Original Detective Wants to Free Man Facing Death for ‘Shaken Baby’

Just about everything went wrong in the case of Texas death row prisoner Robert Roberson. In 2003, Roberson was convicted of shaking his two-year-old daughter to death. Despite overwhelming evidence of his innocence, the State of Texas plans to execute Roberson on Oct. 17. If Roberson’s execution is carried out, he will be the first person executed for SBS in United States history.

But at least one person responsible for Roberson’s conviction now wants him set free. Brian Wharton, the lead detective on Roberson’s case, says Roberson is innocent and he’s telling anyone who will listen. He’s submitted declarations to Texas courts and testified at a postconviction hearing for Roberson. 

Wharton says that Roberson was convicted of a crime that never occurred because his daughter, Nikki Curtis, was not murdered. At trial, the prosecution argued that Nikki was a victim of Shaken Baby Syndrome (SBS), a controversial theory that has unraveled in the decades since a jury sent Roberson to death row. 

“As we learn about the change in science revolving around Shaken Baby Syndrome, now we have clear information that the foundations of our case against him have crumbled,” Wharton, the former assistant chief of police for the Palestine, Texas Police Department, told The Appeal.  

Since his conviction, Roberson’s legal team has discovered that Nikki died from a severe case of viral and bacterial pneumonia which developed into septic shock, and that her condition was exacerbated by dangerous levels of promethazine in her system. The medication was prescribed by two doctors shortly before her death.

Two decades ago, shaken-baby syndrome (SBS) prosecutions usually resulted in convictions. During trials, doctors would typically testify that observed injuries known as the “triad”—subdural hemorrhage, retinal hemorrhage, and brain swelling—could only occur from a car accident, a fall from a multi-story building, or shaking. Experts would often say the injuries were so severe that the perpetrator of this violent act must have been the last person with the child.

Over the last two decades, exonerations and research studies have shown that injuries attributed to shaking can instead be caused by short-distance falls, trauma from childbirth, or various illnesses, including strokes, pneumonia, or sickle cell anemia. 

“At the time of Roberson’s conviction, everyone accepted SBS as the undisputed cause of his daughter’s death,” a group of federal judges wrote in a brief to the U.S. Supreme Court, which refused to look at Roberson’s case last year. “Mountains of new evidence—evidence the jury never considered—now proves otherwise.”

In 2022, a New Jersey court dismissed a father’s indictment after ruling the prosecution could not introduce testimony about SBS, which the judge called “akin to junk science.” An appeals court affirmed the trial judge’s ruling. The case is now pending before the state Supreme Court. This summer, the Michigan Supreme Court tossed out the 2006 conviction of Chazlee Lemons after the medical examiner testified at an evidentiary hearing that the baby may have choked on formula and not been shaken, as the doctor had originally believed. 

In Tennessee, a medical examiner recently recanted his testimony that helped send a father to prison for shaking his son to death more than twenty years ago. He now believes that the baby was not abused and that the lesions on his brain likely resulted from a “natural disease process.”

Even though the tide is shifting, courts and prosecutors have been reticent to correct the mistakes of the past. In Roberson’s case, for instance, the Anderson County District Attorney’s office has refused to change course. The DA’s office did not respond to a request for comment. Last week, Roberson received a devastating setback when the Texas Court of Criminal Appeals (CCA) denied his separate motions asking for his freedom and a stop to his execution. Today, Roberson’s legal team submitted a clemency petition to Gov. Greg Abbott and the Texas Board of Pardons and Paroles. They’re requesting that the parole board recommend, and the governor grant, a commutation of Roberson’s sentence to a penalty less than death or a reprieve of execution for 180 days so they can consider the application. 

Numerous letters of support accompanied Roberson’s petition—from Wharton and a bipartisan group of more than 80 Texas state legislators, along with many others.

“We urge you to recommend clemency for Mr. Roberson out of grave concern that Texas may put him to death for a crime that did not occur, as new evidence suggests,” the lawmakers wrote. “[S]ignificant scientific and medical evidence now shows that his daughter Nikki, who was chronically ill, died of a combination of natural and accidental causes, not the debunked shaken baby syndrome hypothesis the State used to convict Mr. Roberson.”

Roberson’s two-year-old daughter, Nikki, was frequently ill, according to court filings. On some occasions, she stopped breathing, collapsed, and turned blue. 

On Jan. 28, 2002—days before the child’s death— Roberson and his mother took Nikki to the emergency room because she had been vomiting and having diarrhea for several days, according to court records. The attending ER doctor prescribed the antihistamine promethazine even though the Food and Drug Administration (FDA) recommended at the time that it not be used in children younger than two and that it be used with caution for children two and older because it can cause fatal respiratory distress. Nikki was just 27 months old. In 2004, the FDA strengthened its previous warning and directed doctors not to use the drug on children under two and to exercise caution with older children.

Nikki was discharged from the hospital but ran a 103.1-degree fever later that night. The next morning, Jan. 29, Roberson took Nikki to the pediatrician, where her temperature was recorded as 104.5 degrees. The doctor sent them home with a prescription for promethazine with codeine. Nikki spent that day at her grandparents’ house while Roberson’s live-in girlfriend recovered from surgery.  

Roberson says he picked up Nikki on the night of Jan. 30, brought her home, and put her to bed. In the early morning hours of Jan. 31, he heard a cry and found Nikki on the floor. He put her back to bed and they fell back to sleep. Later that morning, he woke up and saw that she was unconscious and her lips were blue. He rushed her to the emergency room. His account of that night has remained consistent across interviews with hospital staff, the police, and his trial and appellate lawyers.

At the hospital, a nurse suspected abuse and contacted the police. Wharton, the lead detective, says when he arrived at the hospital, he thought Roberson was behaving strangely.

“What we observed that first night in the ER, we assumed was some form of guilt, exposing itself, and we kind of ran with that,” he told The Appeal.

At trial, Wharton testified that Roberson was “unemotional and detached.” The officers asked Roberson if they could go to his home. He agreed. When they arrived, Roberson made himself a sandwich, Wharton testified—a detail the prosecutor emphasized to the jury.

“Mr. Roberson’s daughter is intubated, virtually dead—and Mr. Roberson fixes up a little sandwich,” the prosecutor told the jury during closing arguments. “He’s worked up an appetite. ‘Y’all go ahead and find what you need. I’m going to make me a hero.’”

Roberson is autistic but was not diagnosed until years after his conviction. While reactions to tragedies are often as varied as the individuals experiencing them, responses from neurotypical people and neurodivergent people can differ greatly. Neurotypical people may mischaracterize neurodivergent people’s behavior as strange, hysterical, or callous—uninformed judgments that can have potentially catastrophic consequences within the context of the criminal legal system. 

Assumptions about how people should behave have led to numerous wrongful arrests, false confessions, and convictions. In 1989, for example, police in Peekskill, New York became suspicious of Jeffrey Deskovic because they thought he was too distraught over his high school classmate’s death. For hours, they interrogated him until he falsely confessed. Despite DNA evidence that excluded him, he was wrongfully convicted of rape and murder. He was exonerated in 2006, after serving more than 15 years for crimes he did not commit. 

In another case, Escondido, California police in 1998 became suspicious of 14-year-old Michael Crowe because they thought he didn’t display enough emotion over his sister’s death. Like Deskovic, police coerced Crowe to confess, but the charges were dropped before trial when DNA testing determined the victim’s blood was found on the sweatshirt of an alternate suspect, an older man who had no relationship to the Crowes.

Roberson’s daughter never regained consciousness. A child abuse pediatrician quickly concluded that Nikki had been shaken. Roberson was arrested on Feb. 1, the day Nikki was declared dead. 

He was booked into jail and placed in a suicide watch cell for 45 days, according to a statement Roberson provided to his legal team in June. 

In that document, Roberson said his trial lawyers repeatedly tried to persuade him to “take a guilty plea for something that I did not do.” 

“Several times my lawyers told me that the State would give me a plea deal if I would plead guilty,” Roberson said. “I did not want to do that because I did not do anything to hurt Nikki.”

Roberson went to trial. He says that even though he had told his attorneys he was innocent, his defense counsel falsely claimed that Roberson had shaken Nikki in a moment of rage.  

“Before, during, and after my trial, I kept asking for someone to investigate my innocence, but no one would do this,” Roberson said. 

The jury convicted Roberson and sentenced him to death. 

Over the years, Wharton says the case nagged at him. Occasionally, he looked up Roberson on the Texas Department of Criminal Justice website. 

“I’d kind of watched the website to see if he was still in the system,” he said. “That was my assurance that he was working the appeal still, and he had an attorney.”

But despite the growing evidence of Roberson’s innocence, his execution is on track to occur next month unless the governor intervenes. For his part, Wharton is trying to ensure that Roberson is one day counted among the exonerated. The New York Times recently filmed their first meeting in more than twenty years. Wharton apologized; Roberson forgave him.

“It’s not simply stopping an execution,” Wharton told The Appeal. “We owe it to him to say, ‘Yes, Robert’—call him by name—‘Robert, you are correct. You are right. We were wrong.’ And set him free.”