Brian Wharton, the chief detective of a small police force in East Texas, had seen his share of tragedies on the job, but he had never handled a case like Robert Roberson’s: In January 2002, Roberson, a 35-year-old single father, arrived at the emergency room with his 2-year-old, Nikki, limp and bundled in a blanket.
Roberson said the girl had fallen from bed overnight, but when nurses and doctors evaluated her severe head injuries, they grew suspicious. Wharton led the investigation.
Specialists later found that Nikki must have been beaten, violently shaken or both. Roberson denied having harmed her; Wharton believed the experts. On the day the toddler was removed from life support, her father was charged with capital murder. Wharton testified for the prosecution. Roberson was convicted and sentenced to death.
Fifteen years later, Wharton did something extraordinarily rare: He changed his mind. Presented with new evidence that cast doubt on the medical experts’ certainty about what happened to Nikki, Wharton determined that he had made a mistake.
Now, he’s one of Roberson’s most vocal allies. He has attended legislative hearings and written clemency letters declaring his strong belief that Roberson is innocent and shouldn’t become the first person in the United States to be executed based on a “shaken baby” diagnosis.
“The foundations of our case were built upon bad science,” Wharton said recently after his monthly visit to Roberson on death row.
Thousands of caregivers have been arrested since the early 1980s based on the medical belief that young children hospitalized with three symptoms — brain swelling, bleeding in the brain and bleeding at the back of the eyes — must have been forcefully and deliberately shaken. Many doctors and pediatric associations remain steadfast in the view that those symptoms help prove that a child has suffered what is now often called “abusive head trauma.”
But a growing number of medical and forensic experts say the diagnosis is too definitive, particularly in the absence of other signs of abuse. Accidental falls from changing tables can similarly jostle the brain. Clotting disorders and other illnesses can also cause brain bleeding. While some babies are undoubtedly shaken by overwhelmed caregivers, which can cause life-threatening brain damage, these scientists say it isn’t enough to look only at three symptoms before they draw conclusions.
In a major victory for shaken baby syndrome skeptics, New Jersey’s Supreme Court recently agreed, affirming a lower court ruling that likened the diagnosis to unreliable “junk science” and barring expert testimony about it from two upcoming trials. The 6-1 ruling, closely watched by accused caregivers and their attorneys nationwide, could shift how courts weigh shaken baby evidence.
This evolving understanding has shattered the certainty of some medical experts and law enforcement officials who previously supported the diagnosis, including some whose testimony helped put accused caregivers behind bars. NBC News has identified about two dozen professionals who have publicly changed their views. In interviews, seven of them expressed frustration at what they see as outdated science that leads to wrongful convictions. They worry families are being broken up based on dubious evidence. And some are wrestling with the role they played in incarcerating people they now believe are innocent of having shaken their babies to death.
“People are being sent to jail on the basis of junk,” said Dr. Janice Ophoven, a pediatric forensic pathologist in Minnesota who once accepted the concept behind shaken baby science but is now more cautious, saying the theory lacks laboratory-based evidence. “It’s like someone saying I know for sure that there was a homicide just because there’s a bullet hole.”
Some, like Ophoven and Wharton, say they are speaking publicly to rectify the harm of mistaken diagnoses. They’re discovering, though, that reversing a shaken baby conviction is far from straightforward, even when the evidence it was based on begins to crumble.
Russell Maze, a Tennessee man serving a life sentence for murder after his 19-month-old son died in 2000, lost an appeal in October to overturn his conviction. His defeat came despite the Nashville district attorney’s office, which took him to trial, an original police detective in his case and the medical examiner who conducted his son’s autopsy all now saying they believe he is innocent of having shaken his son to death.
“I would like Russell to come home,” said Dr. Bruce Levy, who was the medical examiner in Maze’s case and recanted in a sworn affidavit last year. “I think he has paid a horrible price for mistakes that I and others have made.”
Exonerations in such cases are rare. Since 1992, 41 parents or caregivers have been exonerated of murder, manslaughter or child abuse charges involving shaken baby syndrome, according to the National Registry of Exonerations, which tracks exonerations in the United States, including factors that lead to wrongful convictions. In eight of those cases, experts who originally testified for the prosecution — including medical examiners, pathologists and pediatric ophthalmologists — later publicly disavowed their shaken baby syndrome findings. The forensic recantations were “very important” to the exonerations, according to the registry’s analysis.
“There has been a shift in scientific thinking about the issue,” said Simon Cole, a registry editor who is a criminology professor at the University of California, Irvine.
NBC News has been investigating the disputed science of shaken baby syndrome for years, with consequential results. In 2021, Texas passed one of the first laws in the country to allow parents to seek second medical opinions when they are accused of abusing their children. Lawmakers were spurred by NBC News’ “Do No Harm” series, which found that some children in Texas had been removed from their homes based on questionable opinions from doctors trained to spot child abuse. Three years after the law took effect, and amid other reforms including an updated definition of neglect, removals of children by Texas Child Protective Services had fallen more than 40%.
This year, NBC News’ “The Last Appeal” podcast examined Roberson’s case as his execution date neared. In a stunning turn in October, Texas’ highest criminal court halted his execution with just days to spare, as justices returned the case to the trial court for another review. The decision came as NBC News uncovered new evidence and reported on Wharton’s belief in Roberson’s innocence.
Roberson is still fighting. Texas Attorney General Ken Paxton has said Roberson murdered his daughter by “beating her so brutally that she ultimately died” and has repeatedly vowed to execute him.
“I’m still hopeful,” Roberson said in an interview from the state prison’s death row in September. But he’s disappointed that he’s still trying to convince those with power over his future that he’s innocent. “I really shouldn’t be here, you know?”
Changing his mind
When Roberson took his daughter, Nikki, to the hospital in Palestine on Jan. 31, 2002, her condition was dire. She was bruised and unresponsive. Medical staff members called the police. “I love my little girl,” Roberson told nurses. That afternoon, she was transported to Children’s Medical Center in Dallas, where her case was referred to a pediatrician specializing in diagnosing signs of child abuse.
While doctors ran a barrage of tests and scans on Nikki, Roberson was leading Wharton around his home, showing him where, he said, his daughter fell and the washcloth used to wipe a small amount of blood from her mouth — an injury Roberson believed occurred when she tumbled from bed.
At the time, Wharton said, he was struck by Roberson’s “odd” behavior, like his decision to fix a sandwich during the visit. He didn’t seem to show an urgent concern for Nikki.
In Dallas, a child abuse pediatrician examined Nikki, noting “shaken/impact head trauma.” Her health was deteriorating. A day after her arrival, Nikki was removed from life support. Roberson was arrested on a capital murder charge.
At trial, Wharton testified that he hadn’t seen any signs of violence in the Roberson home, but ultimately, Roberson’s story of what happened to Nikki seemed inconsistent with her injuries.
The case remained on Wharton’s mind, even as he left policing in 2006 and found a new calling as a United Methodist church pastor.
In 2018, Wharton got an unexpected visit at his home from a lawyer working on Roberson’s appeal, Gretchen Sween.
At Wharton’s dining room table, Sween shared new information he hadn’t known about Nikki, including that she was chronically ill. She had been taken to doctors in the days before she died with a 104.5 degree fever and respiratory issues. She had been given a drug called Phenergan, which federal regulators would warn in 2006 shouldn’t be prescribed to children under 2 because of the risk of respiratory failure.
Sween added that Roberson has autism, which was diagnosed only after he was incarcerated. That was a revelation to Wharton, explaining the flat affect that he had found suspicious.
Wharton dug into the case again and after he reviewed files Sween shared, he was persuaded to reverse his original conclusion. Sween later asked whether he could help Roberson in his legal proceedings, so Wharton testified in 2021 at a court hearing, where, under oath, he said publicly for the first time that he had been wrong. In 2024, Wharton appeared before a bipartisan state House committee panel to express his belief that Texas was poised to execute an innocent man.
“I’m ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert,” Wharton told the lawmakers. “I did not hear his voice.”
Evolving science
Roberson has also found support from medical experts who have offered affidavits and petitions calling the science used to convict him into question.
“A forensic pathologist faced with new medical evidence or changed science should be willing to reconsider any previous opinions,” 10 independent pathologists wrote in a joint statement this year, saying Nikki’s original autopsy is unreliable and “could not withstand scrutiny in light of contemporary scientific understanding.”
Among those who signed the statement was Dr. Jane Turner, a forensic pathologist in St. Louis. Around the early 2000s, at the time of Nikki’s death, Turner said, she was training at the Saint Louis University School of Medicine under a professor who was “one of the biggest proponents of shaken baby syndrome.”
Later, as an assistant medical examiner in the region, Turner testified for the prosecution in abuse cases.
“The way that it was diagnosed was cookbook, just following a recipe,” Turner said. “If you have the three symptoms in the head, it’s a homicide. I was unaware when I made those conclusions that there could be alternative explanations. In the environment I was working in, there were no alternative explanations; it was absolute.”
Around 2014, she said, her understanding of shaken baby syndrome began to shift, as more medical professionals who had once endorsed the science openly criticized it. One prominent voice was Dr. Norman Guthkelch, the pediatric neurosurgeon who in 1971 wrote a paper proposing a theory that shaking young children could cause bleeding in the brain.
In a court declaration in 2012 related to a shaken baby case in Arizona, Guthkelch expressed concern about how prosecutors were applying his hypothesis to presume abuse: “I consider that this is a distortion of the article I wrote in 1971, resulting in that article being taken as support of a diagnosis of criminal liability in circumstances which I never envisaged.”
Until his death in 2016, Guthkelch continued to speak out about the misinterpretation of his research.
Turner challenged her own thinking in late 2017, while she was working at a general hospital in Canada. She said she was asked to review the case of a 5-week-old boy who was born with health complications. Other medical professionals saw signs of abuse, implying shaken baby syndrome, she said, but despite feeling “pressured” to join them, she was unconvinced.
“I’m obligated to consider homicide,” Turner said. But “sometimes, you really can’t tell.”
The American Academy of Pediatrics and other associations representing child abuse pediatricians — doctors who specialize in evaluating potential abuse or neglect — defend the shaken baby diagnosis. In 2009, the academy said it was adopting a broader term, “abusive head trauma,” to better explain that other abusive actions beyond shaking can cause head injuries. The academy emphasizes that a child’s health history must be fully evaluated and that a team of experienced professionals should make the complex determination together.
In recent years, Turner, who now runs her own medical and legal consulting firm, has continued to offer second opinions for the prosecution in pediatric abuse cases. But she also serves as an expert witness for the defense when parents face criminal charges.
“I would hope that I’d have the opportunity to right a wrong,” she said.
‘I forgave them’
A pair of medical examiners changed Zavion Johnson’s fate twice — once when their testimony convinced a jury that he shook his baby daughter to death and again more than a decade later, when they reversed themselves and helped set him free.
Johnson was 18, a first-time father, in 2001 when he was caring for his 4-month-old daughter, Nadia, in their Sacramento, California, home while the girl’s mother was at work. He said he had picked the baby up while they were bathing in the shower together, but she slipped from his hands and hit her head on the back of the tub.
He didn’t notice any bleeding or a bump, he said. Hours later, when she stopped breathing, he dialed 911. At the hospital, doctors noted severe head trauma and suspected abuse. Police were called.
Two days later, the girl’s condition worsened. Johnson was cradling Nadia when doctors took her off of life support. On the day of her funeral, police arrested Johnson on charges of murder and assault.
At his 2002 trial, prosecutors relied on testimony from three medical experts, including Dr. Gregory Reiber, a forensic pathologist, and Dr. Claudia Greco, a neuropathologist, to argue that Nadia died from shaking and a deliberate impact.
Reiber, who conducted Nadia’s autopsy, testified that the bleeding behind her eyes was associated with shaken baby syndrome and indicated “that there has been a severe shaking.” Greco testified that an injury in the girl’s cervical spine was the “most convincing evidence” of shaken baby syndrome and that a fall like the one Johnson had described couldn’t have caused such damage.
Johnson was convicted and sentenced to 25 years to life. More than a decade later, the Northern California Innocence Project helped track down the original medical experts and asked whether they would review his case again. Reiber and Greco agreed, and both came to a new finding in early 2017.
“The current reassessment has led me to conclude that accidental injury cannot be excluded,” Reiber wrote in an affidavit recanting his testimony.
Greco wrote in her affidavit that the spinal cord injury she believed was crucial in pointing to shaken baby syndrome “has not been well studied” and that her determination was based on a medical consensus in 2002.
A Sacramento County Superior Court judge vacated Johnson’s conviction, and in early 2018 prosecutors declined to retry him. After having served 16 years of his sentence, he was free.
“It took a lot of courage to say that they were wrong,” Johnson said recently of the medical experts.
Neither Reiber nor Greco could be reached for comment.
Johnson, now 42 and father to another young daughter, says he feels let down by the justice system when he hears that other parents claiming innocence are still similarly charged.
He’s doing what he can to change that. Not long after his release, he said, he was asked to speak to law enforcement officers and lawyers at a conference in the Bay Area about misleading evidence and false science. Reiber, he said, was also in the room. Later, the men shook hands with tears in their eyes, Johnson recalled.
“I forgave them,” he said of those whose testimony put him behind bars. “My faith allowed me to remove that hate and anger and disappointment I carried for all that time.”
Seeking freedom
Others who maintain their innocence may be closer than ever to their shots at freedom.
In New Jersey, the state Supreme Court’s ruling that expert testimony about shaken baby syndrome is scientifically unreliable could upend an untold number of criminal as well as family court cases, according to the state Office of the Public Defender.
One caregiver who may benefit is Michelle Heale, who in 2015 was sentenced to 15 years in prison for aggravated manslaughter and child endangerment.
Heale was babysitting Mason Hess, her friends’ 14-month-old son, at her Toms River home in 2012, when, she said, the boy began choking on applesauce. She said that she hit him on the back to dislodge the food and that as his head snapped back, he went limp. He was rushed to the hospital and died four days later.
Doctors suspected Mason had been shaken, and Monmouth County prosecutors at Heale’s trial said her version of events was inconsistent. Heale, a mother of young twins at the time, denied she abused him.
“Shaken baby syndrome is a flawed theory that has divided the medical community for many years but has also divided family and friends,” Heale said at her sentencing. “This needs to stop.”
Mason’s parents, Adam and Kellie Hess, supported Heale’s conviction. They declined to comment.
Heale’s attorney is seeking to overturn her conviction and filed a brief based on the state judiciary finding that shaken baby science is unreliable.
The Monmouth County Prosecutor's Office declined to comment on specifics of the case, but it said in a statement that it believes the state Supreme Court’s ruling has “no legal implications” for Heale’s conviction, which prosecutors contend rests on other evidence that can withstand any further challenges.
As both sides await a judge’s decision, the landmark ruling is already having effects beyond New Jersey.
In a recent court filing in Texas, Roberson’s lawyers referred to the New Jersey decision as “highly relevant” in his latest appeal for a new trial as he seeks to avert an execution.
With such high stakes, Wharton, the former detective, says he has no qualms in admitting he was wrong about Nikki’s death.
“Things have changed in the intervening years,” he said. “If we are people of integrity, then we owe it to ourselves not to be afraid to say, ‘Maybe I made a mistake.’”
