| Tragic figures play a big part in Greek literature and mythology. They often have personal flaws that trip them up or are caught up in cruel circumstances. |
| The death penalty system in the United States is another place filled with tragic figures, people caught up in the prejudices of their times, in the hysteria of the moment, or in the willingness of others to turn a blind eye to evidence of their innocence. Americans in all walks of life know this, but executions continue, nonetheless. |
| Think of the executions of Julius and Ethel Rosenberg for espionage at the height of the 1950s anti-Communist crusade. Or of Marcellus Williams, executed in Missouri last year, despite evidence of his innocence that was so convincing that even the sitting St. Louis County Prosecuting Attorney believed it. |
| Today, a Texas court prevented another name from being added to that list when it stayed the October 16 execution of Robert Roberson. The Court of Criminal Appeals returned his case to the trial court so that it could consider the reliability of so-called “shaken baby syndrome” (SBS), a medical diagnosis that played a key role in Roberson’s case. |
| It is about time it did so. But it cherry-picked among and ignored his meritorious legal claims, including whether he had effective assistance of counsel in his original trial. |
| It did not recognize that Roberson should not be in prison at all, let alone on death row. He still has the specter of death hanging over him. |
| Roberson was convicted of murder in 2003 after the death of his chronically ill two-year-old daughter, Nikki. He got caught up in tragedy when he brought her to a hospital in Palestine, Texas, after she fell ill. She was later transferred to Dallas Children’s Hospital, where she died. |
| Rather than taking a detailed medical history and investigating the range of possible explanations for her condition, doctors were convinced that Nikki was a victim of shaken baby syndrome, which was then all the rage in a nation suddenly vigilant about child abuse. In fact, in 2001, the American Academy of Pediatrics (AAP) published a paper that called shaken baby syndrome “a serious and clearly definable form of child abuse. It results from extreme rotational cranial acceleration induced by violent shaking or shaking/impact, which would be easily recognizable by others as dangerous.” |
| The APA paper urged doctors to operate with a “presumption of child abuse when a child…has suffered an intracranial injury,” of the kind that Nikki had. |
| The hyper-vigilance and suspicion that followed were very much part of a moral panic that led to an upsurge in accusations of child abuse or child sexual abuse. This was only intensified by reporting requirements, which incentivized those on whom they were imposed to report where there was even the slightest suspicion that a child had been victimized. |
| The diagnosis of shaken baby syndrome is no longer as fashionable as it was when Roberson brought his daughter to the emergency room. |
| In fact, in 2023 a New Jersey appellate court upheld a trial judge’s refusal to admit evidence of shaken baby syndrome in a criminal case because “expert testimony of shaking-only SBS… was not scientifically reliable.” A year later, the Texas Court of Criminal Appeals, in another case involving shaken baby syndrome, also recognized that “new, credible scientific evidence…” had “undermine[d] the… theory of a case involving SBS….” |
| In February of this year, a nationally recognized expert in bleeding disorders, Dr. Michael Laposta, stated in an affidavit that Nikki suffered from Disseminated Intravascular Coagulation (DIC), a rare blood-clotting disorder. In his view, DIC offered the “most plausible explanation” for the bleeding and bruising that the ER doctors took to be a manifestation of shaken baby syndrome |
| The tragedy of Robert Roberson’s case is that it unfolded two decades before the recognition that shaken baby syndrome was “junk science” and that the doctors who treated her did not suspect DIS. If the Court of Criminal Appeals had not stepped in, Roberson would have been the first person to be executed in a case involving shaken baby syndrome. |
| And if Laposta is right, Roberson could be executed for a crime that did not happen. |
| Another aspect of the tragedy that has befallen Roberson is that at the time of Nikki’s death, he suffered from undiagnosed autism. Autism is sometimes associated with unusual moods or an inappropriate appearance of indifference in stressful or highly charged situations. |
| At the hospital, Roberson did not seem as concerned or upset as the doctors and nurses who worked there thought he should be given the dire condition of his daughter. They were, as the Innocence Project notes, “suspicious of his flat affect and interpreted his response to his daughter’s condition as lacking emotion. They viewed his inability to explain Nikki’s condition as a sign that he must be lying.” |
| Legal systems in this country and in Europe do not have a great track record in treating people with autism well or fairly, even if they know that they are dealing with neurodivergent people. |
| In its August 2025 report, the Washington State Supreme Court Disability Justice Task Force detailed these failures and concluded that “Individuals with Autism frequently encounter court systems that misinterpret or overlook their needs, leading to inequitable outcomes across civil, criminal, family, and juvenile court settings.” Things can be even worse when they deal with someone like Roberson, whose autism is undiagnosed. |
| It was not until 2018 that he was diagnosed with that condition. |
| For now, at least, Roberson will be spared. |
| But the Court of Criminal Appeals has limited further inquiry, avoiding exploring the many problems in his case. It ordered the trial court to limit itself solely to the question of whether evidence of shaken baby syndrome should be excluded from consideration. It said that “the trial court shall not entertain nor address any other claims,” including how Roberson’s autism affected the fairness of his legal treatment, or if Nikki died of natural causes. |
| As Judge Bert Richardson, who concurred in the Court of Criminal Appeals, explained, “There is a delicate balance and tension in our criminal justice system between the finality of judgment and its accuracy based on our ever-advancing scientific understanding. A death sentence is clearly final and, once carried out, hindsight is useless.” |
| Up until this point, the state of Texas and its courts seemed to value finality more than accuracy or fairness. Now, at least, there is a chance to right that balance and to avoid executing Robert Roberson for a crime that didn’t occur. |
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