Doctor: Flawed science used in capital murder conviction

Stuart Whitaker AND Pennylynn Webb, Palestine Herald-Press, Texas
·3 min read

Mar. 9—A forensic doctor testified that science used in the death penalty case of Robert Leslie Roberson III, was flawed during the continuance of the evidentiary hearing Monday, March 8 in a hybrid of Zoom and in-person testimony at the Anderson County Courthouse.

Roberson, of Palestine, was found guilty of capital murder in connection with the death of his daughter, 2-year-old Nikki Curtis, who died of blunt-force head injuries at a Dallas hospital on Feb. 1, 2002.

He was sentenced to die by lethal injection by a 12-person Anderson County jury after his February 2003 trial.

In a 2007 appeal to the Court of Criminal Appeals, Roberson raised 13 points of error, but each was determined to have no merit.

Roberson's legal team, lead by Gretchen Sween, called its first witness, Dr. Janice Ophaven, at 9 a.m. Monday.

Ophaven, a forensic pathologist with expertise in pediatric deaths has been practicing since 1971, and testified by Zoom from her home in Minnesota.

She began her testimony by giving her credentials and training. She said she has worked in the field of child abuse prevention and has testified hundreds of times in federal and state court. Judge Deborah Evans certified her as an expert in the field of pediatric forensic pathology.

Ophaven was called to support the defense's "junk science" claim as the shaken baby theory and the science that supported it in 2003 is not longer used.

In her testimony, Ophaven said homicide cannot be concluded from a post mortem exam.

"She died because her brain died from cranial pressure that created a lack of oxygen and blood to the brain," Ophaven said. "Hard for pathologists to be objective because they rely on law enforcement and, in some cases, law enforcement gives them information to get a confession."

Ophaven explained that a potential for bias is always there, and greater when a child is involved, and that it is the standard in the medical community to assume child abuse first in a case like this.

"Science does not tell us what happened to Nikki," Ophaven said. "At the time of trial in 2003 it was believed a short fall could not create death, that is no longer the science. Shaken baby does not apply to children of Nikki's age. Blunt force trauma absolutely can cause the type of injury Nikki had. In this case lack of oxygen to brain cells caused fluid to exit out of the cells and that fluid continued to build and created a sequence of events that caused her death. At the time of trial the science was that blood in the eyes was a sign of shaken baby. It is no longer the science."

The hearing was shut down around 2 p.m. when the Ophaven had to be dismissed for a medical emergency. Her testimony has been recessed until a later date.

Another expert witness will be called to testify at 9 a.m. Tuesday, March 9 in the District Courtroom in Anderson County Courthouse.

The Texas Court of Criminal Appeals stayed his scheduled June 21, 2016 execution and sent Roberson's case back to the trial court level to consider the merits of four distinct claims, including a "junk science" claim.

This evidentiary hearing initially began back in August 2018 but was placed on continuance Aug. 14, 2018 after District Clerk Teresia Coker found 15-year-old evidence, including Nikki's lost head CAT scans in the Anderson County Courthouse basement.

Anderson County District Attorney Allyson Mitchell is prosecuting the hearing with Assistant District Attorney Scott Holden.

The case is pending in the Third District Court and is being presided over by Judge Evans.

The delay in the hearings was initially for prosecutors and the defense to review the "found" evidence and develop expert witnesses. The COVID-19 pandemic added to the delay.

The evidentiary hearing could continue through Tuesday, March 16.