Could Viral Pneumonia Explain Why Robert Roberson Is on Death Row?

Robert Roberson lived to see another day—actually, at least another 90.

Sentenced to death for the murder of his two-year-old daughter Nikki—based largely on a debunked understanding of the syndrome now known as Abusive Head Trauma but then known as “shaken baby syndrome“—Roberson’s appeals were dismissed by state authorities reluctant to revisit the science as explained at trial despite its revision in subsequent decades. The Supreme Court also denied relief, though Sotomayor wrote separately1 to note Roberson’s likely innocence, lament the Supreme Court’s standing in matter of state criminal procedure, and implore the state’s governor Greg Abbott (as of this writing, still MIA) to intervene.

However, a bipartisan group of Texas Representatives who’d fruitlessly urged for clemency found a hail mary: subpoenaing Roberson to testify at a legislative hearing scheduled after his execution date, hours before he was marched to the gurney. After a few hours of complex and fascinating legal wrangling, the Texas Supreme Court stayed the execution with just 90 minutes left on Roberson’s death warrant.

While my feelings on the death penalty in any instance are pretty clear to longtime readers, innocence claims draw an understandable extra layer of attention, and people new to the case develop a lot of fair questions. When I first wrote about Roberson’s case in August, I focused on developments in radiology and trauma that made the prosecution’s science unreliable—a subject thoroughly explored here and elsewhere. However, another element of Roberson’s post-conviction defense—the discovery that Nikki had undiagnosed pneumonia—deserves a more thorough explanation. On the surface, it seems counterintuitive to blame brain and eye injuries on lung disease; however, an understanding of how the body functions systemically makes it clear that it’s possible.

How Hypoxia Might Explain (Some of) Nikki’s Brain Injuries

The most important concept in healthcare is homeostasis, or the body’s maintenance of a steady internal environment. Like any other organ, the brain requires perfusion, or the constant delivery of oxygenated blood, to keep from dying; the circulatory and cardiovascular systems have a number of mechanisms to keep that delivery going. The most obvious of these, especially when there’s not enough oxygen in the blood (hypoxia), is to increase the heart rate, essentially getting blood into organs faster to compensate for its insufficient oxygen. This is why one of the telltale signs that things are going south (hypoperfusion, known commonly as shock) is a high heart rate but a low blood pressure: the heart is working overtime and still failing to fix a circulatory problem.

When your problem isn’t circulatory (as in pneumonia, which affects breathing and oxygen absorption), this system runs into problems. While most organs can absorb a short-term increase in blood pressure without issue, the brain and eyes rely not only on consistent oxygen delivery but on the pressure within the cranium remaining steady. An increase in blood flow can cause a “cascade of symptoms” resulting in brain death: overfilled blood vessels rupture and leak into the dura (a shock-absorbing membrane surrounding the brain), increasing intracranial pressure and ultimately causing potentially fatal traumatic brain injuries. According to defense experts, this increase in pressure could even cause the retinas to detach, one of the triad of symptoms previously thought to indicate abusive head trauma decisively. That Nikki was a toddler, with a relatively fixed stroke volume (the amount of blood that their hearts can pump per beat) and therefore only able to compensate for hypoxia with her heart rate, can exacerbate this problem.

It’s important to note that head trauma is still the most common cause of subdural hematoma in children, and that studies of other respiratory causes of pediatric subdural hemorrhage didn’t show causation. However, the defense’s case has always been that Nikki suffered a fall in addition to her medical vulnerabilities, and the prosecution’s attestation of “multiple impact sites,” now in question due to radiological scans not available at trial, seems even more questionable in light of these findings. It was enough that Dr. Roland Auer, described by the defense as an expert in both head trauma and pediatric pneumonia in Roberson’s Supreme Court petition, declared her death “could not reasonably be deemed a homicide.”

Roberson’s Theory Had Its Day in Court, but Texas Wasn’t Listening

The state made little effort to contest these findings, or Auer’s explanation. While medical examiner who initially determined Nikki’s cause of death insisted that she hadn’t changed her opinion, she admitted that she’d never considered the victim’s medical history; a pediatrician who argued that pneumonia would have to be “grossly apparent“ and that he’d “never missed“ the condition in an autopsy was confronted with evidence that, in a previous capital case, he had. However, the barrier for factual innocence is (at least in the Texas criminal justice system) extremely high, and Roberson’s appeal was denied because he hadn’t disproven his guilt via the “accepted mechanic [sic]2 of death“ by which he’d been convicted.

None of This Will Save Robert Roberson, but It’s More Likely than Yesterday

When I last wrote about Roberson, I was as pessimistic as the title suggests.

If I had to place a marker down, I’d still be that way; as I understand it, the subpoena only stays the execution for 90 days, there’s nothing the legislature can do based on his testimony, and it’s unlikely to yield facts that change the executioners’ calculus. I’d be remiss, however, not to point out that I didn’t expect anything to work. The Texas legislature brings ever more attention to the case and makes Abbott’s silence on it less and less tenable. Yesterday was not a grand triumph for abolitionists3, but it’s the first win since I started working on death penalty issues. I’ll believe America is making another turn against retribution when I see it…but, as of today, I’ve been wrong before.