Speaker 1: Okay, this is as serious as it gets. Another victim
Speaker 1: of the junk science of shaken baby syndrome, Robert Robertson,
Speaker 1: is scheduled for execution in the state of Texas on
Speaker 1: October seventeenth, twenty twenty four. I visited Robert at the
Speaker 1: Polunski unit outside Houston, just after Memorial Day twenty twenty two,
Speaker 1: and I remember walking away from him with a sick
Speaker 1: feeling in my stomach, knowing that the day might come
Speaker 1: when he would be put to death for a crime
Speaker 1: that never even happened. And here we are now on
Speaker 1: the precipice. Since our original coverage on July seventh, twenty
Speaker 1: twenty two, coverage that gained Robert even more pro bono
Speaker 1: support from the powerful law firm scatin Arps, even the
Speaker 1: lead detective in this case has come forward to acknowledge
Speaker 1: his mistake and asked Robert to forgive him.
Speaker 2: We'll link that video along with.
Speaker 1: Action steps in the episode description, because it looks like
Speaker 1: it's going to take all of our help now if
Speaker 1: this innocent man is going to survive. Here's a new
Speaker 1: edit of.
Speaker 2: Our original coverage of Robert Robertson.
Speaker 1: On January thirty, first, two thousand and two, thirty five
Speaker 1: year old Texan Robertson said that his two year old daughter, Nicki,
Speaker 1: had fallen out of bed in the middle of the night,
Speaker 1: and after comforting her, they both fell back to sleep.
Speaker 1: When he awoke again, Nicky wasn't breathing. Emergency rumor suscitation
Speaker 1: efforts ultimately failed, and little Nicky was.
Speaker 2: Pronounced dead along with a bump on her head.
Speaker 1: An examination revealed brain swelling as well as intracranial and
Speaker 1: retinal bleeding, the findings commonly associated with the now deep
Speaker 1: bunk shaken baby syndrome hypothesis, despite a number of viable
Speaker 1: causes of death. Instead, Robert was accused of violently shaking
Speaker 1: his daughter to death. So the state of Texas now
Speaker 1: intends to put Robert to death as well.
Speaker 2: But this is wrongful conviction.
Speaker 1: Wrongful conviction has always given voice to innocent people in prison,
Speaker 1: and now we're expanding that voice to you. Call us
Speaker 1: at eight three three two O seven four six sixty
Speaker 1: six and tell us how these stories make you feel
Speaker 1: and what you've done to help the cause, even if
Speaker 1: it's something as simple as telling a friend or sharing
Speaker 1: on social media. And you might just hear yourself in
Speaker 1: a future episode. Call us eight three three two oh seven,
Speaker 1: four six sixty six. Welcome back to Wrongful Conviction. I'm
Speaker 1: Jason Flauman. Today's case, unfortunately, is going to sound like
Speaker 1: familiar territory. It's a Shaken Baby prosecution which was based
Speaker 1: on a hypothesis that is now rejected by not only
Speaker 1: the original scientists, but also the scientific and medical communities
Speaker 1: that once held it to be a decided matter. Now, unfortunately,
Speaker 1: some of those attacked with that ill fated diagnosis in
Speaker 1: a court of law are still languishing in prison. Too many,
Speaker 1: I mean countless people, including our guest today who is
Speaker 1: on death row in Texas, Robert Robertson. Now, my producer
Speaker 1: Connor Hall, and I who trek down to the Polunski
Speaker 1: unit in Livingston, Texas to.
Speaker 2: Record an interview with Robert.
Speaker 1: You'll hear pieces of that interspersed throughout our coverage today.
Speaker 1: Joining us now is his appellate attorney, Gretchen Swen. Gretchen,
Speaker 1: Welcome to Ronful Conviction.
Speaker 3: Thank you so much, Jason.
Speaker 1: Now, before we get into Robert's case, I want to
Speaker 1: refer everyone to our coverage of Shake Baby syndrome on
Speaker 1: wrongful conviction junk science, which will be linked in the
Speaker 1: episode description. For decades, when a medical examiner was presented
Speaker 1: with brain swelling, bleeding inside the skull, and bleeding behind
Speaker 1: the eyes of an infant or a toddler, all other
Speaker 1: causes were not first ruled out, but totally ignored, and
Speaker 1: a leap in logic was made to two conclusions. First
Speaker 1: that this triad of findings were caused by violent shaking
Speaker 1: and later abusive head trauma was included, and second that
Speaker 1: the most recent caregiver must be the one responsible. Since
Speaker 1: the late nineties, over eighty medical conditions and still counting,
Speaker 1: have been found to cause that exact triad of findings. Additionally,
Speaker 1: biomechanical studies have revealed that violent shaking simply cannot cause
Speaker 1: the triad without also first causing a spinal injury. Further,
Speaker 1: it's been proven that up to seventy two hours can
Speaker 1: pass by before a child succumbs to these conditions, whether
Speaker 1: the cause was traumatic or simply a medical issue. The
Speaker 1: conclusion is that we cannot determine if a child was
Speaker 1: abused or violently shaken without first ruling out all the
Speaker 1: other causes and after doing so, we cannot reliably place
Speaker 1: blame on the last person with them, And unfortunately, Robert
Speaker 1: Robertson was that final caretaker and he was particularly vulnerable
Speaker 1: to prosecution.
Speaker 3: This is somebody who grew up dirt poor in East Texas.
Speaker 3: He was in special ed classes. He was the one
Speaker 3: who was bullied. There was a lot of violence in
Speaker 3: the home. But you had a mother who loved him dearly.
Speaker 3: But you know, he drops out in ninth grade. You know,
Speaker 3: he was on the radar in terms of this is
Speaker 3: a struggling kid and stumbles into what happens with so
Speaker 3: many poor, traumatized kids. He struggles with drug addiction. But
Speaker 3: this is a intul soul. And you know, you spend
Speaker 3: five minutes with Robert and you see his speech is
Speaker 3: unusual and he has this sort of flat affect and
Speaker 3: he struggles to speak.
Speaker 4: Okay, so you got some questions of something.
Speaker 2: Sure, So yeah, let me just introduce.
Speaker 1: First of all, this is drawn for conviction from death
Speaker 1: row in Texas. We're here on the Polunsky unit, where
Speaker 1: we've been before to visit Rob will and Rodney Reid.
Speaker 1: Today we're here with another innocent man, man named Robert Robertson.
Speaker 1: The man himself is like a big teddy bear. He's
Speaker 1: sitting right across from me through this window of bulletproof glass.
Speaker 2: Robert, thank you for being here to talk to us today.
Speaker 4: Thank you for being here.
Speaker 1: And Robert, going back to the beginning, did you grow
Speaker 1: up in Texas?
Speaker 4: I was born in Minneola, Texas and stuff, and we
Speaker 4: lived in Winnsboro until I was six years old, you know,
Speaker 4: and then my dad worked for the railroad and his
Speaker 4: job transferred to Palestine.
Speaker 1: Anderson Kenny, you know, you had a very difficult childhood,
Speaker 1: is that fair to say?
Speaker 4: My dad was real rough and my mom.
Speaker 5: My mom was like the glue to the family and stuff,
Speaker 5: you know, like the protection stuff, but dad would like
Speaker 5: to provide her.
Speaker 2: And then you ended up going into the military.
Speaker 5: And I went to the military when I was seventeen
Speaker 5: Army and they gave me a medical discharge letter on
Speaker 5: because they said I couldn't adapt, or something like a
Speaker 5: training discharge. You know.
Speaker 1: It has since been determined that Robert is on the
Speaker 1: autism spectrum, but at that time he was just twenty
Speaker 1: years old with two children.
Speaker 2: Who had special needs.
Speaker 1: Robert and the kid's mother depended on the grandparents for help. Eventually,
Speaker 1: Robert had a third child, Nicki Bowman, whose custody was
Speaker 1: also shared, but there was a more contentious relationship with
Speaker 1: her grandparents. In addition, Nicki was born with a host
Speaker 1: of medical issues that it appears were never properly diagnosed
Speaker 1: or treated.
Speaker 3: Nicki had been sick from essentially birth. This is a
Speaker 3: child on Medicaid. You know, she's being brought in and
Speaker 3: they're like, Ah, this antibiotic doesn't seem to work, let's
Speaker 3: give her another one, you know, over and over again.
Speaker 3: And so there is a real tragedy in this child's
Speaker 3: short life of just the medical failures to get at
Speaker 3: what's going on with her. But I think that's sort
Speaker 3: of where the story begins. And then, you know, if
Speaker 3: you get to the point of trial, they acted like
Speaker 3: this history did not exist or certainly didn't matter that
Speaker 3: you have a kid infected from eight days old pretty
Speaker 3: much onward. But the week before her collapse, she had
Speaker 3: been brought to the er with initially one hundred and
Speaker 3: three point five fever. I believe she was throwing up.
Speaker 3: She had chronic diarrhea and trouble breathing. At this point,
Speaker 3: she has prescribed this medication, Finnergen, which contains promethazine, which
Speaker 3: now has a black box warning from the FDA that
Speaker 3: you don't give this to kids under the age of ten,
Speaker 3: and certainly don't give it to kids with respiratory issues
Speaker 3: because it might cause death. A few days later, she
Speaker 3: at the doctor the day after the emergency visit, had
Speaker 3: a fever over one hundred and four. They also give
Speaker 3: her another prescription for Finnergen, along with codine costster and
Speaker 3: which metastasizes into morphine. You know, they're treating it as
Speaker 3: if it's some you know, annoying cold, but you're suppressing
Speaker 3: the respiratory system of a kid already in distress. So
Speaker 3: a day later, Robert is called by the grandparents who
Speaker 3: had been feuding with his mom for a year, to
Speaker 3: come get this child who is sick and take her
Speaker 3: home back to his place. To me, this is another
Speaker 3: part of the mystery. If you have a sick two
Speaker 3: year old, I wonder what parent wants somebody to come
Speaker 3: out to the country pick up the child at nine
Speaker 3: o'clock at night and knowing he's alone because his girlfriend's
Speaker 3: getting a hysterectomy in the hospital. But oh, no, Robert
Speaker 3: needs to come out and fetch this child, take her home.
Speaker 1: This was January thirtieth into the thirty first of two
Speaker 1: thousand and two, and on this particular night, Robert was
Speaker 1: prepared to care for his then fiance in the wake
Speaker 1: of her has.
Speaker 3: Directed me his fiance is coming home from the hospital.
Speaker 3: He's trying to elevate the bed. The bed was really
Speaker 3: box springs and a mattress propped up on cinderblocks. But
Speaker 3: you look at these pictures in this bed, it's precarious.
Speaker 3: You know, that's where Nikki was sleeping. So it's completely
Speaker 3: legit that a disoriented, sick child full of all these
Speaker 3: drugs tries to get up in the night and falls
Speaker 3: off the bed, and that would very easily explain this
Speaker 3: bump on the back of her head. It's in the
Speaker 3: night where he wakes up to this strange cry. And
Speaker 3: his report consistently was he found her on the floor
Speaker 3: at the foot of the bed. Didn't know what happened,
Speaker 3: but he saw a little bit of blood on her mouth.
Speaker 3: He got a washcloth, wiped it off, kept her sitting
Speaker 3: up for a while because she'd fallen out, so he
Speaker 3: thought maybe she hit her head and he'd been told
Speaker 3: if somebody hits their head, you have to keep him awake,
Speaker 3: and then they fall back asleep. His alarm goes off.
Speaker 3: A few hours later, he wakes up, finds Nicky Blue
Speaker 3: not breathing, faint heartbeat. He panics, shakes her a little
Speaker 3: to try to rouse her. Meanwhile, his girlfriend's calling him
Speaker 3: from the hospital to come get her, and he reports, well,
Speaker 3: Nicky's not breathing. He gets in the car, drives the
Speaker 3: short distance to the hospital. But the child never really
Speaker 3: recovers from this, and we have no idea how long
Speaker 3: had she ceased breathing. He gets up there into the er.
Speaker 3: They see this, you know, guy standing there with a
Speaker 3: limp child.
Speaker 1: And let's not forget how Robert presents to the world.
Speaker 1: He's a large man, well over six feet two hundred
Speaker 1: pounds and socially awkward.
Speaker 3: Immediately the judgment start, they assume he did something to
Speaker 3: this child, whisk her away, clothe Blue, but by that
Speaker 3: point her eyes were already fixed and dilated, which means
Speaker 3: she'd probably already experience brain death. It doesn't take long,
Speaker 3: it's about twelve minutes without oxygen. The brain shuts down.
Speaker 3: Once your brain dies you're not coming back to life,
Speaker 3: but you revive the heart. You're pumping all this blood
Speaker 3: into the system, increasing the blood inside her head that
Speaker 3: can no longer get into the brain. They get her
Speaker 3: heart going and it's about the same time they do
Speaker 3: a scan of her head and they notice the goose egg,
Speaker 3: you know, swollen tissue on the back of her head.
Speaker 3: But the cat scan showed that there was subdural bleeding
Speaker 3: and that the brain had swollen, and that then later
Speaker 3: on they realized they're also retinal hemorrhages, and this is
Speaker 3: the classic triad associated with shaking. So this bump on
Speaker 3: the head. One doctor that sees her later that day
Speaker 3: says that was minor, that could have happened at another time.
Speaker 3: But all this internal stuff, oh, that must have been
Speaker 3: caused by violent shaking and then flinging the child down
Speaker 3: against something. This became the theory instant.
Speaker 1: Late soon Nikki was pronounced dead, and it appears there
Speaker 1: are several avenues that could have led to both her
Speaker 1: demise as well as the triad of findings Number one.
Speaker 1: There are now FDA warnings that fenrigan can cause respiratory
Speaker 1: failure in children under age ten. Codine can also lead
Speaker 1: to suppressed respiration. In this case, there are two subsequent possibilities.
Speaker 1: A oxygen deprivation is one of the over eighty medical
Speaker 1: conditions that can cause the triad of findings, and B
Speaker 1: the post brain death resuscitation effort pumped blood into her
Speaker 1: cranial cavity, yet was viewed as a symptom with which
Speaker 1: she had arrived at the hospital. The second avenue short falls,
Speaker 1: like the one Robert said Nikki had taken from the
Speaker 1: elevated bed, has been enough in previous cases to cause
Speaker 1: the same triad and therefore her death. Not to mention
Speaker 1: that any accidental trauma of this type could have occurred
Speaker 1: up to seventy two hours before her untimely demise.
Speaker 3: We now know that a short umbraced fall where you
Speaker 3: hit your head, especially in a young child, there could
Speaker 3: be hours and even days before symptoms arise. You can
Speaker 3: have a traumatic brain injury and yet the manifestations aren't visible.
Speaker 2: It's terrifying but true. Now.
Speaker 1: Thirdly, years later, a re examination of Nikki's medical records
Speaker 1: and autopsy have revealed that she was suffering from viral pneumonia,
Speaker 1: another one of the non violent medical causes for the
Speaker 1: triad of findings and therefore her death. Yet somehow all
Speaker 1: of these possibilities were not ruled out but ignored.
Speaker 3: You have to realize that this is a small rural community.
Speaker 3: The same er doctor is on duty, who is the
Speaker 3: one who was giving her the finnergen oh boy, and
Speaker 3: the pediatrician that it had her come to the office
Speaker 3: and measured her fever at one oh four point five,
Speaker 3: came to the hospital and he's weighing in. And these
Speaker 3: are the people interviewing Robert, which in my mind, these
Speaker 3: are interested witnesses, and they, along with this collection of nurses,
Speaker 3: are making judgments about this man. And a lot of
Speaker 3: the testimony at his trial, which I know we'll get to,
Speaker 3: but right away, they're these judgments. He wasn't crying at
Speaker 3: the right times, he wasn't showing enough concern. He was
Speaker 3: just standing there.
Speaker 5: When I brought into the hospital, I was freaking out,
Speaker 5: freaking out and stuff because that kind of accused me
Speaker 5: being responsible for what happened to her and stuff, you know,
Speaker 5: And that's oh, because he's.
Speaker 4: Actually a certain way he must be guilty.
Speaker 5: You know, when you've been accused of something, you could
Speaker 5: be nervous or something you know, for that to happen
Speaker 5: to your child, child and stuff like getting there, I
Speaker 5: don't think nobody's.
Speaker 4: Gonna be in the right mind, you know stuff.
Speaker 5: You know, losinger is bad enough, but been accused of
Speaker 5: it that's even worse.
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Speaker 3: She had a fall that could very well have started
Speaker 3: the subdural bleeding, but she didn't even have skull fractures.
Speaker 3: What Nikki had was this is critical, only one impact
Speaker 3: sites on her exterior. To this day, the medical examiner
Speaker 3: insists that she saw evidence of multiple impact sites to
Speaker 3: Nicki's head because of all the blood underneath.
Speaker 1: Interestingly, the cat scans that could have debunked this assertion
Speaker 1: went missing for almost twenty years, so even though there
Speaker 1: was only one bump on Nikki's head, this medical examiner,
Speaker 1: doctor Jill Urban, claimed that the subdural up leading was
Speaker 1: the result of multiple blood force head injuries, ruling the
Speaker 1: death of homicide before any other testing, including a toxicology
Speaker 1: report that disclosed a lethal amount of fettergan. So the
Speaker 1: same people who had missed the viral pneumonia and unknowingly
Speaker 1: prescribed a deadly drug to the same toddler were the
Speaker 1: exact people looking at Roberts sideways. But it gets even worse.
Speaker 1: A nurse, who by the way, was not certified to
Speaker 1: perform sexual assault exams, volunteered to examine the child and
Speaker 1: proceeded to tell hospital staff and law enforcement that she
Speaker 1: saw anal tearing.
Speaker 3: Jason, I do think this is the tail wagging the
Speaker 3: dog here. You have a week's worth of diarrhea. You're
Speaker 3: going to have in a two year old child, some
Speaker 3: redness on their bottom. But she starts telling people, including
Speaker 3: the lead investigator in the hospital, what she sees. I
Speaker 3: think then you have mind blindness set in all of
Speaker 3: the officers. Nurse looking at Robert through the lens of
Speaker 3: here is a man who potentially anally raped his two
Speaker 3: year old daughter. Then that takes over. They do a
Speaker 3: sexual assault test on swabs taken from this child. Nothing.
Speaker 3: They test everything they can find in the bedroom, nothing
Speaker 3: to confirm this sexual assault hypothesis. Now they share this finding,
Speaker 3: quote unquote with the medical team at Dallas Children's well,
Speaker 3: the child abuse expert doctor Squires, who apparently you know,
Speaker 3: is looking all the time for sexual abuse, says she
Speaker 3: does not see what this nurse saw. All she saw
Speaker 3: is what she said at trial, was what every mother
Speaker 3: has probably seen, which you know looks akin to diaper rash.
Speaker 1: Yet that was not the last time this accusation was raised.
Speaker 1: In the meantime, this rural hospital also looked to Dallas
Speaker 1: Children's Hospital to confirm their finding of homicide.
Speaker 3: When Nikki is taken to Dallas Children's they look at
Speaker 3: the cat scans and say this is essentially classic shaken
Speaker 3: baby because of the triad. The child abused expert doctor
Speaker 3: Squires says, I was told that this was a healthy child.
Speaker 3: She was quote totally well right before her collapse. So
Speaker 3: the only explanation is that she was violently shaken. Now, first,
Speaker 3: as you know we were discussing earlier, it was it's
Speaker 3: a total lie to suggest this was a totally well child.
Speaker 3: This was a chronically ill child with infections that had
Speaker 3: resisted I think five different kinds of antibiotics. She has
Speaker 3: a viral infection. Nobody is getting it.
Speaker 1: So doctor Squire supported the homicide ruling without knowing Icky's
Speaker 1: medical history. In addition, the medical community at that time
Speaker 1: was unaware of the potential for a lucid interval of
Speaker 1: up to seventy two hours from the time of a
Speaker 1: traumatic event or of the health condition induced onset of
Speaker 1: the triad, and even though Robert had just received Nikki
Speaker 1: from her grandparents, that left only him as a possible
Speaker 1: shaking suspect. In addition, the medical community at this time
Speaker 1: was also on aware that in order for shaking to
Speaker 1: cause this triad, there had to have first been a
Speaker 1: neck injury, and that was not present in Nicki's case.
Speaker 1: She had no neck injury. But unfortunately, tragically, this discovery
Speaker 1: was a few years too late to help Robert. When
Speaker 1: it was made by biomechanical engineers.
Speaker 3: That's the community that started to point out to the
Speaker 3: medical community that this hypothesis was unfounded. It's like, we're
Speaker 3: studying injuries to children. We're the ones that are coming
Speaker 3: up with things like car seats for children and helmets,
Speaker 3: and you know, shaking does not cause this kind of
Speaker 3: injury in any experiment that's ever been documented. So there
Speaker 3: are two fallacies at the very heart of the SBS phenomenon.
Speaker 3: One is that shaking could cause bridging veins in your
Speaker 3: dura to rupture. No, and that shaking would not cause
Speaker 3: neck injuries. Also, No, and Nikki had absolutely nothing wrong
Speaker 3: with her neck. But it was already orthodoxy by this point,
Speaker 3: it was being taught in medical schools. And that's why
Speaker 3: I think it just has such staying power as a
Speaker 3: legal phenomenon when it has no scientific support, because so
Speaker 3: many people's lives have been ruined, so they keep tweaking
Speaker 3: how you're supposed to go about making the diagnosis. But
Speaker 3: in the day when Robert was quickly written off as guilty,
Speaker 3: there was no internal doubt within the medical community. So
Speaker 3: he's arrested that day on that information.
Speaker 1: And then the prosecutor once again raised the sexual assault allegations,
Speaker 1: even though their own medical experts would not support.
Speaker 3: It, and yet they dare to indict him on this.
Speaker 3: And every single potential juror is asked about the sexual
Speaker 3: abuse component that's going to be a part of this
Speaker 3: trial along with shaken baby. Every single juror is told
Speaker 3: that's the theory the state has, that there was sexual
Speaker 3: assault and that's the motivation for him to violently shake
Speaker 3: her to cover this effort.
Speaker 1: So He was represented, if we can call it that,
Speaker 1: by Steve Evans and John Van Meader. Talk to us
Speaker 1: about their efforts or lack thereof.
Speaker 3: They stated on the record in opening statements that this
Speaker 3: was unfortunately a shaken baby case, no doubt about it.
Speaker 3: At that time, there were very few experts even available
Speaker 3: to come in and challenge the state's causation theory. This
Speaker 3: was two thousand and two. Everybody believed shaken baby was
Speaker 3: an article of faith. It had been accepted by the
Speaker 3: American Pediatric Association. Some of the people that came to
Speaker 3: our aid only recently, some very famous, renowned experts in
Speaker 3: two thousand and one, two thousand and two, two thousand
Speaker 3: and three were just starting to sound the alarm.
Speaker 1: So the knowledge wasn't even really readily available to his
Speaker 1: own attorneys for them to even believe in his innocence.
Speaker 3: And they saw their job as just to try to
Speaker 3: prevent entry of a death sentence.
Speaker 5: Mantonia Trull had two where they had tried to do
Speaker 5: a plea barg stuff. And I told him I didn't
Speaker 5: do nothing. My mama said, I didn't do nothing. Don't
Speaker 5: take nothing right. The thing he is my mama, family
Speaker 5: lawyer had gave her a pamphlet to go to Trinity
Speaker 5: develop a community college, and Athens for seminar I was
Speaker 5: shaking baby cases.
Speaker 4: Who did she see there? Douglow the head DA he
Speaker 4: didn't know what was going on either.
Speaker 1: It appears that the prosecution and the defense team were
Speaker 1: totally out of their depth. The state side taking seminars
Speaker 1: likely given by someone who was a true believer in
Speaker 1: this now proven chunk science. And while the defense was
Speaker 1: essentially agreeing to some degree of murder without intent, the
Speaker 1: state was trying to take it a step further.
Speaker 2: Your trial was a farce.
Speaker 1: I mean, they pulled dirty tricks accusing you of sexually
Speaker 1: abusing the job when they knew that that was not
Speaker 1: the case, and they knew that she had had this
Speaker 1: horrible diarrhea that would have provided an exact explanation for
Speaker 1: why these symptoms were present. They decided to sort of
Speaker 1: taint the jury by bringing that ridiculous theory, which was
Speaker 1: later dropped.
Speaker 5: And they did take the jury because you hear a
Speaker 5: story about the child and stuff.
Speaker 4: It makes a lot of people mad, right of course,
Speaker 4: and made the jury mad, tainted the jury.
Speaker 1: They painted you into a monster, and I'm sitting here
Speaker 1: staring you right in the eyes. I mean, it's man
Speaker 1: who's no monster, I can tell you right off the bat.
Speaker 5: And I'm quite a friend friendly really, you know. They
Speaker 5: said you for us Now I'm not no father, no
Speaker 5: more on the lever you know, friendly, you know.
Speaker 3: And again I won't say that this was a conscious plot,
Speaker 3: but I do think they had expected Robert would take
Speaker 3: a plea deal. He adamantly would not. And I would say,
Speaker 3: in almost any death penalty case, what the state recognizes
Speaker 3: implicitly is that they must turn the defendant into a monster,
Speaker 3: because normal human beings don't want to come in and
Speaker 3: sign off on killing a fellow member of the human species.
Speaker 3: They sounded this horrifically prejudicial sexual theme and then dropped
Speaker 3: it right when it went to the jury because they
Speaker 3: really had no evidence except for this one nurse, who,
Speaker 3: by the way, was on the stand pretty much longer
Speaker 3: than anyone else. Roberts flattorneys did resist the sexual assault allegations,
Speaker 3: but only through cross examination. Meanwhile, the states bringing in
Speaker 3: experts who are telling the jury this kid was violently
Speaker 3: shaken and so if you're told that, and then you
Speaker 3: also have a nurse saying, and by the way, I
Speaker 3: also think there was sexual abuse. Someone that would violently
Speaker 3: take a child, well, they might have also abused a child.
Speaker 3: These things become possible. There was no counter narrative, and
Speaker 3: he was not convicted of that, but they maintained that, well,
Speaker 3: there was no evidence he didn't do it. I am
Speaker 3: not kidding you. There was closing argument about how even
Speaker 3: if they weren't going to decide the issue, they should
Speaker 3: consider it, and.
Speaker 2: The judge allows.
Speaker 3: Judge allowed it.
Speaker 1: So the jury comes back in. At the time, did
Speaker 1: you have still have some hope that they would see
Speaker 1: the truth and that they would end this nightmare?
Speaker 5: I was hoping they would so because attorney kept telling me,
Speaker 5: we can win this case, we can win this kid.
Speaker 5: This case is well okays. When they came back talking
Speaker 5: about guilty and stuff, you know, I don't know what
Speaker 5: I already thought of the time, and my mom wasn't
Speaker 5: there and stuff. But before the punishment, my mom had
Speaker 5: to go check on my dad here was an old
Speaker 5: folks home.
Speaker 4: You know, And once she got back, they gave me
Speaker 4: the death sentence and stuff.
Speaker 2: You know.
Speaker 4: I couldn't believe, couldn't believe they convicted me of something
Speaker 4: that I didn't do.
Speaker 5: You know, I've looked up January thirty first, two thousand
Speaker 5: and two, so little bit over twenty years I've been
Speaker 5: knocked up. I don't wish he's my worst enemy and stuff,
Speaker 5: you know, because being in a place like you said,
Speaker 5: like in that marriage stuff, you know, especially when you
Speaker 5: had done nothing to be here.
Speaker 4: In the first place.
Speaker 5: You know, and then you know, I lost I lost
Speaker 5: my mom last September, and I lost my dad since
Speaker 5: I've been in here, and stuff. I lost the chance
Speaker 5: to send my son and my daughter to grow up,
Speaker 5: being away from family all this time, lost all those years.
Speaker 4: And stuff that stole from me, you know, So it
Speaker 4: destroyed my life.
Speaker 2: You know.
Speaker 1: It's absolutely heartbreaking. And the authorities appear to have been
Speaker 1: doing what they, I guess thought was the right thing
Speaker 1: at the time. But our understanding of these instances has
Speaker 1: now advanced considerably. It's almost like a one to eighty.
Speaker 1: But before are more enlightened under standing of sbs. Robert
Speaker 1: based denials in his direct appeal and state habeas.
Speaker 3: Robert was on the verge of execution in twenty sixteen.
Speaker 3: That's when I was at a state public defender's office
Speaker 3: and we agreed to take on the case, and based
Speaker 3: on the change in science round the controversy of Shaking Baby,
Speaker 3: we got a state of his execution and the right
Speaker 3: to get back into state court to try to prove
Speaker 3: our claims. That then took many years.
Speaker 1: During this time, Gretchen was trying to uncover the cat
Speaker 1: scans from January thirty first, two thousand and two, and
Speaker 1: both medical centers had maintained that they had been lost
Speaker 1: or destroyed, as did the state. And then during the
Speaker 1: opening statements of this evidentiary hearing, something really crazy happened.
Speaker 3: In the middle of my opening statement, this clerk with
Speaker 3: goodwill listened and thought, well, I wonder if this stuff
Speaker 3: she's referring to could be buried in the courthouse basement.
Speaker 3: You know, had nothing to do with the motions I've
Speaker 3: filed seeking Brady evidence that hadn't led to someone discovering this.
Speaker 3: It was this one woman. Why the scans were buried
Speaker 3: in the courthouse basement, I do not know, But then
Speaker 3: we had a long hiatus so we could have a
Speaker 3: chance to have an expert look at them, and it
Speaker 3: confirms that there was only one impact site on Nicki's head,
Speaker 3: and that was that small swollen tissue on the back
Speaker 3: right of Nicki's head that is exculpatory. The medical examiner,
Speaker 3: who did not look at the head scans at the
Speaker 3: time and now decades later to this day, she insists
Speaker 3: that she saw evidence of multiple impact sites to Nicki's
Speaker 3: head because of all the blood underneath. Nonsensical. It doesn't
Speaker 3: work that way. You cannot impact a child's head sufficiently
Speaker 3: enough to cause internal damage and leave no mark on
Speaker 3: the outside. And what Nikki had was minimal bruising on
Speaker 3: her exterior. The blood underneath cannot be read like tea leaves,
Speaker 3: and yet that is what this medical examiner has done.
Speaker 3: Whereas the scans, which are the reliable evidence about whether
Speaker 3: or not there were impact sites, shows that one side,
Speaker 3: one and only side.
Speaker 1: Even though this didn't run counter to doctor Squire's ruling
Speaker 1: that this was an SBS case, which, of course, and
Speaker 1: I can't emphasize this enough, SBS is not a real thing.
Speaker 2: It's been debunked.
Speaker 1: However, the missing CT scan supported Robert's version of events,
Speaker 1: while directly contradicting doctor Urban, who was the one who
Speaker 1: had initially ruled Nicky's death a homicide, and that was
Speaker 1: enough to win an evidentiary hearing, and after being delayed
Speaker 1: by COVID, it resumed in March twenty twenty one.
Speaker 3: Here we are, twenty years later, having amassed an overwhelming
Speaker 3: amount of evidence from experts who have identified the toxic
Speaker 3: level of prescription drugs in this child system, the interstitial
Speaker 3: viral pneumonia, the lack of evidence of impact sites, and
Speaker 3: all the change in the understanding of shake and baby syndrome.
Speaker 3: All of that was put before trial court and deemed
Speaker 3: not new evidence.
Speaker 1: It's absolutely breaking bonkers. The biomechanical strides alone prove that
Speaker 1: if shaking was the cause of the triadive findings, there
Speaker 1: would first need to be a spinal or a neck injury,
Speaker 1: and Nikki had none. The state's theory just didn't hold water.
Speaker 1: It made room for every viable avenue that we'd laid
Speaker 1: out at the beginning, the lethal those of Bennigan causing
Speaker 1: respiratory arrest with oxygen deprivation, or the resuscitation effort causing
Speaker 1: the triad or her undiagnosed viral pneumonia. Even the shortfall
Speaker 1: alone could have done it. While being the source of
Speaker 1: the single swollen impact site. Meanwhile, doctor Urban admitted to
Speaker 1: never having looked at the CT scans when she said
Speaker 1: that there were multiple impacts and ruled the death of
Speaker 1: Huh aside.
Speaker 3: This medical examiner admitted that she didn't even look at
Speaker 3: the cat scans, She didn't listen to the testimony of
Speaker 3: all these new experts. She didn't seem to understand the
Speaker 3: interstitial viral pneumonia in the lung tissues that she'd collected,
Speaker 3: and instead just seemed to stand by this idea that
Speaker 3: the blood in the subdural space was enough for her
Speaker 3: to say, oh, well, whether it was shaking or not,
Speaker 3: it was still abuse. This was something I asked the
Speaker 3: medical examiner in court. You know, I said, Let's say
Speaker 3: I walk outside the courtroom. There are these marble steps
Speaker 3: and no one else is around, and I slip and
Speaker 3: I hit the back of my head and I become unconscious.
Speaker 3: And later you take a look at me. What is
Speaker 3: it that your background, your training has taught you that
Speaker 3: you could look at me and determine whether or not
Speaker 3: I'd fallen, or someone had pushed me, or someone had
Speaker 3: come up and hit me in the back of the
Speaker 3: head with a blunt object. Explain that to me or
Speaker 3: shook you yeah, And of course she couldn't. And what
Speaker 3: is appalling about this is that the shaking hypothesis that
Speaker 3: she furthered at trial, along with the child abuse expert,
Speaker 3: she was telling the jury all about shaking, that that's
Speaker 3: why you look at the outside of this child. You
Speaker 3: don't see much, but the reason you know its abuse
Speaker 3: is because shaking explains how all this stuff happens. Well, a,
Speaker 3: we now know shaking doesn't. But she couldn't tell me
Speaker 3: how blunt forced trauma, even if it's not shaking, could
Speaker 3: be looked at after the fact and you could say
Speaker 3: whether it was inflicted or not, because there's no science
Speaker 3: that would allow you to do that, that would require,
Speaker 3: you know, voodoo.
Speaker 1: With doctor Urban having undermined her own credibility, left Squires,
Speaker 1: for which Gretchen presented the updated scientific consensus on the matter,
Speaker 1: along with instances in which doctor Squire's recanted testimony in
Speaker 1: other Texas SBS cases. The Center for Integrity and Forensics
Speaker 1: Science has also submitted an amicus brief supporting Robert, but
Speaker 1: ultimately the motion was denied, with the court citing that
Speaker 1: no new evidence had been submitted.
Speaker 2: I mean, make it, make sense.
Speaker 3: Robert's case has been submitted, as per Texas procedure, to
Speaker 3: the Court of Criminal Appeals, which is the highest court
Speaker 3: for criminal matters in the state of Texas, so they will,
Speaker 3: one hopes, look at the huge volume of new evidence
Speaker 3: and look at it anew and really evaluate the allegations
Speaker 3: about the change in the scientific perspective from the time
Speaker 3: of his trial, which is the fundamental basis for our
Speaker 3: claims for relief. We also have an actual innocence claim,
Speaker 3: which is much stronger now than when we filed the
Speaker 3: claim because of the evidence of pneumonia, of the cat
Speaker 3: scans that were finally produced, et cetera. But ultimately, you
Speaker 3: cannot read that trial transcript and compare that to contemporary
Speaker 3: unders standing even among people that believe shaking baby syndrome
Speaker 3: has some validity. You cannot read the trial transcript and
Speaker 3: fail to recognize it's full of falsehoods. And we hope
Speaker 3: the Court of Criminal Appeals will dig into that and
Speaker 3: then grant him a new trial, and then it's like,
Speaker 3: go back to the trial court again and see if
Speaker 3: they really want to try again to convict him based
Speaker 3: on this horrifically scanty evidence.
Speaker 1: Your record well if they give you a chance and
Speaker 1: try to go ahead with what they presented in two
Speaker 1: thousand and two, I think they'd realize pretty quickly that
Speaker 1: we just didn't know better back then, and they'd let
Speaker 1: this go. Yeah, everyone that's listening, now, what can they do?
Speaker 3: A wonderful supporter of Robert has created a website. There
Speaker 3: are court filings there, and certainly the latest filing that
Speaker 3: amasses all the new evidence and explains why a new
Speaker 3: trial is worthwhile.
Speaker 1: Well, we'll have that linked to the bio as well
Speaker 1: as ways our audience can reach out to Robert. And
Speaker 1: with that we move to closing arguments, where I think
Speaker 1: you both for sharing your story, and then I'm going
Speaker 1: to turn my microphone off, leave my headphones on, and
Speaker 1: just listen for anything else that you feel is left
Speaker 1: to be said. Let's start off with you, Gretchen, and
Speaker 1: have Robert take us off into the sunset.
Speaker 3: I mean, I would like for the audience to picture
Speaker 3: themselves as a parent or any parent they know, and
Speaker 3: put yourself in the shoes of Robert, but imagine yourself
Speaker 3: without resources, an impairment that makes communication fundamentally difficult, and
Speaker 3: from the moment you arrive at the hospital with your
Speaker 3: comatose child. You're being interrogated, accused, and the accusations get
Speaker 3: worse and worse by the minute, so that by the
Speaker 3: end of a single day, you've gone from your child
Speaker 3: who's relatively new to your life, is gone, and they
Speaker 3: won't even allow you to say farewell because you're being
Speaker 3: taken to jail. And before there's even an indictment, there's
Speaker 3: a statement from a hospital saying it's got to be
Speaker 3: shaken baby syndrome. Yet no one assesses the medical records
Speaker 3: and try to put all these pieces together. And it
Speaker 3: is a complicated puzzle, but every single piece points away
Speaker 3: from a crime and towards a tragic story of a
Speaker 3: young child who was sick from the moment she was born,
Speaker 3: into unfortunate circumstances, and then not given the fair shake
Speaker 3: that she deserved. It's not just about Robert NICKI deserves
Speaker 3: a history that is based on the truth. And I
Speaker 3: urge people to just pay attention to what's being done
Speaker 3: in their names with our criminal justice systems. I came
Speaker 3: from a civil background, and everything I learned every day
Speaker 3: adds to my shock and outrage.
Speaker 5: Okay, okay, what I want to courage both of y'all
Speaker 5: to continue to do what y'all doing and stuff, because
Speaker 5: I believe in y'all and everybody else that's doing fighting
Speaker 5: against this corrupt legal systems, wrong for convictions.
Speaker 4: You know, keep on doing what you're doing.
Speaker 5: You know, I'm gonna continue and continue to fight up
Speaker 5: because you know, God knows, and I know you know
Speaker 5: that that was done wrong and stuff, And very grateful
Speaker 5: for what y'all doing. Very grateful for everybody that's involved
Speaker 5: in it. And uh now y'all have a safe trip
Speaker 5: back home and stuff. Made the Lord bless y'all and
Speaker 5: shine up his face upon y'all, and just like, encourage
Speaker 5: both of y'all to continue to do what you're doing.
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
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Speaker 1: production team, Connor Hall and Kathleen Fink, as well as
Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn.
Speaker 1: The music in this production was supplied by three time
Speaker 1: Oscar nominated composer Jay Ralph. Be sure to follow us
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Speaker 1: at its Jason Vlahm. Wrongful Conviction is a production of
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