Attorneys for death-row inmate Robert Roberson urged a Texas court Tuesday to weigh a new ruling from the New Jersey Supreme Court that found shaken baby syndrome evidence too unreliable for juries — a decision they say underscores the shaky science behind Roberson's 2003 conviction.  

The New Jersey Supreme Court ruled that expert testimony on shaken baby syndrome (SBS), also known as abusive head trauma (AHT), is not reliable enough to be presented to a jury in two criminal cases involving injured infants.  

The Robert Roberson case

Convicted in 2003, Roberson has maintained his innocence in the 2002 death of his 2-year-old daughter, Nikki Curtis, in the East Texas city of Palestine.   

Prosecutors at Roberson's 2003 trial argued he hit his daughter and violently shook her, causing severe head trauma and that she died from injuries related to shaken baby syndrome. 

Roberson's lawyers and some medical experts say his daughter died not from abuse but from complications related to pneumonia. They say his conviction was based on flawed and now outdated scientific evidence.

The diagnosis of shaken baby syndrome refers to a serious brain injury caused when a child's head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.

Last year, Roberson was on the verge of being put to death when a flurry of last-minute legal maneuvering on the night of his scheduled execution, including an unprecedented intervention by a bipartisan group of Texas lawmakers, stayed his lethal injection. In July, a judge set the new execution date, Roberson's third.

Last month, the Texas Court of Criminal Appeals stayed Roberson's execution that was scheduled for Oct. 16 and sent the case back to the trial court. 

Court documents outline the two New Jersey cases

Both children showed the classic "triad" of symptoms — subdural hematoma, retinal hemorrhages and brain swelling — and the same doctor concluded each was a victim of abuse. The fathers, who were caring for the children at the time, were charged with aggravated assault and child endangerment.

Defense attorneys challenged the scientific basis of SBS/AHT, arguing that the idea that shaking alone can cause the injuries is no longer accepted in the medical community. 

"Biomechanical studies have tried but failed to demonstrate that the sorts of brain injuries long thought to be diagnostic of SBS/AHT can be caused by 'shaking alone,'" the defense argued in the State of New Jersey v. Darryl Nieves.

Nieves argued that the original concept of SBS/AHT did not have scientific validation and that "a differential diagnosis is now required before abuse can be posited," identifying all other possible medical and accidental causes.

After holding pre-trial court proceedings, both trial courts barred the expert testimony.

The appeals court agreed, ruling that prosecutors failed to prove the theory is scientifically reliable, and affirmed the lower courts' decisions to exclude SBS/AHT testimony.

Potential impact of New Jersey ruling on Roberson's case

Roberson's daughter was diagnosed when only a few outliers were starting to question the basis for the hypothesis, Roberson's lawyers argue in the latest court filing.

"Nieves focuses on the reliability of the current version of SBS/AHT— which has been revised considerably since Mr. Roberson's trial," Roberson's lawyers state in the latest court filing. "But the analysis in Nieves is nevertheless highly relevant because it underscores the exceptional unreliability of Mr. Roberson's conviction, which hinges on a version of SBS that even the most ardent believers in the hypothesis recognize has been disavowed. Mr. Roberson's jury heard only from prosecution witnesses and heard only SBS opinions that have since been entirely discredited."

Nieves also states that "children who are abused often have indicia such as fractured bones, neck injury, bruises, or internal organ injuries." 

Roberson's lawyers argue that his daughter, Nikki, did not have a hairline fracture, neck injury or internal organ injury, and "only what even the medical examiner admitted were 'superficial' bruises." 

"Mr. Roberson is not asking a Texas court to resolve the raging contemporary debate about whether SBS/AHT has any efficacy. He is only asking for a new trial that would reflect the changes in scientific understanding with respect to SBS since his 2003 trial, so that this case is consistent with Ex parte Roark."  

*Ex parte Roark: A Dallas County man, Andrew Roark, was convicted in 1997 by a jury of injury to a child, prosecuted under the theory of shaken baby syndrome, and was sentenced to 35 years. His conviction was overturned. The court concluded that if the new scientific evidence had been presented at trial, it was more likely than not that Roark would not have been convicted.