What to know about shaken baby syndrome as a Texas man could be first in US executed over it

HOUSTON (AP) — A Texas man this week could become the first person executed in the U.S. for a murder conviction tied to the diagnosis of shaken baby syndrome.

The Texas Board of Parole on Wednesday voted 6-0 against recommending clemency for Robert Roberson, who is scheduled to receive a lethal injection on Thursday. The board also denied him a 180-day reprieve.

Republican Gov. Greg Abbott can only grant clemency after receiving a recommendation from the board, which had come under public bipartisan pressure in recent weeks to spare Roberson's life.

Roberson, 57, is set to be executed for the 2002 killing of his 2-year-old daughter, Nikki Curtis. His attorneys have asked the U.S. Supreme Court to stay the execution.

Roberson has long proclaimed his innocence. His lawyers as well as a bipartisan group of Texas lawmakers, medical experts and others don't deny that head and other injuries from child abuse are real. But they argue his conviction was based on faulty and now outdated scientific evidence and say new evidence has shown Curtis died from complications related to severe pneumonia.

But prosecutors maintain Roberson’s new evidence does not disprove their case that Curtis died from injuries inflicted by her father.

Roberson's scheduled execution renewed debate over shaken baby syndrome. On one side of the debate are lawyers and some in the medical and scientific communities who argue the shaken baby diagnosis is flawed and has led to wrongful convictions. On the other side are prosecutors and medical societies from the U.S. and around the world who say the diagnosis is valid, has been scientifically proven and is the leading cause of fatal head injuries in children younger than 2 years of age.

Here’s what to know about the highly scrutinized diagnosis ahead of Roberson’s scheduled execution:

The diagnosis refers to a serious brain injury caused when a child’s head is injured through shaking or some other violent impact, like being slammed against a wall or thrown on the floor, usually by an adult caregiver, said Dr. Suzanne Haney, a child abuse pediatrician and member of the American Academy of Pediatrics Council on Child Abuse and Neglect.

The term was changed in 2009 to abusive head trauma, a more inclusive diagnosis, Haney said.

There are about 1,300 reported cases of shaken baby syndrome/abusive head trauma in the U.S. each year, according to the National Center on Shaken Baby Syndrome.

Critics allege doctors have been focused on concluding child abuse due to shaken baby syndrome whenever a triad of symptoms — bleeding around the brain, brain swelling and bleeding in the eyes — was found. Critics say doctors have not considered that things like short falls with head impact and naturally occurring illnesses like pneumonia, could mimic an inflicted head injury.

Roberson's attorneys and other supporters are not saying that child abuse doesn't exist or that shaking a baby is safe, said Kate Judson, executive director of the Center for Integrity in Forensic Sciences, a Wisconsin-based nonprofit that seeks to improve the reliability of forensic science evidence.

“This is a case about whether someone was misdiagnosed and justice wasn’t served,” Judson said.

While Haney declined to comment on Roberson’s case, she said there is no disagreement within a vast majority of the medical community about the validity and science behind the diagnosis.

Haney said doctors are not just focused on a triad of symptoms to determine child abuse, but instead look at all possible things, including any illnesses, that could have caused the injuries.

“I worry the pushback against abusive head trauma as a diagnosis is going to interfere with the prevention efforts that are out there and therefore allow more children to get harmed,” Haney said.

Judson said she believes that doctors in Roberson's case did not consider all possible causes, including illness, to explain what happened to his daughter and used the triad of symptoms to only focus on child abuse.

Roberson’s attorneys say he was wrongly arrested and later convicted after taking his daughter to a hospital. She had fallen out of bed in their home in the East Texas city of Palestine after being seriously ill for a week.

New evidence gathered since his 2003 trial shows his daughter died from undiagnosed pneumonia that progressed to sepsis and was likely accelerated by medications that should not have been prescribed to her and made it harder for her to breathe, said Gretchen Sween, Roberson’s attorney.

The Anderson County District Attorney’s Office, which prosecuted Roberson, has said in court documents that after a 2022 hearing to consider the new evidence, a judge rejected the theories that pneumonia and other diseases caused Curtis’ death.

In recent years, courts around the country have overturned convictions or dropped charges centered on shaken baby syndrome, including in California, Ohio, Massachusetts and Michigan.

In a ruling last week in a different shaken baby syndrome case out of Dallas County, the Texas Court of Criminal Appeals ordered a new trial after finding scientific advancements related to the diagnosis would now likely result in an acquittal in that case.

But the appeals court has repeatedly denied Roberson’s request to stay his execution, most recently on Friday.

In the U.S., at least eight individuals have been sentenced to death because of shaken baby syndrome, said Robin Maher, executive director of the Death Penalty Information Center. Two of these eight have been exonerated and Roberson is the only one to have received execution dates.

“According to the National Registry of Exonerations, at least 30 people across the country have been exonerated based on this discredited scientific theory,” Maher said.

But Danielle Vazquez, executive director of the Utah-based National Center on Shaken Baby Syndrome, said a 2021 research article found that 97% of more than 1,400 convictions related to shaken baby syndrome/abusive head trauma from 2008 to 2018 were upheld and that such convictions were rarely overturned on the grounds of medical evidence.

Vazquez said her organization is worried that doubts that have been raised about the diagnosis could cause some parents or caregivers to wrongly think that shaking a baby is not harmful.

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Elizabeth Ramirez, center, Casandra Rivera, center right, and Anna Vasquez, second from right, of the "San Antonio 4" group, deliver boxes with petitions in the Texas State capitol for Texas Gov. Greg Abbott seeking the pardoning of Robert Roberson's execution, Wednesday, Oct. 16, 2024, in Austin, Texas. Roberson, 57, is scheduled to receive a lethal injection on Oct. 17, for the 2002 killing of his 2-year-old daughter, Nikki Curtis, in the East Texas city of Palestine. Roberson has long proclaimed his innocence. (AP Photo/Nadia Lathan)

Casandra Rivera, left, Anna Vasquez, second from left, and Elizabeth Ramirez, center, of the "San Antonio 4" group, hold boxes with petitions being delivered in the Texas State capitol for Texas Gov. Greg Abbott seeking the pardoning of Robert Roberson's execution, Wednesday, Oct. 16, 2024 in Austin, Texas. Roberson, 57, is scheduled to receive a lethal injection on Oct. 17, for the 2002 killing of his 2-year-old daughter, Nikki Curtis, in the East Texas city of Palestine. Roberson has long proclaimed his innocence. (AP Photo/Nadia Lathan)

FILE - Texas lawmakers meet with Robert Roberson at a prison in Livingston, Texas, on Sept. 27, 2024. (AP Photo/Criminal Justice Reform Caucus, file)

LOS ANGELES (AP) — The Los Angeles city attorney’s office said Tuesday that it does not plan to file criminal charges against two people who were investigated in connection with the unlawful recording of a racist conversation that rocked City Hall and prompted the city council president to resign after the audio was leaked in 2022.

The local prosecutors declined to file misdemeanors against the two people, a married couple, just months after the district attorney’s office announced that it would not pursue any felony charges against them.

The Associated Press is not naming the two people because they were not charged. Both previously worked at the Los Angeles County Federation of Labor and lived at a home that investigators traced to social media posts highlighting the controversial recording.

Prosecutors could not meet the burden of proof for a case, even though the district attorney's office, in a charge-evaluation worksheet, said “the evidence indicates that a crime was committed by one or both of these individuals.”

Under California law, all parties must consent to the recording of a private conversation or phone call, otherwise the person who made the recording could face criminal and civil penalties. The state’s wiretapping statutes are among the strongest in the nation and allow the “injured party” — the person being recorded without their permission — to sue.

“After careful review, it was determined that there was insufficient evidence to meet the constitutional standard of proof,” city attorney spokesperson Ivor Pine wrote in an email to the AP on Tuesday. “Because of this, our office will not be filing criminal charges.”

The scandal was triggered by a leaked recording of crude, racist comments during a private meeting in 2021 in which four Latino Democrats plotted to expand their political power at the expense of Black voters during a realignment of council district boundaries. The recording was leaked the following year.

Council President Nury Martinez and powerful labor leader Ron Hererra resigned in disgrace. Councilman Gil Cedillo’s term ended weeks later, but Councilman Kevin de León resisted calls for his ouster — including from the White House — and he ran for reelection. He faces a runoff in November.

The meeting occurred at the headquarters of the Los Angeles County Federation of Labor, known locally as the “LA Fed.” The couple both worked at the LA Fed at the time.

The couple's identities have been made public in court filings and media accounts. Bob Schwartz, an attorney for the husband, said his client is "relieved that no charges will be brought against him.”

While his client has been “adamant” from the beginning that he was not responsible for the recording, Schwartz said whoever did it “performed a great public service” for the city and acted in the tradition of whistleblowing.

Michael A. Goldstein and Hagop Kuyumjian, attorneys for the man's wife, hailed the decision not to file charges.

“Since the recordings originally surfaced, we have remained confident that neither the District Attorney nor the City Attorney’s office would pursue criminal charges in this matter. Sadly, the negative content of those recordings has taken a backseat to lawsuits now working their way through our civil courts. We believe the City Attorney’s office made the right call taking a pass on this case,” the attorneys said in a statement Wednesday.

No other potential suspects or persons of interest in the recording have been named by investigators or prosecutors.

Pine, in the city attorney's office, and a spokesperson for the district attorney did not immediately return requests for comment late Tuesday to say whether anyone else had come under investigation in connection with the case.

Investigators said the recording was anonymously posted on Reddit in 2022 and that a Twitter account amplified the post. Both accounts were associated with an email account that was traced to an IP address — a numeric designation that identifies its location on the internet — and linked to the couple’s home.

Detectives recommended charging the couple with felony eavesdropping and illegal audio recording or wiretapping charges in relation to the recording of that 2021 conversation as well as another of a 2022 phone call between Herrera and a federation spokesperson, according to a charge-evaluation worksheet released by the district attorney’s office.

The district attorney declined to file felony charges earlier this year and referred the case to the city attorney’s office for possible misdemeanors.

Cedillo and de León have separate pending lawsuits against the couple.

The district attorney’s charge-evaluation worksheet notes that both people had “similar motives to carry out the offense,” but it does not detail the alleged motives. Prosecutors wrote that the evidence indicates either person, or both, made the recording.

“However, it is unclear how the unlawful recordings took place, the device used to do so, or who uploaded the recordings online and created the anonymous accounts on Reddit, Twitter, and Gmail,” the worksheet states.

FILE - A few people use Grand Park at the foot of Los Angeles City Hall, Tuesday, March 31, 2020, in Los Angeles. (AP Photo/Mark J. Terrill, File)