Robert Roberson legal team asks Court of Criminal Appeals for new trial in death penalty case

Apr. 27—The legal team for death-row inmate Robert Roberson is asking the Court of Criminal Appeals to give him a new trial.

The defense argues the science on which the conviction was based is flawed, that the lead detective in the case has now come to believe in Roberson's innocence, and that Texas has already granted new trials in similar cases.

Roberson was convicted of capital murder and sentenced to death in 2003 in Anderson County for killing his two-year-old daughter, Nikki Curtis. He has long maintained he does not understand what happened to his daughter and that he had no intent to harm her or cause her death.

The Court of Criminal Appeals stayed a 2016 execution and sent Roberson's case back to the trial court to consider the merits of four distinct claims, including a "junk science" claim.

An evidentiary hearing initially began in August 2018 but was continued after the District Clerk found a box of 15-year old evidence, including lost CAT scans of Curtis in the Anderson County Courthouse basement.

That hearing was finally conducted in 2021. District Court Judge Deborah Evans then made a recommendation that was sent back to the Texas Court of Appeals to determine whether Roberson would receive a new trial. In January 2023, the Texas Criminal Court of Appeals upheld the death penalty based on the findings from that new hearing.

'Debunked'

This week, Gretchen Sween, Roberson's attorney, asked the court to reconsider its decision in 2023 "based on the showing that his conviction was based on the debunked Shaken Baby Syndrome/Abusive Head Trauma hypothesis used to convict him in 2003."

"The decision is entirely up to the court, but the Court of Criminal Appeals has, occasionally, decided to reconsider a decision when it is clear that key facts or law have changed."

Sween said prosecutors representing the state in Dallas County have agreed that Andrew Roark should get a new trial after he also was convicted using the same SBS/AHT hypothesis. Roark was convicted in 2000.

Sween said the same "child abuse expert" testified for the state in both Roark and Roberson's trials.

"The new filing shows how a huge amount of her testimony was virtually identical in these two cases in which she had diagnosed SBS and then gave a graphic opinion of her belief that both men had committed child abuse through violent shaking and blunt impact," Sween said. "It does not make sense that the state of Texas would admit that the science has changed and a new trial is necessary in one county (Dallas) but not acknowledge the same changed science in another county (Anderson)."

In their filings, Roberson legal team said both convictions hinged on the hypothesis that a child was the victim of intentionally inflicted violent shaking and head trauma known as Shaken Baby Syndrome; that "both cases were tried in the same era (2000 and 2003, respectively) when a version of SBS, now universally rejected, was viewed as medical orthodoxy; and both trials featured the very same child abuse expert, Dr. Janet Squires — who opined that three medical findings, often referred to as the "triad" of subdural bleeding, cerebral edema aka brain swelling and retinal hemorrhage — supported the inference that abusive shaking/blunt impact was inflicted on a child."

The Suggestion to Reconsider also cited a new Texas law, passed in 2021, that allows parents accused of child abuse based on an in-house "child abuse specialist" — like Squires — to obtain a second opinion and present a conflicting opinion to the court.

Texas passed that law to respond to the problem of caregivers being unfairly accused of child abuse when they brought sick or medically fragile children in for medical care. Roberson's legal team said had this law been in place when Roberson brought Nikki to the hospital, he might never have been convicted of her murder.

In its description of what really occurred the day Nikki died, his legal team stated, "Roberson was a special education student when he dropped out of ninth grade and has autism, undiagnosed at the time of his daughter's collapse. He was unable to explain his chronically ill two-year-old daughter's complex medical condition when he took her to the emergency room, after she fell out of bed when sick with a high fever, undiagnosed pneumonia and on drugs that doctors prescribed that we now know are unsafe for children her age and in her condition. The hospital staff did not know Mr. Roberson had autism and misinterpreted his demeanor as a lack of concern for his gravely ill daughter."

The Suggestion to Reconsider also stated there is a problem with the prosecution's proposal, which the court accepted, in that it cited the trial testimony of the lead detective, Brian Wharton, but failed to acknowledge that Wharton, in his most recent testimony before the court, testified that he had come to believe that Nikki died of natural and accidental causes and does not believe that justice was served in Roberson's case.

The Suggestion to Reconsider also stated that in 2003, when Roberson's trial occurred, the consensus in the medical community was that a child who presented with Nikki's set of internal symptoms must have been violently shaken or possibly struck against a blunt surface by the last person with the child at the time. However in the last 20 years, the version of the shaken baby hypothesis put before his jury as "fact" has been entirely debunked by evidence-based science and that courts in at least 17 states have exonerated parents and caregivers who were wrongly convicted under the controversial shaken baby hypothesis.