: [POST-BROADCAST CLARIFICATION: In this story, we say the medical consensus today is that the diagnosis of ‘Shaken Baby Syndrome’ (SBS) in criminal cases is based on “junk science.” There is growing skepticism of SBS and fierce debate within the medical community and in the courts, several of which have ruled the diagnosis is discredited and overturned SBS convictions. A New Jersey appeals court ruled that it’s based on “junk science.” But other courts and the American Academy of Pediatrics dispute that characterization and uphold the clinical and medical validity of SBS. The AAP, while not commenting on any specifics of the Roberson case, says the diagnosis is now called “abusive head trauma” and includes a broader range of injuries.]
JUANA SUMMERS, HOST:
This week Texas is scheduled to execute an innocent man. That's the view of supporters of death row inmate Robert Roberson. Roberson is scheduled to be put to death Thursday in what would be the nation's first execution based on what's known as shaken baby syndrome. That is a now-discredited theory that claims violently shaking a baby can cause fatal brain damage without leaving any other signs of physical trauma. Texas Public Radio's David Martin Davies has more.
DAVID MARTIN DAVIES, BYLINE: In 2002, Roberson's 2-year-old daughter Nikki was sick with a fever of 104.5. The little girl was born with chronic health problems that were never fully diagnosed. She would frequently stop breathing and turn blue. Over the course of a week, Roberson took the toddler to both the ER and her pediatrician, who prescribed codeine and another powerful drug. Both are respiratory suppressants that medical experts say are no longer prescribed for children.
And in the early morning of January 31, Nikki stopped breathing again. When Roberson rushed his daughter back to the hospital in Palestine, Texas, Nikki could not be resuscitated. Her heart was revived, but not her brain. She was taken off life support the following day. I asked Roberson about this when I traveled to Texas' death row recently.
ROBERT ROBERSON: I lost my little girl and stuff, and they accused me of it because I couldn't explain what happened to her. So they just said I was guilty of it 'cause the hospital told the investigators that it was a certain type of case - shaken baby, you know? And that's the way they went. They never did investigate it.
DAVIES: The lead detective on the case says, that's correct. No theory beyond shaken baby syndrome was every seriously investigated. Roberson is on the autism spectrum, and he also has a low IQ.
GRETCHEN SWEEN: He's been described by people who know him as like Forrest Gump.
DAVIES: That's Gretchen Sween, Roberson's lead attorney.
SWEEN: He has a developmental disability. It's lifelong. But he also has this sort of childlike innocence and authenticity and, you know, is very intuitive and kind about people.
DAVIES: Sween says the hospital did a CAT scan of little Nikki and found a swollen, bleeding brain believed at the time to be a classic sign of shaken baby syndrome. But now, medical experts point out that pneumonia and starving the brain of oxygen can create those symptoms, and Nikki had both. But back in 2002, the east Texas hospital staff thought they had a dad murdering his daughter. They called the police. They immediately suspected Roberson because of his odd demeanor. Brian Wharton was the chief detective for the Palestine Police Department and testified against Roberson at his trial.
BRIAN WHARTON: They were also telling us, Dad's here. Dad's the one that brought her in. He's acting a little strange. Was this him trying to cover something? It was just a hint, a clue that there was something amiss here.
DAVIES: Detective Wharton is now retired, and he traded in his badge for a Bible. Now, the Reverend Wharton says he and the entire system made a mistake. He says he's forever haunted by his role in putting an innocent man on death row, a man he says should be exonerated.
WHARTON: I'm stunned that we are at this point - I really am - that we are now dependent upon a clemency hearing to get justice for Robert. And so here's another moment in Texas, another moment for the death penalty, where we need to be taking long, hard looks at what we think is justice.
DAVIES: Roberson was convicted and sentenced to death largely because of his unemotional behavior that night and in the courtroom in front of the jury. But jurors were never told about Nikki's chronic medical problems. In recent years, medical experts reexamined Nikki's lung tissue and found that she was suffering from two types of pneumonia, which caused sepsis and then septic shock.
To date, courts have exonerated and released at least 33 people convicted based on the diagnosis of shaken baby syndrome. The medical consensus today is that the diagnosis is based on junk science. Throughout his 22 years on death row, Roberson says he's continued to cling to hope.
ROBERSON: I thought we had a fair and just criminal justice system. But I learned a lot different now, since, you know, what happened, you know, all these years, you know. And they tried to get me plead for a life sentence three times. I'm not going to take no life sentence, and I'm not going to plead up to nothing I didn't do.
DAVIES: Texas Governor Greg Abbott and the Texas Board of Pardons and Paroles have not commented on the case. Roberson's attorneys are asking multiple courts to stop his October 17 execution. For NPR News, I'm David Martin Davies in San Antonio. Transcript provided by NPR, Copyright NPR.
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