PUBLISHER'S NOTE: Texas is in a rush to kill Robert Roberson, an innocent grieving father, (even though no crime has occurred) , on October 17. As the innocence Project has pointed out, the overwhelming medical and scientific evidence now shows that Nikki died of accidental and natural causes. The Innocent Project also notes that Mr. Roberson’s innocence case is attracting growing and widespread support from eminent scientists, doctors, faith leaders, innocence groups, former federal judges, best-selling novelist John Grisham, and the lead detective who testified for the prosecution, who now believes he contributed to an innocent person being sent to death row. I am grateful to D Magazine for publishing Grisham's commentary, which I believe is one of the most powerful and hopefully influential analysis of a wrongful conviction that I have yet to read.
Harold Levy: Publisher: The Charles Smith Blog.
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QUOTE OF THE DAY: "“I have come to believe that Nikki died of accidental and natural causes. I am convinced that she was not murdered. Roberson is innocent. There was no crime. I believe this because the ‘science’ that was used to obtain Roberson’s arrest and conviction has changed drastically since his arrest. We investigators found no sign of violence in the home where Nikki had collapsed, and she did not look like she had been beaten. But after a CAT scan of her head, we were given three words: ‘shaken baby syndrome.’ Those three words placed focus on Roberson to the exclusion of any other offender or potential cause of death. As an investigator, I deferred to the expert knowledge of a pediatrician and medical examiner in Dallas and followed their lead in explaining what then seemed inexplicable.”
Rev. Brian Wharton: The former detective who investigated Nikki’s death.
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COMMENTARY: "Will Texas kill this innocent man?, by John Grisham, published by D Magazine, on September 5, 2024. (John Grisham serves the boards of the Innocence Project and Centurion Ministries which help exonerate wrongfully convicted defendants, and also wrote The pelican Brief and The Firm, among other novels. (This story originally appeared in the September issue of D Magazine - a monthly publication published out of Dallas, Texas.)
GIST: "In 2006, I published The Innocent Man, a true story about the wrongful conviction and near execution of Ron Williamson.
Before then, I had never considered nonfiction—I was having too much fun with the novels—but Ron’s story captivated me.
From a pure storytelling point of view, it was irresistible, filled with tragedy, suffering, corruption, loss, near death, a measure of redemption, and an ending that cannot be considered happy but could have been much worse.
I discovered that every wrongful conviction deserves its own book.
The research and writing of The Innocent Man was my entry into the world of wrongful convictions. I
had rarely, if ever, thought about them before that.
I did not realize that there are thousands of innocent people in prison.
I joined the board of the Innocence Project and, later, the board of Centurion Ministries, two of the leading litigation and advocacy organizations in the country.
In another life, I practiced criminal law for 10 years in a small town in Mississippi.
I defended hundreds of clients whose crimes ranged from shoplifting to murder.
Most pled guilty and went to jail or prison.
Several were acquitted after arduous trials.
Never, not once, did I believe that a client was wrongfully convicted.
I knew the police officers, prosecutors, investigators, and everybody played by the rules, primarily because we had good judges who were committed to fair trials.
If I ever stopped to think about it, I’m sure I assumed that all criminal justice systems ran as smoothly as ours.
A wrong assumption. Terribly wrong. In Ada, Oklahoma, Ron Williamson was convicted of the rape and murder of a young woman he’d never met.
And now a case has emerged on Dallas’ doorstep that deserves the nation’s attention.
A man named Robert Roberson sits on death row, convicted of a crime that never occurred. His execution has been set for October 17.
Robert grew up poor in the rural East Texas town of Palestine, population 18,000.
His father was an abusive alcoholic who beat him often.
His mother tried to protect him, but nothing could shield him from his father’s rages.
He was a shy, sensitive boy who struggled in school because of significant speech delays.
He was tagged a “special needs” student, and this led to merciless bullying.
It wasn’t until decades later, and only after Robert was on death row, that he was diagnosed as autistic.
He dropped out of school after the ninth grade, started using drugs, and got addicted.
He tried to improve his life and kick the drugs by joining the Army, but with social challenges stemming from his autism, he was not cut out for life under drill sergeants.
His military career flamed out in short order.
At 19, he married Della, and they had two children, both with special needs.
When the marriage tanked, they agreed their kids should be raised by Robert’s mother, who was doing everything in her power to help her son and his two children.
He continued to battle drugs and spent a short time in prison.
Once paroled, he met Michelle, also from Palestine.
They were contemplating marriage when she ran off with another man.
Robert violated the terms of his parole by being “out of county” and was sent back to prison.
Michelle soon gave birth to Nikki in a Fort Worth hospital.
The baby was taken away by the state and placed with Michelle’s father and stepmother.
Later, Robert suspected he might be the father.
When Robert was released from prison, he returned to Palestine, determined to clean up his life and gain custody of his daughter.
He delivered newspapers for the Palestine Herald and, with the help of some friends, rented a small house.
He was soon having Nikki over for visits.
After he asked for a paternity test, which proved he was Nikki’s biological father, Michelle’s parents agreed he should be given custody.
He treasured his daughter and tried to provide stability.
She had his dark hair and blue eyes.
But Nikki was frequently sick throughout her short life. She had repeated chest colds and recurring ear infections.
She had spells during which she would stop breathing, but doctors could not diagnose the problem.
When Nikki was 27 months old, she was sick for a week with diarrhea, vomiting, and coughing.
Robert and his mother took her to an emergency room at a Palestine hospital.
A doctor prescribed potent drugs, including Phenergan, which now has an FDA black-box warning against prescribing it to children Nikki’s age and in her condition.
Later that night, Nikki’s temperature rose to 103.1 degrees. Robert took her to a pediatrician the next morning, who measured her temperature at 104.5.
The doctor sent her home with a second prescription for Phenergan and a cough syrup with codeine, an opioid the FDA now restricts for children under the age of 18 due to risks of inducing breathing difficulties or death.
Robert filled the prescriptions and took them to Nikki at her grandparents’ home, where she was to stay a couple of nights.
The following night, the grandparents called Robert and told him to come get his daughter because Nikki was ill.
At 10 PM, Robert picked up the sick, exhausted toddler, took her home, and put her to bed.
In the early morning of January 31, 2002, Robert heard a strange cry and awoke to find that Nikki had fallen out of her bed and lay on the floor.
He comforted her and put her back to bed.
They eventually went to sleep.
When Robert woke up, hours later, Nikki wasn’t breathing and her lips were blue.
He rushed her to the Palestine hospital, where the ER staff found her eyes “fixed and dilated,” a sign of brain death.
The staff worked to save her life, but she was essentially dead on arrival.
They noticed a bump on the back of Nikki’s head, but there were no other signs of significant external injury.
An ER doctor managed to restart Nikki’s heart and intubate her, and then he sent her to radiology.
A CT scan revealed internal bleeding under the subdural membrane on the back of her head.
The image also showed that her brain had swollen and shifted to one side, but there were no skull fractures, neck injuries, or broken bones.
The medical staff thought Robert acted suspiciously.
Nurses said he didn’t show the urgency they expected from a parent whose child wasn’t breathing.
Others said he showed no emotion during the crisis. At the time, no one knew he was autistic.
The swollen brain was presumed to be the result of head trauma. Nikki’s doctors thought she had been abused.
The nurses called the police.
A doctor arranged for Nikki to be sent to Children’s Medical Center in Dallas, a facility better equipped for such a gravely ill child.
In Dallas, Nikki was examined by Dr. Janet Squires, the child abuse expert at the hospital.
More CT scans revealed a triad of internal head conditions: subdural bleeding, brain swelling, and retinal hemorrhages.
She was soon taken off life support and pronounced dead.
In an affidavit prepared that same day, Squires said that Nikki’s grandparents had reported that she had been “totally well” when Robert got her the night before her collapse.
She found that the only reasonable explanation for Nikki’s condition was trauma and that the medical findings fit a picture of a shaken impact syndrome.
Squires swore in her affidavit that there was “some flinging or shaking component which resulted in subdural hemorrhaging and diffuse brain injury.”
Squires reached her conclusion about “shaken baby” as the cause of death before the autopsy was even performed.
She reached her conclusion, in part, because she had been told that Nikki had been “totally well” before her collapse.
Yet this was a far cry from the truth.
Relying solely on Squires’ affidavit, detective Brian Wharton, of the Palestine Police Department, authorized Robert’s arrest. He was charged with capital murder.
The idea that shaking might explain the mystifying deaths of some infants was a hypothesis first proposed by British neurosurgeon Dr. Norman Guthkelch in the early 1970s.
He and others theorized that shaking might explain symptoms observed in infants who otherwise had no significant external signs of injury, such as subdural hematoma, that is, bleeding under the thin dura membrane covering the brain.
These shaking hypotheses suggested that a triad of internal symptoms—bleeding under the dura, brain swelling, and retinal hemorrhages—could be used to diagnose abuse.
Although shaken baby syndrome, or SBS, was never grounded in real science, that did not stop its proponents from turning a theory into fact, and SBS, and then “abusive head trauma,” became gospel.
And then the application of these theories gradually expanded, as the SBS hypothesis was used to explain the deaths of older and older children.
By 2001, the American Academy of Pediatrics (AAP), the leading organization of pediatricians, alerted its members that violent shaking was not only a form of child abuse but could be diagnosed whenever the triad of internal head conditions was observed.
For decades, doctors across the world testified with absolute certainty that unless a child with the triad had suffered a highspeed collision—think violent auto accident or fall from a second-floor window—only shaking or some other violent inflicted head trauma could explain their injuries.
SBS experts insisted in court that short falls could not kill a child.
Even children with documented illnesses—premature birth with complications, infection histories, bleeding disorders—were considered abused if they suffered from the triad of bleeding under the dura, brain swelling, and retinal hemorrhages.
It did not matter if the child’s body was completely free of marks or other signs of possible abuse when the child went into distress.
And shaking experts dismissed as heretics a growing chorus of doctors and other scientists who were beginning to question the foundational evidence for SBS and its related hypotheses.
There is nothing else like “shaken baby” in the medical profession.
No other diagnosis presumes a crime.
As it gained acceptance, aggressive prosecutors embraced it to convict parents and caregivers using compelling testimony from credible pediatricians and scientists.
The tide is finally turning.
Over the past 15 years, a growing body of science, in a range of fields, has eroded the notion that SBS amounts to evidence-based science.
The results of these painstaking research efforts demonstrate that many natural diseases and conditions can cause the triad that formed the hallmarks of the SBS hypothesis.
Studies have shown that oxygen deprivation from infections, like the pneumonia Nikki had, can cause bleeding inside the skull and the eyes.
Clotting disorders, like Nikki had, can cause bruising.
And documented cases exist of children dying after accidental short falls from just a couple of feet.
Yet countless parents and caregivers, like Robert Roberson, have been convicted using the debunked premises.
According to the National Registry of Exonerations, at least 32 parents and caregivers in 18 states have been exonerated; others have been granted new trials after being wrongfully convicted under the SBS hypothesis.
It is not clear how many still languish in prisons.
Robert, however, is poised to be the first person executed in the United States because of an SBS prosecution.
Before his own death, Guthkelch, one of the first to propose the SBS hypothesis, did all he could to renounce it.
In 2012, he concluded that the hypothesis simply had not been proven, and he became distressed at the aggressive misuse of his work by American prosecutors.
He said, “While society is rightfully shocked by any assault on its weakest members … , there seem to have been instances in which both medical science and the law have gone too far in hypothesizing and criminalizing alleged acts of violence in which the only evidence has been the presence of the classic triad … . I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent people.”
Robert is one of those innocent people.
At his trial, he didn’t stand a chance. Over and over, from jury selection through the closing arguments, the premises of SBS, along with graphic descriptions of imagined shaking and multiple impacts, were presented to the jury as established science.
The jury was told that violent shaking, combined with blunt impact, was the only way to explain how Nikki had died.
Even Robert’s appointed defense lawyer agreed that this was a “classic shaken baby case,” despite Robert’s adamant insistence that he had done nothing to hurt his child.
He rejected multiple offers to plead guilty that would have allowed him to avoid a death sentence.
The absolute low point in the trial happened when an ER nurse told the jury that she had noticed chafed skin, which she described as “anal tears,” clear evidence, at least in the nurse’s opinion, that the child had been sexually abused.
There was no other evidence of this.
The doctors who pronounced her dead noticed nothing of the kind.
The autopsy didn’t mention anything remotely linked to sexual abuse.
When Robert’s defense lawyers objected loudly, the prosecutor agreed to drop the sex charge at the end of the trial.
However, he continued to refer to the sex abuse in his closing argument.
The jury was left with the clear and overwhelming belief that Robert had molested his daughter.
Squires testified for the prosecution and told the jury, consistent with the prevailing view in the medical community, that whenever a child presented with the triad of symptoms, the child must have been the victim of either violent shaking alone or shaking with impact.
Whoever had been caring for the child must be the culprit.
The prosecution witnesses also insisted that no disease or accident could explain Nikki’s death.
However, since then, empirical research has demonstrated that a host of naturally occurring diseases, including pneumonia, as well as short falls with head impact, can cause the same triad of internal head conditions.
Today it is universally accepted that the presence of the triad cannot prove that abuse occurred.
But in 2003, this faulty science convicted Robert and sent him to death row.
What caused Nikki’s death?
Beginning in 2016, experts working with Robert’s defense team reexamined the autopsy evidence and applied evidence-based medicine.
Multiple experts—two forensic pathologists, a pediatric forensic pathologist, and a neuropathologist—all reexamined the autopsy file and concluded that Nikki’s death was definitely not a homicide but a result of natural and accidental factors.
But in response to resistance from the medical examiner who performed the autopsy in 2002, a lung pathologist with decades of experience was brought in to examine the tissue slides from the autopsy.
That pathologist has recently found that Nikki’s lung tissue showed overwhelming indications of severe, undiagnosed viral pneumonia called interstitial viral pneumonia.
That is what caused Nikki’s death—not any abuse.
The pathologist, the only lung expert to evaluate Nikki’s autopsy results, found the cell walls deep in Nikki’s lungs were so thickened with infection that oxygen couldn’t pass through the walls, into Nikki’s bloodstream.
He says that Nikki’s pattern of pneumonia required weeks or longer to develop.
A defense expert medical toxicologist, the only expert in the drugs found in Nikki’s postautopsy toxicology report, has concluded that she had dangerously high levels of Phenergan in her system that far exceeded the therapeutic dosage at the time.
Two doctors treating Nikki for her severe respiratory infection during the week before she died had prescribed Phenergan to Nikki, and the second prescription also contained codeine.
Phenergan and codeine are no longer prescribed to kids like Nikki because these drugs can compromise a child’s ability to breathe.
They also make kids dizzy, which is likely why she tumbled out of bed, hit her head, and then later stopped breathing in her sleep.
Finally, a defense pediatric radiologist, the only radiologist to examine Nikki’s X-rays and CT scans since the CT scans were discovered in a courthouse basement closet in 2018, has concluded that Nikki’s initial head CT scans, taken after her father brought her to the hospital the day before she died, showed only a single impact site on her skull, not the multiple impact sites that the medical examiner reported after Nikki died.
And the pediatric radiologist found that a series of chest X-rays of Nikki’s lungs, taken by hospital staff over the two days before Nikki died, showed her lungs getting worse over the two days.
These expert reports prove that Nikki’s infected lungs couldn’t get oxygen into her bloodstream, which starved her brain of oxygen.
Without oxygen, brain death occurs in 10 to 12 minutes. ER doctors resuscitated her heart, but with her brain having shut down, blood being pumped by the heart couldn’t enter her brain.
Severe infections, such as Nikki’s, can lead vessels to leak blood, which can cause bruising and bleeding anywhere in the body.
Squires and the medical examiner who performed the autopsy mistook these tragic consequences of Nikki’s fatal pneumonia as signs that she had been shaken, beaten, or both.
The Dallas County medical examiner ruled her death a homicide, when the truth is that Nikki died of fatal pneumonia.
Brian Wharton is the former detective who investigated Nikki’s death.
When he was convinced it was murder, he arrested Robert and testified against him at trial.
But he was troubled by the case for years.
He left law enforcement, entered seminary, and became a Methodist minister.
When Robert’s legal team reached out to Wharton, he acknowledged that he had long been haunted by this case.
He had been following critiques of the shaken baby hypothesis and reviewing legal updates, hoping for some reversal in the courts.
He is now entirely convinced that Robert is innocent.
And Rev. Wharton has been speaking out.
He recently published an op-ed in the Dallas Morning News urging the public to see what he sees: that he and others got it wrong.
He wrote: “I have come to believe that Nikki died of accidental and natural causes. I am convinced that she was not murdered. Roberson is innocent. There was no crime. I believe this because the ‘science’ that was used to obtain Roberson’s arrest and conviction has changed drastically since his arrest. We investigators found no sign of violence in the home where Nikki had collapsed, and she did not look like she had been beaten. But after a CAT scan of her head, we were given three words: ‘shaken baby syndrome.’ Those three words placed focus on Roberson to the exclusion of any other offender or potential cause of death. As an investigator, I deferred to the expert knowledge of a pediatrician and medical examiner in Dallas and followed their lead in explaining what then seemed inexplicable.”
I suspect that, for a parent, nothing could be worse than losing a child—except for being falsely accused of causing the child’s death because your disability makes you show your emotions in non-neurotypical ways.
And then to be prosecuted and sentenced to death under a now-discredited pseudoscience is unfathomable.
I believe that Robert Roberson is innocent because the evidence developed in recent proceedings, but so far disregarded by the Texas courts, suggests that no crime occurred.
An impaired man has been condemned because he could not explain his daughter’s complex medical situation when he brought her to a hospital.
But even the medical professionals at the time could not understand what had happened to her—and are still struggling to understand.
Doctors practicing medicine, as opposed to doctors working in labs as scientists, have been misled for decades about the “shaken baby” hypothesis, which had no scientific foundation at the outset and has been called into doubt in more recent years by actual scientific study.
I, like former detective Brian Wharton, feel compelled to speak out before Texas again commits the heinous crime of executing an innocent man.""
The entire commentary can be read at:
https://www.dmagazine.com/publications/d-magazine/2024/september/will-texas-kill-this-innocent-man/
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
- SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
