Texas’s Junk Science Law Was Supposed to Prevent Wrongful Executions. It May Fail to Save Robert Roberson.

Nikki was unconscious and her lips were blue when her father Robert Roberson found her in bed the morning of January 31, 2002. 

The 2-year-old had been ill the previous week, coughing, vomiting, and running a high fever. Roberson had taken her to the doctor twice and both times was sent home with drugs that, today, would not be prescribed for children her age. The night before Roberson found his daughter unconscious, Nikki had fallen out of bed; he’d comforted her and everything seemed fine. Now, she was unresponsive. Roberson rushed Nikki to the local hospital in Palestine, Texas. Within a day, Nikki was dead and Roberson was quickly accused of having killed her. 

The following year, he was convicted and sentenced to death based on claims by medical professionals that Nikki’s death was the result of so-called shaken baby syndrome, or SBS: a diagnosis based on the belief that a certain combination of injuries found in a baby or toddler could only be caused by violent shaking. This theory has repeatedly been disproven by scientific research. Across the country, 34 people convicted based on SBS have been exonerated, according to the National Registry of Exonerations.

Texas is currently planning to kill Roberson on October 17. If that happens, he will be the first person executed in the U.S. based on the junk science of SBS — despite a first-of-its-kind law in Texas meant to undo convictions that hinged on science now known to be unreliable. 

Roberson challenged his conviction under the state’s “junk science writ” back in 2016, three years after the law’s passage. He was a week away from execution when the Texas Court of Criminal Appeals stepped in, sending the case back to a trial court. During a nine-day evidentiary hearing, Roberson’s lawyers laid out the flaws that had led to his wrongful conviction, including the fact that SBS had been debunked and that the medicines prescribed to Nikki had likely made her condition worse. Nevertheless, the trial court rejected Roberson’s claim, ignoring the wealth of evidence that he was innocent — and that Nikki’s death was related to her previous illness and not to any abuse. The Texas Court of Criminal Appeals then signed off on the court’s ruling and cleared the way for Roberson’s execution.

Roberson’s ordeal is typical of Texas courts’ failures to implement the law as intended, according to a new report from the Texas Defender Service. He is one of 25 people on Texas death row who have challenged their convictions under the state’s junk science writ since its passage in 2013. None of their appeals have been successful. 

Robert Roberson and his daughter Nikki. Photo: Courtesy of Gretchen Sween

A Failed Promise 

Texas was the first state in the country to create an avenue for people convicted based on junk science to challenge their convictions. A handful of other states have since adopted similar measures, as courts have failed to sufficiently address the problem of flawed forensics. Earlier this year, U.S. Supreme Court Justice Sonia Sotomayor urged more states to follow Texas’s example, writing that such statutes “create an efficient avenue for innocent people convicted based on forensic science that the scientific community has now largely repudiated.” 

The Texas statute was an innovation born from a series of high-profile disasters for the state involving forensic science. In the early 2000s, the Houston Police Department crime lab had been forced to shutter its DNA operations amid a rolling scandal that would eventually see the entire lab shut down. In 2004, the state executed Cameron Todd Willingham, an innocent man convicted based on bogus arson science. The ensuing outrage led, among other things, to the creation of the Texas Forensic Science Commission, which oversees forensic practices in the state. And a series of people convicted of killing children in high-profile cases had filed appeals based upon questionable scientific opinions. 

It had become increasingly clear to state lawmakers that something had to be done. Legislators had tried twice to pass the law but were thwarted by prosecutors who claimed it wasn’t necessary, before finally passing it in 2013. “Back then there was tons of optimism,” Gretchen Sween, Roberson’s lawyer, said. “Texas got a lot of positive publicity out of this, you know, as a trailblazer.”

“It was promising at the beginning,” Sween said, because the courts paused the executions of a number of people, including Roberson.

There was every reason to be optimistic. State lawmakers had demonstrated that they understood the problem at hand. In laying out the bill before a House committee that spring, then-Houston Democratic Rep. Sylvester Turner specifically cited arson and SBS cases as cause for concern. The new law, Turner told his colleagues, would “clarify the standard by which such cases would be judged.” 

And yet, the new law would only be as good as the criminal legal system tasked with applying it.

Under the statute, people challenging their convictions file their claims in the court where they were originally tried, and those courts vet the claims. The Court of Criminal Appeals, Texas’s highest criminal court, ultimately reviews the lower courts’ decisions.

In its new report, the Texas Defender Service, which represents people on death row and advocates for the end of the death penalty in the state, concludes that the courts, particularly the Court of Criminal Appeals, have failed to apply the law as lawmakers intended. While the total number of claims filed under the law is not known, of the 74 applications filed and ruled upon by the court over the 10-year period ending in December 2023, only 15 people had received relief. None of them were on death row. 

In all, 34 percent of the 74 applications came from people facing a death sentence. Of those, nearly three-quarters were “procedurally barred,” meaning the courts dismissed the case without considering the merits of the claim because the applicant had failed to overcome the myriad legal hurdles that routinely stand in the way of appeals. 

“The deadly consequences of this pattern are clear: People may be executed following convictions that rest on faulty science because they are unable to obtain relief,” reads the report. “This is especially concerning because the rate of wrongful convictions of death-sentenced people is quite high.” 

Texas’s Court of Criminal Appeals has long been a hostile place for criminal defendants, including those with innocence claims and especially for those on death row. One outspoken critic of the court’s handling of such cases is former Judge Elsa Alcala, who served on the court from 2011 to 2018. In a recent op-ed for the Austin American-Statesman, Alcala laid out the ways the law has failed the very people it was designed to help. “Of people who have sought relief under the law, 80% have lost,” she wrote. “It would be comforting to believe that they lost because their convictions were not based on junk science in the first place; however, the reality is quite different. So many people who lost had incredibly compelling claims backed up by scientists and other experts. Exhibit A is Robert Roberson.”

Alcala told The Intercept that the Texas Defender Service report confirmed a pattern she had observed during her years on the court. There were many cases in which Alcala supported granting relief to a person facing execution only to be outnumbered by her judicial colleagues. The junk science writ was supposed to be a mechanism to get the court to grapple with a specific problem it was largely ignoring. Instead, the court has often interpreted the law in ways that have narrowed its scope.

One of the most consequential examples is the court’s refusal to apply the statute to the sentencing phase in capital cases, a problem highlighted in the report. In a 2016 ruling, the court concluded that the statute only offered relief to someone convicted based on unreliable science, not necessarily someone sentenced on such a basis. 

“What bothered me about the junk science statute in particular with respect to the death penalty is that the court just said it wasn’t going to apply it at all to the punishment phase,” Alcala said. “And, that, I thought, was pretty ridiculous.” It’s the sentencing, after all, that decides whether a defendant will live or die. If a prosecutor uses flawed scientific evidence to convince a jury that a person is likely to pose a danger to society, that defendant cannot use the statute to challenge their death sentence. As the report warns, “discredited and unreliable scientific evidence can lead to wrongful executions, which is an irreversible miscarriage of justice.” 

Terrifying Indifference 

The junk science statute only requires that individuals prove that faulty science undermines their conviction, yet the Texas Defender Service found that the Court of Criminal Appeals has functionally required people to demonstrate they’re actually innocent. Since Texas law already allows individuals to raise claims of wrongful conviction, the court’s actions largely diminish the protections of the junk science law.

And by focusing on innocence, the court has also shown a clear bias toward reviewing cases based on DNA evidence, while largely ignoring the serious problems inherent in a number of other forensic practices — including the debunked science behind SBS. 

“The statute recognizes that many scientific disciplines, at one time regularly used to secure convictions, have been found to be riddled with errors,” according to the report. “But new DNA evidence is the only consistently reliable type of evidence upon which the CCA grants relief.”

Although DNA is only available in a small number of cases, 73 percent of successful claims under the law involved DNA. 

“DNA evidence uniquely has the power to definitively establish innocence or guilt, making it possible to overturn wrongful convictions based solely on its re-evaluation. Few other types of scientific evidence possess this same conclusive power, even though they can still significantly influence trial outcomes,” reads the report. “This underscores the harm of prioritizing the concept of innocence over evaluating the reliability of the verdict in light of the evidence.”

The report also highlights a systemwide issue: The lack of legal representation for indigent defendants. Without a lawyer to help, it’s nearly impossible for incarcerated people to investigate and properly raise their claims before the courts. According to the report, the Court of Criminal Appeals has denied all but one application that an incarcerated person has filed on their own. Alcala said that, during her time on the bench, the CCA dismissed this concern. “Well, you can sit in your cell and you can fill out this form and tell us what your complaints are,” she said of the court’s attitude. “Now, that is one of the most laughable things I’ve ever heard of.”

The lack of lawyers may be one big reason the total number of applications filed and ruled upon under the junk science law — 74 through December 2023 — is startlingly low. Although the report does not account for applications that remain pending before the courts, Estelle Hebron-Jones, director of special projects at Texas Defender Service, said “it’s still a lower number than expected.” 

Alcala believes the lack of legal representation is blocking people from raising these claims at all. “It’s not something somebody sitting in jail can just conjure up by themselves and then present an argument to the Court of Criminal Appeals. So that’s why I think that number is so low. It’s not that there aren’t probably thousands of junk science cases out there. The problem is that indigent defendants are deprived of the opportunity to investigate and pursue their complaint,” Alcala said. “Should it be more like 7,000? Probably.”

The Texas Defender Service suggests a fix to this problem. The report recommends that state lawmakers amend the statute to require lawyers be appointed to incarcerated individuals seeking to file a junk science claim, and to clarify that the statute does include evidence offered during the sentencing phase of a death penalty trial. For her part, Alcala doesn’t think the statute would need amending if the court would properly apply the law.

“I think the junk science statute probably needs to be amended because of the composition of the court,” Alcala said. “But frankly, if you change the composition of the Court of Criminal Appeals, the statute’s just fine.”

Until that happens, people like Roberson, who is just a month away from execution, are more likely to be executed for crimes they did not commit.

Sween recently filed another appeal, citing new medical and scientific evidence that shows Nikki died from pneumonia that led to septic shock. In other words, there was never a crime to begin with. Roberson’s lawyers are asking the courts to step in and halt the execution.

Sween said she understands that people used to believe that shaken baby syndrome was rooted in science. But today, decades of research has revealed that’s not the case. Sween hopes the courts will finally see that. 

“Now, how could you just look the other way?” Sween asked. “The indifference of it is terrifying.”

The post Texas’s Junk Science Law Was Supposed to Prevent Wrongful Executions. It May Fail to Save Robert Roberson. appeared first on The Intercept.