Texas’s Junk Science Law May Fail to Save Robert Roberson

Nikki was unconscious and her lips were blue when her father Robert Roberson found her in bed the morning of January 31, 2002.

The 2-year-old had been ill the previous week, coughing, vomiting, and running a high fever. Roberson had taken her to the doctor twice and both times was sent home with drugs that, today, would not be prescribed for children her age. The night before Roberson found his daughter unconscious, Nikki had fallen out of bed; he’d comforted her and everything seemed fine. Now, she was unresponsive. Roberson rushed Nikki to the local hospital in Palestine, Texas. Within a day, Nikki was dead and Roberson was quickly accused of having killed her.

The following year, he was convicted and sentenced to death based on claims by medical professionals that Nikki’s death was the result of so-called shaken baby syndrome, or SBS: a diagnosis based on the belief that a certain combination of injuries found in a baby or toddler could only be caused by violent shaking. This theory has repeatedly been disproven by scientific research. Across the country, 34 people convicted based on SBS have been exonerated, according to the National Registry of Exonerations.

Texas is currently planning to kill Roberson on October 17. If that happens, he will be the first person executed in the U.S. based on the junk science of SBS — despite a first-of-its-kind law in Texas meant to undo convictions that hinged on science now known to be unreliable.

Roberson challenged his conviction under the state’s “junk science writ” back in 2016, three years after the law’s passage. He was a week away from execution when the Texas Court of Criminal Appeals stepped in, sending the case back to a trial court. During a nine-day evidentiary hearing, Roberson’s lawyers laid out the flaws that had led to his wrongful conviction, including the fact that SBS had been debunked and that the medicines prescribed to Nikki had likely made her condition worse. Nevertheless, the trial court rejected Roberson’s claim, ignoring the wealth of evidence that he was innocent — and that Nikki’s death was related to her previous illness and not to any abuse. The Texas Court of Criminal Appeals then signed off on the court’s ruling and cleared the way for Roberson’s execution.

Roberson’s ordeal is typical of Texas courts’ failures to implement the law as intended, according to a new report from the Texas Defender Service. He is one of 25 people on Texas death row who have challenged their convictions under the state’s junk science writ since its passage in 2013. None of their appeals have been successful.

A Failed Promise

Texas was the first state in the country to create an avenue for people convicted based on junk science to challenge their convictions. A handful of other states have since adopted similar measures, as courts have failed to sufficiently address the problem of flawed forensics. Earlier this year, U.S. Supreme Court Justice Sonia Sotomayor urged more states to follow Texas’s example, writing that such statutes “create an efficient avenue for innocent people convicted based on forensic science that the scientific community has now largely repudiated.”

The Texas statute was an innovation born from a series of high-profile disasters for the state involving forensic science. In the early 2000s, the Houston Police Department crime lab had been forced to shutter its DNA operations amid a rolling scandal that would eventually see the entire lab shut down. In 2004, the state executed Cameron Todd Willingham, an innocent man convicted based on bogus arson science. The ensuing outrage led, among other things, to the creation of the Texas Forensic Science Commission, which oversees forensic practices in the state. And a series of people convicted of killing children in high-profile cases had filed appeals based upon questionable scientific opinions.

It had become increasingly clear to state lawmakers that something had to be done. Legislators had tried twice to pass the law but were thwarted by prosecutors who claimed it wasn’t necessary, before finally passing it in 2013. “Back then there was tons of optimism,” Gretchen Sween, Roberson’s lawyer, said. “Texas got a lot of positive publicity out of this, you know, as a trailblazer.”

“It was promising at the beginning,” Sween said, because the courts paused the executions of a number of people, including Roberson.

There was every reason to be optimistic. State lawmakers had demonstrated that they understood the problem at hand. In laying out the bill before a House committee that spring, then-Houston Democratic Rep. Sylvester Turner specifically cited arson and SBS cases as cause for concern. The new law, Turner told his colleagues, would “clarify the standard by which such cases would be judged.”

And yet, the new law would only be as good as the criminal legal system tasked with applying it.

Under the statute, people challenging their convictions file their claims in the court where they were originally tried, and those courts vet the claims. The Court of Criminal Appeals, Texas’s highest criminal court, ultimately reviews the lower courts’ decisions.

In its new report, the Texas Defender Service, which represents people on death row and advocates for the end of the death penalty in the state, concludes that the courts, particularly the Court of Criminal Appeals, have failed to apply the law as lawmakers intended.