A medical expert’s testimony on Shaken Baby Syndrome (SBS) in a 2003 capital murder trial in Texas and the state’s “junk science” law have played a prominent role in legal maneuvers to stop a scheduled execution.
Robert L. Roberson, age 58, received the death penalty for the capital murder of his two-year-old daughter, Nikki Curtis, and was scheduled for execution on October 17. The Texas Supreme Court temporarily halted Roberson’s execution after the Texas House Criminal Jurisprudence Committee subpoenaed him to testify.
On November 15, the court rejected a petition from the committee to delay the execution until after the next Regular Session of the State Legislature begins in January.
The delay would allow the lawmakers to consider legislation that would require a new trial in such cases, the petition said. The court noted there is ample time for the committee to hear Roberson’s testimony, as a new execution date will not be set for at least 90 days after the original date.
Diagnostic Controversy
Roberson’s 2003 trial included testimony by a medical expert who diagnosed Curtis’s death as a case of SBS, based on medical imaging at the hospital where she died.
SBS is a diagnosis proposed by the pediatric radiologist John Caffey, M.D. in the early 1970s to account for specific symptoms in the absence of external evidence of injury in infants. The diagnostic protocol identifies three symptoms: subdural bleeding, brain swelling, and retinal hemorrhages.
By the 1990s, law enforcement and medical professionals were taught to look for signs of SBS in cases of injured infants, which could trigger police investigations leading to criminal prosecution.
Symptoms Needed
There is little scientific evidence for SBS, says pediatric radiologist Julie Mack, M.D., who discussed the Roberson case in a Cato Institute webinar on October 2.
“Dr. John Caffey wrote that subdural bleeding in the absence of external evidence of trauma is an extraordinary diagnostic contradiction, and in an effort to resolve the paradox he published an idea called the whiplash shaking infant syndrome,” Mack told the audience.
“The problem is when you examine the anatomy of the dura, there is no paradox: bleeding can occur around the brain in the dura without trauma,” said Mack.
SBS due to child abuse is an accepted medical diagnosis, and physicians should look for symptoms, according to the National Institute of Neurological Disorders and Stroke.
Junk Science Accusation
Over the past three decades, thousands of convictions for child abuse and murder have been based on SBS diagnoses, according to the Innocence Project (IP), a legal advocacy group. The convictions of several individuals were overturned after appeals showed the alleged injuries could have other causes, such as chronic or acute illness or previous, undiagnosed traumatic injuries.
Roberson’s attorneys contend Curtis died of complications of severe pneumonia and there was no child abuse.
On October 10, 2024, the Texas Court of Criminal Appeals (TCCA), which is coequal with the state Supreme Court, rejected Roberson’s petition for a new trial based on Texas’ 2013 “junk science” law, which allows prisoners to appeal convictions by showing new scientific evidence or changes in forensic science would have led to a different outcome.
Other Evidence
Evidentiary hearings in the Roberson case in 2018 and 2021 produced “mountains of evidence” the TCCA has ignored, the IP says.
“But even if we set to one side—for the moment—the evidence of shaking, the evidence also showed multiple impacts to Nikki’s head,” wrote Criminal Appeals Court Judge Kevin Yeary in a concurring opinion. “At trial, Dr. Jill Urban [the medical examiner] testified that she was confident, given the separate areas of dense hemorrhage in different areas of the head, that there were ‘multiple blows to different points on the head.’ Urban concluded the victim died as a result of ‘blunt force head injuries.’”
A 2006 murder conviction in another SBS case was overturned by the Michigan Supreme Court in July. In a Texas conviction for nonlethal injury of a child that was based solely on an SBS diagnosis, the TCCA granted a new trial to Robert Roark on October 9. Dallas County District Attorney John Creuzot announced on November 18 he would not retry the case.
Law Requires Second Opinions
Texas state Rep. Stephanie Klick (R-District 91), a registered nurse, told Health Care News expert testimony on SBS played a prominent role in the Roberson case and other child-abuse convictions.
“A lot of these convictions are based on the testimony of certified child abuse pediatricians, of which there are about 25 in Texas,” said Klick.
Numerous parents have lost custody of their children because of incorrect diagnoses of SBS or other child abuse by physicians, says Klick.
“In one case in which I was involved, a couple lost custody of their child based on a shaken baby diagnosis when they took their child to an emergency room five days after a traumatic birth with neurological problems,” said Klick. “It took them a year to get her back.”
Klick cosponsored a bill, which was enacted in 2023, that requires a second medical opinion before the state can remove children from parents suspected of child abuse.
Joe Barnett (JoePaulBarnett@att.net) writes from Arlington, Texas.