers that were wrongfully convicted using this unscientific testimony."

Judson explained that the Center for Integrity in Forensic Science has represented clients with similar cases who are now free because of these changes in scientific understanding.

Nearly three dozen scientists and doctors, a bipartisan group of 84 Texas legislators, eight advocates for parental rights, eight organizations that advocate for people with autism and their families, faith leaders, innocence advocacy groups, former judges, 70 attorneys who have represented people wrongfully accused of child abuse, as well as the former lead detective in the case who now believes Roberson is innocent, filed letters in support of Roberson's clemency petition to the Texas Board of Pardons and Paroles and to Gov. Greg Abbott on Tuesday.

The bipartisan group of 84 Texas lawmakers urged the Texas Board of Pardons and Parole to recommend clemency for Roberson "out of grave concern that Texas may put him to death for a crime that did not occur."

In their letter, the lawmakers emphasized that more than 10 years ago, the Texas House unanimously passed a law to allow challenges to convictions based on disproven or incomplete science. They said in their letter that they have been "dismayed to learn that this law has not been applied as intended and has not been a pathway to relief — or even a new trial — for people like Roberson. They believe that in this case significant scientific and medical evidence now shows that his daughter, who was chronically ill, died of a combination of natural and accidental causes, not Shaken Baby Syndrome."

The lawmakers further emphasized that the House also passed a law in 2021 "which now ensures that parents have the right to a second expert medical opinion after allegations of child abuse. Had these events occurred today, Roberson would have been legally entitled to an additional medical review at his request."

The Texas Court of Criminal Appeals stayed a 2016 execution and sent Roberson's case back to the trial court to consider the merits of four distinct claims, including a "junk science" claim. An evidentiary hearing initially began in August 2018 but was continued after the District Clerk found a box of 15-year-old evidence, including lost CAT scans of Nikki in the Anderson County Courthouse basement. That hearing was finally conducted in 2021.

District Court Judge Deborah Evans then made a recommendation that was sent back to the Texas Court of Appeals to determine whether Roberson would receive a new trial. In January 2023, the Texas Criminal Court of Appeals upheld the death penalty based on the findings from that new hearing.

Anderson County District Attorney Allyson Mitchell, who filed a request to set the execution date in June, said in a statement at that time she was moving forward with carrying out the sentence.

"Our job, in the Office of the District Attorney, is to follow the rule of law," Mitchell stated. "The law says that after all appeals are exhausted we are to set a date for execution."

Mitchell has made no other comment with regard to the case or Roberson's legal team's claims.