by Sam Rutherford

The Criminal Court of Appeals of Texas, the state’s highest court in criminal cases, granted a prisoner’s habeas corpus petition based on advances in science that undermined the validity of evidence concerning Shaken Baby Syndrome that played a key role in his prosecution and conviction for abusing his girlfriend’s infant daughter.

Background

On July 16 1997, Andrew Wayne Roark was babysitting his girlfriend’s 13-month-old daughter, B.D. He took B.D. to the doctor that morning for her one-year-old check-up. Dr. Padma Bala examined B.D. that morning and found nothing wrong with her. The pair left Bala’s office at about 11:30 a.m.

At 4:00 p.m., Roark called 911 to report that B.D. was unconscious and barely breathing. When paramedics arrived, Roark was standing at the door holding B.D. He said she fell from her toddler bed and was having trouble waking up. B.D.’s vital signs were unstable, so paramedics immediately transported her to the hospital.

Dr. Kathleen Murphy examined B.D. and found that she had a retinal hemorrhage in her left eye. A C.T. scan revealed a subdural hemorrhage on the left side of B.D.’s brain. B.D. was eventually discharged from the hospital after her brain swelling (edema) subsided but was left with permanent brain damage.

The State charged Roark with child abuse. Although there were no eyewitnesses, it contended that medical evidence would show that B.D. was violently shaken and possibly struck against an object. Since Roark was the only person caring for B.D. that day, the State argued that he must be the responsible party.

The State presented testimony from Dr. Murphy, Dr. Janet Squires, and Dr. Nancy Rollins, so-called experts in Shaken Baby Syndrome. The doctors testified that B.D.’s retinal hemorrhages were consistent with her being shaken and possibly struck against something hard. They further concluded that B.D.’s injuries could not have resulted from a pervious accident and that the hemorrhages and brain swelling were “all fresh and new.” Rollins also testified that B.D.’s injuries could not have resulted from a short fall.

The defense primarily argued that medical evidence showed B.D. sustained an injury two weeks previous, which caused her brain to hemorrhage and a subdural hematoma to form. It further argued that, on the day of the incident, the old injury began bleeding again (rebled) after B.D. bumped her head in the bathtub or when she rolled off her toddler bed, which when combined with the preexisting subdural hematoma, led to her injuries. The defense presented expert testimony from Dr. John Brett Dietze, Dr. Allen Marengo-Rowe, and Dr. Robert Bux.

Roark testified on his own behalf, stating that on the day in question he fed B.D. after returning from Bala’s office. B.D. made a mess, so her gave her a bath, during which she slipped and bumped her head. Roark also said that he then laid B.D. down for a nap, but when he checked on her around 3:00 p.m., she had fallen from her bed and was nonresponsive. He called 911 when he could not revive her. He administered CPR while on the phone with the 911 dispatcher.

B.D.’s mother, Bridgette, testified that B.D. had ear surgery about two weeks before and had fallen and hit her head on the coffee table about a week after that.

The jury convicted Roark, and he was sentenced to 35 years in prison and a $10,000 fine. His conviction was affirmed on appeal in 2001. Roark’s initial habeas petition was dismissed.

On May 20, 2013, Tex. Code Crim. Proc. Art. 11.073 was passed by the Texas Legislature. That statute provides grounds for habeas relief if “relevant scientific evidence”: “(1) was not available to be offered by a convicted person … at trial; or (2) contradicts scientific evidence relied on by the state at trial.” Art. 11.073(a). To obtain relief, the prisoner must show that “relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence,” “the scientific evidence would be admissible under the Texas Rules of Evidence,” and the court finds “that, had the scientific evidence been presented at trial, on the preponderance of the evidence, the person would not have been convicted.” Art. 11.073(b)(1)(A)-(B), (b)(2).

Relying on this new statute, Roark filed another habeas petition in 2014, asserting that advances in science concerning Shaken Baby Syndrome entitled him to a new trial. The State agreed Roark was entitled to relief, and the parties submitted agreed findings recommending that the Court of Criminal Appeals grant relief on just one of Roark’s numerous claims. The court, however, rejected the stipulation and instead remanded the case to the trial court for it to enter findings on all of Roark’s claims to avoid “piecemeal litigation.”

Hearings were held on remand, and the parties again stipulated that Roark was entitled to relief. The case was again transmitted to the Court of Criminal Appeals for it to decide whether relief should be granted.

Analysis

The first issue was whether Roark was entitled to file another habeas petition. Article 11.07, §4(a)(1) generally prohibits a court from considering a subsequent application for habeas relief unless “the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.” The Court determined that Roark’s second petition met this standard because Art. 11.073 did not become law until 2013, well after his first habeas petition was denied.

The next issue was whether Roark was entitled to relief under Art. 11.073 itself because new science undermined the evidence the State relied on at trial to convict him. That evidence can be summarized as follows: new science now shows that shaking alone could not have caused B.D.’s injuries, that the hemorrhaging and swelling doctors observed at the hospital could have resulted from a previous fall rather than from Roark injuring B.D., and that one of the State’s key witnesses (Dr. Squires) no longer supported the medical conclusion she offered at Roark’s trial.

The Court stated that the “doctors and literature brought forward under this writ application make it clear the State’s medical witnesses were not malicious in any way because their testimonies were considered mainstream science at the time of the trial.” However, in light of advancing science, the Court concluded that “there would be a marked shift in the testimony today concerning the effect of a short-distance fall to a child, the effect of shaking a child, rebleeds in subdural hematomas, lucid intervals, retinal hemorrhaging, and [Shaken Baby Syndrome] in general as applied to B.D.’s injuries.”

In fact, advancements in science now establish that shaking alone without a corresponding impact cannot cause a subdural hematoma, the Court noted. Researchers and medical professionals now agree that there is no such thing as Shaken Baby Syndrome and instead now refer to it more vaguely as “Impact Syndrome” or “Abusive Head Trauma.” Each one of the experts who testified at Roark’s trial that shaking alone could have caused B.D.’s injuries have since acknowledged this fundamental shift in research and testified in other child abuse trials that shaking alone is insufficient, the Court observed. Squires went even further and recanted much of her testimony in Roark’s case based on these new studies.

Thus, the Court concluded that these advancements in science entitled Roark to relief under Art. 11.073 because “it is more likely than not he would not have been convicted.” The case was circumstantial to begin with and relied entirely on “dueling” medical experts, and “twenty years of reputable scientific studies and publications” have contradicted the expert testimony offered by the State at Roark’s trial in 2000. Even in the unlikely event one these refused to acknowledge scientific advancements at retrial and instead “bury his or her head in the sand, then that expert would have to bear the brunt of a grueling cross-examination,” the Court stated. 

Conclusion

Accordingly, the Court granted Roark relief under Article 11.073, vacated his conviction, and remanded the case for a new trial. See: In re Roark, 2024 Tex. Crim. App. LEXIS 733 (Tex. Crim. App. 2024).

Editor’s note: Anyone interested in the issue of Shaken Baby Syndrome is encouraged to read the Court’s full opinion.   

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