Man on death row for toddler's murder a victim of bad science, say his defenders

As It Happens7:13Retired detective works to free man he put on death row

Two decades ago, a Texas man was put on death row for the murder of his toddler. Now, the retired police detective who helped put him there is trying to save his life.

Robert Roberson, 56, of Palestine, Texas, was convicted in 2003 in the death of his two-year-old daughter, Nikki. Police and medical experts who testified against him said the child died from shaken baby syndrome, a fatal brain injury derived from violently shaking an infant.

But the science around this syndrome has evolved, and the way it's been employed in the courts has come under increased scrutiny. What's more, new evidence has emerged suggesting Nikki, in fact, died from illness.

Now Brian Wharton — who was the lead detective on the case, and testified against Roberson — is convinced he helped convict an innocent man.

"Regardless of how this ends, that will follow me for the rest of my life," Wharton told As It Happens host Nil Köksal. 

Fate in the hands of Texas governor

On Monday, the U.S. Supreme Court declined Roberson's petition to have his case re-examined. The court offered no explanation for its decision, which is standard procedure.

"We are devastated that the judicial system has so far failed to address this wrong considering the dramatic change in scientific understanding since he was summarily accused and convicted," Gretchen Sween, Roberson's lawyer, said in an email to CBC.

"The fight, however, will continue."

Roberson's only chance for freedom now is to be granted clemency by Texas Gov. Greg Abbott. 

"I refuse to give up on the notion that it's possible," Wharton said. "I've just not seen anything from this current state governance that would tend to indicate they are, in the least, inclined to mercy."

The governor's office did not respond to a request for comment. 

Sween says she's working with the Innocence Project, a non-profit dedicated to overturning wrongful conditions, "to shed light on this travesty of justice."

Undiagnosed autism

In February 2002, Roberson brought his daughter to the emergency room saying she'd fallen out of bed and lost consciousness. 

Pediatricians found evidence of brain swelling. Roberson was the only person with her when she lost consciousness, so he became the obvious suspect, Wharton said.

It didn't help that during questioning, Roberson behaved in a way officials found baffling, according to Wharton.

"He was just very flat," Wharton said. "He was not responding emotionally, as you would expect someone whose child was in such desperate straits to be responding."

Roberson has since been diagnosed with autism. Wharton believes his condition — unknown to jurors at the time — played a role in his conviction.

"I would imagine a jury looking at him and seeing him entirely unemotional during the process had to have some impact," he said. 

Changing ideas about shaken baby syndrome

Shaken baby syndrome, first identified in the '70s, is now more commonly referred to in medical circles as abusive head trauma or traumatic head injury due to child maltreatment.

At the time of Roberson's conviction, the diagnosis required three simultaneous criteria: bleeding over the brain, brain swelling, and bleeding in the eyes.

"That triad was taken to mean child abuse," said Dr. Roland Auer, a University of Saskatchewan professor of pathology and laboratory medicine who signed an amicus brief to the Supreme Court calling for a judicial review of Roberson's case.

But since then, several studies have cast doubt on the science behind this phenomenon. Leading experts remain strongly divided on how to define it, how to diagnose it, or whether it even exists.

More than 30 convictions related to the condition have been overturned in the U.S., according to the National Registry of Exoneration. Last month, an appeals court judge in New Jersey ruled that the theory was "junk science."

Scientists have identified several non-violent causes that could potentially cause the trio of symptoms linked to the syndrome, including short falls or underlying illnesses. 

Auer, who often testifies on behalf of the defence in criminal trials centred on shaken baby syndrome, reviewed Nikki's autopsy and medical records. He found that before she died, she'd been ill with a fever and had undiagnosed pneumonia.

That, he says, is what killed her.

"She was infected. So kids are infected and dying, and resuscitation produces haemorrhage, and parents are going to jail for it or being executed, as is Robert Roberson's predicament," he said. 

"I think a person's life is important enough to go to the Supreme Court and get it right. We've just got to get this right."

'Human systems are flawed systems'

As for Wharton, when he testified against Roberson in 2003, he says he was working with the best information he had available to him at the time.

"It doesn't release me from my complicity in the process, but I guess it allays it a little bit," he said.

"As a police officer, I was never one of those that was a fan of the death penalty because human systems are flawed systems. We're incapable of producing the kind of fairness that this final judgment requires."