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Robert Roberson, who faces execution in Texas on Oct. 17, is the latest death row prisoner to see a glossy campaign to save his life. He was convicted of killing his 2-year-old daughter Nikki Curtis in 2002 on a theory of “shaken baby syndrome.” A growing chorus, from the lead detective in his case to novelist John Grisham, is arguing that he is innocent and Curtis’ death, while a tragedy, was not a crime. He’d be the first person ever executed based on shaken baby syndrome, even as the diagnosis faces growing scrutiny in the courts.
But another fact about Roberson deserves more attention to make sense of his story — his diagnosis of autism spectrum disorder.
From the moment he showed up at the hospital with his daughter turning blue, his case reveals the ways the criminal justice system can fail people with diagnoses like autism. Roberson’s execution has been scheduled amid a wave of attention to this subject from researchers, journalists and support organizations, who offer guides for autistic people and their parents on how to interact with police.
My colleagues have reported on how people with autism experience prison, for example, as well as encounters with police, which can turn deadly when officers misinterpret their behavior as suspicious. Some lawmakers are trying to reduce the risk of escalation and tragedy. For example, when looking up a license plate, Texas police may now see an alert indicating that a driver may have difficulty communicating.
But Roberson’s case shows what can happen even before the police get involved. When he took his unconscious daughter to an emergency room in the small east Texas city of Palestine, in 2002, a nurse found it strange that he’d gotten her dressed before leaving their house, according to court records. Later, as he showed detectives around his kitchen, he paused to make a sandwich. Former homicide Detective Brian Wharton recalled finding Roberson’s affect disconcerting, saying, “He’s not getting mad, he’s not getting sad, he’s just not right.”
At Roberson’s 2003 trial, prosecutors used those details to portray him as callous and remorseless. But at a 2018 appeal hearing, psychologist Diane Mosnik said autism helped explain his deviations from social norms (like the sandwich), the misalignment of his feelings and expressions (the flat affect), and his reliance on scripted behavior (dressing his daughter). She found his social problem-solving skills were equivalent to those of an 11-year-old, noting his struggles to understand sarcasm and sincerity.
All of this, Roberson’s lawyers now say, led nurses, doctors, police, prosecutors and jurors to distrust Roberson’s story — that his daughter fell out of bed — possibly making them more likely to see evidence of abuse in complicated medical findings.
Allyson Mitchell, the Anderson County district attorney who sought Roberson’s execution date, did not respond to my request for comment. But she suggested at the 2018 hearing that Roberson’s lack of emotion might be chalked up to antisocial personality disorder.
Mosnik, the psychologist, countered that people with antisocial personality disorder typically possess strong social skills.
Last week, the Texas Court of Criminal Appeals declined to halt Roberson’s execution and consider his claims challenging the shaken baby syndrome diagnosis in his case. He may appeal to federal courts, but if they don’t intervene, his fate will lie with the state’s Board of Pardons and Paroles and Gov. Greg Abbott. Numerous autism and parental rights organizations sent letters to the board and governor asking them to spare Roberson’s life. Abbott has only commuted one death sentence during his nine years in office.
There is no data to support the idea that autistic people have faced more wrongful convictions than anyone else. Police are often suspicious when children die and their parents don’t conform to socially expected behavior. When detectives interrogated Melissa Lucio in 2007, following her young daughter’s death, they questioned her slumped posture and lack of eye contact. She is also facing execution in Texas, and her lawyers argue that her behavior can be explained by grief and past trauma.
Still, there’s growing research into how autistic people can be wrongly convicted. Last year, a team of psychologists found that people often mistake their communication styles for lying. Author Dina Nayeri recently examined how innocent people with autism are especially vulnerable to some police interrogation techniques. (The training company she focuses on, John E. Reid and Associates, Inc., has criticized her conclusions.)
I’ve also seen lots of cases — some involving the death penalty — where there is no doubt about guilt, but defense lawyers point to autism as they seek to explain the crime and lessen punishment. Recently, 22-year-old Patrick Dai pleaded guilty to threatening Jewish students at Cornell University last year. Seeking leniency for this federal hate crime, his lawyer said Dai actually supported Israel and wanted to spark sympathy for Jews. “Patrick’s flawed logic is a result of his autism,” the lawyer wrote to the judge.
Federal prosecutors called these “self-serving” claims after the fact. But it’s easy to imagine more debates like this one as awareness of autism grows throughout the criminal justice system.
The debate about autism in Roberson’s case comes amid a small surge in executions. South Carolina on Friday plans to carry out its first lethal injection since 2011, followed by executions next week in four other states. Alabama will attempt the second nitrogen gas execution in U.S. history. And Missouri will seek to execute Marcellus Williams, even though, as with Roberson, there is a fierce, ongoing court battle over whether he is innocent.
