In 2002, Robert Roberson raced his two-year-old daughter, Nikki, to a hospital emergency room in the east Texas town of Palestine.  Nikki was limp, her skin blue.  Roberson told the emergency room doctors and nurses that the two had been sleeping when he awoke and found Nikki on the floor, having fallen off the bed. The child was unresponsive. Nikki Curtis never regained consciousness and died a few days later.

From the beginning, the doctors and nurses didn’t believe Roberson’s story, which was that Nikki had been frequently sick from chronic ear infections and that she’d recently had a high fever and pneumonia-like conditions. Not knowing (or caring) that Roberson was autistic, they considered his demeanor too passive, even disinterested, for the circumstances. He didn’t display the right emotions. “He’s not getting mad, he’s not getting sad, he’s just not right,” Brian Wharton, the lead detective in the case, recalled being told.

Moreover, the medical team concluded that it didn’t seem possible that a child could have suffered the kinds of injuries Nikki displayed–“brain bleeding, brain swelling and bleeding in the eyes”–from such a minor fall. They suspected child abuse and suggested to the police that Nikki had been killed by being violently shaken, causing fatal “contra-coup” injuries to her small brain. In other words, a case of Shaken Baby Syndrome, then a frequent cause of death in family thrillers on the Lifetime Channel. More crucially, Shaken Baby Syndrome had also become a way for prosecutors to criminalize otherwise inexplicable deaths of infants, many of whom, it later turned out, had died from natural causes.

Roberson was arrested, charged with capital murder and put on trial. During the trial, the prosecution called a nurse who testified that she’d seen what she thought were signs of sexual abuse on Nikki’s body, even though none of the doctors or other medical personnel recorded any documentation of this and a sexual assault kit failed to turn up any evidence to corroborate her claims. The nurse who offered her strident views on the nature of pedophiles claimed before the jury to be a Sexual Assault Nurse Examiner (SANE) but had never received any certification as a SANE expert. There was no evidence that Roberson ever sexually abused Nikki or anyone else.

Roberson was swiftly convicted and sentenced to death. Then five days before his scheduled execution in 2016, the Texas Court of Criminal Appeals stepped in, halting the execution and sending his case back for a rehearing. In the intervening years, the science behind shaken baby syndrome had changed. So had Texas law. In 2013, the state enacted a Junk Science Law, which allows trial courts to overturn convictions stemming from discredited scientific testimony.

Disputed cases of “infant trauma” (shaken baby syndrome), which has been used to wrongly convict hundreds of parents and babysitters over the years, were one of the key reasons for the passage of the law. Since then, seven other states have passed similar laws, including Illinois, where it was used to get Jennifer Del Prete released from prison after she was convicted based on specious “shaken baby syndrome” evidence.

By then, even Dr. Norman Guthkelch, the doctor who first advanced the shaken baby syndrome hypothesis, had disavowed his own theory. In 2012, Dr. Guthkelch argued that all shaken baby convictions should be reviewed, saying, “I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent people. We went badly off the rails.” According to the National Registry of Exonerations, there have been 32 people convicted on Shanken Baby Syndrome evidence who have been exonerated since 1989.

A few weeks ago, the Michigan Supreme Court set aside overturned a 2006 murder conviction for the death of an infant, ruling that the defendant deserved a new trial. The court found that the defendant’s expert witnesses, including a doctor who had testified for the prosecution at her original trial, had offered enough new evidence during the appeal to raise reasonable doubts about her guilt.

Roberson’s new defense team went to work. They offered six expert witnesses to testify that the shaken baby syndrome theory used to convict Roberson had been thoroughly discredited and that there was “no evidence that a homicide” had occurred. In fact, the experts testified that Nikki had died as a result of a combination of factors, including an undiagnosed case of pneumonia, medications for her ear infections and an accidental fall.

“The condition of Nikki’s lung tissue cannot be reconciled with the conclusion that her death was caused by blunt force head injuries, inflicted or otherwise,” wrote lung pathologist, Francis Green, in a habeas petition Roberson’s lawyers filed seeking a new trial.

All to no avail. The judge in the case, Deborah Evans, rejected the defense testimony, swallowed the prosecution’s dubious original theory of the case and reaffirmed the bogus conviction.

“You have a law, but no matter what you do, you can’t satisfy the burden the court has created,” said Gretchen Sween, one of Roberson’s lawyers. “The judicial system has totally failed him.”

Even the lead detective in the case has changed his mind and now believes that Roberson is innocent. Bryan Wharton told the New York Times last month that there is “unassailable doubt” as to whether Roberson could have killed Nikki: “No other possibilities for [Nikki’s] injuries were considered. I regret deeply that we followed the easiest path.”

Robert Roberson is a sympathetic character. He’s a working-class, white Southerner. But he still can’t get a break in a legal system that is geared to punish at whatever cost and where hired gun scientists are paid to put people away, even into the death chamber.

Roberson’s prospects for a new trial grew dim last October when the Supreme Court rejected a writ of certiorari to hear his case, the same Supreme Court where at least two sitting justices (Thomas and Alito) have repeatedly argued that innocence is no defense against a death sentence. They’re even dimmer now that the state of Texas has once again set a date for his execution, two months from now on October 17, despite overwhelming evidence that he is an innocent man sent to the Texas death house under the debunked shaken baby syndrome (SBS) scam science, including newly disclosed evidence that Nikki’s medical records, hidden by the prosecution, showed she suffered a serious case of pneumonia. His fate rests in the unforgiving hands of Texas Governor Greg Abbott, whose zeal for retributive justice is so rigid that he pursues it for his political gain even the criminal justice system itself admits it made a mistake.

Nikki Curtis wasn’t killed by her father who, in fact, tried to save her life. She didn’t die from being shaken to death so savagely that her brain bled out. Nikki died the way so many other children do here, from a mercenary medical system that makes it almost impossible for poor people, even children, to get the care for chronic illnesses they need before it is too late.

Rob Roberson wasn’t consigned to death row based on facts or empirical evidence but pseudo-science engineered to explain the inexplicable and make someone pay the price. He was convicted because he was poor, he was different and he didn’t react to an unspeakable tragedy the way people thought he should, because he couldn’t, because he just wasn’t wired that way.

But it’s America that’s truly shaken, shaken senseless by a criminal justice system so callous that it remains determined to take a still-grieving father’s life, instead of redressing the systemic flaws and political, as well as financial, incentives that sent an innocent man to death row.

Sign this petition asking Texas Governor Greg Abbot to grant Rob Roberson clemency.

The post Scam Science and the Death Penalty: the Case of Robert Roberson appeared first on CounterPunch.org.

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