OPINION: Will Texas execute a likely innocent man? That's what high-profile supporters say | Grumet

Brian Wharton wears the worry on his face. He knows Robert Roberson is slated for execution in 30 days. He believes Texas is about to kill an innocent man, and the courts have declined to stop it.

Two decades ago, Wharton had been wrong about this case, too. As the lead police detective handling this case in the East Texas town of Palestine, he played a key role in the arrest and conviction of Roberson over the 2002 death of Roberson's 2-year-old daughter, Nikki, believing the child had suffered from shaken baby syndrome.

For the past six years, Wharton has tried to undo this terrible error, a case built on skimpy forensics and bad judgment calls. Now an Oct. 17 execution date looms. Time is running out.

“There has been no crime committed here. Nikki died of accidental and natural causes,” Wharton told me and other journalists gathered Tuesday on a call organized by Roberson's attorneys. “I will be forever haunted by my participation in his arrest and prosecution. He is an innocent man.”

A legion of advocates is urging the Texas Board of Pardons and Paroles and Gov. Greg Abbott to grant clemency to Roberson, 57, who appears to be the only person in America facing the death penalty in a case involving the increasingly discredited theory of shaken baby syndrome.

Among the advocates in Roberson’s corner: 84 Texas lawmakers from both parties, 34 scientists and medical experts, 70 attorneys who have represented people wrongfully accused of child abuse, eight advocates for parental rights, eight organizations that advocate for those with autism, the Texas Catholic Conference of Bishops and other faith organizations.

In a statement released this week, state Rep. Joe Moody, D–El Paso, argued that “the forensics used in the original trial are now widely seen as junk science. We simply can't move forward with an execution with these kinds of doubts hanging over it.”

State Rep. Lacey Hull, a Houston Republican, added, “Regardless of our individual positions on the death penalty, I think we can all agree that putting a potentially innocent man to death for a crime that may not have occurred would be a grave miscarriage of justice."

A perfect storm of failures and misunderstandings landed Roberson on death row. He took Nikki to see doctors twice in the days before her death in 2002, as the child battled infections and her fever spiked at 104.5 degrees. Doctors prescribed Phenergan and a cough syrup with codeine — both drugs the FDA now warns against giving to young children, as they can cause serious and life-threatening breathing problems for small patients.

When Roberson rushed his unresponsive daughter to the hospital on Jan. 31, 2002, doctors concluded the internal bleeding in Nikki’s head and her brain swelling must have been caused by shaken baby syndrome. Experts who later scrutinized the case, however, found the tissue samples from Nikki’s lungs showed she had a severe case of pneumonia that prevented her body from getting the oxygen it needed, and the infection led to sepsis. Nikki also had dangerous levels of the medications that we now know the doctors should not have prescribed.

Research has also found that a short fall can produce head injuries that can be mistaken for shaken baby syndrome. Hours before he took Nikki to the hospital, Roberson awoke to find she had fallen out of bed. He picked her up and tucked her back in.

But investigators dismissed Roberson’s story about Nikki’s fall, and indeed grew more suspicious of him, because he seemed unemotional and detached at the hospital. It wasn’t until years later that Roberson was diagnosed with autism, a condition that affects the way people process and express their emotions. Such a condition can lead to grave misunderstandings for those who come into contact with law enforcement officers.

In court filings, the Anderson County district attorney’s office stands by the evidence that convicted Roberson two decades ago, even though shaken baby syndrome has proven to be an overused and unreliable explanation for such injuries to children. At least 32 people in 18 states have been exonerated after wrongful convictions on the basis of shaken baby syndrome, according to the National Registry of Exonerations.

Even with the magnitude of errors in Roberson's case, however, the Texas Court of Criminal Appeals last week declined his request for relief.

John Grisham, the bestselling author and longtime board member of the Innocence Project, shook his head over the courts’ refusal to intervene when the evidence of innocence is so compelling. But he applauded Wharton for his effort to keep fighting to free the man he helped put on death row.

“In almost none of these stories — and I've met dozens of exonerees — do you ever hear the policeman, the officers say, ‘We got it wrong. We're sorry?’” Grisham told me and other journalists on the call organized by Roberson’s legal team. “You never hear the prosecutor say, ‘Hey, we got it wrong. We're sorry.’ We never hear the judges say, ‘We got it wrong.’ There's a cover -up with every one of them. The mistakes are too big, and the stakes are too big, for people to say, ‘We were wrong.’”

But now, being wrong will mean executing a likely innocent man, an act that cannot be taken back. The stakes don't get bigger than that. The power to make this right rests with Abbott.

Grumet is the Statesman’s Metro columnist. Her column, ATX in Context, contains her opinions. Share yours via email at bgrumet@statesman.com or on X at @bgrumet. Find her previous work at statesman.com/opinion/columns.

This article originally appeared on Austin American-Statesman: OPINION: Execution of Robert Roberson set even as evidence unravels