 Andrew Roark
Roark, then 20 years old, lived in DeSoto, Texas, a suburb of Dallas, and had been babysitting B.D., the 13-month-old daughter of his fiancée, known in court records as Bridgette.
Marcus Jennings, a paramedic with DeSoto’s Fire Rescue Department, responded to the call and found Roark on the porch, holding B.D., who was still unconscious. Roark asked to ride in the ambulance, but Jennings told him there wasn’t room. He would later testify that wasn’t true and that he lied to Roark because he saw fresh bruising around the girl’s genital area and did not want Roark along on the trip to Methodist Charlton Hospital.
Dr. Breanna Nance, who worked in the hospital’s emergency room, was the first doctor to treat B.D. She said the girl was minimally responsive, with difficulty breathing and an elevated heart rate. She also noticed the bruising in the girl’s genital area. Nance stabilized B.D., then arranged for the child to be taken to Children’s Medical Center in Dallas. Nance wrote in her notes that she suspected child abuse, based on what Roark described as the sudden onset of syndromes and the fact that he had taken B.D. to a well-baby checkup earlier that day where she received vaccinations and everything seemed fine.
Dr. Kathleen Murphy, the head of the pediatric intensive care unit at Children’s Medical Center, began treatment and ordered a diagnostic examination, including a CT scan. She examined B.D. and saw a retinal hemorrhage in her left eye and possibly her right, as well as the bruising in the genital area. Because of the bruising, Murphy contacted doctors at the hospital who specialized in child-abuse investigations. (Murphy would later learn there was no indication that B.D. had been sexually assaulted.)
According to Murphy, the CT scan showed both acute and chronic blood, acute blood being blood no more than three days old. The acute blood was from a subdural hemorrhage on the left side of B.D.’s brain, which Murphy said caused swelling and pushed the brain into the skull.
Dr. Janet Squires, the director of general pediatrics at the hospital, treated B.D. after Murphy. Squires noted retinal hemorrhages in both of B.D.’s eyes and the bruising in the genital area.
In her notes, Squires wrote that the bruising was “most consistent with a pinching or grabbing mechanism, and suggests to me physical abuse used at the time of cleansing of the diapered area.”
Roark was arrested later that day and eventually indicted on a charge of injury to a child. B.D. was released from the hospital and went to a rehab center for six weeks. She made a strong, but not full, recovery, with some minor impairment in her arms.
Roark’s trial in Dallas County District Court began in March 2000. The state’s case, built around the testimony of the doctors who treated B.D., was that Roark had injured the girl through violent shaking, known as Shaken Baby Syndrome (SBS).
Murphy testified that she did not believe B.D. could have injured herself by slipping in the bathtub or rolling off her toddler bed, as Roark claimed.
“Babies who have this kind of head injury, given that they can’t attain rapid speeds without the help of an adult or a larger person, typically are either involved in a motor vehicle accident or a fall or non-accidental trauma,” she said.
Murphy said that B.D. would have displayed neurological symptoms if her brain had been swelling when she had her well-baby examination earlier in the day. She also said that B.D.’s retinal hemorrhages and swelling were consistent with the girl having been shaken or struck against something.
Squires testified that minor retinal hemorrhages—which she referred to as “flame hemorrhages”—are common. “In this case, you could see these big blobs of blood. And the significance [is] that they are broken blood vessels and there's several things that can cause them, but it is very—and particularly the kind that we saw are associated with major trauma,” she said. “They are actually very, very classically seen in the Shaken Baby Syndrome.”
Squires testified that the primary injury with SBS happens from the stretching and shearing of axons, the fibrous connections that run from the brain into the spinal cord and beyond. This is called a Diffuse Axonal Injury (DAI), she said, and leads to brain-cell death, not just subdural bleeding.
Squires said that B.D.’s subdural bruising would not have caused an extensive amount of hemorrhaging around the optic disc.
Squires testified that B.D.’s CT scan “was very abnormal, full of brain swelling” and that she saw “abnormal fluid collections over the top of the brain, some of which was clearly fresh blood, and some of which was an abnormal collection interpreted as old blood.”
A prosecutor asked Squires about the significance of the old blood. She answered, “It was an abnormality and it needed to be explained. And in my assessment the most likely …. is that this was old blood from probably a previous shaking event that had not come to medical attention.”
Squires testified that B.D. had been shaken because B.D. was “totally normal” at the well-baby exam but was unconscious and near death by 4:30 or 4:45 p.m.
Roark had told investigators that B.D. slipped backward in the bathtub that afternoon and hit her head, but that she appeared fine when he put her down for a nap. Squires said such an accident would not cause the types of injuries she observed on the girl, which would have been quickly apparent to a caregiver.
“As I’ve stated in my affidavit, I think we can say that this injury occurred on that day between 12:30 and 4:30 or the time after the doctor’s visit until the time she presented into the emergency room,” Squires testified.
Doctor Nancy Rollins, a pediatric neuroradiologist, consulted with Squires and reviewed B.D.’s CT scan. She testified that B.D.’s injuries were consistent with Shaken Baby Syndrome and could not have come from a short-distance fall.
Dr. Frank McDonald treated B.D. at the rehabilitation center. He testified that the child did not have some of the injuries associated with SBS, in particular to her spinal cord. “As a rule, DAI ... is associated with prolonged or longer length of loss of consciousness or coma, and [B.D.] was not unconscious for that long of time,” McDonald said, and “her recovery was quicker than I usually see with DAI.”
But McDonald testified that his “assumption from the history and the retinal hemorrhages was that the baby was battered.”
Two officers with the DeSoto Police Department testified about the investigation. Each said that Roark told them that B.D. seemed fine after the doctor’s appointment and when he put her down for a nap.
Sergeant Carl Smith testified that he asked Roark about B.D.’s bruising, and that Roark said that he saw the bruises the night before but did not know where they came from.
B.D.’s maternal step-grandmother, J.D., testified that she spoke with Roark when she arrived at the hospital. She said he was “real quiet” and it was like he had “no reaction.” J.D. also said that she initially believed Roark was a good care-giver but later noticed that B.D. would cry when Roark held her.
J.D. also said that she overheard Roark tell Bridgette that B.D. had slipped in the tub. According to J.D., Bridgette asked Roark why he hadn’t told her that before. J.D. testified that Roark said he forgot.
The first defense witness was Dr. John Brett Dietze, B.D.’s neurosurgeon at Children’s Medical Center. He had drained the blood in B.D.’s subdural space to relieve pressure on her brain. He testified that he could not remember if the blood he drained was old or new.
Doctor Allen Marengo-Rowe, a pathologist and board-certified hematologist at Baylor Medical Center, also testified for the defense. He said that any hemorrhage or clot inside the head is “bad news,” because “the head cannot expand.”
Marengo-Rowe testified that DAIs tend to cause permanent brain damage, whereas a patient might recover from a swelling caused by subdural hematoma in a few days if the blood is drained. In addition, patients with subdural hematomas might not display symptoms for weeks. He also testified that retinal hemorrhages can occur through other ways, such as violent coughing.
Doctor Robert Bux, the Chief Deputy Medical Examiner for Bexar County, testified that although SBS is an “acceleration/deceleration” injury, he did not believe that a person could shake a child with sufficient force to cause a DAI. People can generate about 8 or 9 G forces, but a DAI injury requires around 250-300 G forces, he said.
Bux also testified that B.D.’s recovery did not suggest violent shaking. He said: “There was some weakness that was found on the right side and again that goes with the same area of the brain, but that resolved fairly quickly, and the big thing is, she’s alert and eating and moving and progressing, and that’s not what you see with somebody with [DAI]. Those people stay in a coma for a long time.”
Bux testified that B.D. could have suffered rebleeding of an old injury and that falling in the bathtub is the type of “seemingly inconsequential” trauma that could cause the injury.
Mickie Roark, Roark’s mother and a registered nurse, testified that she spoke with her son and B.D. at about 3 p.m. on July 16 and they both seemed fine.
Mickie said that when she arrived at the hospital, she saw Dietze talking to Bridgette and Roark. She said the doctor was telling them that he had drained blood from B.D. that was “two and a half weeks old.”
Mickie said that she told Dietze that B.D. had fallen two weeks earlier and hit her forehead on the edge of the coffee table. She also said she told Murphy about B.D. getting bruised a week earlier when a doctor was trying to sedate her to insert ear tubes. She said she asked Murphy to get a hematology consult.
Mickie testified that she told Squires about the coffee-table incident and ear surgery and asked Squires to get a hematology consult. Squires didn’t. Mickie said she asked Squires if she was going to investigate possibilities other than SBS. She said Squires’s response was “Absolutely not, she was finished.”
Mickie Roark also disputed J.D.’s testimony about her son’s relationship with B.D. She said that Bridgette, Roark, and B.D. were mostly living at her house at the time of the incident, and she would not have left her son alone with the child if she didn’t trust him.
Roark testified about the events of July 16. He said that at the doctor’s visit, he told a nurse that B.D. had a diaper rash, diarrhea, and a fever the night before. Later, they came home, and he fed B.D. ravioli. She made a mess, and he said he gave her a bath. He said she slipped in the tub and banged her head. She cried, but then settled down for a nap. He said he checked on her once, and she seemed fine. When he returned about 15 minutes later, he found her face down on the floor, limp, and pale, with a little blood coming from her mouth.
Roark said he tried to rouse B.D. and then called 911. He said he administered cardio-pulmonary resuscitation (CPR) to B.D. while he was on the phone with the dispatcher.
During cross-examination, the state played a recording of the 911 call. Roark could be heard telling the dispatcher that B.D.’s jaw was locked, and he testified that he could not recall exactly when he began CPR on B.D.
Bridgette testified that Roark had begun babysitting B.D. around the time of the child’s ear surgery, but Mickie Roark was often with him. She testified inconsistently about the calls Roark made that afternoon, saying at one time that she couldn’t remember whether Roark called her or 911 first and at another point that she received the first call. She also testified that Roark told her that he lightly “shook [B.D.] to see if she was responsive” after he performed CPR.
The state called Squires as a rebuttal witness. Asked about whether a rebleed could cause a brain injury, Squires said it was “controversial and rare.” She said, “Everybody suspects that there are some children who have abnormal spaces over the brain, usually it’s like after a brain tumor is removed or something, who have abnormal spaces that either spontaneously or sometimes after a minor fall that get a little bit of fresh blood. And that is pretty well accepted.”
Squires said a rebleed didn’t apply in B.D.’s case.
“Well, it doesn’t cause brain injury,” she said. “If these kids present they usually have headaches, sometimes they have a seizure, they can have a little vomiting or something like that, and it’s from that scenario that people get a CT scan and see this. It has nothing to do with their baseline neurologic status. They do not become comatose and they don’t have edema.”
In its closing argument, the state said that the defense theory of a rebleed was hypothetical. A prosecutor said that Roark had snapped while taking care of his girlfriend’s child and pointed to Roark’s apparent five-minute delay in calling 911.
“No reasonable person is going to walk in and find a baby not breathing and immediately run to the phone and not call 911, unless you did something really wrong, unless you really screwed up and you know that you’ve hurt this child and you’re going to get in big trouble for it,” the prosecutor said.
The state also said that Mickie Roark and Bridgette had lied about the coffee-table incident and that Mickie Roark had lied about asking Murphy to get a hematology consult.
Roark’s attorney, Roy Merrill, argued that Squires had misdiagnosed B.D. with DAI because people who have DAIs do not recover as quickly as B.D. He said that B.D. had a prior brain injury that either spontaneously rebled or began rebleeding after the child slipped in the tub or rolled off her bed.
The jury convicted Roark of injury to a child on March 14, 2000, and he was sentenced to 35 years in prison.
Roark appealed, asserting that there had been insufficient evidence to sustain a conviction. The Texas Fifth District Court of Appeals affirmed the conviction on October 5, 2001.
Over the next 23 years, Roark, represented by Gary Udashen and the Innocence Project of Texas, sought to overturn his conviction. At the heart of his claims, filed in state and federal court, was a newer understanding of brain injuries in very young children. This emerging research said that the so-called telltale signs of SBS, such as retinal hemorrhaging, could be caused by a wide range of other events; that shaking alone could not cause these injuries; and that children could suffer great neurological harm from what appeared to be inconsequential events.
Roark would file four petitions for writs of habeas corpus, three in state court and one in federal court. In the first petition, filed in Dallas County in 2004, he also asserted that Merrill had provided ineffective representation through inadequate preparation and cross-examination.
At the time of the criminal trial, Roark and his parents had been sued by B.D.’s father. The attorneys who represented Andrew Roark and his parents testified at an evidentiary hearing that they tried to coordinate with Merrill, sharing depositions of witnesses, such as Squires, and helping him prepare. Several times, they attended the trial to observe the proceedings.
One of the attorneys testified that Merrill was extremely disorganized, and the attorney couldn’t follow his train of thought. He said that Merrill failed to thoroughly cross-examine Squires. “And the reason I know that is we had deposed Dr. Squires in the civil case and so I had spoken to Dr. Squires myself,” he said.
The Texas Court of Criminal Appeals denied Roark’s petition in early 2006.
In April 2006, Roark filed a habeas petition in U.S. District Court for the Northern District of Texas, again asserting ineffective assistance of counsel but also claiming new evidence that refuted the state’s expert testimony. The state generally denied the claims but also said Roark had not exhausted state remedies.
Roark then moved to abate his petition and return to the state courts, where shifting case law had begun eroding the medical evidence used in cases of alleged SBS.
The most important ruling had occurred in 2007, when the Texas Court of Criminal Appeals granted a stay of execution for Cathy Lynn Henderson, who had been convicted of capital murder in the death of an infant she was babysitting. At Henderson’s trial in 1995, the medical examiner in Travis County had testified the boy’s injuries couldn’t have happened from a simple fall. But he recanted in 2007, saying that “the medical profession has gained a greater understanding of pediatric head trauma and the extent of injuries that can occur in infants as a result of relatively short-distance falls.” (After receiving a new trial in 2012, Henderson pled guilty to murder.)
A federal judge granted Roark’s motion to abate the petition on July 31, 2008, and on August 29, 2008, Roark filed his second state habeas petition, based largely on the rulings in the Henderson case.
The Dallas County District Attorney’s Office agreed in 2012 that Roark’s conviction should be vacated, allowing Roark’s release from prison on December 17, 2012.
Judge Carter Thompson in Dallas County District Court recommended that the Texas Court of Criminal Appeals grant the writ, but Roark moved to dismiss the petition and then refiled a new petition on September 6, 2013, just days after the state’s “Junk Science Writ” law took effect. The law allowed convicted persons to challenge their convictions if there was new scientific evidence that was not available at the time of trial or that contradicted scientific evidence relied on by the state.
During the next decade, Judge Carter Thompson would hold a series of hearings, where Roark’s attorneys presented evidence undermining the trial testimony of the state’s expert witnesses.
Dr. John Plunkett, a board-certified medical examiner, testified during a hearing in 2014 that short-distance falls could cause serious injuries. (He had also been a post-conviction witness in the Henderson case.)
“It doesn’t mean that that’s what happened, okay, but there is no question that what Mr. Roark said happened could have occurred,” he testified.
Similarly, Dr. John Galaznik, a board-certified pediatrician with a research interest in child injuries, said in an affidavit “that the biomechanical research since 2000 has established that the accelerations and requisite forces which can be generated in a short-distance fall are adequate to result in subdural bleeding, retinal hemorrhages, and death.”
Dr. Chris Van Ee, a biomedical engineer, said in an affidavit, “Based on a review of the current scientific data, the hypothesis that shaking is likely to result in injurious angular acceleration/deceleration resulting in direct damage to bridging veins and diffuse axonal injury cannot be scientifically supported.”
On December 30, 2014, Thompson again recommended that Roark receive a new trial. Judge Thompson said that new scientific evidence supported his findings, including that: Short-distance falls can cause serious injuries; Roark could not have shaken B.D. hard enough to cause his injuries; retinal hemorrhages have multiple causes; and that Squires testified inaccurately about the prevalence of rebleeds.
The appellate court did not rule on these recommendations, and Judge Thompson ordered additional evidentiary hearings on rebleeds, based in part on a recantation by Squires.
In an affidavit dated November 29, 2018, Squires said the testimony she gave at trial was no longer accurate. “Since the time of my testimony there have been studies showing that prior subdural hematoma can rebleed small amounts of free blood without a subsequent trauma having occurred,” she said. “I would no longer testify that this theory is controversial, rare or limited to children with abnormal spaces over their brain.”
She also said that she would have testified differently about whether the brain can regenerate after an injury. She had testified it could not, but said in the affidavit “there is more recent data that suggests this might not always be the case.”
Separately, Roark said in a filing that Squires had told prosecutors that she may have overstated her trial testimony that previous shaking was the likely cause of B.D.’s chronic subdural hematoma.
Bux testified at an evidentiary hearing and said that rebleeds can vary. He said that B.D.’s chronic subdural hematoma was caused by a significant trauma weeks before the incident and that her brain injuries were caused by a subsequent rebleed due to a minor or severe trauma, such as falling in the tub. He said that slipping in the bathtub or rolling off her toddler bed could have caused the rebleed, but that he could not rule out child abuse.
On April 18, 2019, Judge Thompson again recommended that Roark’s conviction be vacated. The recommendation was again supported by the district attorney’s office, which had reviewed the case through its conviction integrity unit (CIU).
“The new scientific evidence supports the defense theory and completely refutes and contradicts the state's position at trial denying and disputing the possibility of a rebleed,” Judge Thompson wrote. “The court finds and concludes that if a jury was told [by] the state’s own witnesses that subdural hematomas in young children happen (frequently) and can occur from minor trauma or spontaneously, the defense position that the child's condition was the result of a rebleed would have been significantly more convincing and the jury would very likely have accepted it.”
The Texas Court of Criminal Appeals remanded the case back to Judge Thompson in 2021, seeking a “full presentment and examination of all issues.”
After additional hearings and filings, Judge Thompson submitted his final findings and recommendations on November 3, 2023, which incorporated his earlier rulings.
The Texas Court of Criminal Appeals granted Roark a new trial on October 9, 2024.
“The science today supports the proposition that B.D.’s injury could have been sustained by a short-distance fall, or occurred spontaneously, due to the acute-on-chronic subdural hematoma,” the court said. “We find the retinal hemorrhaging, applied through today’s scientific method, to be non-specific and of no value in assigning causation for its existence. We accept Dr. Squires’s sparse recantation that rebleeds are not controversial, rare, and limited to children with abnormal spaces above the brain.”
The state dismissed the case on November 18, 2024.
“There exists no evidence in which we could support a conviction and believe Mr. Roark is actually innocent,” said Dallas County District Attorney John Creuzot. “We firmly believe would the same facts and circumstances occur today, Mr. Roark would be acquitted of any charges brought against him, therefore he should enjoy the presumption of innocence.”
– Ken Otterbourg
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