1 00:00:06,160 --> 00:00:11,040 Speaker 1: Okay, this is as serious as it gets. Another victim 2 00:00:11,119 --> 00:00:14,800 Speaker 1: of the junk science of shaken baby syndrome, Robert Robertson, 3 00:00:15,000 --> 00:00:18,200 Speaker 1: is scheduled for execution in the state of Texas on 4 00:00:18,239 --> 00:00:22,320 Speaker 1: October seventeenth, twenty twenty four. I visited Robert at the 5 00:00:22,320 --> 00:00:26,279 Speaker 1: Polunski unit outside Houston, just after Memorial Day twenty twenty two, 6 00:00:26,680 --> 00:00:30,520 Speaker 1: and I remember walking away from him with a sick 7 00:00:30,600 --> 00:00:35,200 Speaker 1: feeling in my stomach, knowing that the day might come 8 00:00:35,400 --> 00:00:37,720 Speaker 1: when he would be put to death for a crime 9 00:00:38,080 --> 00:00:41,599 Speaker 1: that never even happened. And here we are now on 10 00:00:41,640 --> 00:00:45,760 Speaker 1: the precipice. Since our original coverage on July seventh, twenty 11 00:00:45,800 --> 00:00:49,200 Speaker 1: twenty two, coverage that gained Robert even more pro bono 12 00:00:49,280 --> 00:00:53,519 Speaker 1: support from the powerful law firm scatin Arps, even the 13 00:00:53,640 --> 00:00:58,480 Speaker 1: lead detective in this case has come forward to acknowledge 14 00:00:58,520 --> 00:01:02,600 Speaker 1: his mistake and asked Robert to forgive him. 15 00:01:03,000 --> 00:01:04,679 Speaker 2: We'll link that video along with. 16 00:01:04,720 --> 00:01:07,680 Speaker 1: Action steps in the episode description, because it looks like 17 00:01:07,920 --> 00:01:12,120 Speaker 1: it's going to take all of our help now if 18 00:01:12,160 --> 00:01:15,840 Speaker 1: this innocent man is going to survive. Here's a new 19 00:01:15,959 --> 00:01:16,319 Speaker 1: edit of. 20 00:01:16,240 --> 00:01:18,800 Speaker 2: Our original coverage of Robert Robertson. 21 00:01:23,680 --> 00:01:27,119 Speaker 1: On January thirty, first, two thousand and two, thirty five 22 00:01:27,200 --> 00:01:31,039 Speaker 1: year old Texan Robertson said that his two year old daughter, Nicki, 23 00:01:31,280 --> 00:01:33,640 Speaker 1: had fallen out of bed in the middle of the night, 24 00:01:34,640 --> 00:01:37,959 Speaker 1: and after comforting her, they both fell back to sleep. 25 00:01:39,319 --> 00:01:44,199 Speaker 1: When he awoke again, Nicky wasn't breathing. Emergency rumor suscitation 26 00:01:44,319 --> 00:01:47,440 Speaker 1: efforts ultimately failed, and little Nicky was. 27 00:01:47,360 --> 00:01:51,400 Speaker 2: Pronounced dead along with a bump on her head. 28 00:01:51,480 --> 00:01:55,280 Speaker 1: An examination revealed brain swelling as well as intracranial and 29 00:01:55,360 --> 00:01:59,760 Speaker 1: retinal bleeding, the findings commonly associated with the now deep 30 00:01:59,760 --> 00:02:05,320 Speaker 1: bunk shaken baby syndrome hypothesis, despite a number of viable 31 00:02:05,360 --> 00:02:10,960 Speaker 1: causes of death. Instead, Robert was accused of violently shaking 32 00:02:10,960 --> 00:02:14,320 Speaker 1: his daughter to death. So the state of Texas now 33 00:02:14,360 --> 00:02:17,160 Speaker 1: intends to put Robert to death as well. 34 00:02:18,720 --> 00:02:21,280 Speaker 2: But this is wrongful conviction. 35 00:02:28,919 --> 00:02:32,320 Speaker 1: Wrongful conviction has always given voice to innocent people in prison, 36 00:02:32,400 --> 00:02:36,000 Speaker 1: and now we're expanding that voice to you. Call us 37 00:02:36,320 --> 00:02:39,320 Speaker 1: at eight three three two O seven four six sixty 38 00:02:39,360 --> 00:02:41,680 Speaker 1: six and tell us how these stories make you feel 39 00:02:41,880 --> 00:02:44,280 Speaker 1: and what you've done to help the cause, even if 40 00:02:44,320 --> 00:02:47,120 Speaker 1: it's something as simple as telling a friend or sharing 41 00:02:47,160 --> 00:02:50,480 Speaker 1: on social media. And you might just hear yourself in 42 00:02:50,520 --> 00:02:54,360 Speaker 1: a future episode. Call us eight three three two oh seven, 43 00:02:54,520 --> 00:03:06,920 Speaker 1: four six sixty six. Welcome back to Wrongful Conviction. I'm 44 00:03:07,000 --> 00:03:10,680 Speaker 1: Jason Flauman. Today's case, unfortunately, is going to sound like 45 00:03:10,800 --> 00:03:14,800 Speaker 1: familiar territory. It's a Shaken Baby prosecution which was based 46 00:03:14,840 --> 00:03:18,040 Speaker 1: on a hypothesis that is now rejected by not only 47 00:03:18,080 --> 00:03:21,280 Speaker 1: the original scientists, but also the scientific and medical communities 48 00:03:21,280 --> 00:03:24,920 Speaker 1: that once held it to be a decided matter. Now, unfortunately, 49 00:03:24,960 --> 00:03:27,799 Speaker 1: some of those attacked with that ill fated diagnosis in 50 00:03:27,840 --> 00:03:30,280 Speaker 1: a court of law are still languishing in prison. Too many, 51 00:03:30,320 --> 00:03:34,680 Speaker 1: I mean countless people, including our guest today who is 52 00:03:34,720 --> 00:03:38,880 Speaker 1: on death row in Texas, Robert Robertson. Now, my producer 53 00:03:38,960 --> 00:03:41,440 Speaker 1: Connor Hall, and I who trek down to the Polunski 54 00:03:41,520 --> 00:03:42,840 Speaker 1: unit in Livingston, Texas to. 55 00:03:42,800 --> 00:03:44,200 Speaker 2: Record an interview with Robert. 56 00:03:44,360 --> 00:03:47,800 Speaker 1: You'll hear pieces of that interspersed throughout our coverage today. 57 00:03:48,080 --> 00:03:51,960 Speaker 1: Joining us now is his appellate attorney, Gretchen Swen. Gretchen, 58 00:03:52,400 --> 00:03:53,680 Speaker 1: Welcome to Ronful Conviction. 59 00:03:54,120 --> 00:03:55,400 Speaker 3: Thank you so much, Jason. 60 00:03:55,720 --> 00:03:57,920 Speaker 1: Now, before we get into Robert's case, I want to 61 00:03:57,960 --> 00:04:00,960 Speaker 1: refer everyone to our coverage of Shake Baby syndrome on 62 00:04:01,080 --> 00:04:04,200 Speaker 1: wrongful conviction junk science, which will be linked in the 63 00:04:04,240 --> 00:04:08,640 Speaker 1: episode description. For decades, when a medical examiner was presented 64 00:04:08,680 --> 00:04:12,800 Speaker 1: with brain swelling, bleeding inside the skull, and bleeding behind 65 00:04:12,800 --> 00:04:15,440 Speaker 1: the eyes of an infant or a toddler, all other 66 00:04:15,560 --> 00:04:20,160 Speaker 1: causes were not first ruled out, but totally ignored, and 67 00:04:20,480 --> 00:04:24,840 Speaker 1: a leap in logic was made to two conclusions. First 68 00:04:25,200 --> 00:04:28,279 Speaker 1: that this triad of findings were caused by violent shaking 69 00:04:28,320 --> 00:04:33,120 Speaker 1: and later abusive head trauma was included, and second that 70 00:04:33,200 --> 00:04:37,599 Speaker 1: the most recent caregiver must be the one responsible. Since 71 00:04:37,640 --> 00:04:41,400 Speaker 1: the late nineties, over eighty medical conditions and still counting, 72 00:04:41,440 --> 00:04:46,640 Speaker 1: have been found to cause that exact triad of findings. Additionally, 73 00:04:46,800 --> 00:04:52,040 Speaker 1: biomechanical studies have revealed that violent shaking simply cannot cause 74 00:04:52,080 --> 00:04:57,080 Speaker 1: the triad without also first causing a spinal injury. Further, 75 00:04:57,520 --> 00:05:00,560 Speaker 1: it's been proven that up to seventy two hours can 76 00:05:00,600 --> 00:05:04,719 Speaker 1: pass by before a child succumbs to these conditions, whether 77 00:05:04,760 --> 00:05:08,560 Speaker 1: the cause was traumatic or simply a medical issue. The 78 00:05:08,640 --> 00:05:11,960 Speaker 1: conclusion is that we cannot determine if a child was 79 00:05:12,000 --> 00:05:16,599 Speaker 1: abused or violently shaken without first ruling out all the 80 00:05:16,680 --> 00:05:21,080 Speaker 1: other causes and after doing so, we cannot reliably place 81 00:05:21,200 --> 00:05:24,919 Speaker 1: blame on the last person with them, And unfortunately, Robert 82 00:05:25,000 --> 00:05:29,560 Speaker 1: Robertson was that final caretaker and he was particularly vulnerable 83 00:05:29,680 --> 00:05:30,440 Speaker 1: to prosecution. 84 00:05:30,800 --> 00:05:36,200 Speaker 3: This is somebody who grew up dirt poor in East Texas. 85 00:05:36,560 --> 00:05:39,520 Speaker 3: He was in special ed classes. He was the one 86 00:05:39,520 --> 00:05:42,919 Speaker 3: who was bullied. There was a lot of violence in 87 00:05:42,960 --> 00:05:47,000 Speaker 3: the home. But you had a mother who loved him dearly. 88 00:05:47,160 --> 00:05:49,760 Speaker 3: But you know, he drops out in ninth grade. You know, 89 00:05:49,800 --> 00:05:51,800 Speaker 3: he was on the radar in terms of this is 90 00:05:51,839 --> 00:05:55,080 Speaker 3: a struggling kid and stumbles into what happens with so 91 00:05:55,160 --> 00:05:58,919 Speaker 3: many poor, traumatized kids. He struggles with drug addiction. But 92 00:05:59,200 --> 00:06:02,520 Speaker 3: this is a intul soul. And you know, you spend 93 00:06:02,560 --> 00:06:06,039 Speaker 3: five minutes with Robert and you see his speech is 94 00:06:06,160 --> 00:06:09,440 Speaker 3: unusual and he has this sort of flat affect and 95 00:06:09,480 --> 00:06:11,640 Speaker 3: he struggles to speak. 96 00:06:12,040 --> 00:06:15,440 Speaker 4: Okay, so you got some questions of something. 97 00:06:16,440 --> 00:06:18,640 Speaker 2: Sure, So yeah, let me just introduce. 98 00:06:18,720 --> 00:06:21,720 Speaker 1: First of all, this is drawn for conviction from death 99 00:06:21,800 --> 00:06:25,279 Speaker 1: row in Texas. We're here on the Polunsky unit, where 100 00:06:25,279 --> 00:06:28,200 Speaker 1: we've been before to visit Rob will and Rodney Reid. 101 00:06:28,279 --> 00:06:31,359 Speaker 1: Today we're here with another innocent man, man named Robert Robertson. 102 00:06:31,760 --> 00:06:34,080 Speaker 1: The man himself is like a big teddy bear. He's 103 00:06:34,080 --> 00:06:37,000 Speaker 1: sitting right across from me through this window of bulletproof glass. 104 00:06:37,120 --> 00:06:40,760 Speaker 2: Robert, thank you for being here to talk to us today. 105 00:06:40,880 --> 00:06:41,920 Speaker 4: Thank you for being here. 106 00:06:42,000 --> 00:06:45,080 Speaker 1: And Robert, going back to the beginning, did you grow 107 00:06:45,160 --> 00:06:46,080 Speaker 1: up in Texas? 108 00:06:46,400 --> 00:06:48,599 Speaker 4: I was born in Minneola, Texas and stuff, and we 109 00:06:48,640 --> 00:06:50,839 Speaker 4: lived in Winnsboro until I was six years old, you know, 110 00:06:51,360 --> 00:06:53,880 Speaker 4: and then my dad worked for the railroad and his 111 00:06:54,000 --> 00:06:55,520 Speaker 4: job transferred to Palestine. 112 00:06:55,600 --> 00:06:58,720 Speaker 1: Anderson Kenny, you know, you had a very difficult childhood, 113 00:06:58,720 --> 00:06:59,520 Speaker 1: is that fair to say? 114 00:07:00,720 --> 00:07:02,279 Speaker 4: My dad was real rough and my mom. 115 00:07:02,720 --> 00:07:05,640 Speaker 5: My mom was like the glue to the family and stuff, 116 00:07:05,680 --> 00:07:07,800 Speaker 5: you know, like the protection stuff, but dad would like 117 00:07:07,839 --> 00:07:08,440 Speaker 5: to provide her. 118 00:07:09,240 --> 00:07:11,160 Speaker 2: And then you ended up going into the military. 119 00:07:11,280 --> 00:07:14,480 Speaker 5: And I went to the military when I was seventeen 120 00:07:14,720 --> 00:07:17,920 Speaker 5: Army and they gave me a medical discharge letter on 121 00:07:17,960 --> 00:07:19,920 Speaker 5: because they said I couldn't adapt, or something like a 122 00:07:20,160 --> 00:07:21,200 Speaker 5: training discharge. You know. 123 00:07:22,520 --> 00:07:25,280 Speaker 1: It has since been determined that Robert is on the 124 00:07:25,320 --> 00:07:28,400 Speaker 1: autism spectrum, but at that time he was just twenty 125 00:07:28,520 --> 00:07:30,280 Speaker 1: years old with two children. 126 00:07:29,880 --> 00:07:31,160 Speaker 2: Who had special needs. 127 00:07:31,720 --> 00:07:36,400 Speaker 1: Robert and the kid's mother depended on the grandparents for help. Eventually, 128 00:07:36,680 --> 00:07:39,760 Speaker 1: Robert had a third child, Nicki Bowman, whose custody was 129 00:07:39,800 --> 00:07:42,600 Speaker 1: also shared, but there was a more contentious relationship with 130 00:07:42,680 --> 00:07:46,800 Speaker 1: her grandparents. In addition, Nicki was born with a host 131 00:07:46,840 --> 00:07:50,480 Speaker 1: of medical issues that it appears were never properly diagnosed 132 00:07:50,840 --> 00:07:51,400 Speaker 1: or treated. 133 00:07:52,160 --> 00:07:56,600 Speaker 3: Nicki had been sick from essentially birth. This is a 134 00:07:56,840 --> 00:08:00,040 Speaker 3: child on Medicaid. You know, she's being brought in and 135 00:08:00,120 --> 00:08:02,720 Speaker 3: they're like, Ah, this antibiotic doesn't seem to work, let's 136 00:08:02,760 --> 00:08:05,080 Speaker 3: give her another one, you know, over and over again. 137 00:08:05,080 --> 00:08:07,640 Speaker 3: And so there is a real tragedy in this child's 138 00:08:07,640 --> 00:08:10,520 Speaker 3: short life of just the medical failures to get at 139 00:08:10,520 --> 00:08:13,400 Speaker 3: what's going on with her. But I think that's sort 140 00:08:13,400 --> 00:08:15,520 Speaker 3: of where the story begins. And then, you know, if 141 00:08:15,560 --> 00:08:18,240 Speaker 3: you get to the point of trial, they acted like 142 00:08:18,360 --> 00:08:21,760 Speaker 3: this history did not exist or certainly didn't matter that 143 00:08:21,800 --> 00:08:25,760 Speaker 3: you have a kid infected from eight days old pretty 144 00:08:25,840 --> 00:08:30,200 Speaker 3: much onward. But the week before her collapse, she had 145 00:08:30,280 --> 00:08:34,640 Speaker 3: been brought to the er with initially one hundred and 146 00:08:34,720 --> 00:08:38,640 Speaker 3: three point five fever. I believe she was throwing up. 147 00:08:38,720 --> 00:08:42,920 Speaker 3: She had chronic diarrhea and trouble breathing. At this point, 148 00:08:43,320 --> 00:08:49,360 Speaker 3: she has prescribed this medication, Finnergen, which contains promethazine, which 149 00:08:49,400 --> 00:08:51,920 Speaker 3: now has a black box warning from the FDA that 150 00:08:51,960 --> 00:08:54,400 Speaker 3: you don't give this to kids under the age of ten, 151 00:08:54,600 --> 00:08:58,360 Speaker 3: and certainly don't give it to kids with respiratory issues 152 00:08:58,400 --> 00:09:01,680 Speaker 3: because it might cause death. A few days later, she 153 00:09:01,880 --> 00:09:05,280 Speaker 3: at the doctor the day after the emergency visit, had 154 00:09:05,360 --> 00:09:08,480 Speaker 3: a fever over one hundred and four. They also give 155 00:09:08,559 --> 00:09:13,360 Speaker 3: her another prescription for Finnergen, along with codine costster and 156 00:09:13,440 --> 00:09:17,920 Speaker 3: which metastasizes into morphine. You know, they're treating it as 157 00:09:17,960 --> 00:09:22,080 Speaker 3: if it's some you know, annoying cold, but you're suppressing 158 00:09:22,280 --> 00:09:25,560 Speaker 3: the respiratory system of a kid already in distress. So 159 00:09:25,880 --> 00:09:29,400 Speaker 3: a day later, Robert is called by the grandparents who 160 00:09:29,400 --> 00:09:31,720 Speaker 3: had been feuding with his mom for a year, to 161 00:09:31,840 --> 00:09:35,080 Speaker 3: come get this child who is sick and take her 162 00:09:35,160 --> 00:09:37,839 Speaker 3: home back to his place. To me, this is another 163 00:09:37,880 --> 00:09:39,520 Speaker 3: part of the mystery. If you have a sick two 164 00:09:39,600 --> 00:09:42,160 Speaker 3: year old, I wonder what parent wants somebody to come 165 00:09:42,160 --> 00:09:44,960 Speaker 3: out to the country pick up the child at nine 166 00:09:45,000 --> 00:09:49,440 Speaker 3: o'clock at night and knowing he's alone because his girlfriend's 167 00:09:49,480 --> 00:09:52,480 Speaker 3: getting a hysterectomy in the hospital. But oh, no, Robert 168 00:09:52,600 --> 00:09:55,199 Speaker 3: needs to come out and fetch this child, take her home. 169 00:09:55,600 --> 00:09:58,120 Speaker 1: This was January thirtieth into the thirty first of two 170 00:09:58,160 --> 00:10:01,840 Speaker 1: thousand and two, and on this particular night, Robert was 171 00:10:01,880 --> 00:10:05,040 Speaker 1: prepared to care for his then fiance in the wake 172 00:10:05,080 --> 00:10:06,000 Speaker 1: of her has. 173 00:10:05,840 --> 00:10:08,960 Speaker 3: Directed me his fiance is coming home from the hospital. 174 00:10:08,960 --> 00:10:12,199 Speaker 3: He's trying to elevate the bed. The bed was really 175 00:10:12,559 --> 00:10:16,400 Speaker 3: box springs and a mattress propped up on cinderblocks. But 176 00:10:16,480 --> 00:10:19,400 Speaker 3: you look at these pictures in this bed, it's precarious. 177 00:10:19,800 --> 00:10:23,199 Speaker 3: You know, that's where Nikki was sleeping. So it's completely 178 00:10:23,320 --> 00:10:26,679 Speaker 3: legit that a disoriented, sick child full of all these 179 00:10:26,760 --> 00:10:30,040 Speaker 3: drugs tries to get up in the night and falls 180 00:10:30,080 --> 00:10:33,880 Speaker 3: off the bed, and that would very easily explain this 181 00:10:34,040 --> 00:10:36,720 Speaker 3: bump on the back of her head. It's in the 182 00:10:36,840 --> 00:10:41,000 Speaker 3: night where he wakes up to this strange cry. And 183 00:10:41,520 --> 00:10:45,320 Speaker 3: his report consistently was he found her on the floor 184 00:10:45,320 --> 00:10:47,200 Speaker 3: at the foot of the bed. Didn't know what happened, 185 00:10:47,240 --> 00:10:49,560 Speaker 3: but he saw a little bit of blood on her mouth. 186 00:10:50,040 --> 00:10:53,800 Speaker 3: He got a washcloth, wiped it off, kept her sitting 187 00:10:53,880 --> 00:10:56,920 Speaker 3: up for a while because she'd fallen out, so he 188 00:10:56,960 --> 00:10:59,000 Speaker 3: thought maybe she hit her head and he'd been told 189 00:10:59,000 --> 00:11:01,120 Speaker 3: if somebody hits their head, you have to keep him awake, 190 00:11:02,120 --> 00:11:06,560 Speaker 3: and then they fall back asleep. His alarm goes off. 191 00:11:06,720 --> 00:11:11,400 Speaker 3: A few hours later, he wakes up, finds Nicky Blue 192 00:11:11,440 --> 00:11:15,880 Speaker 3: not breathing, faint heartbeat. He panics, shakes her a little 193 00:11:16,080 --> 00:11:19,760 Speaker 3: to try to rouse her. Meanwhile, his girlfriend's calling him 194 00:11:19,760 --> 00:11:23,160 Speaker 3: from the hospital to come get her, and he reports, well, 195 00:11:23,240 --> 00:11:26,440 Speaker 3: Nicky's not breathing. He gets in the car, drives the 196 00:11:26,480 --> 00:11:29,400 Speaker 3: short distance to the hospital. But the child never really 197 00:11:29,440 --> 00:11:32,200 Speaker 3: recovers from this, and we have no idea how long 198 00:11:32,600 --> 00:11:36,040 Speaker 3: had she ceased breathing. He gets up there into the er. 199 00:11:36,480 --> 00:11:39,040 Speaker 3: They see this, you know, guy standing there with a 200 00:11:39,120 --> 00:11:39,959 Speaker 3: limp child. 201 00:11:40,640 --> 00:11:43,640 Speaker 1: And let's not forget how Robert presents to the world. 202 00:11:43,679 --> 00:11:47,480 Speaker 1: He's a large man, well over six feet two hundred 203 00:11:47,520 --> 00:11:49,400 Speaker 1: pounds and socially awkward. 204 00:11:50,200 --> 00:11:53,679 Speaker 3: Immediately the judgment start, they assume he did something to 205 00:11:53,720 --> 00:11:56,760 Speaker 3: this child, whisk her away, clothe Blue, but by that 206 00:11:56,880 --> 00:12:00,000 Speaker 3: point her eyes were already fixed and dilated, which means 207 00:12:00,200 --> 00:12:03,160 Speaker 3: she'd probably already experience brain death. It doesn't take long, 208 00:12:03,200 --> 00:12:06,880 Speaker 3: it's about twelve minutes without oxygen. The brain shuts down. 209 00:12:07,120 --> 00:12:09,520 Speaker 3: Once your brain dies you're not coming back to life, 210 00:12:09,920 --> 00:12:12,760 Speaker 3: but you revive the heart. You're pumping all this blood 211 00:12:12,760 --> 00:12:15,880 Speaker 3: into the system, increasing the blood inside her head that 212 00:12:15,920 --> 00:12:18,080 Speaker 3: can no longer get into the brain. They get her 213 00:12:18,080 --> 00:12:20,760 Speaker 3: heart going and it's about the same time they do 214 00:12:20,880 --> 00:12:24,040 Speaker 3: a scan of her head and they notice the goose egg, 215 00:12:24,280 --> 00:12:27,160 Speaker 3: you know, swollen tissue on the back of her head. 216 00:12:27,360 --> 00:12:31,200 Speaker 3: But the cat scan showed that there was subdural bleeding 217 00:12:31,400 --> 00:12:34,560 Speaker 3: and that the brain had swollen, and that then later 218 00:12:34,640 --> 00:12:37,760 Speaker 3: on they realized they're also retinal hemorrhages, and this is 219 00:12:37,800 --> 00:12:42,880 Speaker 3: the classic triad associated with shaking. So this bump on 220 00:12:42,920 --> 00:12:45,960 Speaker 3: the head. One doctor that sees her later that day 221 00:12:46,000 --> 00:12:49,800 Speaker 3: says that was minor, that could have happened at another time. 222 00:12:50,240 --> 00:12:53,760 Speaker 3: But all this internal stuff, oh, that must have been 223 00:12:53,800 --> 00:12:57,240 Speaker 3: caused by violent shaking and then flinging the child down 224 00:12:57,280 --> 00:13:00,320 Speaker 3: against something. This became the theory instant. 225 00:13:00,120 --> 00:13:04,160 Speaker 1: Late soon Nikki was pronounced dead, and it appears there 226 00:13:04,160 --> 00:13:07,120 Speaker 1: are several avenues that could have led to both her 227 00:13:07,200 --> 00:13:11,080 Speaker 1: demise as well as the triad of findings Number one. 228 00:13:11,160 --> 00:13:14,400 Speaker 1: There are now FDA warnings that fenrigan can cause respiratory 229 00:13:14,440 --> 00:13:18,120 Speaker 1: failure in children under age ten. Codine can also lead 230 00:13:18,160 --> 00:13:23,120 Speaker 1: to suppressed respiration. In this case, there are two subsequent possibilities. 231 00:13:23,679 --> 00:13:27,400 Speaker 1: A oxygen deprivation is one of the over eighty medical 232 00:13:27,440 --> 00:13:30,480 Speaker 1: conditions that can cause the triad of findings, and B 233 00:13:30,760 --> 00:13:35,319 Speaker 1: the post brain death resuscitation effort pumped blood into her 234 00:13:35,320 --> 00:13:39,160 Speaker 1: cranial cavity, yet was viewed as a symptom with which 235 00:13:39,280 --> 00:13:43,840 Speaker 1: she had arrived at the hospital. The second avenue short falls, 236 00:13:44,080 --> 00:13:46,080 Speaker 1: like the one Robert said Nikki had taken from the 237 00:13:46,080 --> 00:13:49,840 Speaker 1: elevated bed, has been enough in previous cases to cause 238 00:13:49,960 --> 00:13:54,040 Speaker 1: the same triad and therefore her death. Not to mention 239 00:13:54,320 --> 00:13:58,160 Speaker 1: that any accidental trauma of this type could have occurred 240 00:13:58,400 --> 00:14:02,319 Speaker 1: up to seventy two hours before her untimely demise. 241 00:14:02,880 --> 00:14:05,960 Speaker 3: We now know that a short umbraced fall where you 242 00:14:06,040 --> 00:14:09,520 Speaker 3: hit your head, especially in a young child, there could 243 00:14:09,520 --> 00:14:14,800 Speaker 3: be hours and even days before symptoms arise. You can 244 00:14:14,840 --> 00:14:19,560 Speaker 3: have a traumatic brain injury and yet the manifestations aren't visible. 245 00:14:19,960 --> 00:14:22,200 Speaker 2: It's terrifying but true. Now. 246 00:14:22,560 --> 00:14:26,800 Speaker 1: Thirdly, years later, a re examination of Nikki's medical records 247 00:14:26,800 --> 00:14:30,600 Speaker 1: and autopsy have revealed that she was suffering from viral pneumonia, 248 00:14:30,840 --> 00:14:33,680 Speaker 1: another one of the non violent medical causes for the 249 00:14:33,720 --> 00:14:38,440 Speaker 1: triad of findings and therefore her death. Yet somehow all 250 00:14:38,600 --> 00:14:42,360 Speaker 1: of these possibilities were not ruled out but ignored. 251 00:14:43,040 --> 00:14:46,640 Speaker 3: You have to realize that this is a small rural community. 252 00:14:46,960 --> 00:14:51,080 Speaker 3: The same er doctor is on duty, who is the 253 00:14:51,120 --> 00:14:55,080 Speaker 3: one who was giving her the finnergen oh boy, and 254 00:14:55,400 --> 00:14:58,200 Speaker 3: the pediatrician that it had her come to the office 255 00:14:58,400 --> 00:15:01,360 Speaker 3: and measured her fever at one oh four point five, 256 00:15:01,880 --> 00:15:04,640 Speaker 3: came to the hospital and he's weighing in. And these 257 00:15:04,680 --> 00:15:09,560 Speaker 3: are the people interviewing Robert, which in my mind, these 258 00:15:09,560 --> 00:15:15,120 Speaker 3: are interested witnesses, and they, along with this collection of nurses, 259 00:15:15,120 --> 00:15:17,720 Speaker 3: are making judgments about this man. And a lot of 260 00:15:17,720 --> 00:15:20,080 Speaker 3: the testimony at his trial, which I know we'll get to, 261 00:15:20,200 --> 00:15:23,920 Speaker 3: but right away, they're these judgments. He wasn't crying at 262 00:15:23,920 --> 00:15:28,560 Speaker 3: the right times, he wasn't showing enough concern. He was 263 00:15:28,760 --> 00:15:30,120 Speaker 3: just standing there. 264 00:15:31,080 --> 00:15:33,480 Speaker 5: When I brought into the hospital, I was freaking out, 265 00:15:33,480 --> 00:15:35,320 Speaker 5: freaking out and stuff because that kind of accused me 266 00:15:36,320 --> 00:15:38,440 Speaker 5: being responsible for what happened to her and stuff, you know, 267 00:15:38,920 --> 00:15:40,240 Speaker 5: And that's oh, because he's. 268 00:15:40,080 --> 00:15:42,880 Speaker 4: Actually a certain way he must be guilty. 269 00:15:42,920 --> 00:15:45,520 Speaker 5: You know, when you've been accused of something, you could 270 00:15:45,520 --> 00:15:48,720 Speaker 5: be nervous or something you know, for that to happen 271 00:15:48,800 --> 00:15:51,680 Speaker 5: to your child, child and stuff like getting there, I 272 00:15:51,720 --> 00:15:52,920 Speaker 5: don't think nobody's. 273 00:15:52,520 --> 00:15:54,440 Speaker 4: Gonna be in the right mind, you know stuff. 274 00:15:54,480 --> 00:15:57,080 Speaker 5: You know, losinger is bad enough, but been accused of 275 00:15:57,080 --> 00:15:58,000 Speaker 5: it that's even worse. 276 00:15:58,000 --> 00:16:13,680 Speaker 1: You know, you're listening to wrongful conviction. You can listen 277 00:16:13,680 --> 00:16:16,120 Speaker 1: to this and all the Lava for Good podcasts one 278 00:16:16,160 --> 00:16:19,400 Speaker 1: week early and ad free by subscribing to Lava for 279 00:16:19,480 --> 00:16:26,120 Speaker 1: Good Plus on Apple Podcasts. 280 00:16:26,120 --> 00:16:29,080 Speaker 3: She had a fall that could very well have started 281 00:16:29,120 --> 00:16:32,080 Speaker 3: the subdural bleeding, but she didn't even have skull fractures. 282 00:16:32,280 --> 00:16:35,960 Speaker 3: What Nikki had was this is critical, only one impact 283 00:16:36,000 --> 00:16:40,440 Speaker 3: sites on her exterior. To this day, the medical examiner 284 00:16:40,640 --> 00:16:44,920 Speaker 3: insists that she saw evidence of multiple impact sites to 285 00:16:45,000 --> 00:16:48,760 Speaker 3: Nicki's head because of all the blood underneath. 286 00:16:49,840 --> 00:16:52,840 Speaker 1: Interestingly, the cat scans that could have debunked this assertion 287 00:16:53,000 --> 00:16:55,800 Speaker 1: went missing for almost twenty years, so even though there 288 00:16:55,800 --> 00:16:58,880 Speaker 1: was only one bump on Nikki's head, this medical examiner, 289 00:16:58,880 --> 00:17:01,920 Speaker 1: doctor Jill Urban, claimed that the subdural up leading was 290 00:17:01,920 --> 00:17:05,159 Speaker 1: the result of multiple blood force head injuries, ruling the 291 00:17:05,240 --> 00:17:10,320 Speaker 1: death of homicide before any other testing, including a toxicology 292 00:17:10,359 --> 00:17:13,840 Speaker 1: report that disclosed a lethal amount of fettergan. So the 293 00:17:13,960 --> 00:17:18,400 Speaker 1: same people who had missed the viral pneumonia and unknowingly 294 00:17:18,520 --> 00:17:21,840 Speaker 1: prescribed a deadly drug to the same toddler were the 295 00:17:22,040 --> 00:17:26,000 Speaker 1: exact people looking at Roberts sideways. But it gets even worse. 296 00:17:26,119 --> 00:17:29,320 Speaker 1: A nurse, who by the way, was not certified to 297 00:17:29,400 --> 00:17:33,960 Speaker 1: perform sexual assault exams, volunteered to examine the child and 298 00:17:34,000 --> 00:17:36,639 Speaker 1: proceeded to tell hospital staff and law enforcement that she 299 00:17:36,760 --> 00:17:38,080 Speaker 1: saw anal tearing. 300 00:17:38,680 --> 00:17:42,679 Speaker 3: Jason, I do think this is the tail wagging the 301 00:17:42,760 --> 00:17:45,960 Speaker 3: dog here. You have a week's worth of diarrhea. You're 302 00:17:46,000 --> 00:17:48,560 Speaker 3: going to have in a two year old child, some 303 00:17:48,720 --> 00:17:52,639 Speaker 3: redness on their bottom. But she starts telling people, including 304 00:17:52,680 --> 00:17:56,280 Speaker 3: the lead investigator in the hospital, what she sees. I 305 00:17:56,280 --> 00:17:59,359 Speaker 3: think then you have mind blindness set in all of 306 00:17:59,400 --> 00:18:02,840 Speaker 3: the officers. Nurse looking at Robert through the lens of 307 00:18:03,320 --> 00:18:06,840 Speaker 3: here is a man who potentially anally raped his two 308 00:18:06,880 --> 00:18:10,200 Speaker 3: year old daughter. Then that takes over. They do a 309 00:18:10,359 --> 00:18:14,119 Speaker 3: sexual assault test on swabs taken from this child. Nothing. 310 00:18:14,600 --> 00:18:18,040 Speaker 3: They test everything they can find in the bedroom, nothing 311 00:18:18,119 --> 00:18:24,840 Speaker 3: to confirm this sexual assault hypothesis. Now they share this finding, 312 00:18:24,960 --> 00:18:30,080 Speaker 3: quote unquote with the medical team at Dallas Children's well, 313 00:18:30,160 --> 00:18:33,520 Speaker 3: the child abuse expert doctor Squires, who apparently you know, 314 00:18:33,600 --> 00:18:35,760 Speaker 3: is looking all the time for sexual abuse, says she 315 00:18:35,920 --> 00:18:39,760 Speaker 3: does not see what this nurse saw. All she saw 316 00:18:39,880 --> 00:18:42,400 Speaker 3: is what she said at trial, was what every mother 317 00:18:42,480 --> 00:18:46,760 Speaker 3: has probably seen, which you know looks akin to diaper rash. 318 00:18:46,960 --> 00:18:50,200 Speaker 1: Yet that was not the last time this accusation was raised. 319 00:18:50,240 --> 00:18:54,240 Speaker 1: In the meantime, this rural hospital also looked to Dallas 320 00:18:54,359 --> 00:18:57,840 Speaker 1: Children's Hospital to confirm their finding of homicide. 321 00:18:58,400 --> 00:19:01,400 Speaker 3: When Nikki is taken to Dallas Children's they look at 322 00:19:01,440 --> 00:19:04,439 Speaker 3: the cat scans and say this is essentially classic shaken 323 00:19:04,520 --> 00:19:08,639 Speaker 3: baby because of the triad. The child abused expert doctor 324 00:19:08,680 --> 00:19:12,760 Speaker 3: Squires says, I was told that this was a healthy child. 325 00:19:12,840 --> 00:19:16,480 Speaker 3: She was quote totally well right before her collapse. So 326 00:19:16,560 --> 00:19:20,720 Speaker 3: the only explanation is that she was violently shaken. Now, first, 327 00:19:20,920 --> 00:19:22,760 Speaker 3: as you know we were discussing earlier, it was it's 328 00:19:22,800 --> 00:19:25,480 Speaker 3: a total lie to suggest this was a totally well child. 329 00:19:25,640 --> 00:19:29,120 Speaker 3: This was a chronically ill child with infections that had 330 00:19:29,160 --> 00:19:32,560 Speaker 3: resisted I think five different kinds of antibiotics. She has 331 00:19:32,600 --> 00:19:34,679 Speaker 3: a viral infection. Nobody is getting it. 332 00:19:34,760 --> 00:19:38,760 Speaker 1: So doctor Squire supported the homicide ruling without knowing Icky's 333 00:19:38,760 --> 00:19:41,800 Speaker 1: medical history. In addition, the medical community at that time 334 00:19:41,880 --> 00:19:44,600 Speaker 1: was unaware of the potential for a lucid interval of 335 00:19:44,680 --> 00:19:46,760 Speaker 1: up to seventy two hours from the time of a 336 00:19:46,800 --> 00:19:50,119 Speaker 1: traumatic event or of the health condition induced onset of 337 00:19:50,119 --> 00:19:52,879 Speaker 1: the triad, and even though Robert had just received Nikki 338 00:19:52,960 --> 00:19:55,920 Speaker 1: from her grandparents, that left only him as a possible 339 00:19:55,960 --> 00:19:59,200 Speaker 1: shaking suspect. In addition, the medical community at this time 340 00:19:59,359 --> 00:20:01,879 Speaker 1: was also on aware that in order for shaking to 341 00:20:02,000 --> 00:20:05,399 Speaker 1: cause this triad, there had to have first been a 342 00:20:05,520 --> 00:20:09,040 Speaker 1: neck injury, and that was not present in Nicki's case. 343 00:20:09,480 --> 00:20:15,080 Speaker 1: She had no neck injury. But unfortunately, tragically, this discovery 344 00:20:15,359 --> 00:20:17,600 Speaker 1: was a few years too late to help Robert. When 345 00:20:17,640 --> 00:20:19,679 Speaker 1: it was made by biomechanical engineers. 346 00:20:20,320 --> 00:20:23,560 Speaker 3: That's the community that started to point out to the 347 00:20:23,600 --> 00:20:28,600 Speaker 3: medical community that this hypothesis was unfounded. It's like, we're 348 00:20:28,640 --> 00:20:32,080 Speaker 3: studying injuries to children. We're the ones that are coming 349 00:20:32,160 --> 00:20:35,359 Speaker 3: up with things like car seats for children and helmets, 350 00:20:35,400 --> 00:20:39,359 Speaker 3: and you know, shaking does not cause this kind of 351 00:20:39,400 --> 00:20:43,520 Speaker 3: injury in any experiment that's ever been documented. So there 352 00:20:43,520 --> 00:20:47,639 Speaker 3: are two fallacies at the very heart of the SBS phenomenon. 353 00:20:47,640 --> 00:20:51,400 Speaker 3: One is that shaking could cause bridging veins in your 354 00:20:51,520 --> 00:20:56,480 Speaker 3: dura to rupture. No, and that shaking would not cause 355 00:20:56,720 --> 00:21:01,040 Speaker 3: neck injuries. Also, No, and Nikki had absolutely nothing wrong 356 00:21:01,040 --> 00:21:05,200 Speaker 3: with her neck. But it was already orthodoxy by this point, 357 00:21:05,240 --> 00:21:07,640 Speaker 3: it was being taught in medical schools. And that's why 358 00:21:07,680 --> 00:21:10,600 Speaker 3: I think it just has such staying power as a 359 00:21:10,720 --> 00:21:14,199 Speaker 3: legal phenomenon when it has no scientific support, because so 360 00:21:14,240 --> 00:21:17,600 Speaker 3: many people's lives have been ruined, so they keep tweaking 361 00:21:17,880 --> 00:21:20,800 Speaker 3: how you're supposed to go about making the diagnosis. But 362 00:21:21,080 --> 00:21:25,080 Speaker 3: in the day when Robert was quickly written off as guilty, 363 00:21:25,119 --> 00:21:28,280 Speaker 3: there was no internal doubt within the medical community. So 364 00:21:28,320 --> 00:21:31,199 Speaker 3: he's arrested that day on that information. 365 00:21:31,760 --> 00:21:35,720 Speaker 1: And then the prosecutor once again raised the sexual assault allegations, 366 00:21:35,800 --> 00:21:40,040 Speaker 1: even though their own medical experts would not support. 367 00:21:39,680 --> 00:21:42,560 Speaker 3: It, and yet they dare to indict him on this. 368 00:21:43,359 --> 00:21:48,400 Speaker 3: And every single potential juror is asked about the sexual 369 00:21:48,400 --> 00:21:50,720 Speaker 3: abuse component that's going to be a part of this 370 00:21:50,840 --> 00:21:54,320 Speaker 3: trial along with shaken baby. Every single juror is told 371 00:21:54,760 --> 00:21:57,800 Speaker 3: that's the theory the state has, that there was sexual 372 00:21:57,800 --> 00:22:01,440 Speaker 3: assault and that's the motivation for him to violently shake 373 00:22:01,520 --> 00:22:02,880 Speaker 3: her to cover this effort. 374 00:22:02,960 --> 00:22:06,280 Speaker 1: So He was represented, if we can call it that, 375 00:22:06,400 --> 00:22:09,399 Speaker 1: by Steve Evans and John Van Meader. Talk to us 376 00:22:09,480 --> 00:22:12,320 Speaker 1: about their efforts or lack thereof. 377 00:22:13,680 --> 00:22:18,160 Speaker 3: They stated on the record in opening statements that this 378 00:22:18,480 --> 00:22:22,320 Speaker 3: was unfortunately a shaken baby case, no doubt about it. 379 00:22:22,760 --> 00:22:27,520 Speaker 3: At that time, there were very few experts even available 380 00:22:27,600 --> 00:22:31,760 Speaker 3: to come in and challenge the state's causation theory. This 381 00:22:31,960 --> 00:22:36,560 Speaker 3: was two thousand and two. Everybody believed shaken baby was 382 00:22:36,600 --> 00:22:39,240 Speaker 3: an article of faith. It had been accepted by the 383 00:22:39,280 --> 00:22:43,040 Speaker 3: American Pediatric Association. Some of the people that came to 384 00:22:43,119 --> 00:22:48,040 Speaker 3: our aid only recently, some very famous, renowned experts in 385 00:22:48,119 --> 00:22:51,359 Speaker 3: two thousand and one, two thousand and two, two thousand 386 00:22:51,359 --> 00:22:55,000 Speaker 3: and three were just starting to sound the alarm. 387 00:22:55,480 --> 00:22:58,720 Speaker 1: So the knowledge wasn't even really readily available to his 388 00:22:58,920 --> 00:23:02,639 Speaker 1: own attorneys for them to even believe in his innocence. 389 00:23:02,960 --> 00:23:05,560 Speaker 3: And they saw their job as just to try to 390 00:23:05,600 --> 00:23:07,959 Speaker 3: prevent entry of a death sentence. 391 00:23:08,800 --> 00:23:11,679 Speaker 5: Mantonia Trull had two where they had tried to do 392 00:23:11,720 --> 00:23:13,520 Speaker 5: a plea barg stuff. And I told him I didn't 393 00:23:13,520 --> 00:23:15,560 Speaker 5: do nothing. My mama said, I didn't do nothing. Don't 394 00:23:15,680 --> 00:23:18,280 Speaker 5: take nothing right. The thing he is my mama, family 395 00:23:18,320 --> 00:23:20,800 Speaker 5: lawyer had gave her a pamphlet to go to Trinity 396 00:23:20,840 --> 00:23:24,080 Speaker 5: develop a community college, and Athens for seminar I was 397 00:23:24,080 --> 00:23:25,280 Speaker 5: shaking baby cases. 398 00:23:25,720 --> 00:23:29,159 Speaker 4: Who did she see there? Douglow the head DA he 399 00:23:29,240 --> 00:23:30,760 Speaker 4: didn't know what was going on either. 400 00:23:31,560 --> 00:23:34,639 Speaker 1: It appears that the prosecution and the defense team were 401 00:23:34,960 --> 00:23:38,679 Speaker 1: totally out of their depth. The state side taking seminars 402 00:23:38,920 --> 00:23:42,239 Speaker 1: likely given by someone who was a true believer in 403 00:23:42,400 --> 00:23:47,000 Speaker 1: this now proven chunk science. And while the defense was 404 00:23:47,119 --> 00:23:51,280 Speaker 1: essentially agreeing to some degree of murder without intent, the 405 00:23:51,359 --> 00:23:53,560 Speaker 1: state was trying to take it a step further. 406 00:23:54,560 --> 00:23:55,959 Speaker 2: Your trial was a farce. 407 00:23:56,240 --> 00:23:59,960 Speaker 1: I mean, they pulled dirty tricks accusing you of sexually 408 00:24:00,040 --> 00:24:02,240 Speaker 1: abusing the job when they knew that that was not 409 00:24:02,359 --> 00:24:04,920 Speaker 1: the case, and they knew that she had had this 410 00:24:05,080 --> 00:24:08,960 Speaker 1: horrible diarrhea that would have provided an exact explanation for 411 00:24:09,040 --> 00:24:13,520 Speaker 1: why these symptoms were present. They decided to sort of 412 00:24:13,880 --> 00:24:17,600 Speaker 1: taint the jury by bringing that ridiculous theory, which was 413 00:24:17,640 --> 00:24:18,400 Speaker 1: later dropped. 414 00:24:18,440 --> 00:24:20,200 Speaker 5: And they did take the jury because you hear a 415 00:24:20,240 --> 00:24:21,439 Speaker 5: story about the child and stuff. 416 00:24:21,440 --> 00:24:23,639 Speaker 4: It makes a lot of people mad, right of course, 417 00:24:23,960 --> 00:24:25,959 Speaker 4: and made the jury mad, tainted the jury. 418 00:24:26,040 --> 00:24:28,800 Speaker 1: They painted you into a monster, and I'm sitting here 419 00:24:29,080 --> 00:24:30,920 Speaker 1: staring you right in the eyes. I mean, it's man 420 00:24:30,960 --> 00:24:33,160 Speaker 1: who's no monster, I can tell you right off the bat. 421 00:24:33,280 --> 00:24:36,320 Speaker 5: And I'm quite a friend friendly really, you know. They 422 00:24:36,320 --> 00:24:37,920 Speaker 5: said you for us Now I'm not no father, no 423 00:24:38,000 --> 00:24:39,720 Speaker 5: more on the lever you know, friendly, you know. 424 00:24:40,600 --> 00:24:44,040 Speaker 3: And again I won't say that this was a conscious plot, 425 00:24:44,119 --> 00:24:47,000 Speaker 3: but I do think they had expected Robert would take 426 00:24:47,000 --> 00:24:51,880 Speaker 3: a plea deal. He adamantly would not. And I would say, 427 00:24:51,880 --> 00:24:56,600 Speaker 3: in almost any death penalty case, what the state recognizes 428 00:24:57,080 --> 00:25:01,800 Speaker 3: implicitly is that they must turn the defendant into a monster, 429 00:25:02,400 --> 00:25:05,360 Speaker 3: because normal human beings don't want to come in and 430 00:25:05,840 --> 00:25:10,399 Speaker 3: sign off on killing a fellow member of the human species. 431 00:25:10,760 --> 00:25:15,360 Speaker 3: They sounded this horrifically prejudicial sexual theme and then dropped 432 00:25:15,400 --> 00:25:17,959 Speaker 3: it right when it went to the jury because they 433 00:25:18,000 --> 00:25:20,600 Speaker 3: really had no evidence except for this one nurse, who, 434 00:25:20,600 --> 00:25:23,280 Speaker 3: by the way, was on the stand pretty much longer 435 00:25:23,280 --> 00:25:29,840 Speaker 3: than anyone else. Roberts flattorneys did resist the sexual assault allegations, 436 00:25:30,160 --> 00:25:34,640 Speaker 3: but only through cross examination. Meanwhile, the states bringing in 437 00:25:34,960 --> 00:25:38,760 Speaker 3: experts who are telling the jury this kid was violently 438 00:25:38,840 --> 00:25:41,320 Speaker 3: shaken and so if you're told that, and then you 439 00:25:41,359 --> 00:25:43,199 Speaker 3: also have a nurse saying, and by the way, I 440 00:25:43,200 --> 00:25:45,920 Speaker 3: also think there was sexual abuse. Someone that would violently 441 00:25:45,960 --> 00:25:49,399 Speaker 3: take a child, well, they might have also abused a child. 442 00:25:49,440 --> 00:25:53,760 Speaker 3: These things become possible. There was no counter narrative, and 443 00:25:53,960 --> 00:25:57,920 Speaker 3: he was not convicted of that, but they maintained that, well, 444 00:25:57,960 --> 00:26:00,960 Speaker 3: there was no evidence he didn't do it. I am 445 00:26:01,000 --> 00:26:04,760 Speaker 3: not kidding you. There was closing argument about how even 446 00:26:04,840 --> 00:26:07,439 Speaker 3: if they weren't going to decide the issue, they should 447 00:26:07,480 --> 00:26:09,080 Speaker 3: consider it, and. 448 00:26:09,080 --> 00:26:09,879 Speaker 2: The judge allows. 449 00:26:10,119 --> 00:26:10,840 Speaker 3: Judge allowed it. 450 00:26:11,359 --> 00:26:14,360 Speaker 1: So the jury comes back in. At the time, did 451 00:26:14,400 --> 00:26:16,960 Speaker 1: you have still have some hope that they would see 452 00:26:17,000 --> 00:26:19,640 Speaker 1: the truth and that they would end this nightmare? 453 00:26:20,640 --> 00:26:23,199 Speaker 5: I was hoping they would so because attorney kept telling me, 454 00:26:23,320 --> 00:26:25,080 Speaker 5: we can win this case, we can win this kid. 455 00:26:25,160 --> 00:26:28,240 Speaker 5: This case is well okays. When they came back talking 456 00:26:28,320 --> 00:26:31,440 Speaker 5: about guilty and stuff, you know, I don't know what 457 00:26:31,800 --> 00:26:33,840 Speaker 5: I already thought of the time, and my mom wasn't 458 00:26:33,880 --> 00:26:37,919 Speaker 5: there and stuff. But before the punishment, my mom had 459 00:26:37,920 --> 00:26:39,200 Speaker 5: to go check on my dad here was an old 460 00:26:39,200 --> 00:26:39,840 Speaker 5: folks home. 461 00:26:39,720 --> 00:26:42,119 Speaker 4: You know, And once she got back, they gave me 462 00:26:42,200 --> 00:26:43,240 Speaker 4: the death sentence and stuff. 463 00:26:43,280 --> 00:26:43,439 Speaker 2: You know. 464 00:26:44,280 --> 00:26:47,440 Speaker 4: I couldn't believe, couldn't believe they convicted me of something 465 00:26:47,880 --> 00:26:48,640 Speaker 4: that I didn't do. 466 00:26:48,680 --> 00:27:09,000 Speaker 5: You know, I've looked up January thirty first, two thousand 467 00:27:09,000 --> 00:27:12,240 Speaker 5: and two, so little bit over twenty years I've been 468 00:27:12,320 --> 00:27:16,160 Speaker 5: knocked up. I don't wish he's my worst enemy and stuff, 469 00:27:16,200 --> 00:27:18,480 Speaker 5: you know, because being in a place like you said, 470 00:27:18,800 --> 00:27:21,679 Speaker 5: like in that marriage stuff, you know, especially when you 471 00:27:21,720 --> 00:27:23,160 Speaker 5: had done nothing to be here. 472 00:27:23,080 --> 00:27:23,800 Speaker 4: In the first place. 473 00:27:23,840 --> 00:27:26,360 Speaker 5: You know, and then you know, I lost I lost 474 00:27:26,400 --> 00:27:28,760 Speaker 5: my mom last September, and I lost my dad since 475 00:27:28,760 --> 00:27:31,480 Speaker 5: I've been in here, and stuff. I lost the chance 476 00:27:31,480 --> 00:27:33,520 Speaker 5: to send my son and my daughter to grow up, 477 00:27:33,840 --> 00:27:36,760 Speaker 5: being away from family all this time, lost all those years. 478 00:27:36,600 --> 00:27:39,680 Speaker 4: And stuff that stole from me, you know, So it 479 00:27:39,800 --> 00:27:40,680 Speaker 4: destroyed my life. 480 00:27:40,720 --> 00:27:40,879 Speaker 2: You know. 481 00:27:43,000 --> 00:27:47,640 Speaker 1: It's absolutely heartbreaking. And the authorities appear to have been 482 00:27:47,680 --> 00:27:50,719 Speaker 1: doing what they, I guess thought was the right thing 483 00:27:50,760 --> 00:27:53,720 Speaker 1: at the time. But our understanding of these instances has 484 00:27:53,800 --> 00:27:57,119 Speaker 1: now advanced considerably. It's almost like a one to eighty. 485 00:27:57,520 --> 00:28:02,479 Speaker 1: But before are more enlightened under standing of sbs. Robert 486 00:28:02,480 --> 00:28:05,880 Speaker 1: based denials in his direct appeal and state habeas. 487 00:28:06,480 --> 00:28:10,320 Speaker 3: Robert was on the verge of execution in twenty sixteen. 488 00:28:10,960 --> 00:28:13,679 Speaker 3: That's when I was at a state public defender's office 489 00:28:13,680 --> 00:28:17,360 Speaker 3: and we agreed to take on the case, and based 490 00:28:17,440 --> 00:28:21,399 Speaker 3: on the change in science round the controversy of Shaking Baby, 491 00:28:21,440 --> 00:28:24,240 Speaker 3: we got a state of his execution and the right 492 00:28:24,320 --> 00:28:27,240 Speaker 3: to get back into state court to try to prove 493 00:28:27,280 --> 00:28:30,600 Speaker 3: our claims. That then took many years. 494 00:28:31,119 --> 00:28:33,640 Speaker 1: During this time, Gretchen was trying to uncover the cat 495 00:28:33,680 --> 00:28:35,919 Speaker 1: scans from January thirty first, two thousand and two, and 496 00:28:36,040 --> 00:28:38,480 Speaker 1: both medical centers had maintained that they had been lost 497 00:28:38,560 --> 00:28:41,680 Speaker 1: or destroyed, as did the state. And then during the 498 00:28:41,720 --> 00:28:46,960 Speaker 1: opening statements of this evidentiary hearing, something really crazy happened. 499 00:28:47,280 --> 00:28:50,800 Speaker 3: In the middle of my opening statement, this clerk with 500 00:28:50,920 --> 00:28:54,920 Speaker 3: goodwill listened and thought, well, I wonder if this stuff 501 00:28:54,920 --> 00:28:57,720 Speaker 3: she's referring to could be buried in the courthouse basement. 502 00:28:58,160 --> 00:28:59,920 Speaker 3: You know, had nothing to do with the motions I've 503 00:29:00,080 --> 00:29:03,560 Speaker 3: filed seeking Brady evidence that hadn't led to someone discovering this. 504 00:29:03,680 --> 00:29:07,200 Speaker 3: It was this one woman. Why the scans were buried 505 00:29:07,200 --> 00:29:09,880 Speaker 3: in the courthouse basement, I do not know, But then 506 00:29:09,920 --> 00:29:12,120 Speaker 3: we had a long hiatus so we could have a 507 00:29:12,200 --> 00:29:14,200 Speaker 3: chance to have an expert look at them, and it 508 00:29:14,320 --> 00:29:18,960 Speaker 3: confirms that there was only one impact site on Nicki's head, 509 00:29:19,480 --> 00:29:23,200 Speaker 3: and that was that small swollen tissue on the back 510 00:29:23,320 --> 00:29:28,760 Speaker 3: right of Nicki's head that is exculpatory. The medical examiner, 511 00:29:28,840 --> 00:29:31,760 Speaker 3: who did not look at the head scans at the 512 00:29:31,800 --> 00:29:36,320 Speaker 3: time and now decades later to this day, she insists 513 00:29:36,400 --> 00:29:40,480 Speaker 3: that she saw evidence of multiple impact sites to Nicki's 514 00:29:40,520 --> 00:29:45,640 Speaker 3: head because of all the blood underneath. Nonsensical. It doesn't 515 00:29:45,680 --> 00:29:50,000 Speaker 3: work that way. You cannot impact a child's head sufficiently 516 00:29:50,080 --> 00:29:53,040 Speaker 3: enough to cause internal damage and leave no mark on 517 00:29:53,080 --> 00:29:57,400 Speaker 3: the outside. And what Nikki had was minimal bruising on 518 00:29:57,480 --> 00:30:02,480 Speaker 3: her exterior. The blood underneath cannot be read like tea leaves, 519 00:30:02,640 --> 00:30:06,000 Speaker 3: and yet that is what this medical examiner has done. 520 00:30:06,320 --> 00:30:10,920 Speaker 3: Whereas the scans, which are the reliable evidence about whether 521 00:30:11,040 --> 00:30:14,000 Speaker 3: or not there were impact sites, shows that one side, 522 00:30:14,360 --> 00:30:15,320 Speaker 3: one and only side. 523 00:30:15,720 --> 00:30:18,440 Speaker 1: Even though this didn't run counter to doctor Squire's ruling 524 00:30:18,480 --> 00:30:20,760 Speaker 1: that this was an SBS case, which, of course, and 525 00:30:20,800 --> 00:30:25,120 Speaker 1: I can't emphasize this enough, SBS is not a real thing. 526 00:30:25,560 --> 00:30:26,520 Speaker 2: It's been debunked. 527 00:30:26,640 --> 00:30:30,120 Speaker 1: However, the missing CT scan supported Robert's version of events, 528 00:30:30,160 --> 00:30:33,560 Speaker 1: while directly contradicting doctor Urban, who was the one who 529 00:30:33,600 --> 00:30:36,160 Speaker 1: had initially ruled Nicky's death a homicide, and that was 530 00:30:36,280 --> 00:30:39,160 Speaker 1: enough to win an evidentiary hearing, and after being delayed 531 00:30:39,160 --> 00:30:41,880 Speaker 1: by COVID, it resumed in March twenty twenty one. 532 00:30:42,280 --> 00:30:46,280 Speaker 3: Here we are, twenty years later, having amassed an overwhelming 533 00:30:46,480 --> 00:30:51,080 Speaker 3: amount of evidence from experts who have identified the toxic 534 00:30:51,200 --> 00:30:55,400 Speaker 3: level of prescription drugs in this child system, the interstitial 535 00:30:55,640 --> 00:31:00,520 Speaker 3: viral pneumonia, the lack of evidence of impact sites, and 536 00:31:00,680 --> 00:31:04,720 Speaker 3: all the change in the understanding of shake and baby syndrome. 537 00:31:04,800 --> 00:31:08,200 Speaker 3: All of that was put before trial court and deemed 538 00:31:08,680 --> 00:31:09,920 Speaker 3: not new evidence. 539 00:31:10,600 --> 00:31:15,880 Speaker 1: It's absolutely breaking bonkers. The biomechanical strides alone prove that 540 00:31:16,000 --> 00:31:19,440 Speaker 1: if shaking was the cause of the triadive findings, there 541 00:31:19,600 --> 00:31:23,280 Speaker 1: would first need to be a spinal or a neck injury, 542 00:31:23,480 --> 00:31:28,480 Speaker 1: and Nikki had none. The state's theory just didn't hold water. 543 00:31:28,800 --> 00:31:32,280 Speaker 1: It made room for every viable avenue that we'd laid 544 00:31:32,320 --> 00:31:35,640 Speaker 1: out at the beginning, the lethal those of Bennigan causing 545 00:31:35,720 --> 00:31:40,480 Speaker 1: respiratory arrest with oxygen deprivation, or the resuscitation effort causing 546 00:31:40,520 --> 00:31:45,880 Speaker 1: the triad or her undiagnosed viral pneumonia. Even the shortfall 547 00:31:46,000 --> 00:31:49,360 Speaker 1: alone could have done it. While being the source of 548 00:31:49,400 --> 00:31:53,560 Speaker 1: the single swollen impact site. Meanwhile, doctor Urban admitted to 549 00:31:53,760 --> 00:31:57,000 Speaker 1: never having looked at the CT scans when she said 550 00:31:57,040 --> 00:31:59,760 Speaker 1: that there were multiple impacts and ruled the death of 551 00:31:59,800 --> 00:32:00,720 Speaker 1: Huh aside. 552 00:32:01,240 --> 00:32:04,960 Speaker 3: This medical examiner admitted that she didn't even look at 553 00:32:04,960 --> 00:32:08,560 Speaker 3: the cat scans, She didn't listen to the testimony of 554 00:32:08,600 --> 00:32:12,239 Speaker 3: all these new experts. She didn't seem to understand the 555 00:32:12,680 --> 00:32:16,880 Speaker 3: interstitial viral pneumonia in the lung tissues that she'd collected, 556 00:32:17,080 --> 00:32:20,600 Speaker 3: and instead just seemed to stand by this idea that 557 00:32:20,640 --> 00:32:24,440 Speaker 3: the blood in the subdural space was enough for her 558 00:32:24,520 --> 00:32:27,400 Speaker 3: to say, oh, well, whether it was shaking or not, 559 00:32:27,720 --> 00:32:30,440 Speaker 3: it was still abuse. This was something I asked the 560 00:32:30,480 --> 00:32:33,600 Speaker 3: medical examiner in court. You know, I said, Let's say 561 00:32:33,800 --> 00:32:38,160 Speaker 3: I walk outside the courtroom. There are these marble steps 562 00:32:39,120 --> 00:32:41,160 Speaker 3: and no one else is around, and I slip and 563 00:32:41,200 --> 00:32:44,040 Speaker 3: I hit the back of my head and I become unconscious. 564 00:32:44,440 --> 00:32:47,240 Speaker 3: And later you take a look at me. What is 565 00:32:47,320 --> 00:32:51,640 Speaker 3: it that your background, your training has taught you that 566 00:32:51,680 --> 00:32:55,880 Speaker 3: you could look at me and determine whether or not 567 00:32:56,400 --> 00:33:00,600 Speaker 3: I'd fallen, or someone had pushed me, or someone had 568 00:33:00,600 --> 00:33:02,600 Speaker 3: come up and hit me in the back of the 569 00:33:02,640 --> 00:33:05,840 Speaker 3: head with a blunt object. Explain that to me or 570 00:33:05,880 --> 00:33:08,600 Speaker 3: shook you yeah, And of course she couldn't. And what 571 00:33:08,720 --> 00:33:12,400 Speaker 3: is appalling about this is that the shaking hypothesis that 572 00:33:12,480 --> 00:33:16,160 Speaker 3: she furthered at trial, along with the child abuse expert, 573 00:33:16,280 --> 00:33:18,920 Speaker 3: she was telling the jury all about shaking, that that's 574 00:33:19,000 --> 00:33:20,920 Speaker 3: why you look at the outside of this child. You 575 00:33:20,960 --> 00:33:23,800 Speaker 3: don't see much, but the reason you know its abuse 576 00:33:23,960 --> 00:33:27,440 Speaker 3: is because shaking explains how all this stuff happens. Well, a, 577 00:33:27,720 --> 00:33:29,880 Speaker 3: we now know shaking doesn't. But she couldn't tell me 578 00:33:29,920 --> 00:33:34,000 Speaker 3: how blunt forced trauma, even if it's not shaking, could 579 00:33:34,000 --> 00:33:36,760 Speaker 3: be looked at after the fact and you could say 580 00:33:36,800 --> 00:33:40,040 Speaker 3: whether it was inflicted or not, because there's no science 581 00:33:40,040 --> 00:33:42,400 Speaker 3: that would allow you to do that, that would require, 582 00:33:42,960 --> 00:33:43,760 Speaker 3: you know, voodoo. 583 00:33:44,200 --> 00:33:48,040 Speaker 1: With doctor Urban having undermined her own credibility, left Squires, 584 00:33:48,360 --> 00:33:52,120 Speaker 1: for which Gretchen presented the updated scientific consensus on the matter, 585 00:33:52,520 --> 00:33:56,360 Speaker 1: along with instances in which doctor Squire's recanted testimony in 586 00:33:56,440 --> 00:34:00,000 Speaker 1: other Texas SBS cases. The Center for Integrity and Forensics 587 00:34:00,000 --> 00:34:03,120 Speaker 1: Science has also submitted an amicus brief supporting Robert, but 588 00:34:03,360 --> 00:34:07,560 Speaker 1: ultimately the motion was denied, with the court citing that 589 00:34:08,160 --> 00:34:10,520 Speaker 1: no new evidence had been submitted. 590 00:34:11,360 --> 00:34:13,480 Speaker 2: I mean, make it, make sense. 591 00:34:14,280 --> 00:34:18,880 Speaker 3: Robert's case has been submitted, as per Texas procedure, to 592 00:34:19,000 --> 00:34:22,680 Speaker 3: the Court of Criminal Appeals, which is the highest court 593 00:34:22,760 --> 00:34:26,280 Speaker 3: for criminal matters in the state of Texas, so they will, 594 00:34:26,719 --> 00:34:30,920 Speaker 3: one hopes, look at the huge volume of new evidence 595 00:34:31,239 --> 00:34:36,160 Speaker 3: and look at it anew and really evaluate the allegations 596 00:34:36,200 --> 00:34:39,040 Speaker 3: about the change in the scientific perspective from the time 597 00:34:39,080 --> 00:34:41,879 Speaker 3: of his trial, which is the fundamental basis for our 598 00:34:41,920 --> 00:34:44,880 Speaker 3: claims for relief. We also have an actual innocence claim, 599 00:34:45,080 --> 00:34:47,560 Speaker 3: which is much stronger now than when we filed the 600 00:34:47,600 --> 00:34:51,560 Speaker 3: claim because of the evidence of pneumonia, of the cat 601 00:34:51,560 --> 00:34:55,719 Speaker 3: scans that were finally produced, et cetera. But ultimately, you 602 00:34:55,840 --> 00:34:59,680 Speaker 3: cannot read that trial transcript and compare that to contemporary 603 00:34:59,719 --> 00:35:03,880 Speaker 3: unders standing even among people that believe shaking baby syndrome 604 00:35:03,960 --> 00:35:07,120 Speaker 3: has some validity. You cannot read the trial transcript and 605 00:35:07,160 --> 00:35:11,640 Speaker 3: fail to recognize it's full of falsehoods. And we hope 606 00:35:11,719 --> 00:35:15,000 Speaker 3: the Court of Criminal Appeals will dig into that and 607 00:35:15,040 --> 00:35:17,279 Speaker 3: then grant him a new trial, and then it's like, 608 00:35:17,400 --> 00:35:20,480 Speaker 3: go back to the trial court again and see if 609 00:35:20,480 --> 00:35:23,080 Speaker 3: they really want to try again to convict him based 610 00:35:23,080 --> 00:35:25,560 Speaker 3: on this horrifically scanty evidence. 611 00:35:25,560 --> 00:35:28,239 Speaker 1: Your record well if they give you a chance and 612 00:35:28,320 --> 00:35:30,200 Speaker 1: try to go ahead with what they presented in two 613 00:35:30,239 --> 00:35:32,360 Speaker 1: thousand and two, I think they'd realize pretty quickly that 614 00:35:32,440 --> 00:35:35,040 Speaker 1: we just didn't know better back then, and they'd let 615 00:35:35,040 --> 00:35:39,040 Speaker 1: this go. Yeah, everyone that's listening, now, what can they do? 616 00:35:39,360 --> 00:35:43,000 Speaker 3: A wonderful supporter of Robert has created a website. There 617 00:35:43,000 --> 00:35:47,400 Speaker 3: are court filings there, and certainly the latest filing that 618 00:35:47,480 --> 00:35:51,000 Speaker 3: amasses all the new evidence and explains why a new 619 00:35:51,040 --> 00:35:52,239 Speaker 3: trial is worthwhile. 620 00:35:52,480 --> 00:35:54,640 Speaker 1: Well, we'll have that linked to the bio as well 621 00:35:54,680 --> 00:35:56,799 Speaker 1: as ways our audience can reach out to Robert. And 622 00:35:56,840 --> 00:35:59,399 Speaker 1: with that we move to closing arguments, where I think 623 00:35:59,600 --> 00:36:02,040 Speaker 1: you both for sharing your story, and then I'm going 624 00:36:02,120 --> 00:36:04,560 Speaker 1: to turn my microphone off, leave my headphones on, and 625 00:36:05,080 --> 00:36:08,120 Speaker 1: just listen for anything else that you feel is left 626 00:36:08,160 --> 00:36:10,600 Speaker 1: to be said. Let's start off with you, Gretchen, and 627 00:36:10,600 --> 00:36:13,360 Speaker 1: have Robert take us off into the sunset. 628 00:36:13,640 --> 00:36:16,560 Speaker 3: I mean, I would like for the audience to picture 629 00:36:16,880 --> 00:36:20,640 Speaker 3: themselves as a parent or any parent they know, and 630 00:36:20,760 --> 00:36:25,040 Speaker 3: put yourself in the shoes of Robert, but imagine yourself 631 00:36:25,080 --> 00:36:31,040 Speaker 3: without resources, an impairment that makes communication fundamentally difficult, and 632 00:36:31,080 --> 00:36:33,839 Speaker 3: from the moment you arrive at the hospital with your 633 00:36:33,880 --> 00:36:39,160 Speaker 3: comatose child. You're being interrogated, accused, and the accusations get 634 00:36:39,200 --> 00:36:41,000 Speaker 3: worse and worse by the minute, so that by the 635 00:36:41,200 --> 00:36:45,560 Speaker 3: end of a single day, you've gone from your child 636 00:36:45,600 --> 00:36:49,200 Speaker 3: who's relatively new to your life, is gone, and they 637 00:36:49,200 --> 00:36:52,480 Speaker 3: won't even allow you to say farewell because you're being 638 00:36:52,520 --> 00:36:57,400 Speaker 3: taken to jail. And before there's even an indictment, there's 639 00:36:57,719 --> 00:37:00,759 Speaker 3: a statement from a hospital saying it's got to be 640 00:37:00,880 --> 00:37:04,760 Speaker 3: shaken baby syndrome. Yet no one assesses the medical records 641 00:37:04,960 --> 00:37:07,080 Speaker 3: and try to put all these pieces together. And it 642 00:37:07,160 --> 00:37:11,760 Speaker 3: is a complicated puzzle, but every single piece points away 643 00:37:11,840 --> 00:37:16,160 Speaker 3: from a crime and towards a tragic story of a 644 00:37:16,200 --> 00:37:18,680 Speaker 3: young child who was sick from the moment she was born, 645 00:37:18,760 --> 00:37:23,280 Speaker 3: into unfortunate circumstances, and then not given the fair shake 646 00:37:23,360 --> 00:37:27,560 Speaker 3: that she deserved. It's not just about Robert NICKI deserves 647 00:37:27,600 --> 00:37:30,640 Speaker 3: a history that is based on the truth. And I 648 00:37:30,800 --> 00:37:34,400 Speaker 3: urge people to just pay attention to what's being done 649 00:37:35,360 --> 00:37:38,879 Speaker 3: in their names with our criminal justice systems. I came 650 00:37:38,960 --> 00:37:42,799 Speaker 3: from a civil background, and everything I learned every day 651 00:37:42,920 --> 00:37:44,799 Speaker 3: adds to my shock and outrage. 652 00:37:45,680 --> 00:37:48,399 Speaker 5: Okay, okay, what I want to courage both of y'all 653 00:37:48,480 --> 00:37:50,439 Speaker 5: to continue to do what y'all doing and stuff, because 654 00:37:50,440 --> 00:37:54,239 Speaker 5: I believe in y'all and everybody else that's doing fighting 655 00:37:54,280 --> 00:37:57,360 Speaker 5: against this corrupt legal systems, wrong for convictions. 656 00:37:57,400 --> 00:37:58,799 Speaker 4: You know, keep on doing what you're doing. 657 00:37:58,840 --> 00:38:01,799 Speaker 5: You know, I'm gonna continue and continue to fight up 658 00:38:01,840 --> 00:38:03,799 Speaker 5: because you know, God knows, and I know you know 659 00:38:04,000 --> 00:38:08,360 Speaker 5: that that was done wrong and stuff, And very grateful 660 00:38:08,400 --> 00:38:11,360 Speaker 5: for what y'all doing. Very grateful for everybody that's involved 661 00:38:11,400 --> 00:38:14,879 Speaker 5: in it. And uh now y'all have a safe trip 662 00:38:14,960 --> 00:38:17,160 Speaker 5: back home and stuff. Made the Lord bless y'all and 663 00:38:17,200 --> 00:38:20,880 Speaker 5: shine up his face upon y'all, and just like, encourage 664 00:38:20,880 --> 00:38:22,680 Speaker 5: both of y'all to continue to do what you're doing. 665 00:38:29,680 --> 00:38:32,480 Speaker 1: Thank you for listening to Wrongful Conviction. You can listen 666 00:38:32,520 --> 00:38:34,879 Speaker 1: to this and all the Lava for Good podcasts one 667 00:38:34,920 --> 00:38:37,920 Speaker 1: week early and ed free by subscribing to Lava for 668 00:38:38,000 --> 00:38:41,000 Speaker 1: Good Plus on Apple Podcasts. I want to thank our 669 00:38:41,000 --> 00:38:44,319 Speaker 1: production team, Connor Hall and Kathleen Fink, as well as 670 00:38:44,360 --> 00:38:48,240 Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn. 671 00:38:48,520 --> 00:38:50,600 Speaker 1: The music in this production was supplied by three time 672 00:38:50,680 --> 00:38:54,000 Speaker 1: Oscar nominated composer Jay Ralph. Be sure to follow us 673 00:38:54,000 --> 00:38:56,880 Speaker 1: across all social media platforms at Lava for Good and 674 00:38:57,160 --> 00:39:00,000 Speaker 1: at Wrongful Conviction. You can also follow me on instat 675 00:39:00,360 --> 00:39:03,440 Speaker 1: at its Jason Vlahm. Wrongful Conviction is a production of 676 00:39:03,520 --> 00:39:06,959 Speaker 1: Lava for Good podcasts and association with Signal Company Number 677 00:39:06,960 --> 00:39:07,160 Speaker 1: one