Robert Roberson: Death Row; Texas: Major (Most Unusual) development: CNN reports that his, execution scheduled for today, is now in question; He has been called to testify before a state committee. Link Below:…“This extraordinary and unprecedented maneuver reflects how seriously Texas legislators have evaluated the concerns in Mr. Roberson’s case,” Robin Maher, executive director of the Death Penalty Information Center, told CNN of the decision. “They are also sending an urgent, public message to Governor (Greg) Abbott that they, like so many others, do not believe Mr. Roberson should be executed.”

 

LINK TO CNN STORY: October 17, 2024. Reporters Dakin Andone, Ed Lavender and Ashley Killough;

 https://www.cnn.com/2024/10/17/us/robert-roberson-texas-execution-lawfulness/index.html

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GIST: "Barring intervention by the courts or the governor, Texas on Thursday is scheduled to execute death row inmate Robert Roberson, who claims he was wrongfully convicted of abusing his 2-year-old daughter until she died.

But the status of the execution process is now unclear after an extraordinary decision by a Texas House committee Wednesday night to subpoena Roberson to testify as it reconsiders the lawfulness of his conviction.

“This extraordinary and unprecedented maneuver reflects how seriously Texas legislators have evaluated the concerns in Mr. Roberson’s case,” Robin Maher, executive director of the Death Penalty Information Center, told CNN of the decision. “They are also sending an urgent, public message to Governor (Greg) Abbott that they, like so many others, do not believe Mr. Roberson should be executed.”

The Texas Department of Criminal Justice has not announced whether Roberson’s execution will be delayed due to the subpoena from the Texas Committee on Criminal Jurisprudence, which calls for Roberson to testify October 21. The department said Wednesday night that it was discussing “appropriate next steps” with the state attorney general’s office.

If he’s put to death, Roberson’s attorneys say he would be the first person in the US executed for a conviction that relied on an allegation of shaken baby syndrome, a misdiagnosis in Roberson’s case, they argue, and one they say has been discredited.

While child abuse pediatricians fiercely defend the legitimacy of the diagnosis, Roberson’s advocates say the courts have yet to consider ample evidence his daughter, Nikki Curtis, died not of a homicide, but a variety of causes, including an illness and medicine now seen as unfit for such a sickly child.

The pleas of Roberson’s many supporters have so far done nothing to halt the march toward his execution and his conviction has until now been upheld on appeal.

But his attorneys continue to try to make their case in the courts: They’ve filed a request for a stay of execution with the US Supreme Court, arguing his due process rights were violated when the Texas Court of Criminal Appeals declined to consider additional evidence the inmate says would support his innocence claim.

Texas urged the Supreme Court in a filing Wednesday evening to deny Roberson’s emergency appeal, claiming that the arguments he has raised are “unworthy of the court’s attention.”

The courts, Texas officials said, “gave Roberson the means and the opportunity to make claims, marshal evidence in support of his cause, and address the adverse evidence adduced against him.” Just because Roberson was denied, the state officials told the Supreme Court, “does not mean that he was denied notice or an opportunity to be heard.”

“The record shows that the state habeas proceedings adequately complied with due process,” Texas told the Supreme Court in its brief.

Earlier Wednesday, the Texas Board of Pardons and Paroles declined to recommend clemency after his attorneys requested his death sentence be commuted to a lesser penalty – or that the inmate be granted a 180-day reprieve to allow time for his appeals to be argued in court.

Without the recommendation of the parole board, Abbott, the GOP governor, is limited to issuing a one-time, 30-day delay of the execution to allow court appeals to play out. CNN has reached out to Abbott’s office for comment.

Roberson’s innocence claim underscores an inherent risk of capital punishment: A potentially innocent person could be put to death. At least 200 people – including 18 in Texas – have been exonerated since 1973 after being convicted and sentenced to die, according to the Death Penalty Information Center.

‘I am ashamed,’ former detective says

At the time of her death, Nikki had double pneumonia that had progressed to sepsis, they say, and she had been prescribed two medications now seen as inappropriate for children that would have further hindered her ability to breathe. Additionally, the night before Roberson brought her to a Palestine, Texas, emergency room, she had fallen off a bed – and was particularly vulnerable given her illness, Roberson’s attorneys say, pointing to all these factors as explanations for her condition.

Other factors, too, contributed to his conviction, they argue: Doctors treating Nikki “presumed” abuse based on her symptoms and common thinking at the time of her death without exploring her recent medical history, the inmate’s attorneys claim. And his behavior in the emergency room – viewed as uncaring by doctors, nurses and the police, who believed it a sign of his guilt – was actually a manifestation of autism spectrum disorder, which went undiagnosed until 2018.

“I told my wife last week that I’m ashamed. I’m ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice,” Brian Wharton, the former detective who oversaw the investigation into Nikki’s death, told state lawmakers Wednesday at a hearing featuring the case.

“He’s an innocent man, and we are very close to killing him for something he did not do,” said Wharton.

Wharton is perhaps – alongside Roberson’s attorney, Gretchen Sween – the inmate’s most vocal advocate. On Tuesday, the detective turned Methodist pastor learned the inmate had included him on his list of witnesses should the execution proceed.

“There’s a part of me that wants to just run away from that. I don’t want to be there, I don’t want to watch it happen,” Wharton told CNN. “But it is, again, it’s a moment that I owe him. If he’s asked me to be there, I owe him that much.”

State lawmakers lobby for a stay

Wharton is now one of many supporters of Roberson: More than 30 scientists and medical experts who agree with the doctors cited by the inmate’s attorneys, a bipartisan group of more than 80 Texas legislators, autism advocacy groups and author John Grisham have all called for mercy, a fervent movement that mounted strong opposition to the execution in recent days.

Support in the legislature includes members of the Texas Committee on Criminal Jurisprudence, which on Wednesday held a hearing highlighting Roberson’s case, calling Wharton, Sween and others who gave voice to the doubts surrounding the shaken baby syndrome diagnosis.

The hearing was ostensibly about Texas Article 11.073, a state law commonly referred to as the “junk science writ,” which was meant to give defendants a way to challenge their convictions when there was new scientific evidence unavailable at the time of their trial.

The committee voted Wednesday to subpoena Roberson, calling on him in the motion to “provide all relevant testimony and information concerning the committee’s inquiry.” Though the committee is not totally confident that Roberson’s execution will be delayed, they are hopeful, a source with knowledge of the proceedings told CNN.

Last week, the appeals court ordered a new trial for a man sentenced to 35 years in prison for his conviction of injury to a child in a case that also relied on a shaken baby syndrome argument.

Roberson’s supporters believe he, too, should benefit from this law, which “was meant exactly for cases like this one,” the committee said in a letter brief to the Texas Court of Criminal Appeals.

The committee asked for a stay of execution in Roberson’s case while the legislature considered making changes to it in the coming legislative session. But the appeals court denied Roberson’s latest appeal on Wednesday, rejecting it on procedural grounds “without reviewing the merits of the claims raised.”

GOP state Rep. Jeff Leach, a member of the committee, expressed hope the governor and parole board were listening to the hearing, “because the law that the legislature passed and our governor signed into law is being ignored by our courts, and all we’re seeking to do here is to push the pause button to make sure that it’s enforced.”

Diagnosis focus of courtroom debate

Roberson’s attorneys are not disputing babies can and do die from being shaken. But they contend more benign explanations, including illness, can mimic the symptoms of shaking, and those alternative explanations should be ruled out before a medical expert testifies with certainty the cause of death was abuse.

Shaken baby syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and supported by child abuse pediatricians who spoke with CNN. The condition, first described in the mid-1970s, has for the past 15 or so years been considered a type of “abusive head trauma” – a broader term used to reflect actions other than shaking, like an impact to a child’s head.

Criminal defense lawyers also have oversimplified how doctors diagnose abusive head trauma, child abuse pediatricians say, noting many factors are considered to determine it.

Still, the diagnosis has been the focus of debates in courtrooms across the country. Since 1992, courts in at least 17 states and the US Army have exonerated 32 people convicted in shaken baby syndrome cases, according to the National Registry of Exonerations.

Child abuse pediatricians such as Dr. Antoinette Laskey, chair of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, dispute these statistics. She pointed to a 2021 paper that found just 3% of all convictions in shaken baby syndrome cases between 2008 and 2018 were overturned, and only 1% of them were overturned because of medical evidence. The thoroughness of that study, however, has been called into question.

“I don’t know what to say about the legal controversy,” Laskey told CNN of the courtroom debate (She did not speak to Roberson’s case). “This is real, it affects children, it affects families … I want to help children; I don’t want to diagnose abuse: That’s a bad day.""

The entire story can be read at: 

 https://www.cnn.com/2024/10/17/us/robert-roberson-texas-execution-lawfulness/index.html

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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
  
  ———————————————————————————————
  
  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;

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Robert Roberson: Death Row; Texas; As the clock ticks, Investigative Journalist Radley Balko provides a valuable perspective on the glaring flaws in America's criminal justice and political systems that led this innocent man to death row…"The DNA technology revolution of the 1990s allowed us to start learning the “ground truth” in cases in which testable biological material was determinative of guilt. The results were sobering. In about 1 in 4 of the resulting wave of DNA exonerations, forensic evidence contributed to wrongful convictions. We learned that entire fields of forensics, like hair and fiber analysis, bite mark analysis and other “pattern matching” specialties, weren’t nearly as foolproof as practitioners had claimed. DNA has now cleared more than 200 people who had once been sentenced to death, and by one estimate, as many as 4% of death row prisoners may be innocent."

PASSAGE ONE OF THE DAY: "DNA testing should have provided a wakeup call that our method of evaluating the reliability of expertise in criminal trials was irredeemably flawed.  The wave of exonerations should have prompted not just a review of every forensic specialty that had contributed to a wrongful conviction, but also a review of the process by which the courts decide what expertise is scientifically sound enough for juries to consider. Instead, relief came only to those prisoners in the very small subset of cases for which DNA testing could be determinative of guilt — and who were also fortunate enough to find pro bono attorneys or nonprofit groups like the Innocence Project to test DNA evidence. Most of the rest were out of luck. If Robert Roberson had been convicted in New Jersey or Michigan, his conviction would most likely have been overturned by now. That’s because, incredibly, even as DNA began to demonstrate just how badly flawed the system really is in the 1990s, state legislatures began passing laws making it much more difficult for prisoners to get courts to reopen their cases, and Congress passed a law making it nearly impossible for federal courts to review state convictions."

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PASSAGE TWO OF THE DAY:  "In other dubious areas of forensics, the courts have been even slower to respond. To date, every scientific study of bite mark analysis has found there is no scientific validity to the idea that marks in human skin can be matched to the teeth of one person. Yet to date, only a couple of appellate courts have granted prisoners’ requests to overturn convictions based on testimony from bite mark experts. Studies have also consistently shown that forensic firearms analysts — the people who match particular bullets to particular guns — have shockingly high error rates when given competency tests. Yet only a few courts have put restrictions on how those experts testify. Texas was supposed to be different. "

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PASSAGE THREE OF THE DAY: "The alarm bells set off by DNA testing should have prompted massive, comprehensive reviews of tens of thousands of cases. Instead, it has been left to the comparatively small staffs of law school clinics, Innocence Projects and pro bono attorneys to correct these injustices. That Texas — one of the few states whose lawmakers took forensic junk science seriously — is nevertheless on the cusp of executing a man who is most likely innocent, based on a diagnosis that has been largely disproven, speaks volumes about our failure to heed the DNA call to action."

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COMMENTARY: "Junk science is about to put a person to death,"by  Investigative Journalist Radley Balko, published by  MSBC, on October 17m 2024.

SUB-HEADING: But the shaken baby syndrome that got him convicted of murder is based on dubious science.

GIST: "Barring an unlikely intervention from an appeals court or the governor, Texas will execute Robert Roberson on Thursday.

 Roberson was convicted in 2002 of killing his 2-year-old daughter in most part because of a diagnosis of shaken baby syndrome (SBS), which posits that only intensely vigorous shaking can produce three particular symptoms in young children — bleeding in the retina, brain disorder and bleeding in the brain. 

The diagnosis also suggests these injuries could have been inflicted only shortly before death. 

It’s a convenient diagnosis for prosecutors, because it provides motive (the “vigorous” shaking implies anger at the child), cause of death (vigorous shaking), manner of death (homicide) and a suspect (the caretaker who was with the child while the child was still alive). on the A

The problem is that numerous experts and studies have since found that these symptoms can occur in children who haven’t been shaken. 

They can occur after short falls, for example, or they can be produced by a number of medical conditions. Roberson’s attorneys argue that his daughter had such a medical condition — sepsis, brought on by a bout with pneumonia. 

The Texas Court of Criminal Appeals, which has rejected Roberson’s petitions, recently granted a petition filed by another prisoner also convicted under an SBS diagnosis, and, in fact, the same expert witness testified for the state in both cases.

The problem is that numerous experts and studies have since found that these symptoms can occur in children who haven’t been shaken.

The DNA technology revolution of the 1990s allowed us to start learning the “ground truth” in cases in which testable biological material was determinative of guilt. 

The results were sobering. In about 1 in 4 of the resulting wave of DNA exonerations, forensic evidence contributed to wrongful convictions. 

We learned that entire fields of forensics, like hair and fiber analysis, bite mark analysis and other “pattern matching” specialties, weren’t nearly as foolproof as practitioners had claimed.

 DNA has now cleared more than 200 people who had once been sentenced to death, and by one estimate, as many as 4% of death row prisoners may be innocent.

In Mississippi, for example, the bite mark charlatanism of Michael West and Stephen Hayne resulted in the wrongful conviction of Levon Brooks for the murder of a young girl. 

Brooks’ conviction allowed the killer to remain free to kill again, after which Hayne and West helped prosecutors win a second wrongful conviction, that of Kennedy Brewer, who was sentenced to death. 

DNA testing exonerated Brewer in 2000, but his prosecutor argued to the courts that West’s bite mark identification meant Brewer must have bitten the victim, even if someone else had raped her.

 Brewer remained in prison eight more years before the state found a match in a criminal database for both crimes. That man confessed, and Brewer and Brooks were released.

According to the National Database of Exonerations, at least 23 people convicted with bite mark evidence have been exonerated

. At least 29 exonerees were convicted with disproven arson expertise, and at least 35 were cleared after being convicted with SBS evidence. 

Overall, more than 1,000 people convicted at least partly because of faulty forensic evidence have been exonerated.

DNA testing should have provided a wakeup call that our method of evaluating the reliability of expertise in criminal trials was irredeemably flawed. 

The wave of exonerations should have prompted not just a review of every forensic specialty that had contributed to a wrongful conviction, but also a review of the process by which the courts decide what expertise is scientifically sound enough for juries to consider. 

Instead, relief came only to those prisoners in the very small subset of cases for which DNA testing could be determinative of guilt — and who were also fortunate enough to find pro bono attorneys or nonprofit groups like the Innocence Project to test DNA evidence. Most of the rest were out of luck.

If Robert Roberson had been convicted in New Jersey or Michigan, his conviction would most likely have been overturned by now.

That’s because, incredibly, even as DNA began to demonstrate just how badly flawed the system really is in the 1990s, state legislatures began passing laws making it much more difficult for prisoners to get courts to reopen their cases, and Congress passed a law making it nearly impossible for federal courts to review state convictions.  

The result has been a patchwork of laws that treat the wrongly convicted very differently depending on the states in which they were convicted.

 If Robert Roberson had been convicted in New Jersey or Michigan, for example, his conviction would most likely have been overturned by now. Both states’ supreme courts have thrown out convictions based on SBS.

In other dubious areas of forensics, the courts have been even slower to respond. To date, every scientific study of bite mark analysis has found there is no scientific validity to the idea that marks in human skin can be matched to the teeth of one person. Yet to date, only a couple of appellate courts have granted prisoners’ requests to overturn convictions based on testimony from bite mark experts. Studies have also consistently shown that forensic firearms analysts — the people who match particular bullets to particular guns — have shockingly high error rates when given competency tests. Yet only a few courts have put restrictions on how those experts testify.

Texas was supposed to be different. It has been 15 years since a groundbreaking investigation in The New Yorker brought widespread attention to the case of Cameron Todd Willingham, a man executed by Texas in 2004 who was most likely innocent. He was convicted based on discredited arson “science.” In response to the revelations in Willingham’s case, the state passed a “junk science writ” — a way for prisoners who have exhausted their appeals to get around restrictions that make it so difficult to reopen cases. But the writ has largely failed, mostly because the state’s appellate court judges haven’t been receptive to arguments about bad forensics. 

The alarm bells set off by DNA testing should have prompted massive, comprehensive reviews of tens of thousands of cases. Instead, it has been left to the comparatively small staffs of law school clinics, Innocence Projects and pro bono attorneys to correct these injustices. That Texas — one of the few states whose lawmakers took forensic junk science seriously — is nevertheless on the cusp of executing a man who is most likely innocent, based on a diagnosis that has been largely disproven, speaks volumes about our failure to heed the DNA call to action.

When pressed as to why they’ve refused to order comprehensive investigations — whether into suspect forensic fields like firearms analysis or fiber analysis or after revelations about corrupt analysts in places like Mississippi and Virginia — state officials have cited the importance of maintaining the integrity of the system and likened such investigations to “opening Pandora’s Box.” 

It’s a revealing excuse. It isn’t something you say when you’re confident that the system is fair. It’s what you say when you’re worried about what a comprehensive investigation might reveal — when you’re more worried about the perception that the system has integrity than the actual integrity of the system. 

Whatever that is, it isn’t justice.

Radley Balko

Radley Balko is a writer and investigative journalist who publishes the newsletter 

https://www.msnbc.com/opinion/msnbc-opinion/robert-roberson-texas-execution-junk-science-shaken-baby-syndrome-rcna175761

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
  
  ———————————————————————————————
  
  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;
  
  —————————————————————————————————
  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;

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