We can't let discredited science lead to a Texan's execution | Opinion

Ten years ago, Texas passed a law creating a “junk science” writ. This law allows people to challenge convictions based on false science or science that has been discredited since their trial.

But the law isn’t working as it should. Robert Roberson is Exhibit A for how innocent people can still fall through the cracks – and even face execution. If the Texas Court of Criminal Appeals (CCA) doesn’t take another look at Mr. Roberson’s case, he could become the first person in the nation executed based on the debunked shaken baby hypothesis.

Mr. Roberson had a two-year-old daughter, Nikki, who was chronically ill. In 2002, she had a high fever and undiagnosed pneumonia. She was prescribed medications that we now know are too dangerous for children her age and in her condition. She then suffered a fall out of bed. After falling back to sleep, she did not wake up again.

When Mr. Roberson took Nikki to the hospital, he had trouble explaining her condition. A special education student, who had dropped out of school after the ninth grade and who had undiagnosed autism, he could not answer the hospital staff’s questions. And the hospital staff thought his reactions to his daughter’s condition showed a lack of emotion, when it was simply non-neurotypical, a symptom of his autism.

Sadly, Nikki could not be revived. One doctor, who knew nothing about the child’s medical history and recent illness, had a preliminary hunch that the child had been shaken to death, and the controversial shaken baby hypothesis was used to arrest Mr. Roberson, even before the autopsy.

Back then, the consensus in the medical community was that a child who presented with Nikki’s three symptoms – bleeding outside the brain, brain swelling, and bleeding in the eyes – could only have died of violent shaking or of shaking plus impact against a blunt surface. Over the past 20 years, each premise of the shaken baby dogma has been discredited by evidence-based science.

This is where Texas’s junk science writ should have come to Mr. Roberson’s aid and exonerated him. But it didn’t. Despite the new law, the post-conviction court disregarded the unrebutted scientific and medical evidence showing that Nikki died of natural and accidental causes, not murder.

In 2016, the CCA stayed Mr. Roberson’s execution and sent the case back to the trial court. Finally, in 2021, a multi-day evidentiary hearing was held, with six highly qualified expert witnesses testifying about the change in scientific understanding and the natural and accidental causes that explained his daughter’s death. The experts showed that the combination of Nikki’s undiagnosed pneumonia, the medications she was prescribed, and her accidental fall entirely explained her condition.

Stunningly, the lead detective, Brian Wharton, who investigated Mr. Roberson’s case and testified against him at trial, testified before the post-conviction court that he had come to believe that justice had not been served. Despite all this, and even though Mr. Roberson’s attorneys submitted a comprehensive proposal inventorying all of the new evidence, the court accepted the prosecution’s skeletal proposal that largely repeated the false science that was put before the jury in 2003, as if the evidentiary hearing had not happened.

Since 1992, at least 32 parents and caregivers in 18 states have been exonerated after being wrongfully convicted under the shaken baby hypothesis. In fact, another case is pending before the CCA, Ex parte Roake, where the state has conceded the falsity of nearly identical shaken baby testimony by the same child abuse expert who testified against Mr. Roberson.

Mr. Roberson’s conviction was built on a false science sandcastle. It has since been washed away. The CCA must intervene. We can’t allow this innocent father to be executed in our names.

Findley is the founder of the Center for Integrity in Forensic Sciences and co-founder of the Wisconsin Innocence Project. A former law professor at the University of Wisconsin, he is an editor of “Shaken Baby Syndrome: Investigating the Abusive Head Trauma Controversy,” Cambridge University Press 2023.