Texas to Execute Father Accused of Murdering Child Despite Innocence Argument

Robert Roberson and daughter Nikki (courtesy of Robert Roberson)

John Grisham, the bestselling author of legal thrillers and mysteries, joined a press conference in mid-September to ask Gov. Greg Abbott to stop the execution of death row inmate Robert Roberson. Texas prison officials plan to kill Roberson on Oct. 17 for the death of his 2-year-old daughter, Nikki Curtis. If the execution goes forward, Roberson’s supporters say, he will be the first person in the nation executed based on a debated diagnosis of shaken baby syndrome.

Grisham is a former attorney who has sat on the board of the Innocence Project for 17 years. He is obsessive about wrongful convictions. He studies them and uses the material in his novels. A journalist asked how Roberson’s case is different from others he’s looked at.

“What’s amazing about Robert’s case is that there was no crime,” Grisham answered. “In most wrongful conviction cases you’ve got a murder and somebody did it. But in this case, there was no crime.

“So here we are, less than a month away from the execution, and we have clear, scientific, medical proof as to what killed Nikki. We didn’t know it at Robert’s trial in 2003, but we know it now. And the courts won’t listen. The Court of Criminal Appeals slammed the door last week on a procedural ground, which is not unusual. We hope the governor and the Board of Pardons and Paroles listen. But the clock is ticking.”

Nikki’s Death

Appeals written for Roberson describe how he rushed Nikki to the hospital in Palestine, Tex., on January 31, 2002. It was the third time in as many days that he had sought medical care for her. Nikki had been vomiting, experiencing diarrhea, and suffering from a 104-degree fever, but now her condition was critical. She was unconscious and her eyes were fixed and dilated, a sign that her brain had died from lack of oxygen.

Roberson told hospital staff that he’d put Nikki to bed the evening before, after returning from an appointment with her pediatrician. He said he’d woken in the early morning to a strange cry and found that Nikki had fallen to the floor. He saw a speck of blood on her mouth, wiped it off, and put her back to bed. Both fell asleep again. But after waking once more he found Nikki limp, blue, and unresponsive.

At the ER, doctors restarted Nikki’s heart and sent her to Dallas Children’s Hospital. In Dallas, Nikki was examined by a child abuse pediatrician who found no evidence of sexual abuse. However, the doctor did find what was referred to as the “triad” of symptoms of shaken baby syndrome – bleeding under the scalp, brain swelling, and retinal hemorrhages. The doctor concluded that Nikki had suffered head trauma though she had no skull fractures, no neck injuries, and no other signs of battery. She submitted her diagnosis of shaken baby syndrome to the Palestine police the next morning. Then, without consulting Roberson, Dallas hospital staff took Nikki off life support and she died.

The Trial

Nikki’s mother was homeless and drug addicted and didn’t name a father at the baby’s birth. Nikki was given to her mother’s parents to raise and was, from the beginning, a sickly child. She suffered a series of treatment-resistant ear infections and had episodes of breathing apnea, where she would stop breathing and collapse.

Roberson learned about Nikki a year after her birth, took a paternity test, and asked for custody. He probably would not have seemed a good bet as a caregiver. He’d had speech impairments as a child, was regarded as learning disabled, and left school after the eighth grade. He spoke awkwardly and, according to his present attorneys, had undiagnosed Autism Spectrum Disorder, which gave him a flat affect. He was throwing paper routes for the Palestine Herald when he began caring for Nikki.

“His impairment is palpable,” said Gretchen Sween, the attorney who joined Roberson’s case in 2016. “You may not know what it is, but you know something is wrong if you spend a little time with him. However, what you also see is that he is this kind, gentle soul who never forgets anybody’s birthday, who has this childlike innocence about the world.”

Roberson’s difficulty in registering emotion raised suspicion among hospital staff on the day of Nikki’s collapse. It raised suspicion among the police, too. Brian Wharton, the lead detective on the case, was confused as he searched Roberson’s house after Nikki’s death. “Roberson did not display the kinds of emotion that I’d expect from a distraught parent,” Wharton said at a Sept. 16 press conference, “but neither did he behave like a guilty suspect.” Wharton’s observations didn’t matter much, however, because after the search he received the diagnosis from Dallas. “We were given three words,” he remembered. “Shaken baby syndrome.”

At the time, shaken baby syndrome was essentially a medical diagnosis of murder, according to Kate Judson of the Center for Integrity in Forensic Sciences. If the three symptoms of SBS were present that meant the child had suffered head trauma. If there was no other explanation for the trauma, police assumed the person caring for the baby was the perpetrator.

“In a case involving an allegation of shaken baby syndrome, the physician is the one who decides that there was a crime and who committed the crime,” Judson said. “There really aren’t other parallels in the law where we allow that.”

Roberson’s trial got underway in February of 2003, with the Dallas County medical examiner, Jill Urban, testifying that Nikki had injuries consistent with SBS. The jury also heard testimony from a nurse who suggested that Nikki had been sexually abused, graphically describing anal penetration and offering her view on pedophiles, despite the fact that prosecutors offered no evidence of such abuse. Roberson’s attorney did not dispute that he had shaken Nikki, arguing only that he hadn’t meant to kill her. The jury found Roberson guilty, decided he would forever be dangerous, and sentenced him to death.

Refusing To acknowledge New Evidence

Roberson consistently asserted his innocence. For years after he entered death row, he wrote judges handwritten letters trying to get a new attorney. In 2016, two months before his first scheduled execution, Gretchen Sween was appointed to the case. Sween realized that no one had ever made the simple argument that Roberson was actually innocent.

“It was so obvious looking at the trial transcript – which was littered with references to shaken baby syndrome – that this had been tried as a shaken baby case,” Sween said. “And there was all this controversy that had exploded about SBS in the interim. So that became my focus.”

At the time, researchers had begun publishing papers arguing that the triad of injuries constituting SBS could arise from different causes. (To date, 32 parents and caregivers in 18 states have been exonerated after being wrongfully convicted under the hypothesis.) Sween got the Texas Court of Criminal Appeals to stop Roberson’s execution and order a hearing, using a Texas statute passed in 2013 known colloquially as the “junk science law.” Sween also got Roberson the psychiatric evaluation that found he was autistic and hired specialists to reexamine Nikki’s medical records.

At a hearing on the new evidence in March of 2021, Sween and her team presented testimony from six experts who explained that the shaken baby syndrome hypothesis has been discredited. The experts provided evidence that Nikki had suffered no significant head trauma and that she had instead died of severe double pneumonia which had led to septic shock. They said that medications she had been prescribed during her illness – Phenergan and codeine – likely contributed to her respiratory distress.

The state rebutted the new evidence with just two witnesses – Urban, who had performed Nikki’s autopsy, and a specialist who testified that shaken baby syndrome was still valid science. The judge appointed to hear the evidence sided with the state, recommending that Roberson be denied a new trial. In January of 2023, the Court of Criminal Appeals rubber-stamped the recommendation. The U.S. Supreme Court refused to hear the case.

Sween appealed again and on Sept. 11 the CCA once more refused to consider her arguments. “Robert’s fate is now at the mercy of the Governor,” Sween announced in a press release. “He and the Texas Board of Pardons and Paroles are the only ones standing in the way of a horrific and irreversible mistake.”

A week later, Sween filed a petition asking Abbott and the board to grant Roberson clemency. She presented letters of support from scientists and doctors, parental rights advocates, autism advocates, faith leaders, former judges, and attorneys who have represented people wrongfully accused of child abuse. The petition includes a letter to the board from 84 Texas legislators, including 29 Republicans.

“The fact is that the science has changed, and new evidence developed since 2016 not only contradicts the hypothesis the State relied on during Mr. Roberson’s 2003 trial but also provides a clear and plausible alternative medical diagnosis for Nikki’s actual cause of death,” the legislators wrote. “It appears that both the trial court and the Court of Criminal Appeals refused to acknowledge or engage with this voluminous new scientific evidence and instead simply denied Mr. Roberson a new trial.”

Many of the same Texas legislators helped stop the execution of Melissa Lucio, scheduled for April of 2022. Expert medical testimony was also central to Lucio’s case, helping convict her of the murder of her 2-year-old daughter Mariah, who she said had been ill and suffered a fall before her death in 2007. The judge who presided over Lucio’s trial has recommended that her conviction be thrown out and the Court of Criminal Appeals is currently considering whether to do so. Another young woman convicted of murdering a child on the basis of so-called junk science – Rosa Jimenez – was exonerated just last year.

Abbott and the Board of Pardons and Paroles had nothing to do with saving Lucio or freeing Jimenez, however. The board never took action on Lucio’s clemency petition, though they’d had four weeks to do so; it was the Court of Criminal Appeals who stopped the execution. And in fact, the board practically never recommends clemency – it’s done so only once out of more than 80 requests over the last decade.

Sween said at a press conference in mid-September that Roberson is anxious, and she is sending him hopeful poems every day. The former police officer who testified against him – Brian Wharton – regrets his role in the case. “I will forever be haunted by my participation in his arrest and prosecution,” Wharton said. “He is an innocent man.”

This year, Wharton met Roberson for the first time since testifying against him and has continued to visit him. “He is the most gracious, forgiving, kind person in that set of circumstances that I can imagine,” Wharton said Sept. 16. “I can’t imagine anybody else being that way. I can’t imagine myself being that way. There’s not a vindictive bone in his body. He’s not an angry person. I’m embarrassed about myself that I did not see him as he is back then. It might have changed something.”