Texas death row inmate at mercy of supreme court – and junk science
On a frigid evening in January 2018, Brian Wharton was sitting at home in Hawkins, a small town in the backcountry of east Texas, when there was a knock on the door. A woman introduced herself as a lawyer working to spare the life of Robert Roberson, a death row inmate who had come within four days of execution.
Wharton immediately understood the significance of this visit. He was a retired detective from the police department in Palestine, another small town about 80 miles away, and in 2002 he had been involved in a case that stuck in his memory.
On 31 January that year, Wharton was called to Palestine hospital after receiving reports of a mortally ill child. Her father, Roberson, had brought his two-year-old daughter Nikki into the ER in a comatose state, the little girl lying limp in his arms and turning blue. She died the following day.
Wharton led the investigation. He arrested Roberson hours after the girl died, even before an autopsy had been performed, having been advised by doctors that this was a case of “shaken baby syndrome” – the theory that the child had died from violent shaking that caused fatal brain injuries.
Wharton went on to testify at Roberson’s capital trial. The jury convicted Roberson in February 2003 and sent him – now branded Prisoner 999442 – to death row.
Wharton had been troubled by key aspects of the case from the start. Why had the doctors and nurses seized on shaken baby syndrome as the cause of Nikki’s injuries almost immediately, and why with such certainty? Why had a nurse told him she had found indicators of sexual assault on Nikki’s body when he could see no such evidence?
Why, when he escorted Roberson back to his house on the day of Nikki’s collapse, could he find no signs of a violent altercation? Why were there no marks or indentations on the walls, no holes in the sheetrock, nothing – and no blood anywhere except a few drops on a washcloth Roberson gave him?
Above all, why had Roberson himself acted so strangely? As a police officer, Wharton had dealt with both perpetrators and victims of violent crimes, but Roberson’s behavior fitted the pattern of neither criminal nor victim. He came across as flat, emotionless, matter-of-fact, as though nothing was registering with him.
All these things bugged the former detective to the point that he felt haunted by them. So when the doorbell rang, and Roberson’s lawyer stood before him, Wharton knew exactly what to do.
“Come in,” he said. “I’ve been waiting for you.”
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On Tuesday, the US supreme court will convene in Washington for what is known as a “long conference”, preceding the start of its 2023-24 term. The justices will meet in private to sift through the backlog of cases that have amassed over the summer, tossing out those they are disinclined to consider.
The lawyer Gretchen Sween will be waiting on tenterhooks for news of which petitions the court has discarded. Among the huge pile of requests awaiting the justices’ attention is one she prepared for her client: Roberson.
“We’ll be watching anxiously to see if we make it through that gauntlet,” Sween told the Guardian.
Roberson’s supreme court appeal could be his last shot at judicial review. Should the justices reject his approaches, the state of Texas would be free to set a new execution date.
Roberson has asked the court to review the decision of the Texas state courts to deny a retrial despite new evidence that has emerged casting doubt on his conviction. Since Sween took over as his attorney in 2016 she has discovered that:
Nikki, who shortly before she died had been placed in Roberson’s custody, was chronically sick almost from birth. She suffered bouts of breathing apnea which caused her suddenly to stop breathing and collapse. Shortly before her father rushed her to hospital, she had had diarrhea for five days and had a fever of 104.5F (40.3C).
Nikki also had severe undiagnosed pneumonia.
She had been prescribed medications, including an opioid, that are no longer considered safe for children as they can cause fatal breathing problems and oxygen deprivation.
The sexual assault allegation was unsupported by any evidence, and the nurse who raised it was unqualified to identify it.
Then there is the overarching question of shaken baby syndrome. The petition asks the supreme court to weigh whether a death sentence based largely on a scientific hunch presented to the jury as fact should be allowed to stand when, in the intervening years, that theory has been largely discredited.
In other words: should Texas be allowed to execute a man on the basis of junk science?
“This is a shocking, social failure,” Sween said. “This is not simply a matter of having the wrong guy, it’s a matter of there having been no crime committed in the first place.”
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Texas houses its 179 male death row inmates in the Allen B Polunsky Unit, a complex of windowless grey boxes resembling a Walmart supercenter shrouded in barbed wire.
Roberson, 56, was waiting in the secure metal cubicle assigned for media visits. He was wiping smudges off the bulletproof glass, an attention to detail that seemed incongruous given the circumstances.
He was dressed in the all-white onesie that is death row uniform in Texas. From the first exchange, his highly unusual way of speaking was evident.
“Thank you for for for for for, ah ah, this interview, sir sir,” he said, blinking fast behind his glasses, in time with his stutter.
That was a clue as to why medical staff were so quick to suspect Roberson when they encountered him, and why Wharton found his behaviour so singular. Long after his capital trial – too late for the jury to factor it in – Roberson was diagnosed with autism.
Roberson described his life of poverty at the time he began looking after Nikki. Separated from the girl’s mother, and living with a new partner,he worked three newspaper delivery routes to try to support them.
“After gas and stuff, you don’t make too much from a paper route,” he said.
Asked what he hoped for Nikki when he took custody of her, he said: “I was hoping to raise her, you know, to be a father to her, to raise her to have a good life and stuff, and for us all to be happy. To provide for her best I can, to nurse her, to love her, to pray for her.”
Roberson said Nikki was sick from the day she joined him, recalling that they had to visit the doctor’s surgery because she was so ill. On the morning of 31 January 2002, he said he found she had fallen out of bed and was lying face down on the floor.
“She had a little bit of blood on her lip, I wiped it off on a towel,” he said.
He lifted her back on the bed and they went back to sleep. Then he described what happened after he awoke a second time.
“When I got back up she wasn’t breathing and I listen to her heart, weren’t breathing. I tried to wake her up, her heart was still beating but she wasn’t breathing.”
He added: “Only thing I could think was she might have fell off and might have hit her head, but I didn’t see it, so I don’t know.”
He drove Nikki to the ER and handed her to the medical staff.
“They lifted the little girl, and she’s limp and started turning blue, and stuff.”
He said he could tell that the nurses and doctors suspected him straight away of doing something bad to Nikki. During the trial, the prosecution said he came across as cold and uncaring because he didn’t cry, but he said that was because he had trained himself not to cry during his difficult childhood.
“It’s hard for me to cry because I got my behind whooped by my father who