Junk science makes for junk justice [update 27.09.23] [UPDATE 02.10.23]
But only on Earth
There’s intransigence. There’s remorse. There’s innocence. And there’s people who’ll say anything to get off. The panoply of criminal accusation. Which one describes you?
Some are intransigent: yes, they did what they did, and, no, they don’t regret it. They broke the law for the best of reasons. An example: Sir Thomas More. He refused to swear an oath in terms of the Act of Settlement in 1535, and was sentenced to death for doing so. At his trial he labelled the act morally repugnant.
More was sorry for some of the effects of his stance against Henry VIII. To his manservant, he expressed his regret: “I shall miss you Matthew.” Matthew protested: his importance was not so great. More repeated, “I shall miss you, Matthew.” He was remorseful, not for what he did, but for the effects that what he did had on others.
More was innocent. The evidence that finally sealed his fate was perjured. Sir Richard Rich testified that More had stated to him in private that parliament had not the authority to enact the Act of Settlement. This was an untruth, in return for which Rich was awarded the attorney-generalship of Wales. At trial, faced with this barefaced lie, More confronted his accuser: “It profits a man nothing to give his soul for the whole world. But for Wales …?”
More could have said something to get off and save his life. He could have sworn an oath, and an oath is just words said to God. He was asked to do so by his friend, the Duke of Norfolk, as had many other nobles. “For fellowship?” More replied, “And when you are sent to paradise for doing according to your conscience and I am damned to hell for not doing according to mine, will you then join me? For fellowship?” Entry into heaven is not dependent on doing right. It is dependent on doing what is righteous, and that is something different, because it means doing according to your honestly held conscience.
In 2002, Robert Roberson was convicted of murdering his daughter, by shaking her. His case now has gone to the Supreme Court of the United States on a petition for retrial. I personally think there is sufficient reasonable doubt to overturn his conviction, but nothing can restore to him his 21 years of incarceration, and it’s not yet certain whether the Court will hear his case. The process for considering it sounds not far removed from a whim. You can read his story in detail here.
So what is it that matters this Sunday evening to Robert Roberson of Texas? His intransigence – he did it and is proud of it? His sorrow, for having done it? His innocence, at not having commited the crime? Or would he say anything to get off?
The closing words of the linked article are telling. It is none of these. Over a span of 21 years, Robert Roberson has made his peace with God and recognised that it is that relationship that stands out by far among all the relationships he maintains with any human being. In that, he is exactly the same as Sir Thomas More.
“I hope and pray that God gives them the knowledge for the people to make a righteous decision. I know I didn’t do it. I’m not guilty. So I’m at peace with the Lord.”
Will his judges be?
[UPDATE 27.09.23]
Robert Roberson got new counsel in 2016; his petition to the Supreme Court of the United States makes for traumatic reading. Its description of the death of Nikki Roberson leaves one on the point of tears. The small child’s role as a relational pawn during her brief lifetime was great. Rarely does a lawyer’s brief make one want to reach out into the page and hug the victim of such maladministration.
The Supreme Court is not a court of original jurisdiction. It is a constitutional court and this petition is raised under the 14th amendment to the US Constitution, which demands that no person is to be deprived of life, liberty, or property, without due process of law. Mr Roberson has been deprived of his liberty for 21 going on 22 years; his life hangs in the balance: he has been sentenced to death for his putative crime. If half of what is pleaded in his behalf is correct, then Mr Roberson must be a textbook case for demonstrating how the standard of reasonable doubt can be negated to an extent that is manifestly unreasonable and still stand fast as justice. It is in my view beyond credulity that a claim should ever be made to the US Supreme Court founding on the 14th amendment.
Mr Roberson is poor. It is nowhere suggested that being poor makes him a murderer. As you may well imagine, the poor will be convicted of the crime of murder every bit as readily as the well-off, where the facts point to their culpability. It is not facts pointing to culpability, therefore, of which the poor are necessarily disproportionately guilty, but rather the readiness of their prosecutors to argue their guilt with the backing of voter dollars, and of their juries to believe such facts as real when they are not.
Mr Roberson’s state-appointed defence counsel, both at trial and on appeal, conceded the actus reus aspect of the charge against his client. I was no great criminal lawyer, but that sounds astonishing. Counsel took the line only of testing the state’s mens rea arguments: that Mr Roberson never intended to result in his daughter’s death, but Mr Roberson did commit the acts complained of that allegedly led to his daughter’s death. Mr Roberson has since dismissed that lawyer and secured new representation, which is responsible for the current petition. It is the best professional consultancy switch he ever made in his entire life, I’ll warrant it. Because, when your life’s on the line, you need a good lawyer. Oh, and talking of lives, you also need a good doctor. Mr Roberson was as fruitless in his search for medical excellence as he was in that for legal excellence. And that is awkward: because his legal destiny lay intertwined with a litany of medical incompetence.
It is one thing to say — and the case is an education for me, certainly — that shaken baby syndrome has been for the most part debunked as an automatic indication of legal culpability where swiftly followed by the infant’s death, a process that has gradually ensued since 2003 and culminated in a Swedish meta-study, published in 2016. It is quite another to contend in 2016, as did the doctor who performed Nikki’s autopsy, that she could not identify anything she had learned in the intervening years that would make her doubt her 2002 findings. Dr Urban doesn’t read the papers; I don’t mean The New York Times, but her medical journals, aimed at her, by her colleagues, about areas of medicine that she practises in. I didn’t know shaken baby syndrome had been debunked; had been renamed abusive head trauma; but I’m not a medical doctor performing autopsies on dead infants. She is.
What’s more, I was certainly unaware of a body called the Shaken Baby Alliance, which organises training for public prosecutors, informing them how to obtain convictions based on the SBS/AHT hypothesis. Now, lawyers go through a certain training, in which they are told things like they must adduce evidence that proves beyond a reasonable doubt the accused’s guilt. They must corroborate evidence, with, at best, two utterly independent witnesses or pieces of evidence and testimony. And, they are told that they need to back up scientific theories that underpin their motion for conviction with expert evidence. Lawyers must play by rules to secure convictions of those they think are guilty. Juries tell them if they succeed. Doctors are the evidence. But here, it’s the doctors telling the state prosecutors how best to secure the convictions. What interest does a group of doctors have in urging public prosecutors to secure convictions for murder on the ground of shaken baby syndrome? Is the science of SBS that susceptible to failure? Is the doctors’ interest that great?
We’re told, with dismissive guffaws, to banish from our minds conspiracies. And yet the 17 pages of state response to Mr Roberson’s 302-page habeas corpus application sounds very like the kind of thing that represents a dismissive guffaw on paper. An advocacy group formed to promote and secure the conviction of criminals based on a highly questionable scientific basis lends not strength to the scientific basis but, rather, doubt.
Dismissal of Mr Roberson’s habeas corpus applications — outright, with barely any reasoning — points to a justice system on which fact and evidence have little, if any, bearing. One that is essentially voter-oriented, and not justice-oriented. As long as someone goes to prison, or is executed, for a crime, then it matters little if they are the right or the wrong one: important will be the ethnic background of the supposedly guilty party, or the part of town they live in; their drug-taking habits; their benefit status; because justice is then not a tool for obtaining justice, but a tool of oppression and it works not when the guilty go to prison but when those sorts of people go to prison, whatever the pretext is. Mr Roberson has languished in prison for 21 years going on 22 not because the evidence was faulty or scientifically unsound, and not because he did the crime as alleged; he has been there because someone needs to be there for that crime. It does a lot of people no harm for Mr Roberson to be on death row and there will be some, I can assure you, who will be gnashing their teeth at the fact Mr Roberson has not yet been put to the gallows: he is not playing ball by meekly submitting to the execution that his sort only deserve.
These are snippets, and the full petition can be read here. Mr Roberson was ill served by his parents-in-law; he was ill served by Nikki’s mother; he has been ill served by the medical profession; he has been ill served by the legal profession; he has been ill served by the Texan justice system; he is right to place his ultimate faith in the Lord above, for there are few, and they are but far between, in whom he could place faith here on Texan red-dirt Earth. It is on the mushy swamplands of the District of Columbia that his fate now rests.
[UPDATE 02.10.23]
Mr Roberson’s petition to the Supreme Court has been refused. His life now hangs in the balance. The Guardian has covered the story here.
A dark day for justice.