Death Watch: Shaken Science

To have his federal habeas attorneys tell it, Robert Roberson is "dim-witted" and "mentally ill." The 49-year-old, sentenced to death in 2003 for the 2002 death of his 2-year-old daughter Nikki Curtis, was a "drug abusing petty criminal with a long family history of serious mental health issues," attorneys James Volberding and John Wright have said. But did that make him a ruthless killer? No, Volberding and Wright argued in a Sept. 2010 application for habeas relief made to the U.S. District Court of the Eastern District of Texas. Their client "probably did contribute" to the death of his daughter: "Just not knowingly or intentionally. Roberson is not the worst of the worst. Not even close." The two attorneys suggested a modified conviction of manslaughter, and a sentence of 20 years.

Much of the old argument hinged on the manner in which Nikki is believed to have died, and the way Anderson County District Attorney Doug Lowe manipulated the trial process to elevate the jury's belief in the ruthlessness of the crime. According to Roberson, Nikki died during a night when he was left alone with her and was high on drugs. Prosecutors said he shook her, hard, when he was angry with her – hard enough that she slipped into a coma. When that happened, they said, he put her in bed, and left her there for hours. Nikki was only taken to a hospital after being checked on five hours later, at which point it was discovered she was not breathing.

Roberson has maintained his innocence since the day he was arrested, saying that Nikki died after landing on her head during a fall from her bed. Medical professionals who testified at his trial quickly dismissed his claims as unlikely.

An examination of Nikki's body by a nurse upon her arrival at the Palestine Regional Medical Center revealed a "superficial tear to Nikki's anal cavity" and a rate of dilation to the anal canal that was considered faster than usual, suggesting what Roberson's attorneys described as "theoretical sexual penetration." Dallas pediatrician Dr. Janet Squires found no evidence of any sexual abuse, however – no deformities to her anal cavity, bruises, or markings on her vagina. Squires testified at trial that she found no semen or traces of sexually transmitted bacteria. She noted that the anal cavity usually dilates in the comatose state due to the nervous system shutting down.

The notion that Roberson sexually abused his daughter that night ultimately became irrelevant during trial. Lowe ultimately even attempted to have that charge dismissed. (Capital murder indictments can be secured in cases in which a murder occurs during a felony, is premeditated, or involves a victim who is younger than 6, making Roberson a candidate under two circumstances.) In appeals, Volberding and Wright argued that the notion of sexual abuse was only important to Lowe at the beginning of the trial: By securing an indictment of sexual assault from the grand jury, Lowe would have an easier time turning the jury against Roberson, thus making a death sentence – a more appropriate penalty, he considered, for the high-profile death of a small girl in a small town – a more likely outcome. Roberson's trial attorneys John Vanmeter and Steve Evans used a strategy that pointed to Roberson's longstanding mental illness, though they never actually argued that their client was insane, which would have raised questions of cruel and unusual punishment.

Since a final judgment was rendered in federal court in Sept. 2014, Roberson's effort has shifted away from the mental illness angle and instead toward the argument that "Shaken Baby Syn­drome" (aka "Abusive Head Trauma") is a phenomenon rooted in junk science. Much of that shift has been Rober­son's doing. In 2014, after learning of a Houston case involving a newfound understanding of SBS, Roberson wrote a letter to the 5th Circuit Court of Appeals asking that he be granted new counsel. That request eventually led to the Texas Defender Service taking his case to the U.S. Supreme Court, where it ultimately failed.

On June 8, two weeks before his pending execution, Gretchen Sween, an attorney with the Office of Capital Writs, filed two applications for relief (one in Roberson's trial court and another with the Court of Criminal Appeals) as well as a motion with the trial court for a stay of execution. In each application, Sween argues that new forensic science could rebuke previous theorems of SBS, and corroborate Roberson's claims that Nikki – who had a temperature of 104.5 degrees only two days before her death – did fall from her bed. Among the claims, Sween has argued that Nikki's lack of any serious neck injuries indicates that she was not in fact shaken, and that the science surrounding SBS has evolved enough to change the course of Roberson's case.

"The prior medical understanding was that a specific set of symptoms could be viewed together as categorical proof of SBS/AHT," Sween wrote. "More specifically, in 2002-2003, when Robert was tried, the medical community invited doctors to infer conclusively that a child had been violently shaken from the presence of three symptoms: retinal hemorrhaging, subdural hematoma/hemorrhaging, and edema or brain swelling."

Roberson is scheduled to be executed on Tuesday, June 21. As we go to press, he's still awaiting a response from the trial court and CCA. Should his latest efforts be denied, Roberson will be the seventh Texan executed this year and the 538th since Texas reinstated the death penalty in 1976.