Robert Roberson and the shaken baby syndrome controversy

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On Thursday, Robert Roberson will become the first person in the United States to be executed based on a diagnosis of shaken baby syndrome.

This controversial medical diagnosis and controversial legal theory have divided courts, doctors, lawyers and law enforcement agencies. Some call it “junk science,” while others continue to embrace it as the key to identifying and stopping child abuse.

The Texas Court of Criminal Appeals and the Texas Board of Pardons and Parole rejected Roberson’s pleas for leniency. A bipartisan group of lawmakers, legal experts and even the detective who originally investigated Roberson’s case makes a series of last-minute Hail Mary attempts to save his life by challenging his conviction under Texas’ junk science law.

The 2013 law allows courts to overturn a conviction when scientific evidence at the heart of a case has been altered or discredited. Roberson has repeatedly and unsuccessfully tried to use this law to prove his innocence.

While rejecting Roberson’s claims last week, the Texas Court of Criminal Appeals threw out another shocked baby case just days before, saying that if “newly developed scientific evidence were presented” at the original trial, “it is more likely than not that he wouldn’t do that.” have been convicted.”

At least 34 people convicted based on a diagnosis of shaken baby syndrome have been exonerated, according to the National Registry of Exonerations.

What is shaken baby syndrome?

Beginning in the 1980s, shaken baby syndrome was commonly diagnosed when doctors discovered what is known as “the triad” of symptoms: unexplained bleeding in the brain, bleeding behind the retina, and swelling of the brain.

Dr. Norman Guthkelch, a British pediatric neurosurgeon, is widely credited with being the first to link these symptoms to baby shaking in a 1971 article. Researchers built on his theory as awareness of child abuse grew, and in 1993 the American Academy of Pediatrics defines it as a “clearly definable medical condition.”

Doctors, wary of missing cases of extreme child abuse, seized on the diagnosis as a way to explain otherwise unexplained symptoms. Over time, a consensus emerged that trembling might be the only way this triad of symptoms could arise. In 2001, the American Academy of Pediatrics published a position paper stating that these three symptoms created a “suspicion of child abuse.”

The next year, Roberson took his 2-year-old daughter Nikki to the emergency room in East Texas and said she had fallen off the bed. Nikki had been ill in the days leading up to the incident, with a fever of 104.5, and had been prescribed medication that is no longer given to children. She could not be revived.

Doctors and nurses suspected child abuse and did not believe such a low fall could have caused her injuries. During the trial, doctors testified that Nikki exhibited the trio of symptoms associated with shaken baby syndrome and Roberson was convicted.

What does science say?

Since Roberson was convicted in 2002, much more science has emerged about the diagnosis of shaken baby syndrome.

Around that time, research began to show that many of the same symptoms associated with shaken baby syndrome could also occur from brief falls, as well as from a wide range of naturally occurring medical conditions and accidental trauma. Research has shown that shaking a baby hard enough to cause these symptoms would also likely result in a broken neck.

Guthkelch himself disavowed the way his hypothesis had been used and before his death became an outspoken advocate against the primacy of diagnosing a shocked baby. He told NPR in 2011 that there was no way to tell that these three symptoms were always caused by shaking and nothing else.

“In the case of measles, if you get the wrong diagnosis, it won’t matter in seven days because it’s resolved anyway,” he told NPR. “If you misdiagnose fatal shaken baby syndrome, it could potentially end someone’s life.”

In 2009, the American Academy of Pediatrics expanded the term shaken baby syndrome to “misuse of head trauma,” recognizing that symptoms can be caused by incidents other than shaking, including brief falls. In the policy memo, the group noted that “restraint is required” when diagnosing abusive head trauma, and that doctors should consider other possible causes for the symptoms.

In 2020, as more and more convictions for shaken baby syndrome were challenged, the group said these changes were “misinterpreted by some in the legal and medical community as indicating some doubt or disproving of the diagnosis and mechanism of shaking as a cause of injury.” The academy “continues to embrace shaken baby syndrome as a diagnosis,” they said in the position paper.

What have the courts said?

There has recently been a spate of shaken baby cases being dismissed by courts across the country.

In July of this year, the Michigan Supreme Court overturned a 2006 baby murder conviction. Two Ohio cases have been dismissed by higher courts, one after the medical examiner changed their finding that a three-year-old child died of shaken baby syndrome to their belief that it child died from a short fall.

Last year, a judge in New Jersey compared shaken baby syndrome to “junk science,” noting that “no study has ever supported the hypothesis that shaking a child can cause the trio of symptoms” associated with shaking baby syndrome. baby syndrome. An appeals court upheld that ruling.

In 2016, the Texas Court of Criminal Appeals halted Roberson’s execution under the junk science statute, but decided in 2023 that the doubt surrounding the cause of death was not enough to overturn his death sentence.

But last week, the same court dismissed a Dallas County case in which Andrew Wayne Roark was convicted of shaking a 1-year-old child, causing irreversible brain damage. If called to testify today, the state’s experts would be “confronted with two decades of reputable scientific studies and publications that, when presented in graph form, consistently deviate from their positions,” the court ruled. As a result, “it is more likely than not that he would not have been convicted.”

According to Roberson’s attorney, Gretchen Sween, the same child abuse specialist testified at Roark and Roberson’s original trials. Based on this ruling, Roberson “should also logically receive a new trial,” she said in a statement.

And yet the Court of Criminal Appeals denied Roberson’s latest request without issuing a written opinion. Roberson will still be executed, and there are still people convicted of head trauma around the country based on the same science, says Randy Papetti, an attorney, expert and author of “The Forensic Unreliability of The Shaken Baby Syndrome.”

“There is a recognition, at least in some courts, that the science has changed so much that they are actually vacating convictions,” he said. “At the same time, science is considered good enough to override people in other cases and play a huge role in a man’s execution.”

According to him, the current state of legal affairs surrounding this diagnosis is “completely contradictory”.