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Speaker 1: Robert Robertson grew up in abject poverty in Texas, struggling

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Speaker 1: with drug addiction and undiagnosed autism. While in and out

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Speaker 1: of prison on non violent charges and parole violations, he

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Speaker 1: had three children. After a heated custody battle with the

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Speaker 1: maternal grandparents of his youngest, Nicky Bowman, Robert and his

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Speaker 1: parents once shared custody just as Nicki's long standing respiratory

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Speaker 1: issues were raging out of control. In late January two

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Speaker 1: thousand and two, while suffering from nausea, diarrhea, fever, and

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Speaker 1: respiratory distress, Nicki was improperly diagnosed with an acute respiratory

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Speaker 1: ailment along with codine. Two year old Nicki was prescribed

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Speaker 1: in medication that now comes with a warning for potentially

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Speaker 1: causing fatal respiratory depression and children. In the early hours

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Speaker 1: of January thirty first, two thousand and two, Robert comforted

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Speaker 1: Nicki after she had fallen out of bed. When he

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Speaker 1: woke again, Nicki was unresponsive and turning blue, so he

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Speaker 1: rushed her to the hospital, where her symptoms included the

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Speaker 1: triad of findings previously associated with the junk science of

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Speaker 1: shaken baby syndro. The potential causes for her symptoms included

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Speaker 1: undiagnosed viral pneumonia, the prescription drugs, the shortfall, the attempts

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Speaker 1: to revive Niki, or some combination thereof. Disregarding these factors,

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Speaker 1: a leap in logic was made by those who had

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Speaker 1: previously misdiagnosed Niki to accuse Robert of fatally abusing his daughter.

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Speaker 1: Then diaper rash was misconstrued as anal tearing, creating the

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Speaker 1: specter of potential sexual abuse. Over the proceedings that sent

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Speaker 1: Robert to death row. This is wrongful conviction. Welcome back

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Speaker 1: to wrongful conviction. I'm Jason Flahman. Today's case, unfortunately, is

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Speaker 1: going to sound like familiar territory. It's a shaken baby prosecution,

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Speaker 1: and all of which was based on a hypothesis that

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Speaker 1: is now rejected by not only the original scientists, but

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Speaker 1: also the scientific and medical communities that once held it

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Speaker 1: to be a decided matter. Now, unfortunately, some of those

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Speaker 1: attacked with that ill fated diagnosis in a court of

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Speaker 1: law are still languishing in prison. Too many, I mean

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Speaker 1: countless people, including our guest today who is on death

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Speaker 1: row in Texas, Robert Robertson Now, my producer Connor Hall,

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Speaker 1: and I who trek down to the Polunski unit in Livingston,

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Speaker 1: Texas to record an interview with Robert. You'll hear pieces

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Speaker 1: of that interspersed throughout our coverage today. Joining us now

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Speaker 1: is his appellate attorney since about twenty sixteen, a fierce

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Speaker 1: and well respected advocate in the innosence community, Gretchen Swen. Gretchen,

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Speaker 1: Welcome to Wrongful Conviction.

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Speaker 2: Thank you so much. Jason.

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Speaker 1: Now, before we get into Robert's case, I want to

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Speaker 1: give a little background about the junk science of shaking

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Speaker 1: baby syndrome. We go further in depth about it on

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Speaker 1: our show Junk Science, and we'll have that episode linked

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Speaker 1: in the bio. Please check it out. It's mind blowing.

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Speaker 1: And in that episode, the executive director of the Center

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Speaker 1: for Integrity and Forensic Sciences, Kate Judson, spoke with our

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Speaker 1: host Josh Dubin about the shaken baby hypothesis and its effects,

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Speaker 1: of which there are many. We've covered the cases of

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Speaker 1: Amanda Brumfield, Stephanie Spurgeon, Melissa Lucio, who's also on death

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Speaker 1: row in Texas and just recently won a stay of execution.

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Speaker 1: We hope for a positive outcome there as well. And

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Speaker 1: of course Kate Judson joined us again to explain how

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Speaker 1: this junk science scourge pertained to the case of John Jones,

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Speaker 1: who still languishes in an Ohio prison. Here's what Kate

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Speaker 1: said in that episode about this hypothesis turned childcare nightmare.

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Speaker 3: Shakan baby syndrome was originally proposed as a hypothesis to

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Speaker 3: explain a phenomenon that a pediatric neurosurgeon in Great Britain

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Speaker 3: was seeing in his patients. He would sometimes have infants

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Speaker 3: who died or were seriously ill without a clear cause

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Speaker 3: and without external trauma, and yet the internal features looked

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Speaker 3: a lot like kids who had suffer some.

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Speaker 4: Kind of traumatic injury.

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Speaker 3: So those findings were subdural hematoma, which is bleeding between

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Speaker 3: the coverings of the brain, retinal hemorrhage, which is bleeding

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Speaker 3: at the back of the eye, and encephalopathy and cerebral edema,

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Speaker 3: which sort of acts together as one leg of what

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Speaker 3: sometimes people.

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Speaker 4: Call the triad. Currebril edema is brain swelling.

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Speaker 3: And encephalopathy is brain dysfunction, and so doctor guth Kelch,

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Speaker 3: the piatric neurosurgeon was seeing these findings in kids and

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Speaker 3: they looked injured on the inside but not on the outside,

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Speaker 3: and he thought that one reason for that might be

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Speaker 3: a common disciplinary technique in his home of Northern England

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Speaker 3: in the seventies.

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Speaker 4: Which was shaking.

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Speaker 3: And so what doctor goth Kelch said is that these

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Speaker 3: medical findings could be due to shaking. And doctor goth

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Speaker 3: Kelch wasn't claiming to have the answers, but rather that

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Speaker 3: he was hypothesizing about what might be causing these findings.

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Speaker 4: So that started to evolve.

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Speaker 3: A radiologist in New York, John Caffey, built on that

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Speaker 3: and he published articles saying the same thing, right, that

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Speaker 3: parents should be gentle with infants.

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Speaker 4: But neither of these.

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Speaker 3: Doctors suggested that the medical findings that they associated with

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Speaker 3: shaking were exclusively diagnostic to shaking, nor did they say

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Speaker 3: that there was a reliable way to place blame on

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Speaker 3: a caregiver when a child had these medical findings. And

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Speaker 3: there's a little bit of a gap in understanding between

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Speaker 3: the mid to late nineteen seventies and then when we

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Speaker 3: start to see these cases appear in published appellate decisions

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Speaker 3: in the late eighties, and we started to see prosecutors

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Speaker 3: and pediatricians in particular also pathologists saying that when children

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Speaker 3: had this collection of.

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Speaker 4: Findings, that shaking could be diagnosed.

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Speaker 3: And that's when it comes into the criminal legal system

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Speaker 3: and we start to see the trajectory that we're on

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Speaker 3: today where parents are wrongfully accused based on only the

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Speaker 3: existence of a particular set of medical findings.

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Speaker 1: So, since this hypoth this was picked up here in

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Speaker 1: the States in the ages, we've seen decades of parents

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Speaker 1: and caregivers prosecuted with the support of medical personnel in

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Speaker 1: the courtroom, making a bizarre leap in logic from this

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Speaker 1: triad of findings which we now know have a universe

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Speaker 1: of potential causes, to diagnosing that not only abuse was

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Speaker 1: the root cause, but also that they could reliably place

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Speaker 1: blame on the most recent caregiver. Now, this recipe for

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Speaker 1: prosecution has fallen apart, starting in the late two thousands,

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Speaker 1: when more research began to be done on this topic.

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Speaker 1: We now know that there are many many causes of

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Speaker 1: this constellation of findings. There is the possibility of abusive

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Speaker 1: head trauma, but in order to cause that kind of

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Speaker 1: internal damage with no external injuries or even minimal external injuries,

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Speaker 1: that major spinal injuries would have to be present, and

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Speaker 1: if some sort of trauma was the cause, accidental or intentional,

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Speaker 1: it can take up to seventy two hours for complications

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Speaker 1: to arise, making it impossible to pin it on the

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Speaker 1: most recent caregiver in the absence again of severe spinal

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Speaker 1: and exterior injuries. Finally, researchers have now compiled a list

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Speaker 1: of eighty eight conditions and counting that can cause this

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Speaker 1: constellation of findings absent any abuse, injury or trauma, which

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Speaker 1: certainly seems to be the case here with Nicki Bowman.

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Speaker 1: And I want to quote doctor guth Kelch here from

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Speaker 1: a twenty twelve article titled After forty Years of Consideration,

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Speaker 1: where he said, and I quote, I think we need

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Speaker 1: to go back to the drawing board and make a

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Speaker 1: more thorough assessment of these fatal cases. And I'm going

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Speaker 1: to bet that we are going to find in every

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Speaker 1: or at least the large majority of cases, that the

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Speaker 1: child had another severe illness of some sort which was

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Speaker 1: missed until too late end quote. Unfortunately, it appears that's

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Speaker 1: exactly what we have here in the case of Nicki Bowman,

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Speaker 1: the daughter of our guest today Robert Robertson. But before

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Speaker 1: we get to Nicky's tragic end, Gretchen, can you give

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Speaker 1: our audience a little background on Robert.

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Speaker 2: This is somebody who grew up dirt poor in East Texas.

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Speaker 2: There was a lot of violence in the home, but

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Speaker 2: you know, had a mother who loved him dearly, and

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Speaker 2: the kid had no record of ever engaging in physical violence.

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Speaker 2: He was in special ed classes. He was the one

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Speaker 2: who was bullied. He was the one coming to school

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Speaker 2: with bruises. You know, he was on the radar in

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Speaker 2: terms of this is a struggling kid. But you know,

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Speaker 2: he drops out in ninth grade and stumbles into what

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Speaker 2: happens with so many poor, traumatized kids. He struggles with

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Speaker 2: drug addiction. But this is a gentle soul. And you know,

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Speaker 2: you spend five minutes with Robert and you see his

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Speaker 2: speech is unusual and he has this sort of flat

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Speaker 2: affect and he struggles to speak.

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Speaker 5: Okay, so so so yeah, y'a got some questions or something.

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Speaker 1: Sure, So yeah, let me just introduce. First of all,

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Speaker 1: this is dramful conviction from death row in Texas. We're

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Speaker 1: here on the Polunsky unit where we've been ford to

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Speaker 1: visit rob will and Rodney Reid. Today we're here with

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Speaker 1: another innocent man, man named Robertson. The man himself is

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Speaker 1: like a big teddy bear. He's sitting right across from

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Speaker 1: me through this window of bulletproof glass. Robert, thank you

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Speaker 1: for being here to talk to us today.

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Speaker 5: Thank you for being here.

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Speaker 1: And Robert, going back to the beginning, did you grow

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Speaker 1: up in Texas?

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Speaker 5: I was born in Minneola, Texas and stuff, and we

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Speaker 5: lived in Winnsboro until I was six years old, you know,

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Speaker 5: and then my dad worked for the railroad and his

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Speaker 5: job transferred to Palestine.

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Speaker 1: Anderson Kenny, You know you had a very difficult childhood.

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Speaker 1: Is that fair to say? Oh?

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Speaker 6: My dad was real rough and my mom was My

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Speaker 6: mom was like the glue to the family and stuff,

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Speaker 6: you know, like the protector stuff.

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Speaker 5: But dad would like to provide her.

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Speaker 1: Just say, because I've read a lot about you, your

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Speaker 1: story and your case. Of course, you endured a lot

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Speaker 1: of abuse as a child, ran away when you were

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Speaker 1: twelve for the first time, you stained to fall from

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Speaker 1: a ladder, ended up with some severe head trauma from that,

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Speaker 1: and of course football injuries. So you've been banged around

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Speaker 1: a lot, I would say, right.

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Speaker 5: And co works and stuff, you know, when I got

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Speaker 5: older and stuff, you know.

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Speaker 1: And then you ended up going into the military. Is

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Speaker 1: I wanted to.

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Speaker 6: The military when I was seventeen Army and they gave

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Speaker 6: me a medical discharge letter letter on because they said

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Speaker 6: I couldn't adapt or something, you know, you know what

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Speaker 6: they said, you know, like training discharge.

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Speaker 5: You know.

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Speaker 1: At age twenty, Robert had moved to Alabama with a

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Speaker 1: woman who was also dependent on drugs. They had two kids,

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Speaker 1: both of whom had special needs, so, you know, out

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Speaker 1: of desperation, he started committing petty crimes.

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Speaker 2: The criminal activity he had gauged him before had to

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Speaker 2: do with Burgley of a habitation related to his drug addiction.

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Speaker 2: And when he spent time in prison, he was such

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Speaker 2: a model prisoner. He was made a trustee.

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Speaker 1: Then he paroled out. But as we know, even the

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Speaker 1: most well behaved person will have difficulty maintaining their freedom

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Speaker 1: while on parole. There are thousands of reasons they can

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Speaker 1: use to throw you back in there. And that's what

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Speaker 1: he was dealing with.

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Speaker 2: The parole violation is being out of county. That means

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Speaker 2: he traveled to Fort Worth looking for work, which is

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Speaker 2: where he hooked up with Nicki's biological mother. They were

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Speaker 2: both from this little town Palestine, Texas, had this brief

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Speaker 2: little affair, she ends up pregnant, he's back in prison,

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Speaker 2: and meanwhile, this custody battle explodes between the grandparents that

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Speaker 2: assume custody of this child from the hospital bed because

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Speaker 2: CPS won't let the mom keep her, and then Robert's mom,

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Speaker 2: who's like, well, if this is Robert's child, you know,

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Speaker 2: we want to be involved. That goes on for nearly

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Speaker 2: a year of Nicky's life with Robert out of the picture.

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Speaker 2: But what Robert also doesn't know about is this kid

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Speaker 2: is chronically sick. This is a child on Medicaid. You know,

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Speaker 2: she's being brought in They're like, Ah, this antibiotic doesn't

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Speaker 2: seem to work, let's give her another one, you know,

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Speaker 2: over and over again. And so there is a real

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Speaker 2: tragedy in this child's short life of just the medical

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Speaker 2: failure to get at what's going on with her. But

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Speaker 2: I think that's sort of where the story begins. And then,

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Speaker 2: you know, if you get to the point of trial,

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Speaker 2: they acted like this history did not exist. Or certainly

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Speaker 2: didn't matter that you have a kid infected from eight

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Speaker 2: days old pretty much onward.

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Speaker 1: Infected and neglected by a system that didn't care about

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Speaker 1: her and doesn't care about a lot of kids like her.

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Speaker 1: I mean, let's call it what it is. I imagine, had

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Speaker 1: they had access to different kinds of health care that's

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Speaker 1: afforded to people of means, she may well be alive today,

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Speaker 1: and who knows, maybe even would have graduated college. But

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Speaker 1: we'll never know that because that's not how it worked out.

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Speaker 1: And so back in January of two thousand and two,

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Speaker 1: Robert had a girlfriend who was having her own medical

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Speaker 1: issues and was about to have a hysterectomy, and he

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Speaker 1: and his parents were sharing custody of baby Nikki with

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Speaker 1: the maternal grandparents. Now, Robert's life was hectic, and he's

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Speaker 1: helping support Nicki with two paper roots that he was doing.

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Speaker 1: And then there's the events of January thirty first that

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Speaker 1: resulted in Nicky's untimely, a tragic death and Robert's unjust arrest.

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Speaker 1: Can you explain the situation at what led to this

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Speaker 1: horrible outcome?

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Speaker 2: As I noted, you know, Nicki had been sick from

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Speaker 2: essentially birth. But the week before her collapse, she had

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Speaker 2: been brought to the er with initially one hundred and

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Speaker 2: three point five fever. I believe she was throwing up.

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Speaker 2: She had chronic diarrhea and trouble breathing. At this point,

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Speaker 2: she has prescribed this medication, Finnergen, which contains promethazine, which

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Speaker 2: now has a black box warning from the FDA that

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Speaker 2: you don't give this to kids under the age of ten,

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Speaker 2: and certainly don't give it to kids with respiratory issues

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Speaker 2: because it might cause death. A few days later, they

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Speaker 2: also give her another prescription for Finnergen along with codine

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Speaker 2: cough serrah. You know they're treating it as if it's

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Speaker 2: some you know, annoying cold, but you're having trouble breathing.

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Speaker 2: Then you give someone coding, which metastasizes into morphine. You know,

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Speaker 2: you're suppressing the respiratory system of a kid already in distress.

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Speaker 2: So she at the doctor the day after the emergency

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Speaker 2: visit had a fever over one hundred and four. This

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Speaker 2: is the follow up from the er. They send her

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Speaker 2: home with these prescriptions and it's a day later, essentially

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Speaker 2: after she's been through all this distress, she's been given

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Speaker 2: all these medications. When Robert is called by the grandparents,

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Speaker 2: who have been feuding with his mom for a year,

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Speaker 2: to come get this child who is sick and take

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Speaker 2: her home back to his place. To me, this is

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Speaker 2: another part of the mystery. If you have a sick

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Speaker 2: two year old, I wonder what parent wants somebody to

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Speaker 2: come out to the country pick up the child at

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Speaker 2: nine o'clock at night, and knowing he's alone because his

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Speaker 2: girlfriend's getting a hysterectomy in the hospital. But oh no,

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Speaker 2: Robert needs to come out and fetch this child take

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Speaker 2: her home. It's in the night where he wakes up

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Speaker 2: to this strange cry, and his report consistently was he

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Speaker 2: found her on the floor at the foot of the bed.

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Speaker 2: He'd heard this cry, woke up and didn't know what happened,

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Speaker 2: but he saw a little bit of blood on her mouth.

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Speaker 2: He got a washcloth, wiped it off, kept her sitting

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Speaker 2: up for a while because she'd fallen out, so he

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Speaker 2: thought maybe she hit her head. And he'd been told

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Speaker 2: if somebody hits their head, you have to keep him

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Speaker 2: awake and then they fall back asleep. His alarm goes

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Speaker 2: off a few hours later, he wakes up, finds Nicky

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Speaker 2: Blue not breathing, faint heartbeat. He panics, shakes her a

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Speaker 2: little to try to rouse her, and then meanwhile his

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Speaker 2: girlfriend's calling him from the hospital to come get her,

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Speaker 2: and he reports, well, Nicky's not breathing, So the girlfriend

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Speaker 2: starts yelling at him get her to the hospital. And

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Speaker 2: so Robert's trying to like put clothes on this comatose child.

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Speaker 2: The woman's calling back, He's trying to call the other grandmother.

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Speaker 2: He gets in the car, drives the short distance to

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Speaker 2: the hospital, but the child never really recovers from this,

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Speaker 2: and we have no idea how long had she ceased breathing.

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Speaker 1: Right, anyone who's ever taken a CPR class knows that

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Speaker 1: you've got to start asap because it really doesn't take

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Speaker 1: very long for oxygen deprivation to lead to brain death. So,

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Speaker 1: just to recap, we've got a little toddler who had

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Speaker 1: been experiencing several days of respiratory distress that was many

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Speaker 1: years later discovered to have been viral pneumonia, which is

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Speaker 1: one of the eighty eight medical issues that could cause

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Speaker 1: the triad of findings associated with shaking baby syndrome an

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Speaker 1: abusive head trauma. Further, she was given medications that actually

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Speaker 1: depress respiration, one of which now comes with a warning

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Speaker 1: that it can cause and this is a quote fatal

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Speaker 1: respiratory depression and pediatric patients end quote. Then she had

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Speaker 1: a short fall from her bed to the floor, which

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Speaker 1: is another potential cause of that triad of findings. So

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Speaker 1: what happened next at the hospital?

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Speaker 2: He gets up there into the er, they see this,

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Speaker 2: you know, guy standing there with a limp child, and

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Speaker 2: immediately the judgments start. They immediately assume he did something

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Speaker 2: to this child, and they whisk her away colde blue.

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Speaker 2: They revive her, but by that point her eyes were

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Speaker 2: already fixed and dilated, which means she'd probably already experience

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Speaker 2: brain death. She'd you know, it doesn't take long. It's

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Speaker 2: about twelve minutes without oxygen. The brain shuts down, but

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Speaker 2: they get her heart going. We know from the medical notes.

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Speaker 2: There's extensive triage. They intubate her, take her off to

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Speaker 2: be X rayed. They realize the breathing tomb's in wrong,

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Speaker 2: pull it out out to do it over again, so

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Speaker 2: more not breathing, you know, way longer than it would

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Speaker 2: take to sustain brain death. Once your brain dies, you're

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Speaker 2: not coming back to life, but you revive the heart.

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Speaker 2: You're pumping all this blood into the system that can

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Speaker 2: no longer get into the brain. And it's about the

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Speaker 2: same time they do a scan of her head and

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Speaker 2: what they noticed they had felt it behind her head,

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Speaker 2: that there was what was called a goose egg, you know,

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Speaker 2: as someone falls, you remember it from the cartoons. You

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Speaker 2: fall and you get a bump, you know, it's swollen

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Speaker 2: tissue on the back of her head. But the cat

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Speaker 2: scan showed that there was subdural bleeding and that the

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Speaker 2: brain had swollen, and that then later on they realized

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Speaker 2: they're also retinal hemorrhages, and this is the classic triad

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Speaker 2: associated with shaking. So this bump on the head, you know,

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Speaker 2: one doctor that sees her later that day says that

338
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Speaker 2: was minor, that could have happened at another time. But

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Speaker 2: all this internal stuff, oh, that must have been caused

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Speaker 2: by violent shaking and then flinging the child down against something.

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Speaker 2: This became the theory instantly, but it was based on

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Speaker 2: all the trauma inside the head. Which people see trauma,

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Speaker 2: they see blood, they think blows, they think shaking, but

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Speaker 2: in fact what we now know is you can get

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Speaker 2: that same triad of internal conditions simply because you've got

346
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Speaker 2: oxygen deprivation, and then meanwhile you have this intervention by

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Speaker 2: the medical community to revive her that is increasing the

348
00:19:22,000 --> 00:19:24,840
Speaker 2: blood inside her head. And they treated this as if

349
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Speaker 2: this was the injury she had when she was brought

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Speaker 2: to the hospital, right.

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Speaker 1: When in reality, the likely cause was either the viral pneumonia,

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Speaker 1: the potentially fatal prescription drugs, perhaps the shortfall, or some

353
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Speaker 1: combination of these things coupled with the attempts to revive her.

354
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Speaker 1: But they either didn't know about or they just straight

355
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Speaker 1: up ignored all these factors and instead jumped to conclusions

356
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Speaker 1: about Robert being violently abusive to his daughter because of

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Speaker 1: the prevailing accepted sureties of the day.

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Speaker 2: You have to realize when Nicky is brought to the er,

359
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Speaker 2: this is a small rural community. The same er doctor

360
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Speaker 2: is on on duty. Who is the one who was

361
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Speaker 2: giving her the fennergen and sending her home with a

362
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Speaker 2: high fever. Oh boy, And the pediatrician that had had

363
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Speaker 2: her come to the office and measured her fever at

364
00:20:13,320 --> 00:20:16,719
Speaker 2: one oh four point five came to the hospital and

365
00:20:16,760 --> 00:20:20,520
Speaker 2: he's weighing in. And these are the people interviewing Robert,

366
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Speaker 2: which in my mind, these are interested witnesses, and they,

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Speaker 2: along with this collection of nurses, are making judgments about

368
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Speaker 2: this man. And a lot of the testimony at his trial,

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Speaker 2: which I know we'll get to, but right away, they're

370
00:20:35,760 --> 00:20:40,480
Speaker 2: these judgments. He wasn't crying at the right times, he

371
00:20:40,680 --> 00:20:45,320
Speaker 2: wasn't showing enough concern, he was just standing there. You know,

372
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Speaker 2: these are the comments. Now, Robert has, you know, a

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Speaker 2: special way of presenting to the world. It is almost

374
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Speaker 2: a forest gump like thing. He is not intellectually disabled,

375
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Speaker 2: but he has finally, after decades, been diagnosed as being

376
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Speaker 2: on the autism spectrum. And once you know that, it's

377
00:21:03,119 --> 00:21:07,080
Speaker 2: like an epiphany. A lot of his behavior makes sense.

378
00:21:07,640 --> 00:21:10,760
Speaker 2: And he does get into these sort of obsessive loops

379
00:21:10,880 --> 00:21:14,199
Speaker 2: where he's focused on details he's noticed, and this was

380
00:21:14,240 --> 00:21:15,960
Speaker 2: one of the things going on to the hospital. You know,

381
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Speaker 2: he's like, I got her a sippy cup, I gave

382
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Speaker 2: her turkey, I put on you know, in this place,

383
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Speaker 2: and he's trying to go through everything he did that night,

384
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Speaker 2: and they're like, none of that matters. And then he

385
00:21:25,440 --> 00:21:29,119
Speaker 2: keeps saying, she fell off the bed and they're saying

386
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Speaker 2: that doesn't matter. Fall doesn't explain this, and they keep

387
00:21:31,960 --> 00:21:34,399
Speaker 2: telling him none of this works, so he keeps trying again.

388
00:21:35,000 --> 00:21:38,399
Speaker 2: This is in the hospital while his daughter is in

389
00:21:39,040 --> 00:21:43,080
Speaker 2: you know, triage. They're all coming at him. The police

390
00:21:43,080 --> 00:21:45,159
Speaker 2: are called almost instantly.

391
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Speaker 1: And at some point in his telling of events, he

392
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Speaker 1: said that he tried to give her a little shake

393
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Speaker 1: to wake her up. And you can easily picture it

394
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Speaker 1: giving a slight rock to someone when they're asleep to

395
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Speaker 1: wake them up. I think everyone's done that at some point.

396
00:21:59,760 --> 00:22:02,960
Speaker 1: But that's all they needed to hear the word shake

397
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Speaker 1: coming out of the mouth of this large autistic man.

398
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Speaker 6: When I brought into the hospital, I was freaking out,

399
00:22:10,920 --> 00:22:12,760
Speaker 6: freaking out and stuff, because that's kind of accused me

400
00:22:13,520 --> 00:22:15,680
Speaker 6: but being responsible for what happened to her and stuff,

401
00:22:15,680 --> 00:22:19,000
Speaker 6: you know. And then they didn't investigate her medical history

402
00:22:19,040 --> 00:22:19,760
Speaker 6: like it should have been.

403
00:22:20,200 --> 00:22:21,520
Speaker 5: And that's all because he's.

404
00:22:21,359 --> 00:22:24,399
Speaker 6: Actually a certain way, he must be guilty. You know,

405
00:22:25,040 --> 00:22:27,000
Speaker 6: when you've been accused of something, or don't have to

406
00:22:27,000 --> 00:22:29,920
Speaker 6: be praying you' accusing something. You could be nervous or something,

407
00:22:29,920 --> 00:22:33,160
Speaker 6: you know, for that to happen to your child, child

408
00:22:33,160 --> 00:22:36,800
Speaker 6: and stuff like, get there. I don't think nobody's gonna

409
00:22:36,840 --> 00:22:38,720
Speaker 6: be in the racked mind, you know, stuff you know

410
00:22:38,960 --> 00:22:41,200
Speaker 6: when your child is in that dea of dying.

411
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Speaker 1: Stuff you know, no of course, and then you're being

412
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Speaker 1: put into the situation on top of it all.

413
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Speaker 6: And it ripped my family's life, rupped my life, and

414
00:22:49,119 --> 00:22:51,639
Speaker 6: stuff just destroyed it and stuff, you know, because it

415
00:22:51,720 --> 00:22:53,720
Speaker 6: took me away from my mom and dad, took me

416
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Speaker 6: away from my other.

417
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Speaker 5: Children, and I lost my little girl.

418
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Speaker 6: Losingers bad enough, but been accused of it, that's even

419
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Speaker 6: war female.

420
00:23:17,680 --> 00:23:21,000
Speaker 2: So the police are brought in and they start with

421
00:23:21,040 --> 00:23:25,440
Speaker 2: the presumption this guy is a guilty human being. But

422
00:23:25,560 --> 00:23:28,480
Speaker 2: Robert volunteers to take him over to his house and

423
00:23:28,560 --> 00:23:32,840
Speaker 2: show her where Nicki got injured, and showed the bed.

424
00:23:33,000 --> 00:23:36,399
Speaker 2: The bed was really box springs and a mattress propped

425
00:23:36,480 --> 00:23:41,119
Speaker 2: up on cinderblocks. This was his solution for his fiances

426
00:23:41,160 --> 00:23:43,879
Speaker 2: coming home from the hospital. He's trying to elevate the bed.

427
00:23:44,440 --> 00:23:47,560
Speaker 2: But you look at these pictures. In this bed, it's precarious,

428
00:23:47,960 --> 00:23:51,359
Speaker 2: you know, that's where Nicki was sleeping. So it's completely

429
00:23:51,440 --> 00:23:56,480
Speaker 2: legit that a disapointed, sick child full of all these drugs,

430
00:23:56,880 --> 00:23:59,439
Speaker 2: tries to get up in the night and falls off

431
00:23:59,520 --> 00:24:03,639
Speaker 2: the bed, and that would very easily explain this bump

432
00:24:03,680 --> 00:24:06,560
Speaker 2: on the back of her head. What it doesn't explain

433
00:24:06,960 --> 00:24:08,360
Speaker 2: is all the internal stuff.

434
00:24:08,800 --> 00:24:11,879
Speaker 1: The medical examiner, doctor Jill Urban, saw a large volume

435
00:24:11,920 --> 00:24:15,760
Speaker 1: of subdual blood, assumed that the blood was caused by trauma,

436
00:24:16,080 --> 00:24:18,840
Speaker 1: assumed the trauma had to have been inflicted, and then

437
00:24:18,920 --> 00:24:21,800
Speaker 1: claimed that the blood was caused by quote blunt force

438
00:24:21,880 --> 00:24:22,760
Speaker 1: head injuries.

439
00:24:23,000 --> 00:24:27,040
Speaker 2: The medical examiner to this day insists that she saw

440
00:24:27,160 --> 00:24:31,520
Speaker 2: evidence of multiple impact sites to Nicki's head because of

441
00:24:31,560 --> 00:24:35,639
Speaker 2: all the blood underneath, and what Nikki had was this

442
00:24:35,760 --> 00:24:40,239
Speaker 2: is critical only one impact site on her exterior. It

443
00:24:40,240 --> 00:24:41,120
Speaker 2: doesn't work that way.

444
00:24:41,280 --> 00:24:43,199
Speaker 1: She reached the conclusion that the matter of death was

445
00:24:43,200 --> 00:24:46,640
Speaker 1: homicide without waiting for any test results, including a toxicology

446
00:24:46,680 --> 00:24:50,760
Speaker 1: report that ultimately disclosed a lethal amount of promethazine also

447
00:24:50,840 --> 00:24:54,080
Speaker 1: known as fennergen. So the same people who had missed

448
00:24:54,119 --> 00:24:56,800
Speaker 1: all of the signs of her viral aneumonia and prescribed

449
00:24:56,800 --> 00:25:00,399
Speaker 1: this deadly medication to the same toddler were now the

450
00:25:00,480 --> 00:25:04,120
Speaker 1: same people looking sideways or cross eyed where we're gonna

451
00:25:04,160 --> 00:25:06,920
Speaker 1: call it at Robert, and they passed Nicki's case to

452
00:25:07,000 --> 00:25:11,840
Speaker 1: Dallas Children's Hospital. Likely they passed it along with their

453
00:25:11,880 --> 00:25:12,720
Speaker 1: own biases.

454
00:25:12,960 --> 00:25:15,879
Speaker 2: Later that day, when Nicki has taken to Dallas Children's

455
00:25:16,080 --> 00:25:19,400
Speaker 2: doctor Squires, who was the child abuse expert, they look

456
00:25:19,440 --> 00:25:22,160
Speaker 2: at the cat scans and say, this is essentially classic

457
00:25:22,280 --> 00:25:26,720
Speaker 2: shaken baby because of the triad. The child abuse expert says,

458
00:25:26,800 --> 00:25:30,119
Speaker 2: I was told that this was a healthy child. She

459
00:25:30,280 --> 00:25:33,879
Speaker 2: was quote totally well right before her collapse. So the

460
00:25:33,920 --> 00:25:37,920
Speaker 2: only explanation is that she was violently shaken. Now first,

461
00:25:38,119 --> 00:25:40,439
Speaker 2: as you know we were discussing earlier, it's a total

462
00:25:40,480 --> 00:25:42,919
Speaker 2: lie to suggest this was a totally well child. This

463
00:25:43,040 --> 00:25:46,879
Speaker 2: was a chronically ill child with infections that had resisted

464
00:25:46,920 --> 00:25:49,879
Speaker 2: I think five different kinds of antibiotics. She has a

465
00:25:50,000 --> 00:25:52,920
Speaker 2: viral infection. Nobody is getting it. She had a fall

466
00:25:53,040 --> 00:25:56,040
Speaker 2: that could very well have started the subdurable bleeding, but

467
00:25:56,080 --> 00:25:58,080
Speaker 2: it wasn't a big fall because she didn't even have

468
00:25:58,160 --> 00:25:59,600
Speaker 2: skull fractures, nothing like that.

469
00:26:00,160 --> 00:26:03,400
Speaker 1: Another thing that we have to touch on here. Doctor Squier's,

470
00:26:03,440 --> 00:26:06,639
Speaker 1: who testified for the prosecution, gave an opinion at the

471
00:26:06,720 --> 00:26:09,800
Speaker 1: trial that the one minor impact. She said that it

472
00:26:09,840 --> 00:26:12,960
Speaker 1: may have quote happened at a different time. Now, let

473
00:26:12,960 --> 00:26:15,320
Speaker 1: me unpack that for a second. Right, so we know that,

474
00:26:15,480 --> 00:26:18,240
Speaker 1: and the state didn't dispute that the baby was not

475
00:26:18,560 --> 00:26:22,600
Speaker 1: in Robert's care in the hours, probably days leading up

476
00:26:22,640 --> 00:26:28,280
Speaker 1: to this horrible night when she became so deathly ill.

477
00:26:28,960 --> 00:26:34,760
Speaker 1: So how could anyone hypothesize that it was him and

478
00:26:34,840 --> 00:26:37,520
Speaker 1: not somebody else but the many other people that were

479
00:26:37,520 --> 00:26:39,720
Speaker 1: in contact with her that were in a position to

480
00:26:40,000 --> 00:26:41,919
Speaker 1: care for or not little Nikki.

481
00:26:42,119 --> 00:26:46,800
Speaker 2: Doctor Squires and the medical examiner, doctor Jill Urban, both

482
00:26:46,840 --> 00:26:49,440
Speaker 2: told the jury that there could not be a lucid

483
00:26:49,520 --> 00:26:54,679
Speaker 2: interval that looking at her condition at the time of collapse,

484
00:26:55,280 --> 00:26:57,800
Speaker 2: they declared that had to have been you know, so

485
00:26:57,880 --> 00:27:00,920
Speaker 2: much violent force impose this child that she would have

486
00:27:00,960 --> 00:27:05,960
Speaker 2: immediately been rendered unconscious. And this is another fallacy associated

487
00:27:06,000 --> 00:27:08,960
Speaker 2: with shaken baby syndrome that has been debunked, and it's

488
00:27:09,119 --> 00:27:11,720
Speaker 2: tied to that one about the idea that a short

489
00:27:11,760 --> 00:27:16,760
Speaker 2: fall cannot cause serious injury. We now know that a short,

490
00:27:17,000 --> 00:27:20,000
Speaker 2: unmbraced fall where you hit your head not common, but

491
00:27:20,080 --> 00:27:23,320
Speaker 2: if it happens, especially in a young child, there could

492
00:27:23,320 --> 00:27:28,600
Speaker 2: be hours and even days before symptoms arise. You can

493
00:27:28,640 --> 00:27:33,360
Speaker 2: have a traumatic brain injury. And yet the manifestations aren't visible.

494
00:27:33,480 --> 00:27:38,000
Speaker 2: So that initial part of the hypothesis that instant loss

495
00:27:38,000 --> 00:27:42,240
Speaker 2: of consciousness allowed you to pinpoint a perpetrator has fallen apart.

496
00:27:42,760 --> 00:27:45,520
Speaker 2: And yet that was part of the testimony, you know,

497
00:27:45,760 --> 00:27:51,199
Speaker 2: uncontested testimony that Robert's jury heard that he had to

498
00:27:51,240 --> 00:27:54,919
Speaker 2: be the guilty one because for her to be that unconscious,

499
00:27:55,960 --> 00:27:58,400
Speaker 2: he had to have done something to produce that right

500
00:27:58,520 --> 00:28:01,600
Speaker 2: before she came to the high total fallacy.

501
00:28:01,800 --> 00:28:04,160
Speaker 1: So the theory was that Robert must have held this

502
00:28:04,320 --> 00:28:07,919
Speaker 1: thirty pound child out in front of him and shook

503
00:28:08,160 --> 00:28:12,840
Speaker 1: her vigorously, causing all of these internal issues. But other

504
00:28:12,880 --> 00:28:14,919
Speaker 1: than the bump on the head, there were no external

505
00:28:15,000 --> 00:28:18,120
Speaker 1: injuries that could have explained her internal issues. And in addition,

506
00:28:18,680 --> 00:28:21,000
Speaker 1: something that has been proven time and again to be

507
00:28:21,119 --> 00:28:25,000
Speaker 1: impossible to do is to cause these internal issues by

508
00:28:25,080 --> 00:28:28,640
Speaker 1: violently shaking while not also causing any neck injuries.

509
00:28:28,960 --> 00:28:33,120
Speaker 2: It's nonsensical, it's absurd, and Nikki had absolutely nothing wrong

510
00:28:33,119 --> 00:28:35,719
Speaker 2: with her neck. And we tried this in court. We

511
00:28:35,760 --> 00:28:39,760
Speaker 2: had a biomechanical engineer, you know, that's the community that

512
00:28:39,880 --> 00:28:43,440
Speaker 2: started to point out to the medical community that this

513
00:28:43,600 --> 00:28:48,920
Speaker 2: hypothesis was unfounded. It's like we're studying injuries to children.

514
00:28:49,160 --> 00:28:51,880
Speaker 2: We're the ones that are coming up with things like

515
00:28:52,040 --> 00:28:55,360
Speaker 2: car seats for children and helmets, and you know, shaking

516
00:28:55,720 --> 00:28:59,960
Speaker 2: does not cause this kind of injury in any experiment

517
00:29:00,160 --> 00:29:04,360
Speaker 2: that's ever been documented. So there are two fallacies at

518
00:29:04,360 --> 00:29:06,840
Speaker 2: the very heart of the SPS phenomenon. One is that

519
00:29:07,160 --> 00:29:12,680
Speaker 2: shaking could cause a bridging veins in your dura to rupture. No,

520
00:29:13,640 --> 00:29:18,680
Speaker 2: and that shaking would not cause neck injuries also No.

521
00:29:19,320 --> 00:29:24,040
Speaker 2: But it was already orthodoxy by this point, Like I said,

522
00:29:23,840 --> 00:29:26,680
Speaker 2: it was being taught in medical schools. And that's why

523
00:29:26,720 --> 00:29:30,200
Speaker 2: I think it just has such staying power as a

524
00:29:30,320 --> 00:29:34,320
Speaker 2: legal phenomenon when it has no scientific support, because so

525
00:29:34,400 --> 00:29:37,840
Speaker 2: many people's lives have been ruined, and so they keep

526
00:29:38,080 --> 00:29:41,560
Speaker 2: tweaking how you're supposed to go about making the diagnosis.

527
00:29:41,920 --> 00:29:46,040
Speaker 2: But in the day when Robert was quickly written off

528
00:29:46,080 --> 00:29:49,720
Speaker 2: as guilty, there was no internal doubt within the medical community.

529
00:29:49,800 --> 00:29:53,280
Speaker 2: So he's arrested that day on that information.

530
00:29:53,520 --> 00:29:56,840
Speaker 1: I'm sure if you're like me, you're probably saying, well,

531
00:29:57,600 --> 00:30:01,560
Speaker 1: this really can't get any worse, But you ain't heard

532
00:30:01,680 --> 00:30:06,720
Speaker 1: nothing yet. Okay, Because now as they were all convincing

533
00:30:06,760 --> 00:30:10,520
Speaker 1: themselves in each other that Robert's guilt was a certainty

534
00:30:10,680 --> 00:30:16,120
Speaker 1: or whatever, ignoring the medical evidence. The local nurse, for

535
00:30:16,280 --> 00:30:20,560
Speaker 1: reasons will never know, volunteered to do a sexual assault

536
00:30:20,640 --> 00:30:25,560
Speaker 1: examination on this comatose child. And, by the way, let

537
00:30:25,560 --> 00:30:29,120
Speaker 1: me not leave out the fact that this nurse was

538
00:30:29,240 --> 00:30:33,520
Speaker 1: not certified to do these type of examinations. She reported

539
00:30:33,520 --> 00:30:36,320
Speaker 1: to law enforcement and other hospital staff that she saw

540
00:30:36,400 --> 00:30:40,760
Speaker 1: quote anal tears on Niki, and this led to a

541
00:30:40,800 --> 00:30:46,200
Speaker 1: whole nother layer of insanity. Now again, I'm no doctor

542
00:30:46,520 --> 00:30:49,080
Speaker 1: and I'm no nurse either, but you don't have to

543
00:30:49,120 --> 00:30:54,360
Speaker 1: be to understand the poor child had had vicious diarrhea

544
00:30:55,320 --> 00:30:55,880
Speaker 1: for days.

545
00:30:56,120 --> 00:31:00,480
Speaker 2: Well, Jason, I do think this is the tale wagging

546
00:31:00,520 --> 00:31:03,600
Speaker 2: the dog here. You have a week's worth of diarrhea

547
00:31:03,640 --> 00:31:06,480
Speaker 2: you're going to have in a two year old child,

548
00:31:06,680 --> 00:31:10,000
Speaker 2: you know, some redness on their bottom. But so nothing

549
00:31:10,040 --> 00:31:14,040
Speaker 2: about this would follow the protocol you would be taught

550
00:31:14,200 --> 00:31:17,280
Speaker 2: if you went through the full certification. You know about

551
00:31:17,320 --> 00:31:19,720
Speaker 2: how you document things you're never supposed to, by the way,

552
00:31:19,760 --> 00:31:23,320
Speaker 2: declare you see evidence of sexual abuse? You're just supposed

553
00:31:23,360 --> 00:31:27,200
Speaker 2: to report what do you see? But she starts telling people,

554
00:31:27,240 --> 00:31:31,640
Speaker 2: including the lead investigator in the hospital what she sees.

555
00:31:32,720 --> 00:31:35,760
Speaker 2: I think, then you have mind blindness set in all

556
00:31:35,840 --> 00:31:38,720
Speaker 2: of the officers in hers looking at Robert through the

557
00:31:38,840 --> 00:31:42,920
Speaker 2: lens of here is a man who potentially anally raped

558
00:31:42,960 --> 00:31:46,760
Speaker 2: his two year old daughter. What a monster? All right,

559
00:31:47,320 --> 00:31:50,880
Speaker 2: it is crazy, But then that takes over. Now they

560
00:31:51,000 --> 00:31:57,440
Speaker 2: share this finding quote unquote with the medical team at

561
00:31:57,560 --> 00:32:02,040
Speaker 2: Dallas Children's Well the mild abuse expert, who apparently, you know,

562
00:32:02,160 --> 00:32:04,320
Speaker 2: is looking all the time for sexual abuse, says, she

563
00:32:04,440 --> 00:32:08,680
Speaker 2: does not see what this nurse saw. All she saw

564
00:32:08,840 --> 00:32:11,320
Speaker 2: is what she said at trial was what every mother

565
00:32:11,440 --> 00:32:14,680
Speaker 2: has probably seen, which you know, looks akin to diaper rash.

566
00:32:14,720 --> 00:32:17,760
Speaker 2: They also went to the medical examiner before the autopsy

567
00:32:17,800 --> 00:32:20,280
Speaker 2: has done and said, yes, we have a nurse that

568
00:32:20,440 --> 00:32:26,040
Speaker 2: saw evidence of anal tears. Again, the medical examiner couldn't

569
00:32:26,160 --> 00:32:29,880
Speaker 2: endorse this, but they don't drop it. They do a

570
00:32:30,000 --> 00:32:33,760
Speaker 2: sexual assault test on swabs taken from this child. Nothing.

571
00:32:34,240 --> 00:32:37,200
Speaker 2: They test everything they can find in the bedroom, nothing

572
00:32:37,800 --> 00:32:42,520
Speaker 2: to confirm this sexual assault hypothesis. And yet they dare,

573
00:32:42,920 --> 00:32:46,959
Speaker 2: they dare to indict him on this. And every single

574
00:32:47,000 --> 00:32:51,960
Speaker 2: potential juror is asked about the sexual abuse component that's

575
00:32:52,000 --> 00:32:54,840
Speaker 2: going to be a part of this trial along with

576
00:32:54,920 --> 00:32:58,479
Speaker 2: shaken baby. Every single juror is told that's the theory

577
00:32:58,520 --> 00:33:02,080
Speaker 2: the state has that there was sexual assault and that's

578
00:33:02,120 --> 00:33:05,080
Speaker 2: the motivation for him to violently shake her to cover

579
00:33:05,160 --> 00:33:08,080
Speaker 2: this up. That is the state story. It is all

580
00:33:08,840 --> 00:33:12,600
Speaker 2: not just false, it is defamatory beyond belief.

581
00:33:14,080 --> 00:33:19,360
Speaker 1: Your trial was a farce. I mean they pulled dirty

582
00:33:19,440 --> 00:33:22,520
Speaker 1: tricks accusing you of sexually abusing the child when they

583
00:33:22,600 --> 00:33:24,920
Speaker 1: knew that that was not the case, and they knew

584
00:33:24,960 --> 00:33:28,120
Speaker 1: that she had had this horrible diarrhea that would have

585
00:33:28,320 --> 00:33:32,640
Speaker 1: provided an exact explanation for why these symptoms were present.

586
00:33:32,920 --> 00:33:38,040
Speaker 1: They decided to sort of taint the jury by bringing

587
00:33:38,080 --> 00:33:41,000
Speaker 1: that ridiculous theory, which was later dropped.

588
00:33:40,640 --> 00:33:42,400
Speaker 6: And they did take the jury because you hear a

589
00:33:42,440 --> 00:33:43,640
Speaker 6: story about the child and stuff.

590
00:33:43,640 --> 00:33:44,480
Speaker 5: It makes a lot.

591
00:33:44,360 --> 00:33:47,160
Speaker 6: Of people mad, right of course, it made the jury mad.

592
00:33:47,200 --> 00:33:48,200
Speaker 6: It tainted that jury.

593
00:33:48,360 --> 00:33:51,160
Speaker 1: They painted you into a monster. And I'm sitting here,

594
00:33:51,360 --> 00:33:53,760
Speaker 1: you know, staring you right in the eyes. I mean,

595
00:33:53,840 --> 00:33:55,840
Speaker 1: this man is no monster. I can tell you right

596
00:33:55,880 --> 00:33:57,400
Speaker 1: off the bat, and I'm kind of.

597
00:33:57,320 --> 00:33:58,400
Speaker 5: A friend friendly really.

598
00:33:58,440 --> 00:34:01,440
Speaker 6: You know, people said, no, I'm not a father, no more,

599
00:34:01,480 --> 00:34:03,000
Speaker 6: I'm the lever, you know, friendly, you know.

600
00:34:04,640 --> 00:34:08,080
Speaker 2: And again I won't say that this was a conscious plot,

601
00:34:08,160 --> 00:34:11,040
Speaker 2: but I do think they had expected Robert would take

602
00:34:11,040 --> 00:34:15,640
Speaker 2: a plea deal. He adamantly would not. And I would

603
00:34:15,719 --> 00:34:19,160
Speaker 2: say in almost any death penalty case, what the state

604
00:34:19,760 --> 00:34:25,240
Speaker 2: recognizes implicitly is that they must turn the defendant into

605
00:34:25,280 --> 00:34:28,719
Speaker 2: a monster, because normal human beings don't want to come

606
00:34:28,760 --> 00:34:33,320
Speaker 2: in and sign off on killing a fellow member of

607
00:34:33,360 --> 00:34:37,080
Speaker 2: the human species. So if you're going to get that result,

608
00:34:37,200 --> 00:34:40,000
Speaker 2: if you're going to justify all the resources and time

609
00:34:40,120 --> 00:34:43,680
Speaker 2: you spent, well this better be a monster they're looking at.

610
00:34:43,880 --> 00:34:48,279
Speaker 2: They sounded this horrifically prejudicial theme from the moment she

611
00:34:48,320 --> 00:34:51,719
Speaker 2: was brought to the hospital through Robert's trial, and then

612
00:34:51,880 --> 00:34:54,759
Speaker 2: dropped it right when it went to the jury because

613
00:34:54,760 --> 00:34:57,200
Speaker 2: they really had no evidence except for this one nurse,

614
00:34:57,880 --> 00:35:00,400
Speaker 2: who by the way, was the state's star witness trial.

615
00:35:00,960 --> 00:35:04,000
Speaker 2: She was on the stand pretty much longer than anyone else.

616
00:35:04,880 --> 00:35:09,520
Speaker 2: So he was not convicted of that, but they maintained that, well,

617
00:35:09,560 --> 00:35:12,560
Speaker 2: there was no evidence he didn't do it. I am

618
00:35:12,600 --> 00:35:16,400
Speaker 2: not kidding you. There was closing argument about how even

619
00:35:16,440 --> 00:35:19,359
Speaker 2: if they weren't going to decide the issue, they should.

620
00:35:19,080 --> 00:35:21,440
Speaker 1: Consider it, and the judge allows.

621
00:35:21,520 --> 00:35:24,560
Speaker 2: That judge allowed it. The judge was concerned, but when

622
00:35:24,600 --> 00:35:27,160
Speaker 2: he was told there was a nurse who would testify

623
00:35:27,200 --> 00:35:30,200
Speaker 2: about this, he let the state put it on. And

624
00:35:30,360 --> 00:35:33,279
Speaker 2: you know, again, Robert had no defense attorneys who were

625
00:35:33,320 --> 00:35:37,160
Speaker 2: bringing in experts of their own. There was cross examination

626
00:35:37,320 --> 00:35:39,920
Speaker 2: of this nurse and that's how it came out that

627
00:35:40,080 --> 00:35:43,600
Speaker 2: you know, for instance, she didn't have the certification, but

628
00:35:44,160 --> 00:35:46,400
Speaker 2: that's not the same as bringing in an expert to

629
00:35:46,480 --> 00:35:50,920
Speaker 2: expose everything that this woman did. It was contrary to

630
00:35:51,000 --> 00:35:54,960
Speaker 2: the sexual assertain nurse examiner protocol. If you read this

631
00:35:55,040 --> 00:35:58,759
Speaker 2: trial transcript, you could not believe this is happening in

632
00:35:58,800 --> 00:36:02,640
Speaker 2: America in the twentieth century, that this was a trial

633
00:36:02,640 --> 00:36:06,120
Speaker 2: that was seen as at all legally appropriate. The evidence

634
00:36:06,160 --> 00:36:09,759
Speaker 2: that was paraded in front of this jury, and the

635
00:36:09,800 --> 00:36:14,600
Speaker 2: abdication by defense counsel because they too believe shaken baby

636
00:36:14,640 --> 00:36:17,120
Speaker 2: syndrome was the only way to explain this child's death.

637
00:36:17,200 --> 00:36:19,399
Speaker 2: So I think they just, you know, thought, well, he's

638
00:36:19,440 --> 00:36:21,360
Speaker 2: not a bad guy, he didn't really mean the killer,

639
00:36:21,840 --> 00:36:25,919
Speaker 2: but yes, this must have been the way this child died, right,

640
00:36:26,000 --> 00:36:26,399
Speaker 2: So he.

641
00:36:26,560 --> 00:36:29,960
Speaker 1: Was represented if we can call it that, by Steve

642
00:36:30,000 --> 00:36:33,480
Speaker 1: Evans and John Van Meader talk to us about their

643
00:36:34,040 --> 00:36:35,360
Speaker 1: efforts or lack thereof.

644
00:36:36,640 --> 00:36:42,279
Speaker 2: These are two local attorneys appointed to represent Robert. You know,

645
00:36:42,320 --> 00:36:44,640
Speaker 2: this is true of you know, the vast majority of

646
00:36:44,719 --> 00:36:47,799
Speaker 2: criminal defendants in this country who are too poor to

647
00:36:48,120 --> 00:36:52,440
Speaker 2: retain a council. They stated on the record in opening

648
00:36:53,040 --> 00:36:57,799
Speaker 2: statements that this was unfortunately a shaken baby case, no

649
00:36:57,920 --> 00:37:01,280
Speaker 2: doubt about it, you know. And they saw their job

650
00:37:01,520 --> 00:37:05,600
Speaker 2: as just to try to prevent entry of a death sentence,

651
00:37:05,800 --> 00:37:10,280
Speaker 2: and that was their position. They did resist the sexual

652
00:37:10,280 --> 00:37:16,000
Speaker 2: assault allegations, but again only through cross examination. Meanwhile, the

653
00:37:16,040 --> 00:37:20,600
Speaker 2: States bringing in experts who are telling the jury this

654
00:37:20,719 --> 00:37:23,799
Speaker 2: kid was violently shaken, and so if you're told that,

655
00:37:23,960 --> 00:37:25,839
Speaker 2: and then you also have a nurse saying and by

656
00:37:25,840 --> 00:37:28,400
Speaker 2: the way, I also think there was sexual abuse. Someone

657
00:37:28,440 --> 00:37:30,719
Speaker 2: that would violently shake a child, well they might have

658
00:37:31,040 --> 00:37:34,480
Speaker 2: also abused a child. These things become possible. There was

659
00:37:34,600 --> 00:37:41,160
Speaker 2: no counter narrative. And again in Palestine, Texas in two

660
00:37:41,200 --> 00:37:44,839
Speaker 2: thousand one, two thousand and two, two thousand and three.

661
00:37:45,160 --> 00:37:48,200
Speaker 2: I don't see that these defense lawyers would have had

662
00:37:48,280 --> 00:37:53,200
Speaker 2: the resources or wherewithal to go and recruit world class

663
00:37:53,239 --> 00:37:57,680
Speaker 2: experts to come in and challenge the state's causation theory,

664
00:37:58,040 --> 00:38:01,319
Speaker 2: because at that time there were very few of those

665
00:38:01,360 --> 00:38:05,680
Speaker 2: experts even available in this country. Some of the people

666
00:38:05,719 --> 00:38:09,920
Speaker 2: that came to our aid only recently, some very famous,

667
00:38:09,960 --> 00:38:14,360
Speaker 2: renowned experts were just starting to sound the alarm.

668
00:38:14,719 --> 00:38:18,160
Speaker 1: So they weren't really serving or acting as defense lar

669
00:38:18,280 --> 00:38:21,080
Speaker 1: is as much as sort of adjunct prosecutors, if you

670
00:38:21,120 --> 00:38:24,960
Speaker 1: could say that. And they didn't. They didn't believe in him,

671
00:38:25,000 --> 00:38:27,319
Speaker 1: They didn't believe in his innocence. They probably didn't understand a

672
00:38:27,360 --> 00:38:27,839
Speaker 1: lot of it.

673
00:38:29,640 --> 00:38:33,480
Speaker 6: Well, my attorney at Troll had two They had tried

674
00:38:33,520 --> 00:38:35,279
Speaker 6: to do a plea barg stuff, and I told him

675
00:38:35,280 --> 00:38:37,240
Speaker 6: I didn't do nothing. My mama said, I didn't do nothing,

676
00:38:37,320 --> 00:38:41,480
Speaker 6: don't take nothing right. So my own trail attorney kind

677
00:38:41,480 --> 00:38:44,760
Speaker 6: of like went against me. You know, he kept saying

678
00:38:44,920 --> 00:38:47,200
Speaker 6: they didn't know what what war, trying to make it

679
00:38:47,280 --> 00:38:51,000
Speaker 6: a shaken baby case. The thing he is my family lawyer,

680
00:38:51,080 --> 00:38:53,719
Speaker 6: my mama family lawyer, had gave her a pamphlet to

681
00:38:53,760 --> 00:38:56,080
Speaker 6: go to try to develop a community college and Athenes

682
00:38:56,520 --> 00:39:00,000
Speaker 6: for seminar on those topic cases. Who does she see there?

683
00:39:00,239 --> 00:39:02,600
Speaker 6: The head da He didn't know what was going on

684
00:39:02,760 --> 00:39:07,160
Speaker 6: either douglow. He went to that seminar too, because he

685
00:39:07,200 --> 00:39:09,960
Speaker 6: didn't know nothing about it. First time we ever heard

686
00:39:09,960 --> 00:39:12,120
Speaker 6: something about it was one of the trying to make

687
00:39:12,239 --> 00:39:14,640
Speaker 6: the type of case. And then my mom sent him

688
00:39:14,640 --> 00:39:17,600
Speaker 6: over there the seminar, tak taking that class with her,

689
00:39:17,640 --> 00:39:19,360
Speaker 6: you know, to learn to learn about it.

690
00:39:19,440 --> 00:39:19,680
Speaker 5: Right.

691
00:39:20,000 --> 00:39:23,040
Speaker 1: Wow. So I mean, I I don't even know what

692
00:39:23,120 --> 00:39:24,800
Speaker 1: to say neither.

693
00:39:26,040 --> 00:39:29,840
Speaker 6: I was just like spaceless and stuff. You know, I know,

694
00:39:29,960 --> 00:39:32,880
Speaker 6: I could couldn't win win that way and stuff. And

695
00:39:32,920 --> 00:39:34,680
Speaker 6: he kept saying, Oh, we're gonna win this way. We're

696
00:39:34,680 --> 00:39:36,319
Speaker 6: gonna win this way, We're gonna win this way.

697
00:39:38,440 --> 00:39:40,640
Speaker 1: So you have a prosecution team and a defense team

698
00:39:40,640 --> 00:39:43,960
Speaker 1: who were totally out of their depth taking seminars on

699
00:39:44,120 --> 00:39:47,359
Speaker 1: shaking baby syndrome, and a seminar at that time would

700
00:39:47,360 --> 00:39:50,759
Speaker 1: have been administered by somebody who fully believed in this

701
00:39:51,239 --> 00:39:55,160
Speaker 1: proven junk science. His defense team saw it as their

702
00:39:55,280 --> 00:39:57,320
Speaker 1: job to just keep him from getting the death penalty.

703
00:39:57,400 --> 00:40:00,160
Speaker 1: So they basically just agreed with the prosecution that were

704
00:40:00,360 --> 00:40:03,719
Speaker 1: killed his daughter, but that he just didn't intend to.

705
00:40:04,480 --> 00:40:06,360
Speaker 1: I mean, talk about being sold down the river. But

706
00:40:06,880 --> 00:40:11,200
Speaker 1: I mean, but then again, they believed in SBS or

707
00:40:11,200 --> 00:40:13,400
Speaker 1: shake a baby syndrome, just as everybody else did at

708
00:40:13,400 --> 00:40:16,239
Speaker 1: the time. The child abuse expert doctor Squire's and the

709
00:40:16,239 --> 00:40:19,640
Speaker 1: medical examiner doctor Jill Urbin both testified for the prosecution,

710
00:40:19,880 --> 00:40:23,520
Speaker 1: and as Gretchen pointed out, even if they wanted to

711
00:40:23,560 --> 00:40:26,680
Speaker 1: present a competing expert, who were they going to get?

712
00:40:26,920 --> 00:40:30,040
Speaker 2: Right? Who are you going to get? And I think

713
00:40:29,840 --> 00:40:33,600
Speaker 2: they certainly could have and should have consulted with other experts.

714
00:40:33,640 --> 00:40:37,080
Speaker 2: But I do think, you know, what's critical to Robert's

715
00:40:37,760 --> 00:40:40,720
Speaker 2: hope at this point is that we recognize the science

716
00:40:40,840 --> 00:40:45,279
Speaker 2: has changed. Never in a contemporary attempt to prosecute a

717
00:40:45,360 --> 00:40:50,560
Speaker 2: parent for abuse would you jump to conclusions the way

718
00:40:50,640 --> 00:40:53,319
Speaker 2: the medical community did in his case. There is an

719
00:40:53,360 --> 00:40:58,840
Speaker 2: obligation to do what's called a differential diagnosis, where you

720
00:40:58,920 --> 00:41:03,560
Speaker 2: try to eliminate all the other possibilities before you jump

721
00:41:03,640 --> 00:41:07,840
Speaker 2: to the abuse prospect. Here it was completely turned on

722
00:41:07,880 --> 00:41:11,319
Speaker 2: its head because shaken baby was seen, as you know,

723
00:41:12,000 --> 00:41:16,560
Speaker 2: to use an annoying legal term raise ipsel loquidor which

724
00:41:16,640 --> 00:41:21,160
Speaker 2: means the thing speaks for itself. You see that triad.

725
00:41:21,520 --> 00:41:24,480
Speaker 2: It had to have been abuse. And this was two

726
00:41:24,560 --> 00:41:29,360
Speaker 2: thousand and two. Everybody believed shaken baby was an article

727
00:41:29,360 --> 00:41:33,239
Speaker 2: of faith. It had been accepted by the American Pediatric Association.

728
00:41:33,560 --> 00:41:36,800
Speaker 2: But I can't name you any other causal theory where

729
00:41:36,920 --> 00:41:39,759
Speaker 2: it's because you have no evidence, you can jump to

730
00:41:39,840 --> 00:41:43,160
Speaker 2: the conclusion and say I'm correct. But that is what happened,

731
00:41:43,640 --> 00:41:47,080
Speaker 2: you know, in modern American medicine. And it is terrifying,

732
00:41:47,120 --> 00:41:50,400
Speaker 2: I think to anybody who's been around a kid to

733
00:41:50,480 --> 00:41:54,200
Speaker 2: think that you could be blamed for a murder that

734
00:41:54,320 --> 00:41:57,560
Speaker 2: was caused by an accidental or a natural phenomenon that

735
00:41:57,800 --> 00:41:59,840
Speaker 2: just nobody's figuring out.

736
00:42:00,160 --> 00:42:03,080
Speaker 1: Was convicted on Valentine's Day actually ironically have two thousand

737
00:42:03,120 --> 00:42:06,920
Speaker 1: and three and sentenced to death. So the jury comes

738
00:42:06,960 --> 00:42:09,319
Speaker 1: back in at the time, did you have still have

739
00:42:09,440 --> 00:42:11,719
Speaker 1: some hope that they would see the truth and that

740
00:42:11,760 --> 00:42:13,480
Speaker 1: they would end this nightmare.

741
00:42:14,480 --> 00:42:18,279
Speaker 6: I was hoping hoping they would because attorney kept telling

742
00:42:18,320 --> 00:42:20,840
Speaker 6: me even though the way the attorney was going and

743
00:42:21,280 --> 00:42:23,040
Speaker 6: we can win this case, we can win this kid.

744
00:42:23,120 --> 00:42:28,600
Speaker 6: This case is winning vocase he's blown air behind you know,

745
00:42:28,680 --> 00:42:32,000
Speaker 6: he was he just talking, you know, by head. The

746
00:42:32,000 --> 00:42:34,840
Speaker 6: attorney was talking about this is one of okays. And

747
00:42:34,880 --> 00:42:37,719
Speaker 6: I had my hopes up. When they came back talking

748
00:42:37,719 --> 00:42:43,640
Speaker 6: about guilty and stuff. You know, I don't know what

749
00:42:44,000 --> 00:42:46,040
Speaker 6: I already thought of the time. And my mom wasn't

750
00:42:46,040 --> 00:42:50,279
Speaker 6: there and stuff. But before the punishment, my mom, my

751
00:42:50,320 --> 00:42:52,319
Speaker 6: mom had to leave. My mom had to go check

752
00:42:52,320 --> 00:42:53,920
Speaker 6: on my dad. Here was an old folks home, you know,

753
00:42:54,160 --> 00:42:56,480
Speaker 6: and when she got back, they didn't convict gave me

754
00:42:56,560 --> 00:42:59,360
Speaker 6: the death sentence and stuff. You know, I was a

755
00:42:59,400 --> 00:43:02,840
Speaker 6: lot shocked, shocked, because you know, I was shocked, you know,

756
00:43:02,920 --> 00:43:04,000
Speaker 6: I guess you could say shock.

757
00:43:04,080 --> 00:43:04,279
Speaker 5: You know.

758
00:43:05,280 --> 00:43:08,360
Speaker 6: I couldn't believe, couldn't believe they convicted me of something

759
00:43:10,120 --> 00:43:10,840
Speaker 6: that I didn't do.

760
00:43:10,960 --> 00:43:11,160
Speaker 5: You know.

761
00:43:29,160 --> 00:43:32,680
Speaker 6: I was locked up January thirty first, two thousand and two.

762
00:43:33,680 --> 00:43:36,120
Speaker 6: So a little bit over twenty years, I've been looked up.

763
00:43:37,000 --> 00:43:39,560
Speaker 6: I don't wish it's my my worst enemy and stuff,

764
00:43:39,600 --> 00:43:42,719
Speaker 6: you know, because going through this stuff, being in a place,

765
00:43:42,800 --> 00:43:43,560
Speaker 6: like you said, even.

766
00:43:43,440 --> 00:43:48,160
Speaker 5: Though you get else, but it's like like a bad dream,

767
00:43:48,200 --> 00:43:50,680
Speaker 5: you know, like like a nightmare and stuff, you know.

768
00:43:51,000 --> 00:43:53,680
Speaker 6: Especially when you hadn't done, when you hadn't done nothing

769
00:43:53,719 --> 00:43:56,399
Speaker 6: to be here in the first place, you know, And

770
00:43:56,440 --> 00:43:58,279
Speaker 6: then you know, I lost I lost my mom last

771
00:43:58,320 --> 00:44:01,000
Speaker 6: September and stuff, and I my dad since I've been

772
00:44:01,000 --> 00:44:05,400
Speaker 6: in here and stuff. And at first, at first, you know,

773
00:44:05,480 --> 00:44:08,560
Speaker 6: I'll excuse your nick. You've been responsible for that her day,

774
00:44:08,719 --> 00:44:13,080
Speaker 6: you know, stuff, And I lost a chance to send

775
00:44:13,160 --> 00:44:16,279
Speaker 6: my son and my daughter grew up, grew up and

776
00:44:17,880 --> 00:44:20,279
Speaker 6: been away from family all this time, lost all those

777
00:44:20,400 --> 00:44:24,160
Speaker 6: years and stuff, and it stole for me, you know.

778
00:44:25,239 --> 00:44:26,640
Speaker 5: So it destroyed my life. You know.

779
00:44:28,760 --> 00:44:33,399
Speaker 1: It's absolutely heartbreaking. And the authorities appear to have been

780
00:44:33,440 --> 00:44:36,480
Speaker 1: doing what they, I guess thought was the right thing

781
00:44:36,520 --> 00:44:39,480
Speaker 1: at the time. But our understanding of these instances has

782
00:44:39,560 --> 00:44:42,880
Speaker 1: now advanced considerably. It's almost like a one to eighty.

783
00:44:43,280 --> 00:44:45,120
Speaker 1: And what we do know now is that in the

784
00:44:45,200 --> 00:44:48,880
Speaker 1: absence of any external injuries that could explain these internal issues,

785
00:44:49,160 --> 00:44:54,719
Speaker 1: a SBS prosecution is an unconscionable leap in logic. We've

786
00:44:54,760 --> 00:44:58,279
Speaker 1: already laid that out. But Gretchen, before our more enlightened

787
00:44:58,480 --> 00:45:03,120
Speaker 1: understanding of SBI, Robert based denials in his direct appeal

788
00:45:03,200 --> 00:45:06,719
Speaker 1: and state habeas When and how did this case come

789
00:45:06,760 --> 00:45:08,759
Speaker 1: to you? And what has happened since so?

790
00:45:09,719 --> 00:45:14,280
Speaker 2: Robert, as we noted, was sentenced in two thousand and three.

791
00:45:14,320 --> 00:45:17,960
Speaker 2: He was on the verge of execution in twenty sixteen,

792
00:45:18,640 --> 00:45:21,320
Speaker 2: that's when I was at a state public defender's office

793
00:45:21,360 --> 00:45:25,040
Speaker 2: and we agreed to take on the case, and based

794
00:45:25,080 --> 00:45:28,600
Speaker 2: on the change in science round the controversy of Shake

795
00:45:28,640 --> 00:45:31,400
Speaker 2: and Baby, we got a state of his execution and

796
00:45:31,440 --> 00:45:34,439
Speaker 2: the right to get back into state court to try

797
00:45:34,480 --> 00:45:38,040
Speaker 2: to prove our claims. That then took many years.

798
00:45:38,480 --> 00:45:40,759
Speaker 1: Right during this time, you were trying to uncover the

799
00:45:40,800 --> 00:45:43,160
Speaker 1: cat scans from January thirty first, two thousand and two,

800
00:45:43,200 --> 00:45:45,560
Speaker 1: and both medical centers had maintained that they had been

801
00:45:45,600 --> 00:45:48,879
Speaker 1: lost or destroyed, as did the state. And then during

802
00:45:48,920 --> 00:45:54,360
Speaker 1: the opening statements of this evidentiary hearing something really crazy happened.

803
00:45:54,640 --> 00:45:58,200
Speaker 2: In the middle of my opening statement, this clerk with

804
00:45:58,280 --> 00:46:02,280
Speaker 2: goodwill listened and thought, well, I wonder if this stuff

805
00:46:02,280 --> 00:46:05,480
Speaker 2: she's referring to could be in this secret murder closet

806
00:46:05,800 --> 00:46:08,200
Speaker 2: that I was just told about when I started the job.

807
00:46:09,480 --> 00:46:11,720
Speaker 2: You had nothing to do with the motions I filed

808
00:46:11,760 --> 00:46:14,880
Speaker 2: seeking Brady evidence that hadn't led to someone discovering this.

809
00:46:15,040 --> 00:46:19,279
Speaker 2: It was this one woman just thinking could this be

810
00:46:19,320 --> 00:46:23,080
Speaker 2: a possibility. Why the scans were buried in the courthouse

811
00:46:23,080 --> 00:46:25,680
Speaker 2: basement I do not know. But then we had a

812
00:46:25,680 --> 00:46:28,120
Speaker 2: long hiatus, so we could have a chance to have

813
00:46:28,160 --> 00:46:30,480
Speaker 2: an expert look at that. We had these looked at

814
00:46:30,840 --> 00:46:34,080
Speaker 2: by a radiologist, the only radiologist, by the way, who

815
00:46:34,120 --> 00:46:36,360
Speaker 2: still seems to have ever looked at them. And it

816
00:46:36,440 --> 00:46:41,799
Speaker 2: confirms that there was only one impact site on Nicky's head,

817
00:46:42,320 --> 00:46:46,040
Speaker 2: and that was that small swollen tissue on the back

818
00:46:46,160 --> 00:46:52,400
Speaker 2: right of Nicki's head that is exculpatory. That confirms that

819
00:46:52,480 --> 00:46:55,319
Speaker 2: if she had a fall and hit her head, well,

820
00:46:55,360 --> 00:46:59,000
Speaker 2: there's some evidence, but it's not evidence that explains her injuries.

821
00:47:00,000 --> 00:47:02,120
Speaker 2: But it also it could have been that she fell

822
00:47:02,200 --> 00:47:05,200
Speaker 2: earlier and that the fall from the bed when she

823
00:47:05,320 --> 00:47:07,680
Speaker 2: was with Robert didn't cause that. We don't know. No

824
00:47:07,760 --> 00:47:11,640
Speaker 2: one witnessed the fall, but it does not It does

825
00:47:11,680 --> 00:47:15,520
Speaker 2: not show that she had any other impact sites on

826
00:47:15,600 --> 00:47:19,120
Speaker 2: her head. And yet the medical examiner to this day,

827
00:47:20,200 --> 00:47:23,120
Speaker 2: who did not look at the head scans at the

828
00:47:23,160 --> 00:47:27,560
Speaker 2: time and did not look at them now decades later,

829
00:47:28,280 --> 00:47:32,600
Speaker 2: insists that she saw evidence of multiple impact sites to

830
00:47:32,680 --> 00:47:38,680
Speaker 2: Nicky's head because of all the blood underneath. Nonsensical. It

831
00:47:38,719 --> 00:47:42,160
Speaker 2: doesn't work that way. You cannot impact a child's head

832
00:47:42,719 --> 00:47:46,000
Speaker 2: sufficiently enough to cause internal damage and leave no mark

833
00:47:46,360 --> 00:47:50,640
Speaker 2: on the outside. And what Nikki had was minimal bruising

834
00:47:50,680 --> 00:47:55,080
Speaker 2: on her exterior. The blood underneath cannot be read like

835
00:47:55,200 --> 00:47:58,280
Speaker 2: tea leaves, and yet that is what this medical examiner

836
00:47:58,800 --> 00:48:03,040
Speaker 2: has done. Where As the scans, which are the reliable

837
00:48:03,080 --> 00:48:06,240
Speaker 2: evidence about whether or not there were impact sites, shows

838
00:48:06,280 --> 00:48:08,920
Speaker 2: that one side, one and only side.

839
00:48:08,760 --> 00:48:12,640
Speaker 1: Which corroborates Robert's version of events. And then, in addition

840
00:48:12,680 --> 00:48:15,520
Speaker 1: to the lethal level of promethazine in Nikki's body, which

841
00:48:15,560 --> 00:48:18,600
Speaker 1: we know can cause fatal respiratory depression and children, along

842
00:48:18,640 --> 00:48:22,759
Speaker 1: with codeine, a narcotic that also depresses respiration, she had

843
00:48:22,880 --> 00:48:26,920
Speaker 1: viral pneumonia. So some combination of these factors, maybe all

844
00:48:27,000 --> 00:48:29,800
Speaker 1: of them, stop Nikki from breathing. And then the efforts

845
00:48:29,840 --> 00:48:32,759
Speaker 1: made to save her only pumped more blood into her

846
00:48:32,840 --> 00:48:36,480
Speaker 1: cranium with nowhere for it to go. Then the experts

847
00:48:36,480 --> 00:48:38,520
Speaker 1: in two thousand and two saw all that blood and

848
00:48:38,600 --> 00:48:41,600
Speaker 1: said shaking and blunt force head trauma were to blame.

849
00:48:42,160 --> 00:48:46,680
Speaker 1: So you now had compelling evidence to refute every single

850
00:48:46,760 --> 00:48:49,360
Speaker 1: thing that the state had put on a trial. What

851
00:48:49,480 --> 00:48:50,400
Speaker 1: happened next.

852
00:48:50,320 --> 00:48:52,560
Speaker 2: We finally had an evidence you're hearing, we were allowed

853
00:48:53,000 --> 00:48:55,879
Speaker 2: eight days to put on our case. Here we are

854
00:48:56,440 --> 00:49:01,640
Speaker 2: twenty years later, having amassed and overwhelming amount of evidence

855
00:49:01,840 --> 00:49:05,759
Speaker 2: from experts who are who have no dog in this fight,

856
00:49:05,800 --> 00:49:10,560
Speaker 2: they're just looking for the truth, who have identified the

857
00:49:10,600 --> 00:49:14,239
Speaker 2: toxic level of prescription drugs in this child system, the

858
00:49:14,640 --> 00:49:20,160
Speaker 2: interstitial viral pneumonia, the lack of evidence of impact sites,

859
00:49:20,680 --> 00:49:24,320
Speaker 2: and all the change in the understanding of shake and

860
00:49:24,400 --> 00:49:27,440
Speaker 2: baby syndrome. All of that was put before trial court

861
00:49:27,960 --> 00:49:30,880
Speaker 2: and deemed not new evidence.

862
00:49:30,680 --> 00:49:33,840
Speaker 1: Which is absolutely bonkers. I mean, in this proceeding, doctor

863
00:49:33,960 --> 00:49:36,480
Speaker 1: Urban admitted that she had never looked at these cascans

864
00:49:36,680 --> 00:49:40,359
Speaker 1: that proved that there was only one impact site, while

865
00:49:40,480 --> 00:49:43,280
Speaker 1: she had gone ahead and said that there was evidence

866
00:49:43,320 --> 00:49:49,239
Speaker 1: of multiple impacts. It's it's I can't even find the

867
00:49:49,320 --> 00:49:51,880
Speaker 1: right words for how angry that makes me. This alone

868
00:49:52,160 --> 00:49:55,080
Speaker 1: should have been enough to reject doctor Urban's position that

869
00:49:55,120 --> 00:49:56,800
Speaker 1: a homicide had occurred.

870
00:49:56,600 --> 00:49:59,160
Speaker 2: If we talk about why these things are so hard

871
00:49:59,160 --> 00:50:02,319
Speaker 2: to unwhine, Even if all the science the jury was

872
00:50:02,360 --> 00:50:06,320
Speaker 2: told was junk is accepted as johnk but you still

873
00:50:06,400 --> 00:50:09,720
Speaker 2: have a medical examiner saying, well, I think it's homicide anyway.

874
00:50:11,440 --> 00:50:13,799
Speaker 2: The state is left saying, well, you know, I threw

875
00:50:13,840 --> 00:50:17,719
Speaker 2: up my hands. But this medical examiner admitted that She

876
00:50:17,840 --> 00:50:20,880
Speaker 2: did not consider any of this new evidence. She didn't

877
00:50:20,920 --> 00:50:23,880
Speaker 2: even look at the cat scans, she didn't listen to

878
00:50:23,920 --> 00:50:27,319
Speaker 2: the testimony of all these new experts. She didn't seem

879
00:50:27,360 --> 00:50:32,480
Speaker 2: to understand the interstitial viral pneumonia in the lung tissues

880
00:50:32,520 --> 00:50:36,920
Speaker 2: that she'd collected, and instead just seemed to stand by

881
00:50:36,920 --> 00:50:40,319
Speaker 2: this idea that the blood in the subdural space was

882
00:50:40,480 --> 00:50:43,560
Speaker 2: enough for her to say, Oh, well, whether it was

883
00:50:43,600 --> 00:50:45,840
Speaker 2: shaking or not, it was still abuse.

884
00:50:46,239 --> 00:50:49,360
Speaker 1: So she's still just making leaps in logic. Did she

885
00:50:49,480 --> 00:50:54,520
Speaker 1: present any testimony, any logic at all to support this assertion.

886
00:50:54,960 --> 00:50:57,920
Speaker 2: Well, I'll give you one little anecdote. This is something

887
00:50:57,960 --> 00:51:00,879
Speaker 2: I asked the medical examiner in Core. You know, I said,

888
00:51:01,000 --> 00:51:04,879
Speaker 2: Let's say I walk outside the courtroom. There are these

889
00:51:05,239 --> 00:51:08,560
Speaker 2: marble steps, and no one else is around, and I

890
00:51:08,640 --> 00:51:11,759
Speaker 2: slip and I hit the back of my head, and

891
00:51:11,800 --> 00:51:15,160
Speaker 2: I become unconscious. And later you take a look at me.

892
00:51:16,640 --> 00:51:21,720
Speaker 2: What is it that your background, your training has taught

893
00:51:21,760 --> 00:51:25,839
Speaker 2: you that you could look at me and determine whether

894
00:51:26,000 --> 00:51:30,360
Speaker 2: or not I'd fallen, or someone had pushed me, or

895
00:51:30,400 --> 00:51:32,759
Speaker 2: someone had come up and hit me in the back

896
00:51:32,800 --> 00:51:35,840
Speaker 2: of the head with a blunt object. Explain that to me,

897
00:51:37,040 --> 00:51:39,880
Speaker 2: and of course she couldn't or shook you. Yeah, And

898
00:51:40,320 --> 00:51:44,080
Speaker 2: what is appalling about this is that the shaking hypothesis

899
00:51:44,160 --> 00:51:48,480
Speaker 2: that she furthered at trial along with the child abuse expert,

900
00:51:48,600 --> 00:51:51,240
Speaker 2: she was telling the jury all about shaking, that that's

901
00:51:51,320 --> 00:51:53,239
Speaker 2: why you look at the outside of this child. You

902
00:51:53,280 --> 00:51:56,160
Speaker 2: don't see much. But the reason you know it's abuse

903
00:51:56,280 --> 00:52:00,320
Speaker 2: is because shaking explains how all this stuff happens. Well, a,

904
00:52:00,600 --> 00:52:02,719
Speaker 2: we now know shaking doesn't. But she couldn't tell me

905
00:52:02,800 --> 00:52:06,799
Speaker 2: how blunt force trauma, even if it's not shaking, could

906
00:52:06,880 --> 00:52:09,640
Speaker 2: be looked at after the fact and you could say

907
00:52:09,680 --> 00:52:12,880
Speaker 2: whether it was inflicted or not, because there's no science

908
00:52:12,920 --> 00:52:15,360
Speaker 2: that would allow you to do that. That would require,

909
00:52:15,840 --> 00:52:16,080
Speaker 2: you know.

910
00:52:16,120 --> 00:52:18,799
Speaker 1: Voodoo or a leap in logic to allot anything else

911
00:52:18,880 --> 00:52:21,200
Speaker 1: to the exclusion of all other possibilities.

912
00:52:21,440 --> 00:52:24,239
Speaker 2: That it was abuse, yes, but they don't rule it out.

913
00:52:24,320 --> 00:52:25,279
Speaker 2: They just jump to.

914
00:52:25,280 --> 00:52:28,880
Speaker 1: Abuse an unconscionable leap in logic. So what is the

915
00:52:28,920 --> 00:52:30,640
Speaker 1: status of his case right now?

916
00:52:31,080 --> 00:52:36,400
Speaker 2: Robert's case has been submitted, as per Texas procedure, to

917
00:52:36,480 --> 00:52:40,200
Speaker 2: the Court of Criminal Appeals, which is the highest court

918
00:52:40,239 --> 00:52:43,800
Speaker 2: for criminal matters in the state. Of Texas, so they will,

919
00:52:44,200 --> 00:52:48,400
Speaker 2: one hopes, look at the huge volume of new evidence

920
00:52:49,280 --> 00:52:55,200
Speaker 2: and look at it anew and really evaluate the allegations

921
00:52:55,239 --> 00:52:58,120
Speaker 2: about the change and the scientific perspective from the time

922
00:52:58,160 --> 00:53:01,359
Speaker 2: of his trial, which is the fundamental basis for our

923
00:53:01,400 --> 00:53:04,320
Speaker 2: claims for relief. We also have an actual innocence claim,

924
00:53:04,560 --> 00:53:07,040
Speaker 2: which is much stronger now than when we filed the

925
00:53:07,080 --> 00:53:11,000
Speaker 2: claim because of the evidence of pneumonia, of the cat

926
00:53:11,040 --> 00:53:15,239
Speaker 2: scans that were finally produced, et cetera. But ultimately, you

927
00:53:15,320 --> 00:53:19,880
Speaker 2: cannot read that trial transcript and compare that to contemporary understanding,

928
00:53:19,960 --> 00:53:24,960
Speaker 2: even among people that believe shaking baby syndrome has some validity.

929
00:53:25,040 --> 00:53:28,279
Speaker 2: You cannot read the trial transcript and fail to recognize

930
00:53:28,320 --> 00:53:32,279
Speaker 2: it's full of falsehoods. And we hope the Court of

931
00:53:32,320 --> 00:53:35,920
Speaker 2: Criminal Appeals will dig into that and then grant him

932
00:53:35,960 --> 00:53:38,080
Speaker 2: a new trial. And then it's like, go back to

933
00:53:38,120 --> 00:53:41,160
Speaker 2: the trial court again and see if they really want

934
00:53:41,200 --> 00:53:44,480
Speaker 2: to try again to convict him based on this horrifically

935
00:53:44,600 --> 00:53:46,320
Speaker 2: scanty evidence youry record.

936
00:53:46,719 --> 00:53:48,759
Speaker 1: Well, if they give you a chance and try to

937
00:53:48,760 --> 00:53:50,839
Speaker 1: go ahead with what they presented in two thousand and two,

938
00:53:50,880 --> 00:53:53,520
Speaker 1: I think they'd realize pretty quickly that we just didn't

939
00:53:53,560 --> 00:53:56,560
Speaker 1: know better back then, and they'd let this go. Yeah,

940
00:53:56,600 --> 00:53:59,600
Speaker 1: but listen, everyone that's listening now has the ability to

941
00:53:59,640 --> 00:54:01,839
Speaker 1: do something thing. I know Robert said he wants people

942
00:54:01,840 --> 00:54:04,440
Speaker 1: to write to him, which is it sounds very simple

943
00:54:04,520 --> 00:54:08,440
Speaker 1: and mundane, but I've heard from so many people that

944
00:54:08,480 --> 00:54:11,919
Speaker 1: have been in similar situations that it means so much

945
00:54:11,960 --> 00:54:13,920
Speaker 1: to them to get a letter from somebody the outside

946
00:54:13,920 --> 00:54:16,479
Speaker 1: who cares and so. But on a more proactive level,

947
00:54:16,520 --> 00:54:18,880
Speaker 1: for people who do have the wherewithal and the time

948
00:54:19,040 --> 00:54:21,359
Speaker 1: and the desire, what can they do?

949
00:54:21,680 --> 00:54:26,160
Speaker 2: A wonderful supporter of Robert has created a website, so

950
00:54:26,320 --> 00:54:28,880
Speaker 2: you know, I'd love for people to look at Robert's website.

951
00:54:28,880 --> 00:54:33,360
Speaker 2: There are court filings there, and certainly the latest filing

952
00:54:33,400 --> 00:54:36,840
Speaker 2: that amasses all the new evidence and explains why a

953
00:54:36,880 --> 00:54:39,520
Speaker 2: new trial is worthwhile will be up there.

954
00:54:39,760 --> 00:54:41,960
Speaker 1: Well, we'll have that linked to the bio as well

955
00:54:41,960 --> 00:54:44,120
Speaker 1: as ways our audience can reach out to Robert. And

956
00:54:44,160 --> 00:54:46,760
Speaker 1: with that we move to closing arguments, where I thank

957
00:54:46,920 --> 00:54:49,360
Speaker 1: you both for sharing your story, and then I'm going

958
00:54:49,400 --> 00:54:51,840
Speaker 1: to turn my microphone off, leave my headphones on, and

959
00:54:52,400 --> 00:54:55,439
Speaker 1: just listen for anything else that you feel is left

960
00:54:55,440 --> 00:54:57,880
Speaker 1: to be said. Let's start off with you, Gretchen, and

961
00:54:57,920 --> 00:54:59,959
Speaker 1: have Robert take us off into the sun.

962
00:55:00,960 --> 00:55:04,560
Speaker 2: I mean, I would like for the audience to picture

963
00:55:05,920 --> 00:55:10,359
Speaker 2: themselves as a parent or any parent they know, and

964
00:55:10,440 --> 00:55:14,760
Speaker 2: put yourself in the shoes of Robert, but imagine yourself

965
00:55:14,800 --> 00:55:21,080
Speaker 2: without resources, with an impairment that makes communication fundamentally difficult.

966
00:55:21,520 --> 00:55:24,120
Speaker 2: And from the moment you arrive at the hospital with

967
00:55:24,280 --> 00:55:29,560
Speaker 2: your comatose child, you're being interrogated, accused, and the accusations

968
00:55:29,560 --> 00:55:31,520
Speaker 2: get worse and worse by the minute, so that by

969
00:55:31,520 --> 00:55:36,239
Speaker 2: the end of a single day, you've gone from the

970
00:55:36,280 --> 00:55:39,759
Speaker 2: worst time of your life. Your child, who's relatively new

971
00:55:39,800 --> 00:55:43,040
Speaker 2: to your life, is gone. And they won't even allow

972
00:55:43,120 --> 00:55:46,560
Speaker 2: you to go to the hospital to say farewell, because

973
00:55:46,560 --> 00:55:50,719
Speaker 2: you're being taken to jail. And before you there's even

974
00:55:50,719 --> 00:55:55,160
Speaker 2: an indictment, there's a statement from a hospital saying it's

975
00:55:55,160 --> 00:55:58,400
Speaker 2: got to be shaken baby syndrome only explanation for this

976
00:55:58,520 --> 00:56:03,080
Speaker 2: child's injuries. Yet no one assesses the medical records, and

977
00:56:03,120 --> 00:56:06,399
Speaker 2: no one has still assessed the medical history and tried

978
00:56:06,400 --> 00:56:08,400
Speaker 2: to put all these pieces together. And it is a

979
00:56:08,440 --> 00:56:13,279
Speaker 2: complicated puzzle, but every single piece points away from a

980
00:56:13,280 --> 00:56:17,960
Speaker 2: crime and towards a tragic story of a young child

981
00:56:17,960 --> 00:56:20,080
Speaker 2: who was sick from the moment she was born, into

982
00:56:20,239 --> 00:56:24,520
Speaker 2: unfortunate circumstances, and then not given the fair shake that

983
00:56:24,640 --> 00:56:28,759
Speaker 2: she deserved. It's not just about Robert NICKI deserves a

984
00:56:28,880 --> 00:56:32,560
Speaker 2: history that is based on the truth. Instead, her death

985
00:56:32,600 --> 00:56:36,520
Speaker 2: itself is shrouded in a lie, and I urge people

986
00:56:37,000 --> 00:56:40,879
Speaker 2: to just pay attention to what's being done in their

987
00:56:40,960 --> 00:56:44,560
Speaker 2: names with our criminal justice systems. I came from a

988
00:56:44,560 --> 00:56:48,480
Speaker 2: civil background, and everything I learned every day adds to

989
00:56:48,560 --> 00:56:51,799
Speaker 2: my shock and outrage. But there is real joy in

990
00:56:51,840 --> 00:56:57,480
Speaker 2: fighting for people like Robert because the gratitude he expresses

991
00:56:57,840 --> 00:57:03,239
Speaker 2: and the inspiration he vides with his resilience is remarkable.

992
00:57:03,800 --> 00:57:07,200
Speaker 2: I'm so grateful for this podcast for shedding light on

993
00:57:07,239 --> 00:57:10,120
Speaker 2: these kinds of cases. There are far too many of them,

994
00:57:10,280 --> 00:57:12,440
Speaker 2: and of course, to me, Robert is unique and that

995
00:57:12,560 --> 00:57:15,840
Speaker 2: he's uniquely vulnerable because of who he is and the

996
00:57:16,240 --> 00:57:19,120
Speaker 2: system where we're left trying to get someone to hear us.

997
00:57:19,840 --> 00:57:22,520
Speaker 2: But I thank you for allowing us to be heard,

998
00:57:22,560 --> 00:57:25,040
Speaker 2: and especially allowing his boys to get out there.

999
00:57:26,080 --> 00:57:28,840
Speaker 6: Okay, okay, what I want to courage both of y'all

1000
00:57:28,840 --> 00:57:30,800
Speaker 6: to continue to do what y'all doing and stuff, because

1001
00:57:30,840 --> 00:57:34,360
Speaker 6: I believe in y'all and everybody else that's doing doing

1002
00:57:34,400 --> 00:57:37,760
Speaker 6: fighting against this corrupt legal system is wrong for convictions.

1003
00:57:37,800 --> 00:57:39,800
Speaker 5: You know, keep doing, keep on, keep on doing what

1004
00:57:39,840 --> 00:57:40,200
Speaker 5: you're doing.

1005
00:57:40,240 --> 00:57:43,479
Speaker 6: You know, I'm gonna continue and continue to fight because

1006
00:57:43,560 --> 00:57:45,560
Speaker 6: you know, because you know, God knows, and I know.

1007
00:57:45,560 --> 00:57:48,200
Speaker 5: You know that that that was not wrong and stuff,

1008
00:57:48,240 --> 00:57:49,680
Speaker 5: and it's luck.

1009
00:57:52,480 --> 00:57:55,240
Speaker 6: I'm very grateful for what y'all doing, very grateful for

1010
00:57:55,280 --> 00:57:59,200
Speaker 6: everybody that's involved in it. And uh, now y'all have

1011
00:57:59,240 --> 00:58:01,160
Speaker 6: a safe trip by home and stuff. May the Lord

1012
00:58:01,200 --> 00:58:05,200
Speaker 6: bless y'all and shut up his face upon y'all. Uh,

1013
00:58:06,720 --> 00:58:08,720
Speaker 6: and just like encourage both of y'all to continue to

1014
00:58:08,760 --> 00:58:11,760
Speaker 6: do what you're doing. And I'm very happy and I'm

1015
00:58:11,840 --> 00:58:16,600
Speaker 6: very proud of both of you. And keep phone, keep phone.

1016
00:58:16,360 --> 00:58:26,640
Speaker 1: Okay, thank you for listening to Wrongful Conviction. I'd like

1017
00:58:26,680 --> 00:58:30,080
Speaker 1: to thank our production team Connor Hall, Jeff Clibern.

1018
00:58:29,680 --> 00:58:33,120
Speaker 7: And Kevin Wardis. With research by Lyla Robinson. The music

1019
00:58:33,160 --> 00:58:35,920
Speaker 7: in this production was supplied by three time OSCAR nominated

1020
00:58:35,920 --> 00:58:39,680
Speaker 7: composer Jay Ralph. Be sure to follow us on Instagram

1021
00:58:39,720 --> 00:58:43,960
Speaker 7: at Wrongful Conviction on Facebook at Wrongful Conviction podcast and

1022
00:58:44,080 --> 00:58:47,160
Speaker 7: on Twitter at wrong Conviction, as well as at Lava

1023
00:58:47,240 --> 00:58:47,680
Speaker 7: for Good.

1024
00:58:47,920 --> 00:58:50,840
Speaker 1: On all three platforms, you can also follow me on

1025
00:58:50,880 --> 00:58:55,120
Speaker 1: both TikTok and Instagram at it's Jason flam Raeful Conviction

1026
00:58:55,280 --> 00:58:57,920
Speaker 1: is the production of Lava for Good podcast and association

1027
00:58:58,000 --> 00:58:59,439
Speaker 1: with Signal Company Number One.

1028
00:59:00,520 --> 00:59:02,720
Speaker 3: They returned the wind was wort to me.