Texas death row inmate at mercy of supreme court – and junk science

On a frigid night in January 2018, Brian Wharton was sitting at dwelling in Hawkins, a small city within the backcountry of east Texas, when there was a knock on the door. A girl launched herself as a lawyer working to spare the lifetime of Robert Roberson, a demise row inmate who had come inside 4 days of execution.

Wharton instantly understood the importance of this go to. He was a retired detective from the police division in Palestine, one other small city about 80 miles away, and in 2002 he had been concerned in a case that caught in his reminiscence.

On 31 January that yr, Wharton was referred to as to Palestine hospital after receiving reviews of a mortally unwell youngster. Her father, Roberson, had introduced his two-year-old daughter Nikki into the ER in a comatose state, the little lady mendacity limp in his arms and turning blue. She died the next day.

Wharton led the investigation. He arrested Roberson hours after the lady died, even earlier than an post-mortem had been carried out, having been suggested by medical doctors that this was a case of “shaken child syndrome” – the idea that the kid had died from violent shaking that brought on deadly mind accidents.

Wharton went on to testify at Roberson’s capital trial. The jury convicted Roberson in February 2003 and despatched him – now branded Prisoner 999442 – to demise row.

Wharton had been troubled by key points of the case from the beginning. Why had the medical doctors and nurses seized on shaken child syndrome as the reason for Nikki’s accidents virtually instantly, and why with such certainty? Why had a nurse informed him she had discovered indicators of sexual assault on Nikki’s physique when he may see no such proof?

Why, when he escorted Roberson again to his home on the day of Nikki’s collapse, may he discover no indicators of a violent altercation? Why have been there no marks or indentations on the partitions, no holes within the sheetrock, nothing – and no blood anyplace besides a number of drops on a washcloth Roberson gave him?

Above all, why had Roberson himself acted so unusually? As a police officer, Wharton had handled each perpetrators and victims of violent crimes, however Roberson’s habits fitted the sample of neither legal nor sufferer. He got here throughout as flat, impassive, matter-of-fact, as if nothing was registering with him.

All these items bugged the previous detective to the purpose that he felt haunted by them. So when the doorbell rang, and Roberson’s lawyer stood earlier than him, Wharton knew precisely what to do.

“Are available,” he stated. “I’ve been ready for you.”

•••

On Tuesday, the US supreme court docket will convene in Washington for what is named a “lengthy convention”, previous the beginning of its 2023-24 time period. The justices will meet in personal to sift via the backlog of circumstances which have amassed over the summer time, tossing out these they’re disinclined to contemplate.

The lawyer Gretchen Sween might be ready on tenterhooks for information of which petitions the court docket has discarded. Among the many large pile of requests awaiting the justices’ consideration is one she ready for her shopper: Roberson.

“We’ll be watching anxiously to see if we make it via that gauntlet,” Sween informed the Guardian.

Roberson’s supreme court docket attraction might be his final shot at judicial assessment. Ought to the justices reject his approaches, the state of Texas could be free to set a brand new execution date.

Roberson has requested the court docket to assessment the choice of the Texas state courts to disclaim a retrial regardless of new proof that has emerged casting doubt on his conviction. Since Sween took over as his legal professional in 2016 she has found that:

  • Nikki, who shortly earlier than she died had been positioned in Roberson’s custody, was chronically sick virtually from delivery. She suffered bouts of respiration apnea which brought on her abruptly to cease respiration and collapse. Shortly earlier than her father rushed her to hospital, she had had diarrhea for 5 days and had a fever of 104.5F (40.3C).

  • Nikki additionally had extreme undiagnosed pneumonia.

  • She had been prescribed medicines, together with an opioid, which are not thought of secure for kids as they’ll trigger deadly respiration issues and oxygen deprivation.

  • The sexual assault allegation was unsupported by any proof, and the nurse who raised it was unqualified to determine it.

Then there may be the overarching query of shaken child syndrome. The petition asks the supreme court docket to weigh whether or not a demise sentence based mostly largely on a scientific hunch introduced to the jury as reality must be allowed to face when, within the intervening years, that idea has been largely discredited.

In different phrases: ought to Texas be allowed to execute a person on the idea of junk science?

“It is a stunning, social failure,” Sween stated. “This isn’t merely a matter of getting the incorrect man, it’s a matter of there having been no crime dedicated within the first place.”

•••

Texas homes its 179 male demise row inmates within the Allen B Polunsky Unit, a fancy of windowless gray bins resembling a Walmart supercenter shrouded in barbed wire.

Roberson, 56, was ready within the safe steel cubicle assigned for media visits. He was wiping smudges off the bulletproof glass, an consideration to element that appeared incongruous given the circumstances.

He was dressed within the all-white onesie that’s demise row uniform in Texas. From the primary alternate, his extremely uncommon means of talking was evident.

“Thanks for for for for for, ah ah, this interview, sir sir,” he stated, blinking quick behind his glasses, in time together with his stutter.

That was a clue as to why medical workers have been so fast to suspect Roberson once they encountered him, and why Wharton discovered his behaviour so singular. Lengthy after his capital trial – too late for the jury to issue it in – Roberson was recognized with autism.

Roberson described his lifetime of poverty on the time he started taking care of Nikki. Separated from the lady’s mom, and residing with a brand new associate, he labored three newspaper supply routes to attempt to assist them.

“After gasoline and stuff, you don’t make an excessive amount of from a paper route,” he stated.

Requested what he hoped for Nikki when he took custody of her, he stated: “I hoped to boost her, you recognize, to be a father to her, to boost her to have an excellent life and stuff, and for us all to be joyful. To offer for her finest I can, to nurse her, to like her, to wish for her.”

Roberson stated Nikki was sick from the day she joined him, recalling that they needed to go to the physician’s surgical procedure as a result of she was so unwell. On the morning of 31 January 2002, he stated he discovered she had fallen away from bed and was mendacity face down on the ground.

“She had a bit of little bit of blood on her lip, I wiped it off on a towel,” he stated.

He lifted her again on the mattress they usually went again to sleep. Then he described what occurred after he awoke a second time.

“Once I bought again up she wasn’t respiration and I hearken to her coronary heart, weren’t respiration. I attempted to wake her up, her coronary heart was nonetheless beating however she wasn’t respiration.”

He added: “Solely factor I may assume was she might need fell off and might need hit her head, however I didn’t see it, so I don’t know.”

He drove Nikki to the ER and handed her to the medical workers.

“They lifted the little lady, and he or she’s limp and began turning blue, and stuff.”

He stated he may inform that the nurses and medical doctors suspected him immediately of doing one thing unhealthy to Nikki. Throughout the trial, the prosecution stated he got here throughout as chilly and uncaring as a result of he didn’t cry, however he stated that was as a result of he had skilled himself to not cry throughout his tough childhood.

“It’s arduous for me to cry as a result of I bought my behind whooped by my father who would say, ‘Shut up or dry it up or we’ll offer you some extra.’ My dad was sort of abusive, you recognize.”

Roberson was taken into custody inside hours of Nikki’s demise. He stays there greater than 21 years later.

I requested him how he felt about being convicted of shaking his daughter to demise.

“I might by no means take into consideration shaking her,” he replied. “And that’s God’s sincere fact. I don’t know what occurred to her, Mr Pilkington. I wouldn’t need that to be on no one: to lose a toddler, particularly in the event you tried to do proper and you really liked her and tried to get to know her, then to be accused.”

Roberson stated he knew nothing concerning the medical speculation that fueled his prosecution till lengthy after he was arrested. He examine it in a brochure somebody gave his mom.

“I’d by no means heard about shaken child in my life,” he stated.

•••

Shaken child syndrome (SBS) started life within the early Nineteen Seventies as a medical speculation for why some youngsters change into severely unwell, some fatally, displaying indicators of inner head trauma however little or no indicators of exterior trauma. One of many first to drift the thought was a British pediatric neurosurgeon, Norman Guthkelch, who in 1971 advised the trigger is perhaps violent shaking.

By the Eighties, SBS had developed into an in depth idea specializing in three signs, generally known as the triad, that it was believed may point out abusive shaking: bleeding between the tissue layers overlaying the mind, swelling on the mind, and bleeding behind the eyes. When that triad was seen, even with none outward signal of pressure, youngster abuse is perhaps behind it.

By the Nineties, a type of groupthink had crept in, medical practitioners firming up what had begun as a mere hunch into a proper analysis. The collective pondering now was that the place these three signs have been seen in younger youngsters, not solely may abusive shaking be presumed, it needed to be taken because the trigger.

In 2001, the American Academy of Pediatrics, the world’s main pediatric medical group, issued official steerage. It stated that the place a younger youngster had inner head accidents there was “the necessity for a presumption of kid abuse” – a categoric discovering that quickly grew to become medical, after which forensic dogma.

The dialog was about shaken child, so for me and my detectives that’s the route we have been going

Brian Wharton

So it was {that a} yr later, when Roberson introduced Nikki to ER, he was met by a cordon of medical workers skilled on this pondering, with detectives and prosecutors following their lead.

“After we bought to Palestine hospital, the dialog was about shaken child,” Wharton recalled, “so for me and my detectives that’s the route we have been going.”

The issue was that the presumption that the triad should be brought on by violent shaking had no scientific foundations. As a brand new ebook of essays, Shaken Child Syndrome, printed by Cambridge College Press and edited by outstanding scientists and legislation professors within the US, UK, Europe and Japan, factors out, shaking is basically a biomechanical subject pediatric medical doctors know little about.

One of many first biomechanical research to be carried out into SBS was performed in 1987, virtually 20 years after the speculation emerged. It discovered that violent shaking produces a pressure inside the pinnacle nicely under that concerned in influence accidents reminiscent of automotive crashes, and far weaker than youngster abuse specialists had assumed.

The brand new ebook’s conclusion is that fifty years after Guthkelch’s hunch, “this speculation nonetheless lacks a scientific proof base”.

In 1997, shaken child syndrome grew to become a world sensation with the televised trial of a British nanny, Louise Woodward, in Massachusetts. She was prosecuted following the demise of the eight-month-old in her care, Matthew Eappen.

Woodward was convicted of second-degree homicide and sentenced to life, later diminished to involuntary manslaughter and time served. Her trial was so high-profile that it delivered to public consideration critical doubts concerning the credibility of SBS raised by the nanny’s protection legal professional, the co-founder of the Innocence Undertaking, Barry Scheck.

Since Roberson was sentenced to demise in 2002, these doubts have steadily grown. Dr Patrick Barnes, a key prosecution witness within the Woodward trial, retracted his testimony and have become a vocal critic of the syndrome.

The trial of Louise Woodward, a British nanny within the US, delivered to public consideration critical doubts concerning the credibility of SBS. {Photograph}: Getty Photographs

Even Guthkelch, its creator, got here out in 2012 and stated his work had been distorted. He by no means meant, he stated, to counsel that the three signs might be assumed to be shaken child syndrome within the absence of every other proof of abuse.

“There was not a vestige of proof when the identify was advised that shaking, and nothing else, causes the triad,” he stated.

Over time these medical doubts have filtered via to the courtroom. Since 1993 there have been 32 exonerations within the US following SBS convictions, in response to the Nationwide Registry of Exonerations.

This week, an appeals court docket in New Jersey dominated that SBS was “junk science” and “scientifically unreliable” and couldn’t be utilized by prosecutors at trial.

In Ohio, Alan Butts was launched in December after 19 years in jail having been granted a brand new trial. His story is uncannily just like Roberson’s: he was accused of the “shaking child” demise of his girlfriend’s two-year-old son, Jadyn, in 2002, the yr Nikki died.

New proof confirmed Jadyn had pneumonia on the time of his demise – similar to Nikki. The toddler was on remedy not given to youngsters as a result of it will possibly trigger sudden demise – similar to Nikki.

Katherine Judson is a lawyer who has represented Butts for a number of years. She can be government director of the Heart for Integrity in Forensic Sciences, which has filed a short supporting Roberson in his supreme court docket petition.

In Judson’s view, the Butts and Roberson narratives are so remarkably akin that they supply a wonderful instance of “flukey justice”.

“You possibly can have the very same info in a unique jurisdiction,” she stated, “and one individual will get launched whereas the opposite individual languishes on demise row.”

•••

Lately, the Innocence Undertaking has change into more and more concerned in exposing junk science. The group has centered on a spread of forensic strategies that of their software have put harmless folks in danger.

They embrace bitemark evaluation, beneath which it was believed erroneously {that a} chew on a corpse’s pores and skin might be matched to a suspect’s dentition; hair microscopy, which claimed falsely {that a} single hair from against the law scene might be linked visually to a person; and fireplace science, which advised that evaluation of a burn sample may decide whether or not a hearth was arson – till it was found that intentional and unintended fires go away the identical imprints.

Associated: ‘Are you able to spell lynching?’: lawyer’s stunning observe in Texas execution case

The Innocence Undertaking has joined Roberson’s authorized staff. Vanessa Potkin, director of particular litigation, stated the group had determined to battle for the prisoner’s life as a result of “an harmless man is at critical threat of being executed”.

She added: “Like so many defective forensics which have performed a task within the nation’s exonerations, the proof upon which his conviction and demise sentence relaxation has been disproven for the reason that time of his trial.”

Paradoxically, Texas is a pacesetter in countering junk science. In 2013, the state launched a first-in-the-nation “junk science writ” that allowed prisoners – particularly these on demise row – to problem sentences on grounds of misused forensic science. It was beneath this legislation that in 2016 Sween saved Roberson from imminent demise by securing a keep of execution 4 days earlier than his scheduled deadly injection.

However the hope generated by the brand new junk science legislation in Texas has confirmed a chimera. There have been about 70 makes an attempt by demise row inmates to make the most of the legislation and of these the quantity which have obtained aid is zero.

Kosoul Chanthakoummane was a type of who appealed via the junk science legislation. He had been placed on demise row on the again of three various kinds of junk science: hypnosis of a witness to acquire identification, bitemark evaluation and a discredited type of DNA testimony.

In August 2022, Texas executed him anyway.

There’s a actual risk that that destiny now awaits Roberson. Having secured a keep of execution, he was granted an evidentiary listening to at his trial court docket. Sween introduced a mass of latest proof. Skilled witnesses have been referred to as to talk about the rising consensus that SBS is junk science.

The court docket heard that Nikki’s signs may all be defined by pure fairly than violent causes, together with her pneumonia and power sickness and the life-threatening remedy. It was additionally informed about Roberson’s autism, and the unfounded nature of the sexual assault allegation.

It was simply three phrases: shaken child syndrome. With out them, he could be a free man immediately.

Brian Wharton

Regardless of the voluminous testimony, a state decide denied the attraction. She stated shaken child syndrome remained an inexpensive analysis and that Roberson “failed to offer any newly found proof” undermining his conviction.

In January, the Texas court docket of legal appeals affirmed that call.

The state is now actively lobbying the supreme court docket justices to steer them to not take Roberson’s case. Its argument cites testimony from Teddie, Roberson’s estranged girlfriend, who stated he had a nasty mood and would yell at Nikki and hit her.

Roberson’s authorized staff counter that Teddie was not a reputable witness. Her personal sister testified for Roberson, insisting she had by no means seen him mistreat Nikki and telling the jury Teddie had an issue with telling the reality.

Brian Wharton, who after retiring from legislation enforcement retrained as a cleric and is now pastor of a United Methodist church located 10 miles away from demise row, testified on the junk science listening to. He informed the court docket that, drawing on his 14 years’ expertise as a police officer, he had come to the view that shaken child syndrome was a fallacy and that with out it there was no proof supporting Roberson’s demise sentence.

“What case would we’ve got been capable of make?” Wharton informed the Guardian. “There was no crime scene, no forensic proof. It was simply three phrases: shaken child syndrome. With out them, he could be a free man immediately.”

Roberson stated the worst a part of his battle to remain alive was not realizing. Will the supreme court docket take his petition, or will they not?

He has had so many knock-backs that he is aware of the worst may occur. However he says he’s prepared for no matter comes. He just lately participated within the first faith-based program on Texas’s demise row and stated it had deepened his non secular perception.

Roberson has a tattoo on his proper arm which he inked himself when he was nonetheless a toddler, aged 17. That was a few years earlier than he grew up and have become a father to Nikki.

“F T W,” it says.

The Guardian requested what it stood for. He replied: “Then? Or now?”

“Then it was ‘F The World’. That’s how I felt after I was a child. However I modified, and now it’s ‘Comply with The Means’.”

That might be his guiding star for no matter lies forward.

“I hope and pray that God offers them the data for the folks to make a righteous determination,” Roberson stated. “I do know I didn’t do it. I’m not responsible. So I’m at peace with the Lord.”

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