At the intersection of medicine and criminal justice, few diagnoses have stirred as much controversy as Shaken Baby Syndrome (SBS). Once considered a clear-cut indication of child abuse, this diagnosis has become a battleground of conflicting expert testimonies, challenged convictions, and evolving scientific understanding.
As courts grapple with cases involving SBS, the stakes couldn’t be higher for Robert Roberson, a Texas man scheduled to be executed Thursday. Roberson was convicted in 2003 of shaking his daughter to death. But as the hour of his scheduled execution draws near, lawmakers, advocates, and even a detective who played a pivotal role in his conviction are working feverishly to derail Roberson’s death sentence.
In the two decades that have passed since Roberson’s conviction, society has developed more nuanced understandings of both SBS and Autism Spectrum Disorder (ASD). The former has come under fire for a lack of scientific soundness, particularly in court proceedings. The latter has emerged as an increasingly common and well understood diagnosis that can explain some of the personality traits of individuals like Roberson, whose ASD diagnosis advocates now suggest disadvantaged him in the courtroom.
If Thursday’s execution goes ahead as planned, Roberson will be the first person to be executed on the grounds of SBS. At the heart of the surging controversy is a divide: On one side, the urgent need to protect vulnerable children; on the other, a moral imperative to grant clemency to prevent a miscarriage of justice.
In this explainer, we will delve into the broader controversy surrounding SBS, and examine its impact on Roberson’s initial conviction and subsequent appeals.
What is Shaken Baby Syndrome (SBS)?
At the time of Roberson’s conviction, SBS was broadly understood to be a concrete, clearly diagnosable malady. A position paper published by the American Academy of Pediatrics stated the diagnosis could be presumed in cases where three symptoms were observed in a small child: brain swelling, brain hemorrhaging, and retinal hemorrhaging.
Why is SBS controversial?
Over the past two decades, SBS has come under heavy scrutiny, both from the scientific community, and with respect to its application to establish culpability at trial.
By the early 2000s, medical experts and researchers began to challenge the scientific basis for diagnosing SBS based solely on the triad of symptoms. Critics argued that these symptoms could have multiple causes, including accidental injuries, genetic conditions, and other medical issues. High-profile legal cases, advances in medical imaging, and biomechanical studies demonstrating the implausibility of manual shaking causing the claimed injuries further eroded confidence in SBS.
To be clear, there is no debate that shaking is bad and that child abuse can result in trauma and death; the debate centers largely on the use of the diagnostic criteria for SBS as determinative of guilt in and of itself in court cases. In 2018, the Journal of Pediatric Radiology issued a consensus statement drafted by a global team of medical experts arguing that courtrooms considering SBS diagnoses had far too often fallen prey to junk science. Their statement read:
The courtroom has become a forum for speculative theories that cannot be reconciled with generally accepted medical literature. … A diagnosis of [abusive head trauma — a term that has largely come to replace SBS] is a medical conclusion, not a legal determination of the intent of the perpetrator or a diagnosis of murder. We hope that this consensus document reduces confusion by recommending to judges and jurors the tools necessary to distinguish genuine evidence-based opinions of the relevant medical community from legal arguments or etiological speculations that are unwarranted by the clinical findings, medical evidence and evidence-based literature.
According to data obtained from the National Registry of Exonerations, 34 defendants across more than a dozen states have been exonerated of charges of SBS. One such exoneree was a Texas woman who was convicted of SBS in 2000. She was exonerated in 2006 after a subsequent examination revealed a lack of evidence of SBS. The NRE wrote of the case: “Briggs is one of a growing number of people who have been exonerated in cases where prosecutors claimed an infant was shaken to death. Briggs’s case is unique in that it involves egregious errors and misconduct on the part of the medical examiner and hospital staff, but recent medical research has cast serious doubt on the legitimacy of Shaken Baby Syndrome as a cause of death. Many experts have argued that it is physically impossible for such severe brain damage to be caused by shaking alone, without visible injuries to the skull or spine. There is also increasing evidence that other injuries can produce the diagnostic ‘triad’ of symptoms that is said to prove SBS, and mounting evidence that an infant who is suffering from these symptoms would not necessarily become unresponsive right away.”
Who is Robert Roberson?
Robert Roberson is a 57-year-old man who was convicted of murder following the death of his two-year-old daughter in 2002. If his execution goes ahead, he will be the first person in the US to be executed for SBS.
He had brought his daughter to the hospital in January 2002 after finding her unresponsive. At the time, doctors determined SBS to have been the cause, without considering her medical background. Later, it was revealed that Nikki had several health issues that could have resulted in the symptoms, including two different types of pneumonia.
Roberson’s conviction rested largely on scientific and medical theories that have since faced controversy and, in some cases, outright disavowal. The Innocence Project, a criminal justice advocacy group that works to exonerate wrongfully convicted individuals, wrote of Roberson’s case:
[It] is riddled with unscientific evidence, inaccurate and misleading medical testimony, and prejudicial treatment. In 2002, Mr. Roberson’s two-year old, chronically ill daughter, Nikki, was sick with a high fever and suffered a short fall from bed. Hospital staff did not know Mr. Roberson had autism and judged his response to his daughter’s grave condition as lacking emotion. Mr. Roberson was prosecuted, convicted, and sentenced to death for Nikki’s death.
Advocates also warn Roberson’s conviction process was paved in part by misunderstood symptoms of ASD. As described by the Marshall Project, a journalism non-profit dedicated to criminal justice:
Roberson’s case shows what can happen even before the police get involved. When he took his unconscious daughter to an emergency room in the small east Texas city of Palestine, in 2002, a nurse found it strange that he’d gotten her dressed before leaving their house, according to court records. Later, as he showed detectives around his kitchen, he paused to make a sandwich. Former homicide Detective Brian Wharton recalled finding Roberson’s affect disconcerting, saying, “He’s not getting mad, he’s not getting sad, he’s just not right.”
Does Texas law provide remedies for individuals convicted based on evolving scientific theories?
Article 11.073 of Texas’ Code of Criminal Procedure authorizes individuals who have been convicted of a crime based on questionable scientific evidence to seek sentence commutation or clemency. The law pertains specifically to relevant scientific evidence that was unavailable at the time of the convicted individual’s trial, and that contradicts scientific evidence that was relied upon for the conviction.
Within the past month a Texas court ordered a retrial in a similar case, in which the 1997 death of an infant resulted in a 35-year prison sentence based on an SBS conviction. In that case, the court found that Article 11.073 applied directly and warranted a grant of relief, reasoning: “We find that scientific knowledge has evolved regarding SBS and its application in Applicant’s case. Additionally, we find that given further study, the experts would have given a different opinion on several issues at a trial today — some already have. The admissible scientific testimony at trial today would likely yield an acquittal.” The court noted that the medical witnesses called upon at the time of the trial provided testimonies that were “considered mainstream at the time of the trial,” but noted that popular scientific opinion was clearly shifting as early as 2004.
What will happen next?
On Wednesday, Texas’ highest criminal court — the Court of Criminal Appeals — rejected Roberson’s latest plea to reconsider his case, clearing the way for his imminent execution. In an unprecedented move, the bipartisan group of lawmakers comprising the Texas House Committee on Criminal Jurisprudence voted unanimously to subpoena Roberson to testify before it on Oct. 21 — four days after his scheduled execution. According to The Texas Tribune, the implications of the move are unclear given the novel nature of the subpoena. It is unclear whether this bid to buy Roberson more time to prove his case will pay off.
Barring an 11th hour clemency determination or other delay, Roberson’s execution is scheduled to go ahead on Thursday at 6:30pm local time.
