HUNTSVILLE, Texas — The legal team of East Texas death row inmate Robert Roberson has responded to a statement released Wednesday evening by Texas Attorney General Ken Paxton.
Roberson III, 57, was set to be executed Thursday, Oct. 17, in connection with the 2003 conviction in the death of his 2-year-old daughter Nikki Curtis. He has claimed his innocence for roughly two decades with his lawyer citing junk science as the reason for his conviction. According to the Associated Press, Roberson would have been the first person in the U.S. to be executed over a "Shaken Baby Syndrome" conviction.
Roberson's execution was ultimately blocked by the Texas Supreme Court, sparing his life -- for now.
A lengthy hearing was held earlier this week where, in addition to Roberson's legal team, Dr. Phil McGraw and best-selling author John Grisham testified on his behalf.
Paxton's statement pushed back on the bipartisan group of legislators calling for a new trial for Roberson -- just days after Gov. Greg Abbott also condemned their actions.
Now, a coalition of activists and State legislators is interfering with the justice system in an unprecedented way in an attempt to stall or prevent Roberson’s execution. They have attempted to mislead the public by falsely claiming that Roberson was unfairly convicted through “junk science” concerning “shaken baby syndrome.
Despite these eleventh-hour, one-sided, extrajudicial stunts that attempt to obscure the facts and rewrite his past, the truth remains:
- Robert Roberson murdered two-year-old Nikki by beating her so brutally that she ultimately died.
- The jury did not convict Roberson on the basis of “Shaken Baby Syndrome.” The “junk science” objection that has been used as a pretext to interfere with the proceedings has no basis in reality.
- Roberson was lawfully sentenced to death. He has exhausted every legally available appellate avenue.
- A few legislators have grossly interfered with the justice system by disregarding the separation of powers outlined in the State Constitution. They have created a Constitutional crisis on behalf of a man who beat his two-year-old daughter to death."
Roberson's legal team released the following rebuttal to Paxton Thursday morning:
On October 23, 2024, the Office of the Attorney General issued a press release, bearing the seal of the State of Texas, doubling down on its grotesque misrepresentations of Robert Roberson’s innocence case endeavoring to discredit Mr. Roberson and those, including a bipartisan group of elected representatives, who properly view his case as a tremendous miscarriage of justice.
The following document, prepared by Mr. Roberson’s legal team, is a point-by-point rebuttal of the Attorney General’s statement, with citations to the trial and post-conviction records. Links to sourcing are provided at the bottom of and throughout this document and a link to this document with photos can be accessed here: https://tinyurl.com/y64zxfyc.
The information below demonstrates that the State of Texas persistently refuses to acknowledge the truth in this case. In multiple expert reports, testimony during the post-conviction hearing in 2021, and recent testimony before the House Criminal Jurisprudence Committee, highly specialized medical experts have explained exactly how Nikki died as a result of pneumonia, exacerbated by improper medications, and how the progression of her disease affected her body, along with medical intervention, to create the condition that she was in two days later when the autopsy was performed. They also explained the absence of evidence of “battery” or any other abuse and that the State’s crime theory is untethered to science—and not to even to the trial record. The lead detective, Brian Wharton, explained how Mr. Roberson’s case involved a rush to judgment based on flawed medical information and misperceptions based on Mr. Roberson’s autism.
A new statement from Mr. Wharton can be found in the Section Titled “Misrepresentation #11” on pages 19-22 regarding the unreliable “snitch” and other testimony about invalid and untrue sexual assault allegations.
At the House hearings, the legislators made clear that the Texas courts are not applying Texas law either as written or as the legislature intended.
Misrepresentation #1: The OAG has released to the public the 2002 autopsy report of Mr. Roberson’s two-year-old child (Nikki Curtis), implying that it is definitive, ignoring all 2002 trial and a 2021 evidentiary hearing testimony identifying material flaws in the report. Here is some basic information regarding the report’s reliability:
Dr. Urban reached her conclusions that Nikki’s death was murder and the mechanism of death without any understanding of Nikki’s complex medical history. The grossly incomplete picture Dr. Urban had of Nikki’s medical history renders her opinions unreliable and invalid. In 2021, Dr. Urban admitted that she did not consider any of the following essential information before reaching conclusions regarding the cause and manner of Nikki’s death:
· Nikki’s medical history from birth, including the records of her recent illness the week of her collapse and the drugs that had been prescribed to her by both a pediatrician and an ER doctor, 9EHRR107; 9EHRR108; 9EHRR138; 9EHRR161-163;
· The Palestine Regional ER records related to Nikki’s admission and treatment the day of her collapse, 9EHRR64;
· The CT scans taken of Nikki’s head when she was admitted to the Palestine Regional ER the morning of her collapse (which were inaccessible to the defense for 15 years), 9EHRR109;
· The EMS records (which the State has lost) reflecting Nikki’s treatment in transport from Palestine to Dallas, 9EHRR185;
· A medical reference book to determine whether Nikki’s organs were of an abnormal weight at autopsy (which both the lungs and the brain were), 9EHRR139-140;
· The scene where Nikki collapsed including: the fact that the bed where she had been sleeping was propped up on cinder blocks, 9EHRR145-146;
· The expertise of a biomechanical engineer or biomechanical research regarding the injury-potential of short falls, 9EHRR145-146;
· Data about the potential height, trajectory, or impact surface associated with the reported fall, trajectory of the fall, or the impact surface, 9EHRR145-146;
· The relevance of Nikki’s height, weight, age to determine whether it was physically possible to generate sufficient force through shaking her to cause the injuries observed, 9EHRR145-146;
· The wash rag and bedding obtained from the scene containing small specks of blood, 9EHRR153-154;
· Any information regarding “promethazine” a drug found in lethal quantities in Nikki’s system, as identified by a toxicology report that Dr. Urban had requested but never reviewed, 9EHRR166-167; and
· All of the intervening medical treatment, transports, and medications that were applied to Nikki after she arrived at the ER on January 31st until she arrived at the crime lab on February 2, 2002, including having a pressure monitor surgically implanted in her head, which Dr. Urban later claimed was an “impact site, 9EHRR183-184.
After Dr. Squires made her Shaken Baby diagnosis, which was used as the basis to arrest Mr. Roberson on February 1, 2002, Nikki was taken off life support and pronounced dead. Before Dr. Jill Urban performed the autopsy, she was told by a member of Detective Wharton’s team that Roberson had already been arrested for capital murder. That same law enforcement officer then sat in on the autopsy. EX25. These are circumstances now known to create pronounced bias.
When Dr. Urban performed the autopsy, the lab (SWIFS) was not accredited and thus not governed by recognized quality-control standards. 9EHRR158. Dr. Urban had been employed there for a year and a half. 9EHRR8-9; 9EHRR117. The multiple signatures on the report are not an affirmation of anything. As Dr. Urban admitted, she alone did the autopsy—and with great haste. There has never been any evidence that her work was vetted in any way.
Nikki’s autopsy was the 456th of 2002 for SWIFS as of February 2, 2002, which may explain why Dr. Urban would have felt rushed to reach a conclusion as to cause and manner of death the same day as the autopsy without even waiting for the results of various tests she had ordered. 9EHRR86.
Dr. Urban’s autopsy report uses the phrase “blunt force injuries”, but at trial, she expressly defined “blunt force” as being caused by some unknown combination of “shaking “ and “impacts or blows”. See e.g.:
Q [prosecutor]. . . . So just tell us what you mean by blunt force. What causes blunt force?
A. Typically in a-- Especially in a child this age, blunt force can be caused both by-- well, by an impact to the head, so being struck with something or being struck against something. Shaking also falls into this definition of blunt force and when enough-- And although it doesn't seem like, you know, shaking is not necessarily striking a child, when you are-- When a child is say, shaken hard enough, the brain is actually moving back and forth within, again, within the skull, impacting the skull itself and that motion is enough to actually damage the brain. 43RR78-79.
· Dr. Urban’s trial testimony repeatedly described Nikki’s injuries—the triad—as caused by shaking/blunt force; relying on the triad to presume inflicted head trauma is the discredited “Shaken Baby Syndrome.” See, e.g.:
· described (1) subdural bleeding saying: “this is another type of bleeding that we see with blunt force injuries and shaking.” 43RR77, 76
· described (2) retinal hemorrhages as: “Again, this is something that is typically seen in a blunt force or shaking type of injury.” 43RR77
· described (3) brain swelling saying: “Subdural hemorrhage alone, the subscalpular [sic] hemorrhage alone. You know, it's a small amount of blood loss. Again, these injuries themselves are not going to kill this child, but what is going to kill this child are the actual injuries to the brain. And so these other things, the subarachnoid hemorrhage and the subdural hemorrhage are markers that the brain is injured in this way. What actually happens is when the brain is shook or struck hard enough in cases such as you might find here, the actual nerves, the actual individual cells that make up the brain are injured. So those same cells that create our memories or tell our hearts to beat and remind our lungs to breathe are actually damaged and along with, when those cells are damaged like that we get the bleeding into the brain and we get the swelling or the edema.” 43RR80-81
· Nikki’s medical records, as Dr. Urban admitted in 2021, show that she had DIC, a blood clotting disorder that causes “increased susceptibility to bleeding and bruising,” yet Dr. Urban did not include this information in the autopsy report put before the jury or factor it into her assessment of Nikki’s condition. 9EHRR186. Because Dr. Urban did not review any of the medical records, she had no way to account for the effects of two days of extensive medical treatment on Nikki’s body before the autopsy was performed.
See: Roberson trial transcript excerpts re use of term “Shaken Baby” or “Shaken Baby Syndrome” and associated terms: https://tinyurl.com/mryyu28t
Misrepresentation #2: The OAG falsely claims: “two-year-old Nikki Curtis was brought to the hospital close to death with extensive bruising to her chin, face, ears, eyes, shoulder, and mouth.” NO ONE testified that there were bruises all over Nikki’s body. Indeed:
There was no external blood, abrasions, or anything but minor bruises observed upon her arrival. The other bruises, seen at autopsy two days later, were a consequence of being put through days of extensive medical intervention trying to save her life. There have been ludicrous references to a “blood soaked” rag found in Robert’s home. Here is a picture of that item: https://tinyurl.com/2ck6fc5d
Robert himself gave the wash rag to Detective Wharton, who testified that he would not have noticed it had Robert not given it to him. EX1.
Per the trial transcripts, the first ER nurse (Kelly Gurganus) to see Nikki when they got to the hospital and attested that she saw minimal bruising on her face; she saw no black eye, no sign that Nikki had been struck with a fist, no blood in her hair, no sign of broken bones. 2EHRR62-65.
The supposed “handprint,” which is not captured in any photo, even if it did exist (and it did not) is entirely explained by the fact that Robert said that he held Nikki's face when he found she wasn't breathing (a very reasonable thing for a terrified parent to do when his child is not breathing). His consistent voluntary statements thereafter to multiple medical personnel and police were: "[t]his morning when she wouldn't wake up, I crawled up on the bed and grabbed her face and shook it to wake her up. Then when she didn't wake up I slapped her face a couple of times."
This mark is also entirely consistent with Nikki developing marks on her skin and minor bruising from the DIC (clotting disorder) her blood work soon revealed that she had—a clear sign of sepsis, the consequence of a severe pneumonia that had gone undiagnosed.
One minor scrape observed on Nikki’s elbow was not noted until the autopsy. This was either caused during her final hospitalization or was just a "little kid" injury, common in a toddler. 8EHRR64.
A "torn frenulum" to Nikki’s mouth, another minor injury, was observed for the first time during the autopsy. Because this injury was not noted when Nikki was brought to the hospital, it cannot be attributed to anything other than the hospital staff. As several medical experts explained, it is quite common for a frenulum, the small flap of skin inside the mouth that connects the lip to the gum, to be torn during intubation. Nikki's medical records show that she was intubated at least twice in the Palestine hospital the morning she was brought in because a CT scan revealed that the breathing tube had not been inserted properly the first time. The staining technique Dr. Urban used on that wound indicated that it was "very recent," "not a few days old"-therefore, it had to have occurred during the hospitalization soon before the autopsy. 8EHRR114. Finally, this injury would not have had anything to do with the blood observed inside Nikki’s skull and thus is not proof of fatal head trauma, inflicted or otherwise.
Because it was a Code Blue situation, no one took medically appropriate pictures of Nikki upon her arrival at the Palestine hospital. One nurse’s poor-quality photos, taken after Nikki had been resuscitated and intubated, do not show a battered child. They show bruising on her chin, which Mr. Roberson reported, and the light bruises on her check that Nurse Gurganus had seen.
The lack of evidence of battery is why the lead prosecutor asked Dr. Urban at trial to explain why they could not see on the outside corresponding injuries to match what Dr. Urban found under Nikki’s scalp inside her head. There is no evidence of “multiple blows” to Nikki—and the case was undeniably tried as a case of “inflicted” head trauma relying on the SBS hypothesis because of the absence of signs of external injury is demonstrated by the way the prosecutor himself questioned Dr. Urban at trial. See, e.g.:
Q (prosecutor). . . . let’s talk about-- There really is a large discrepancy, at least in my mind, between what you see on the outside and what you see on the inside. You described a lot of different impact sites, multiple blows to Nikki’s head. And you really don’t see that when you look at the pictures of her face. Can you explain to us why that is?
A (from Dr. Urban). Well, again, I think that’s because just of the way children are built. You know, like I said, they’ve got a lot [sic] fat. There’s a lot of fat between, say, the skin and actual bones of the skull and that can absorb a lot of energy that’s inflicted on the skin. The same thing, the skin is also very elastic. It’s almost more stretchable in little children and that’s another reason why you can actually get a great deal of injury to the head and not see anything on the outside because all that force is transmitted inwards without actually disrupting the skin.
43RR89. As an aside: children are not, in fact, more resistant to bruising or abrasions because of their “fat”, an unscientific suggestion.
After two days of extensive medical intervention—e.g., shaved head, multiple intubations, infusion of many drugs to increase blood flow after cardiac arrest, and a pressure monitor surgical screwed into the top of her skull (later removed before the autopsy), Nikki’s appearance had changed but still showed no signs of battery as Dr. Urban admitted during trial.
Dr. Squires, pediatrician at Children's Medical Center (where Nikki was transported) and one of the prosecution’s two causation witnesses, testified at trial that she found "minimal" bruising, a "little chin abrasion," "no scars, no unusual bruising or anything." 42RR96.
Precisely because of the absence of external injuries, Dr. Squires noted in her February 1, 2002, assessment: "[The] diagnosis is massive brain injury. The only reasonable explanation is trauma. The medical findings fit a picture of shaken impact syndrome. There was some flinging or shaking component which resulted in subdural hemorrhaging and diffuse brain injury. There was also an area of impact in the right back of the head." APPX103.
At trial, Dr. Squires reported that the CT scan she saw revealed "no fractures," but showed subdural blood, edema, and "very obvious retinal hemorrhages." 42RR102-105. She concluded that the "medical findings" were "a picture of shaken impact syndrome" aka "shaken baby syndrome." She explained her opinion that Nikki's injuries were caused by "very forcefully" shaking the head back and forth. 42RR106. The prosecutor emphasized the triad of symptoms observed in Nikki—"subdural hemorrhages, the retinal hemorrhages, and the brain swelling"—and Dr. Squires explained her view that they indicated "shaking[.]" Id.
Dr. Squires, who, unlike Dr. Urban, reviewed the CT scans, testified that she saw "no other indication of traumatic injuries"—"no bruising" "no fractures" "no old fractures"-therefore, she concluded the injury was caused by violent shaking. 42RR123.
As Detective Wharton reported, there were no signs of violence at Robert's house: "there were no pools of blood anywhere and no signs of violence. 7EHRR23-24; 7EHRR26; 41RR187. The detectives expressly looked for evidence that Nikki had been thrown into a wall or something of that nature. They found nothing. 7EHRR26-27.
Misrepresentation #3: The OAG invokes the authority of “Emergency Room Nurse Andrea Sims” claiming she “saw Nikki before medical intervention, testified at trial that, in addition to the bruising, Nikki had a handprint on her face, and that the back of her skull was bruised and ‘mushy.’”
Nurse Sims is the witness who lied on direct examination about being a certified Sexual Assault Nurse Examiner (SANE) when she was not in fact certified. 41RR144. She also failed to follow any of the training associated that certification. 6EHRR60-144.
Nurse Sims testified that she did not see Nikki until after she was intubated—when she then volunteered herself to do a sexual assault exam on a comatose child for whom she was supposed to be providing life-saving care. Law enforcement did not request this exam, she simply did it. She then took disturbing photographs showing multiple pairs of hand—without gloves—pulling at Nikki’s bare buttocks. Those photos, which were put before the jury at trial, are shocking—but do not capture any evidence of a “beaten child.” 41RR69-70; 7EHRR11-12; SX21; SX22; see also 6EHRR105-106.
The nurse’s photos were introduced into evidence at trial during the nurse’s testimony, which was largely untethered to reality. 6EHRR60-144. It consisted of her free associations about “anal tears” that no one else had seen, sexual abuse allegations for which there was no evidence, and her outrageous views about the proclivities of pedophiles. Her testimony, completely contrary to SANE training, was thoroughly debunked in the post-conviction proceeding and this witness was unwilling to defend her trial testimony, claiming she “did not remember” the case.
Contrary to Nurse Sims’ characterization, the hospital’s CT scans of Nikki’s head show that there was nothing wrong with Nikki’s skull—no skull fractures of any kind. She had a single, minor impact site on the back of her head, completely consistent with a short fall out of bed. 3EHRR77; EX6.
Misrepresentation #4: The OAG falsely claims that “Nikki was abused by her father and died due to the trauma he inflicted” invoking imaginary “countless hours of testimony” that is entirely missing from the trial transcripts. Read the transcripts. The evidence, manufactured for trial from a handful of impaired and traumatized witnesses related to Robert’s estranged girlfriend Teddie Cox is all the State could adduce. There is no record of violent acts in Robert’s extensive social history records. EX14 at 128-129. Here is further context:
A small portion of the guilt-phase consisted of patently incredible testimony from three impaired and biased witnesses who claimed to have previously seen Robert “shake” and otherwise mistreat Nikki at some unidentified time before her death: Robert’s estranged girlfriend Teddie Cox, Teddie’s underaged daughter Rachel Cox, and Teddie’s underaged niece Courtney Berryhill. Before prosecutors and police put enormous pressure on these witnesses, none of these three had ever made any allegations that Robert had harmed Nikki in any way. In fact, as discussed below, Rachel Cox [and her cousin Courtney Berryhill] had been repeatedly interviewed by Child Protective Services about allegations that Rachel had been sexually abused by her father—not Robert. During these interviews, neither child ever mentioned observing any inappropriate behavior by Robert toward Nikki or toward them. Those allegations were only made after Robert’s arrest and after they were subjected to questioning by investigators about Robert (and provided facilitating reports).
Years later, in 2013, an investigator retained by previous habeas counsel finally made contact with Teddie. Teddie reported that the DA’s investigator (Joe Willis) had told her that she would be “going to death row also” if she “had been in the house that night.” EX52.
These witnesses were invited to demonstrate the shaking they claimed to have witnessed using a teddy bear, which bears no anatomical resemblance to a 27-pound toddler. That teddy bear was a prop to emphasis the State’s shaking theory. The reliability problems with the testimony is so obvious, neither the State’s proposed Findings nor the habeas court’s signed Findings submitted in the -03 proceeding mentioned any of their testimony.
It is difficult to imagine a witness more susceptible to manipulation than Robert’s estranged girlfriend Teddie Cox. She was an intellectually impaired, minimally educated, impoverished woman recovering from a hysterectomy at just age 27; she had recently overdosed on drugs, been institutionalized after this suicide attempt, and was on serious psychotropic medications; she had been through a series of failed relationships including one with a man then in jail (not Robert) for allegedly molesting their daughter Rachel; then there was the recent death of Teddie’s father on top of the traumatizing death of two-year-old Nikki—which the authorities insisted had been caused by her boyfriend of a few months (Robert). 42RR131-34, 158; 43RR40-41. Her instability was such that her daughter Rachel was living, not with Teddie, but with Teddie’s mother at the time of trial. 42RR64. The prosecution stoked this vulnerable woman’s notion that she could somehow have prevented Nikki’s death if she had not been in the hospital at the time—a suggestion which must certainly have caused excruciating guilt feelings. 42RR133-34.
Because of her impairments, much of Teddie’s testimony consisted of responses to leading questions from the prosecution, in its quest to demonize Robert, a person with whom Teddie had only been romantically involved for a few months. The prosecution was motivated to do this presumably because State’s counsel believed Dr. Squires’ SBS hypothesis and seized on the speculation of a local nurse that Robert had sexually assaulted Nikki too (despite the absence of any corroborating evidence). In short, the prosecution saw Robert as a monster and was seeking evidence to support that view.
Because it had little else, the prosecution induced Teddie to testify at trial that Nikki was so scared of Robert that she cried whenever he came anywhere near her. 42RR131, 158-59, 165-67 43RR40-41. But see:
Photos of Robert holding Nikki can be found in linked rebuttal document: DX11, DX8, DX10, DX4, DX7.
At trial, Teddie, who had not completed the 9th grade, testified that Robert had never hurt her in any way, but she was repeatedly asked to describe how he had shaken Nikki. 42RR175-77, 185-86, 190-91. Her trial testimony was inconsistent with statements she had made in previous, heavily prompted interviews and in private meetings with defense counsel. Indeed, she admitted on the stand that she would change her story about Robert depending on “how [she] feel[s]” at the moment. 43RR11, 36, 48.
Teddie had no personal knowledge of what happened to Nikki during the last days of her life because she was in the hospital at the time. 42RR132. Robert, not Teddie, took Nikki to the ER on January 28, 2002, after she had been sick for several days; Robert, not Teddie, was with Nikki in her pediatrician’s office on January 29, 2002, when her fever was measured at 104.5 degrees; Robert, not Teddie, picked up Nikki’s prescriptions and delivered them to the Bowmans where Nikki was then staying; Robert, not Teddie, drove 10 miles out into the country to pick up Nikki from the Bowmans, at their request, after 9:30 PM on January 30, 2002; Robert, not Teddie, found Nikki after she had fallen out of bed in the early morning; he is the one who later found her unconscious and turning blue; and he is the one who brought her to the ER the morning of January 31, 2002. 42RR178-80; EX37.
If Teddie had actually witnessed Robert shake or otherwise hurt Nikki at any point before her death, which she did not, Teddie made no contemporaneous report to CPS, to law enforcement, or to others in her own family.
Teddie’s own sister, Patricia Conklin, testified at trial, describing Robert as always loving and caring with Nikki, attesting that she had never seen Robert be unkind to Nikki, noting that the only person she had ever seen hit Nikki was Teddie’s daughter Rachel, and acknowledging her sister Teddie’s pronounced problems with truthfulness. 44RR10-22.
Starting on January 31, 2002, the day of Nikki’s collapse, Teddie had multiple interactions with CPS pressing her to describe Robert as abusive. According to CPS records, a decision was made after the first interview to add Teddie to a “list” of persons about whom there was “Reason to Believe Neglectful Supervision” of Nikki. During various interviews with CPS case workers, Teddie began speculating that Robert had been “jealous” of Nikki because she only wanted to be with Teddie. She offered to “wear a wire” to help law enforcement get an admission from Robert and to “spy” for the Bowmans. -03 11.073 Application, Appendix 2. Teddie was also told that law enforcement wanted a videotaped interview of her daughter Rachel. This demand was made after Rachel, during a CPS interview a few days after Nikki’s death, recited a fanciful tale of how Robert had given Nikki “5 whippings in one day” and had “shook” and “whipped her” repeatedly. This all occurred while Rachel’s own father (Cox) was in jail after a mistrial in a case arising from her allegations that Cox had sexually abused Rachel.
Teddie’s lack of credibility is further exposed by the fact that, a few weeks after Nikki’s death and beyond, Teddie sent letters to Robert in jail, addressing him “Hello, baby” and professing her love for him. EX50. If she believed Robert was an abuser, this was a strange way to communicate. If she was lying to Robert to try to manipulate him, that would also speak to her lack of credibility. Certainly, those letters, which the State was monitoring, showed her instability. For instance, she described herself as being “like a walking zombie. These days I don’t know if I am coming or going.” Id.
On April 25, 2002, while Teddie was still on an emotional rollercoaster, she was summoned before the grand jury to testify against Robert. She admitted at trial that, at that time, she had been “mad at him,” which is how she later accounted for the fact that her reports about Robert kept shifting. 43RR48. And by that time, she had moved in and out of a psychiatric hospital and various people’s homes. 43RR12-14.
In 2018, in advance of an evidentiary hearing in this case, efforts were again made to try to interview Teddie about the circumstances surrounding her trial testimony. EX44. Teddie was found living in a trailer home with her disabled mother and her daughter Rachel, by then grown with a child of her own. Upon turning into the dirt driveway, a pack of dogs, mostly of the pit-bull variety, encircled declarant’s car. Because of the barking, snarling dogs, declarant elected to stay in the car. But in short order, two women emerged from the trailer and introduced themselves as Teddie and Rachel Cox, whom declarant had been looking for. Speaking through a rolled-down car window, Teddie was friendly. But engaging her in a coherent dialogue about the past proved difficult. Meanwhile, Rachel asserted that she had no memory of testifying at Robert’s trial and did not believe that she had done so (contrary to the record). The only conclusion that could be drawn from this encounter was that neither of these individuals could credibly attest to whether they stood by their 2003 testimony. Id.
But Teddie’s trial testimony is not credible on its face and was largely adduced through improper leading questions. She was an obviously impaired, scared woman of no discernible means recovering from a hysterectomy, the deaths of multiple loved ones, and a suicide attempt. She was being told by the authorities that one of her boyfriends with whom she and her daughter had been living (Robert) had caused Nikki’s death through violent shaking. Those same authorities had also turned an accusatory spotlight on her and were, without subtlety, seeking something to support the narrative that Robert had previously been abusive. The lead member of that investigative team, Detective Wharton, has utterly disavowed his role in the conviction and believes that Robert is innocent. EX1-EX3.
Misrepresentation #5: The OAG wrongly claims that “doctors” at trial testified that “Nikki died from substantial blunt force head injuries that clearly indicated the girl had been struck” and “precluded the possibility that the child died from being ‘shaken.’”
Only Dr. Urban purported to use the subjective term “blows,” the evidence of which she said was the same as “shaking.”
Mr. Roberson was arrested based on the SBS diagnosis made at Dallas Children’s by Dr. Janet Squires on February 1, 2002, even before autopsy was performed; her shaking opinion was attached to Palestine law enforcement’s request for an arrest warrant. APPX60.
Moreover, prosecution witness Dr. Squires’s entire testimony was about the Shaken Baby hypothesis and how it reputedly explained Nikki’s condition. Dr. Squires’ SBS testimony utilized terms associated with it, such as “rotational forces” and “shearing forces.” For example, she claimed “You really have to shake them really hard back and forth and then you typically slam them against something. It’s an out of control, angry, violent adult.” 42RR126. For Dr. Squires, “there’s no signs of trauma at all and yet as that head is moving and then suddenly stops, these shear forces go through it and cause tremendous damage to the brain, deep in the brain.” 42RR107 (emphasis added).
Dr. Squires, who unlike Dr. Urban, reviewed the CT scans of Nikki’s head, admitted there was only a single minor impact to Nikki’s head that did not likely explain her internal head condition, which is why she felt shaking had caused Nikki’s symptoms.
Dr. Urban also repeatedly discussed shaking, shaking impact, shearing forces. Despite Urban’s insistence that her opinion was never that this was a shaken baby case but instead is a blunt force trauma case, she testified at trial and told the jury that the blunt force injuries were caused by shaking and that her internal injuries were called by some unknowable combination of shaking and blows:
Q. And then is there any way to tell, to say I believe this much of her death was caused by the shaking and this much of her death was caused by the battering that she took?
A. No .
* * *
Q. (prosecutor) There's no way to segregate it out?
A. No.
Q. Just all those things put together killed Nikki?
A. Yes.
43RR85-86.
Misrepresentation #6: The OAG falsely claims “Dr. Jill Urban, the medical examiner who performed the autopsy on the two-year-old’s corpse, testified during the trial using photographic evidence that Nikki’s head had been repeatedly struck leaving clear impact wounds totally incompatible with merely being violently shaken.”
The images Dr. Urban used before the jury were her disturbing autopsy photos of a young child whose scalp she had cut open and pulled back to reveal a brain, covered with subdural blood. The photos show disrespect to a comatose child with unidentified people joining the nurse, with ungloved hands, pulling at the child’s body parts. But these photos do not show any evidence of multiple “impact wounds. SX4-SX24.
Dr. Urban could not identify impact sites other than the minor swollen tissue (bump) on the back right of Nikki’s neck, She instead referred to different areas of “subdural and subgaleal blood” outside of the brain, beneath the dura, as “impact sites. She pointed to retinal hemorrhage and brain edema. These are the elements of the SBS triad, which led Dr. Urban to presume inflicted head trauma as the SBS hypothesis permitted at that time
To explain the lack of external evidence of inflicted impact, Dr. Urban used “shaking” to explain the intracranial blood, now explained by Nikki’s medical condition, respiratory-suppressing medications, and then the efforts made by medical personnel to try to reverse her condition.
Dr. Urban’s “different areas” of internal blood inside the skull is refuted by the CT scan taken of Nikki’s head at the time she arrived at the hospital. But Dr. Urban admitted she never looked at that scan, which shows only a small amount of subdural blood in one place., not the large volume of blood in multiple places inside the head, a condition created by resuscitating Nikki’s heart after her brain had become nonperfused.
Two days of extensive medical treatment and then Dr. Urban’s own actions during the autopsy caused a significant increase in the subdural blood and caused it to be moved around before Dr. Urban looked under Nikki’s scalp. As Dr. Auer, a brain pathologist and expert in head trauma testified in 2021 about how blood, a fluid, spreads after bleeding begins (which he described as a hemodynamic process), and thus the location of blood found during an autopsy does not indicate a site of trauma. He and other experts also explained how intracranial blood moves during the autopsy process itself. Therefore, the volume and location of the blood does not prove, as Dr. Urban claimed, multiple impacts; pointing to the blood as the basis for presuming abuse reflects the entirely discredited SBS paradigm.
Misrepresentation #7: The OAG falsely claims “Roberson repeatedly changed his story during the investigation and trial about what happened to Nikki[.] “ In truth, Mr. Roberson’s statements were remarkably consistent and amounted to the following:
At around 5:00 AM the next morning, Mr. Roberson was awoken by a strange cry. 41RR70; 41RR86-87; 41RR97; 41RR124; 41RR162; 42RR17; 42RR82. He found Nikki lying on the floor at the foot of the bed. Id. The bed consisted of a mattress and box springs that he had raised up using two layers of cinder blocks. The cinder blocks, which were visibly sticking out from under the bed, were Mr. Roberson’s attempt to prepare for his girlfriend’s return from the hospital after surgery. APPX40-45. When Mr. Roberson picked Nikki up off the floor, he saw a little blood on her mouth and a bruise on her chin. He wiped the blood off with a wash rag. Because she appeared to be okay, he put her back into bed and kept her up talking for a while. They both fell asleep again. When the alarm later woke him up around 9:00 AM, Mr. Roberson found Nikki unconscious and blue. 41RR168-171. He was scared; he called his girlfriend, Teddie Cox, who had more experience with children, at the hospital. Id. He told Ms. Cox that Nikki had fallen out of the bed and would not wake up, and he asked what he should do. Id. She told him to get Nikki to the hospital. Id. He called Mrs. Bowman to tell her to meet him at the hospital, telling her that Nikki had fallen off the bed and hit her head. 43RR155-156; APPX7. Ms. Cox called Mr. Roberson back and told him to hurry up after Mr. Roberson told her that Nikki “wasn’t breathing and he couldn’t get her to wake up.” 42RR183.
What the OAG calls “changes” to Robert’s story were a response to being pressured by various people, primarily his girlfriend, to come up with more information. It was the girlfriend (Teddie) who claimed that, in response to her pressure, at some unidentified time, Robert told her “she’d fell off and hit her head on the brick,” which seemed to be a reference to the cinderblocks holding up the mattress and box springs that served as their bed. 42RR188; APPX40-APPX45. Yet Mr. Roberson consistently reported that he did not see Nikki fall off the bed; he just heard a cry, woke up, and found her on the floor. See APPX7. Regardless of what Teddie said, the physical evidence shows that Nikki had no head injury consistent with having hit her head against a rough object, like a cinder block. She had no abrasions or blood on her head at all.
Misrepresentation #8: The OAG relies on a psychologist retained by defense counsel at trial for the punishment-phase to argue that Robert “confessed” to “shaking Nikki” (even as the State argues, incoherently, that this was not a “shaking baby” case after all).
The defense expert was Kelly Goodness, a psychologist whom defense counsel directed to start with the premise that this was a Shaken Baby case. She then took it upon herself to try to obtain a “confession” from Robert and convince him to accept a plea deal. He, however, turned down at least three such deals because he had not done anything to hurt his daughter. EX37.
The precise trial testimony regarding the purported “confession” is as follows:
Q (defense counsel): Did you talk to Robert about this offense?
A (Goodness): Yes.
Q: And did he give you an account of it?
A: Yes.
Q: What was that account?
A: That he had lost it. That Nikki was crying and that he had shook her. That was one of his accounts. Let me back up a second. At first, he told me he didn’t remember. And after I convinced him that was not going to fly with me, he then told me that he lost it.
48RR24 (emphasis added).
Dr. Kelly Goodness’ efforts to coerce a confession from an autistic man and urge him to plead guilty was shown to be so contrary to core ethics that are supposed to govern the field of forensic psychology that it was not include in the State’s proposed Findings following the -03 proceeding that they have no credibility. 7EHRR133.
Misrepresentation #9: The OAG asserts, absent evidence, that Robert “had over a dozen prior arrests[.]” The State should look back at the trial record as well as its own direct appeal brief, which identifies arrests for burglary (1), writing hot checks (2), and a probation violation (1)—all of which Robert pleaded guilty to and served his time without incident. Most importantly, Robert had absolutely no accusations, arrests, or criminal charges for any violence before he was falsely accused of hurting Nikki. And Robert has been a model inmate for the past 22 years since his arrest.
Misrepresentation #10: The OAG involves the punishment-phase testimony of Robert’s ex-wife, Della Gray, who spun a string of alarming tales about a coat hanger and fireplace shovel and a broken nose—none of which is supported by any contemporaneous medical, police, or court records.
Ms. Gray’s testimony was entirely devoid of credibility. As noted below, she never made any of her unsubstantiated accusations against Robert during her contested divorce and custody case and admittedly testified during the penalty phase of Robert’s trial to seek retribution against Robert—all facts to which she admitted before the jury. 47RR26, 31
Ms. Gray and Robert were married when they were both teenagers (18 & 19 respectively). Their divorce was final five years later on December 5, 1991. 47RR9, 12. About two years before the divorce, Ms. Gray left Palestine, Texas and only came back once—to finalize the divorce. In short, they were together for about three years. Thereafter, she never made any effort to visit their two severely disabled children, Victoria and Robert IV, ever again. 47RR27.
After Ms. Gray went back to Alabama, she and her relatives signed an Agreement with the Robersons allowing them to continue the managing conservatorship but giving her visitation rights for a month in the summer. EX53. She, however, never tried to exercise those rights—ever. 47RR26, 29; EX37.
At trial, the prosecution, through leading questions, suggested that there had been a “nasty” custody battle that resulted in her losing her kids. 47RR13. There was indeed a protracted divorce proceeding—during which Ms. Gray would have been highly motivated to point out any and all of Robert’s past failings. Yet, during the 1990 divorce proceeding, she did not mention any of the abuse Robert had supposedly, per her 2003 trial testimony, perpetrated during their brief marriage. See 47RR7-32; see also EX37.
Ms. Gray admitted that her 2003 allegations about what had supposedly transpired back in the 1980s were not supported by any police, CPS, medical, or court records. 47RR26, 31.
Additionally, Ms. Gray was forced to admit on cross-examination that she had been a drug user; that she had a drinking problem during the marriage; that the judge had ruled against her having custody; that, during the years since the divorce, she had never filed any motion to try to regain custody of her children; that she had never sought any visitation; that she had provided absolutely no support for her children, even knowing that they had special needs and required ongoing counseling; and that she had not seen Robert or her children since the divorce but only came back to Texas in 2003 to make him “pay” by testifying against him. 47RR28-32.
At trial, the prosecution adduced no reports to police or to CPS or to any other witnesses to substantiate any of Ms. Gray’s outrageous testimony—because none exists. EX37.
In sum, the ONLY evidence that Robert had ever been violent came from witnesses during the trial who on cross all had very significant credibility issues. Read the transcripts.
Misrepresentation #11: The OAG’s most egregious lie is the statement suggesting that an unidentified “cellmate” claimed that he had sexually assaulted Nikki, providing a pornographic and COMPLETELY BASELESS report that amounts to no more than profoundly disturbing prosecutorial misconduct. This calumny was not put before the jury. There is only one possible reason that the prosecution would fail to introduce at trial the informant’s highly inflammatory claims—they did not believe their own snitch and realized that his allegations were false and motivated by his express requests for help from prosecutors in getting a reduction of his sentence—which can be found in the DA’s file.
Lead detective Brian Wharton, was troubled from the start by the sexual assault allegation made by the single nurse that was not corroborated by the child abuse expert or the medical examiner. He was disturbed that the prosecutors insisted on charging Robert with sexual assault of Nikki, as he explains in his statement below:
“Despite the complete absence of objective physical evidence, the District Attorney’s office apparently started working thereafter with a notorious inmate in the local jail, Ryan Lodygowski.
“At some point before trial, I learned that someone in the District Attorney’s Office was talking to this inmate in the Anderson County jail. When I learned of this, I was even more disturbed because he was known to be unreliable. I was confident he would be looking for opportunities to volunteer purported jailhouse “confessions” in hopes of obtaining leniency for himself. In my 10 years as a police officer, I was very aware of the low evidentiary value of this kind of witness. But this particular “jailhouse informant” was obviously problematic, as reflected in multiple letters he sent to members of the District Attorney’s Office and my staff seeking favors.
“I have reviewed the letters he sent back then: two are addressed to ADA Mark Calhoun; the others addressed to Joe Berreth and Detective Mars, both members of my team. In two of the letters, Lodygowski asked for 216 days back, and in one letter he asks for 269 days back. A few others refer to promises to receive “back time” but do not specify the length or who made these promises to him. There is also a reference to a DUI that he had received. I am not familiar with any replies that may have been sent to him.
“His first letter is dated June 18, 2002. This is three months after it should have been obvious to those working on the case that there was no basis for his ridiculous claim that Mr. Roberson had confessed to Lodygowksi—a complete stranger—because his story was completely contrary to the known evidence.
“As a detective in Palestine, Texas, I was very familiar with this kind of ‘jailhouse confession’ allegation. That such material has been irresponsibly highlighted and is being treated as truthful information saddens me deeply. The source of this information in 2002, Ryan Lodygowski, was frequently in trouble with the law and never worthy of trust. In my view, he was such an obviously unreliable informant I would not have entertained a conversation with him.
“The prosecutors were aware of Lodygowski’s story in 2002, and they clearly didn’t consider it credible enough to call Lodygowski as a witness at Mr. Roberson’s trial. Lodygowski’s disgusting story to try to ingratiate himself and obtain a favor simply did not line up with the physical evidence at all and was facially unbelievable.
“Ryan Lodygowski was not credible in 2002. His claims about Robert Roberson were and remain scurrilous and defamatory. Those who would use his letters to the DA’s office from 22 years ago now and even hint that they represent ‘the truth’ is engaged in an unprincipled exercise and must not care who gets hurt in the process, including the child at the center of this case.”
-Brian Wharton, former lead detective in Palestine Texas, October 23, 2024
Former Detective Wharton explains in the rest of his statement how the false sexual assault allegation arose in the first place and why he always believed, from the beginning, that it had absolutely no validity.
“I was the lead detective with the Palestine Police Department in charge of the investigation of the death of Nikki Michelle Curtis, Robert Roberson’s daughter. I was involved starting on day one when she was brought to the hospital by her father the morning of January 31, 2002.
“Part of what occurred on that first day was an ER nurse, Andrea Sims, who chose to conduct a sexual assault exam on the comatose child. She was not asked to do so by me or any member of my team that I am aware of. Additionally, as it turns out, she was not a certified Sexual Assault Nurse Examiner.
“That first evening she claimed to see small “anal tears” on the child. None of us investigated the child’s medical history, so we did not know that she had had diarrhea for a week or been prescribed Phenergan suppositories by the same hospital just two days before that. That first day in the hospital, I could not see what this nurse claimed to see as she scrutinized. Pictures of Nikki’s bare bottom were taken.
“The suggestion that the anal region showed some sign of sexual assault was not later substantiated by either the child abuse pediatrician at Dallas Children’s (Dr. Squires) or the medical examiner (Dr. Urban). Therefore, I assumed that matter was dropped.
“Yet someone in the District Attorney’s office, solely based on Nurse Sims’ opinions, sought to indict Mr. Roberson for a second count of capital murder alleging that the death of Nikki Curtis was caused while in the course of committing or attempting to commit the offense of aggravated sexual assault. CR2. From the outset, I do not believe there was evidence to support that allegation, let alone a conviction. I did not observe the trial so had no knowledge of how the sexual abuse theme was raised at trial or that the State ultimately dropped that count. I now know that it was only dropped at the end, right before the jury began deliberating. In my lay opinion, the damage would have been done at that point. One cannot put the bullet back in the gun and expect a jury to be objective.
“I find it stunning that this failure at trial is now being magnified instead of corrected. Because of that, I feel compel to provide further facts relevant to consider what is going on here.
“On February 2, 2002, a sexual assault kit procured by Nurse Sims from Nikki’s body was submitted to DPS by one of my Captains. This, of course, was at the expense of the county, which had to pay for this testing that I had previously deemed unwarranted because of the lack of evidence to justify further inquiry.
“When we got the test results back, my trepidation seemed vindicated. In a DPS report dated March 5, 2002, we learned that the sexual assault examination had come back with the following results. An image of the DPS results from the sexual assault evidence collection kit is below:
DNA testing results obtained after Nurse Sims performed a sexual assault examination of Nikki absolutely and completely refutes the informant’s false claims.
An investigation into the criminal history of Ryan Lodygowski shows he has an extensive history of charges—with over 40 convictions for both misdemeanors and felonies in at least three states (Texas, Wisconsin, and Illinois).
Source:
Ryan Lodygowski criminal history information: https://tinyurl.com/5hk65665
Ryan Lodygowski unverified criminal conviction history: https://tinyurl.com/yv8hhm8b
His criminal history spans decades, and yet he has repeatedly managed to avoid long prison terms, suggesting the possibility that he has made a career out of volunteering to serve as an “informant.” That is, the State’s unnamed “cellmate”—who was never in fact Robert’s ‘cellmate”—is so patently devoid of credibility that they dare not name him. Yet they have the unbridled audacity to suggest this is something appropriate to convey to the press as a reason to disregard the overwhelming evidence that Robert Roberson was wrongfully convicted. More than anything, this tactic shows just how untethered to principle the OAG has become.
Source: Letters in DA’s file from Ryan Lodygowski about obtaining deal in Mr. Roberson’s case: https://tinyurl.com/4ctupe49
Misrepresentation #12: The OAG incorrectly asserts: “Now, a coalition of activists and State legislators is interfering with the justice system in an unprecedented way in an attempt to stall or prevent Roberson’s execution. They have attempted to mislead the public by falsely claiming that Roberson was unfairly convicted through “junk science” concerning ‘shaken baby syndrome.’” The OAG has obviously ignored the concrete evidence contained in the massive pleadings Mr. Roberson has filed and developed since 2016—not suddenly “now”. Mr. Roberson has more than established his right to relief under Texas’s acclaimed “changed science” law, Article 11.073:
The OAG does not mention any of the new evidence that the 2003 jury never heard in an entirely circumstantial case based on a since-discredited medical hypothesis: Shaken Baby Syndrome (SBS), which has been extensively modified over the years since 2003 and is now referred to more vaguely as Abusive Head Trauma (AHT).
Roberson’s new medical and scientific evidence, amassed over years of fighting to obtain access to key records, shows that Nikki died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock—exacerbated by inappropriate medications she was prescribed (Phenergan and codeine) when Roberson sought medical care for Nikki in the days before her collapse. This evidence shows there was no fatal inflicted head trauma and thus no basis for presuming a homicide. See, e.g.:
· Dr. Francis Green, expert in lung pathology with over 46 years of experience, recently reviewed Nikki's medical history and her lung tissue under a microscope. His detailed report explains that Nikki's lungs were infected with two different and virulent types of pneumonia - a viral and bacterial infection - which clogged Nikki's lungs, starving her brain of oxygen and causing her death. Dr. Green's detailed analysis shows that Nikki's pneumonia started many days or weeks before her final hospitalization. His report also makes clear that Nikki's lung condition could not have been caused by inflicted trauma nor can it be explained by the fact that she was on a ventilator during her final hospitalization, thoroughly rebutting the State's prosecution theory that Mr. Roberson abused his daughter. EX5.
· Dr. Keenan Bora, an expert in medical toxicology and emergency room medicine, has concluded that a post-mortem toxicology report shows that Nikki had dangerously high levels of promethazine in her system, prescribed by two different doctors on two consecutive days. Promethazine is a drug no longer prescribed to children Nikki's age and in her condition because it impairs their ability to breathe and can be fatal. Dr. Bora has concluded that this drug exacerbated Nikki's breathing problems and likely hastened her death from her pneumonia infection, which her body was unable to fight off, leading to sepsis and then septic shock, such that vital organs shut down. EX7.
· Dr. Julie Mack, an expert in pediatric radiology, has concluded that the initial CT scans of Nikki's head show only a single minor impact site on her head. Dr. Mack reviewed CT scans rediscovered in the courthouse basement in 2018 that had been lost for 15 years. As interpreted by the only type of expert qualified to read them, the scans corroborate Mr. Roberson's statement at the hospital that Nikki had fallen out of bed and possibly hit her head. Dr. Mack has also reviewed chest x-rays of Nikki, some produced to Mr. Roberson's counsel only in 2018 and others only in 2024. Dr. Mack has concluded that these chest x-rays corroborate Dr. Green's conclusion that Nikki died of a fatal lung infection (pneumonia). EX6.
· Dr. Janice Ophoven, a licensed M.D. since 1971, board certified in forensic pathology and anatomic pathology with special training and experience in pediatrics and pediatric pathology, concluded that Nikki’s death should not have been designated a homicide, in part because there is no scientific basis for looking at an impact site and concluding whether it was intentionally inflicted or the result of an accidental fall. Dr. Ophoven opined that Nikki’s internal condition simply meant that she had suffered irreversible damage from oxygen deprivation. Dr. Ophoven explained that anyone who stops breathing and has their heart stop is at risk for the same constellation of internal head conditions. If the brain is deprived of oxygen, brain swelling occurs. Then, as pressure against the brain increases, bleeding into the eyes, which are connected to the brain, can occur. Dr. Ophoven was confident that the precipitating event was not “shaking” or “multiple impacts” to the head. She further explained that Dr. Urban’s autopsy pictures, to which the jury had been subjected, were misleading because they did not reflect Nikki’s condition when she was brought to the ER but were taken after multiple intervening events had affected Nikki’s internal and external condition.
· Dr. Ken Monson, biomechanical engineer who studies head injuries and directs the “Head Injury and Vessel Biomechanics Laboratory,” described studies in his field on the injury-potential of shaking. He explained the relevant scientific literature and studies showing that the SBS/AHT assumptions about how shaking would cause internal head injuries but no neck injuries have been falsified. He also explained how the laws of physics and modeling are utilized to study the injury-impact of falls with head impacts. Dr. Monson explained how a teddy bear, such as that used as a demonstrative during Robert’s trial, weighing less than a pound, is not a comparable model in any relevant respect to a 28-pound toddler like Nikki and thus misled the jury.
· Dr. Carl Wigren, a forensic pathologist who has performed over 2,000 autopsies and is a member of the American Academy of Forensic Sciences, concluded that Nikki’s death was not a homicide based on: (1) the report of a fall off of a bed; (2) the evidence (CT scans and autopsy photographs) showing only a single impact site to the back of Nikki’s head that was consistent with the report that she had sustained a short fall; (3) evidence in the toxicology report of potentially toxic quantities of Phenergan/promethazine, now known to suppress the nervous system, in Nikki’s bloodstream at the time of autopsy; (4) evidence that, shortly before her collapse, she had been prescribed Phenergan in two forms and cough syrup with codeine, a narcotic that metabolizes into morphine and further suppresses the nervous system; (5) evidence that the fall occurred while she was in an unsafe and unfamiliar sleep environment, a bed that consisted of a mattress and box springs recently propped up on layers of cinder blocks, some of which were sticking out from under the box springs; and (6) evidence that Nikki had undiagnosed pneumonia. Dr. Wigren concluded that these factors had come together to cause an “unfortunate accident,” “absolutely not” a homicide, and opined that SBS/AHT played no role in causing Nikki’s death.
· Dr. Roland Auer, a neuropathologist board certified in the United States and Canada, who is both a medical doctor and a Ph.D. scientist, the author of a leading neuropathology treatise and over 130 scientific articles in peer-reviewed journals, and a researcher with extensive experience with head trauma, hypoxia, hypoxic ischemia, and pediatric pneumonia, independently identified factors relevant to assessing the cause of Nikki’s death. He concluded that her death could not reasonably be deemed a homicide. As a specialist in brain pathology, Dr. Auer clarified that trauma sufficient to cause internal brain damage would leave external markers on the skin in the form of corresponding bruises/contusions and likely corresponding skull fractures. He found no evidence suggesting significant trauma to Nikki’s head, only one minor impact, “no support for multiple impact sites neither on the brain nor in the skull nor in the scalp,” and “no evidence for multiple impact sites whatsoever” but instead found evidence in Nikki’s lung tissue of advanced interstitial viral pneumonia. He explained that interstitial viral pneumonia causes hypoxia by disrupting the lung tissue and, if untreated, a cascade of symptoms will result in brain death: oxygen-deprived blood vessels leak into the dura; the blood accumulating outside of the brain causes swelling and increased intracranial pressure; the pressure inside the skull in turn causes retinal hemorrhages. He also noted that the drugs Nikki had been prescribed before her collapse—Phenergan, which depresses respiration, and codeine, an opiate—would have done nothing to address her undiagnosed pneumonia but would have further hindered her ability to breath. EX8.
· By contrast, the State in post-conviction relied on just two witnesses. One was Dr. Urban, who performed the 2002 autopsy and acknowledged that a lot of her cases “run together”, could not identify anything she had learned in the intervening years that would make her doubt her 2002 findings, but made many admissions showing that her conclusions in this case are indefensible because of all of the information she did not have at the time. The State’s other witness was Dr. James Downs, a member of the “Shaken Baby Alliance,” an SBS/AHT advocacy group that teaches prosecutors how to obtain convictions based on the SBS/AHT hypothesis. In trying to rebut the findings that Nikki’s death was caused by her undiagnosed viral pneumonia, Dr. Downs repeatedly claimed that Nikki’s lungs were “normal little kid lungs” and he saw “no pneumonia.” 10EHRR74, 76, 212, 220, 242. But Dr. Downs was recently found to have missed the pneumonia in a child autopsy he had performed in Alabama; evidence of the pneumonia he had missed led to grant of a new trial for a death-sentenced individual initially convicted based on Dr. Downs’ discredited autopsy findings. See Ward v. State, No. CR-18-0316, 2020 WL 4726486, at *4 (Ala. Crim. App. Aug. 14, 2020) (to be reported in So. 3d).
· Although even proponents of the current version of SBS still believe shaking can cause the triad, they also has recognized biomechanical studies showing that shaking would, first and foremost, injure a child’s neck. But Dr. Urban found that Nikki’s neck was not injured in any way. To endeavor to explain this during the 2003 trial, she made unscientific assertions that the neck is somehow “protected” during shaking because the neck is weak : “in a child this age, the neck is actually fairly flexible and that's one of the reasons that blows to the head or shaking is so dangerous because the neck is not actually strong enough to support the head. And, you know, if you ever looked at a small child, their head is very large in proportion to the rest of their body. And so when the head is struck or, again, if the child is shaken, it's this very large object sitting on a fairly weak neck. And, you know, the weakness in the neck protects the neck from getting hurt, but it really just doesn't protect the head from getting hurt.” 43RR82. This analysis cannot be squared with contemporary scientific understanding.
· The vast problems with Dr. Urban’s skeletal autopsy report are illuminated by her 2003 trial testimony, when compared to her 2021 post-conviction admissions and the testimony of more experienced pathologists from a range of medical specialties. See, e.g., EX5-EX8.
According to WFAA's Matt Houston, Texas law does not allow Roberson's execution to be rescheduled for a date earlier than Jan. 15. By then, the Texas Court of Criminal Appeals will have three new judges stemming from the Nov. 5 election.
