Speaker 1: Robert Robertson grew up in abject poverty in Texas, struggling
Speaker 1: with drug addiction and undiagnosed autism. While in and out
Speaker 1: of prison on non violent charges and parole violations, he
Speaker 1: had three children. After a heated custody battle with the
Speaker 1: maternal grandparents of his youngest, Nicky Bowman, Robert and his
Speaker 1: parents one shared custody just as Nikki's long standing respiratory
Speaker 1: issues were raging out of control. In late January two
Speaker 1: thousand and two, while suffering from nausea, diarrhea, fever, and
Speaker 1: respiratory distress, Nicki was improperly diagnosed with an acute respiratory
Speaker 1: ailment along with codine. Two year old Nikki was prescribed
Speaker 1: to medication that now comes with a warning for potentially
Speaker 1: causing fatal respiratory depression and children. In the early hours
Speaker 1: of January thirty first, two thousand to Robert comforted Nicki
Speaker 1: after she had fallen out of bed. When he woke again,
Speaker 1: Nikki was unresponsive and turning blue, so he rushed her
Speaker 1: to the hospital, where her symptoms included the triad of
Speaker 1: findings previously associated with the junk science of shaken baby syndrome.
Speaker 1: The potential causes for her symptoms included undiagnosed viral pneumonia,
Speaker 1: the prescription drugs, the shortfall, the attempts to revive Nikki,
Speaker 1: or some combination thereof. Disregarding these factors, a leap in
Speaker 1: logic was made by those who had previously misdiagnosed Nikki
Speaker 1: to accuse Robert of fatally abusing his daughter. Then diaper
Speaker 1: rash was misconstrued as anal tearing, creating the specter of
Speaker 1: potential sexual abuse. Over the proceedings that sent Robert to
Speaker 1: death row. This is wrongful conviction. Welcome back to wrongful conviction.
Speaker 1: I'm Jason Floman. Today's case, unfortunately, is going to sound
Speaker 1: like familiar territory. It's a shaken baby prosecution, and all
Speaker 1: of which was based on a hypothesis that now rejected
Speaker 1: by not only the original scientists, but also the scientific
Speaker 1: and medical communities that once held it to be a
Speaker 1: decided matter. Unfortunately, some of those attacked with that ill
Speaker 1: fated diagnosis and a court of law are still languishing
Speaker 1: in prison. Too many, I mean countless people, including our
Speaker 1: guest today who is on death row in Texas. Robert
Speaker 1: Robertson Now, my producer Connor Hall, and I who trekked
Speaker 1: down to the Polunsky unit in Livingston, Texas to record
Speaker 1: an interview with Robert. You'll hear pieces of that interspersed
Speaker 1: throughout our coverage today. Joining us now is his appellate
Speaker 1: attorney since about two thousand sixteen, a fierce and well
Speaker 1: respected advocate in the innostence community, Gretchen Swinn. Gretchen, welcome
Speaker 1: to Ronful Conviction. Thank you so much. Jason. Now, before
Speaker 1: we get into Robert's case, I want to give a
Speaker 1: little background about the junk science of shaking baby syndrome.
Speaker 1: We go further in depth about it on our show
Speaker 1: Junk Science, and we'll have that episode linked in the bio.
Speaker 1: Please check it out. It's It's Mind Bloyd. And in
Speaker 1: that episode, the executive director of the Center for Integrity
Speaker 1: and Forensic Sciences, Kate Judson, spoke with our host Josh
Speaker 1: Dubin about the shaken baby hypothesis at its effects, of
Speaker 1: which there are many. We've covered the cases of Amanda Brunfield,
Speaker 1: Stephanie Spurgeon, Melissa Lucio who's also on death row in Texas,
Speaker 1: and just recently want a stay of execution. We hope
Speaker 1: for a positive outcome there as well. And of course
Speaker 1: Kate Judson joined us again to explain how this junk
Speaker 1: science scourge pertained to the case of John Jones, who
Speaker 1: still languishes in an Ohio prison. Here's what Kate said
Speaker 1: in that episode about this hypothesis turned childcare nightmare. Shaken
Speaker 1: Baby syndrome was originally proposed as a hypothesis to explain
Speaker 1: a phenomenon that a pediatric neurosurgeon in Great Britain was
Speaker 1: seeing in his patients. He would sometimes have infants who
Speaker 1: died or were seriously ill without a clear cause and
Speaker 1: without external trauma, and yet the internal features looked a
Speaker 1: lot like kids who had stuff had some kind of
Speaker 1: traumatic injury. So those findings were subderal hematoma which is
Speaker 1: bleeding between the coverings of the brain, retinal hemorrhage which
Speaker 1: is bleeding at the back of the eye, and en
Speaker 1: cephalopathy and Surrey brilladema, which sort of acts together as
Speaker 1: one leg of what sometimes people call the triad Surrey
Speaker 1: brilladima his brain swelling, and encephalopathy his brain dysfunction, and
Speaker 1: so Dr goth Kelch this Pietric neurosurgeon was seeing these
Speaker 1: findings and kids and they looked injured on the inside
Speaker 1: but not on the outside, and he thought that one
Speaker 1: reason for that might be a common disciplinary technique in
Speaker 1: his home of Northern England in the seventies, which was shaking.
Speaker 1: And so what Dr goth Kelch said is that these
Speaker 1: medical findings could be due to shaking. And Dr goth
Speaker 1: Kelch wasn't claiming to have the answers, but that rather
Speaker 1: that he was hypothesizing about what might be causing these findings.
Speaker 1: So that started to evolve. A radiologist in New York,
Speaker 1: John Caffey, built on that and he published articles saying
Speaker 1: the same thing, right, that parents should be gentle with infants.
Speaker 1: But neither of these doctors suggested that the medical findings
Speaker 1: that they associated with shaking were exclusively diagnostic to shaking,
Speaker 1: nor did they say that there was a reliable way
Speaker 1: to place blame on a caregiver when a child had
Speaker 1: these medical findings. And there's a little bit of a
Speaker 1: gap in understanding between the mid to late nineteen seventies
Speaker 1: and then when we start to see these cases appear
Speaker 1: in published appellate decisions in the late eighties and we
Speaker 1: started to see prosecutors and pediatricians in particular also pathologists
Speaker 1: saying that when children had this collection of findings, that
Speaker 1: shaking could be diagnosed. And that's when it comes into
Speaker 1: the criminal legal system and we start to see the
Speaker 1: trajectory that we're on today where parents are wrongfully accused
Speaker 1: based on only the existence of a particular set of
Speaker 1: medical findings. So, since this hypothesis was picked up here
Speaker 1: in the States in the ages, we've seen decades of
Speaker 1: parents and caregivers prosecuted with the support of medical personnel
Speaker 1: in the courtroom, making a bizarre leap in logic from
Speaker 1: this triad of findings which we now know have a
Speaker 1: universe of potential causes, to diagnosing that not only abuse
Speaker 1: was the root cause, but also that they could reliably
Speaker 1: place blame on the most recent caregiver. Now, this recipe
Speaker 1: for prosecution has fallen apart starting in the late two thousands,
Speaker 1: when more research began to be done on this topic.
Speaker 1: We now know that there are many many causes of
Speaker 1: this constellation of findings. There is the possibility of abuse
Speaker 1: of head trauma, but in order to cause that kind
Speaker 1: of internal damage with no external injuries or even minimal
Speaker 1: external injuries, that major spinal injuries would have to be present,
Speaker 1: and if some sort of trauma was the cause, accidental
Speaker 1: or intentional, it can take up to seventy two hours
Speaker 1: for complications to arise, making it impossible to pin it
Speaker 1: on the most recent caregiver in the absence again of
Speaker 1: severe spinal and exterior injuries. Finally, researchers have now compiled
Speaker 1: a list of eighty eight conditions and counting that can
Speaker 1: cause this constellation of findings absent any abuse, injury or trauma,
Speaker 1: which certainly seems to be the case here with Nicky Bowman.
Speaker 1: And I want to quote Dr Guth Couch here from
Speaker 1: a two thousand twelve article titled After forty Years of Consideration,
Speaker 1: where he said, and I quote, I think we need
Speaker 1: to go back to the drawing board and make a
Speaker 1: more thorough assessment of these fatal cases. And I'm going
Speaker 1: to bet that we are going to find in every
Speaker 1: or at least the large majority of cases, that the
Speaker 1: child had another severe illness of some sort which was
Speaker 1: missed until too late end quote. Unfortunately, it appears that's
Speaker 1: exactly what we have here in the case of Nicky Bowman,
Speaker 1: the daughter of our guest today, Robert Robertson. But before
Speaker 1: we get to Nikki's tragic end, Gretchen, can you give
Speaker 1: our audience a little background on Robert. This is somebody
Speaker 1: who grew up dirt poor in East Texas. There was
Speaker 1: a lot of violence in the home, but you know,
Speaker 1: had a mother who loved him dearly. And the kid
Speaker 1: had no record of ever engaging in physical violence. He
Speaker 1: was in special ed classes. He was the one who
Speaker 1: was bullied. He was the one coming to school with bruises.
Speaker 1: You know, he was on the radar in terms of
Speaker 1: this is a struggling kid. But you know, he drops
Speaker 1: out in ninth grade and stumbles into what happens with
Speaker 1: so many poor, traumatized kids. He struggles with drug addiction.
Speaker 1: But this is a gentle soul. And you know, you
Speaker 1: spend five minutes with Robert and you see his speech
Speaker 1: is unusual and he has this sort of flat affect
Speaker 1: and he struggles to speak. Okay, so so so uh yeah,
Speaker 1: y'all got you've got some questions or something, tell us
Speaker 1: come sure. So yeah, let me just introduce. First of all,
Speaker 1: this is wrongful conviction from death row in Texas. We're
Speaker 1: here on the Polonski unit where we've been be for
Speaker 1: to visit rob will and Rodney read today we're here
Speaker 1: with another innocent man, man named Robert Robertson. The man
Speaker 1: himself is like a big teddy bear. He's sitting right
Speaker 1: acrost for me through this window of bulletproof glass. Robert,
Speaker 1: thank you for for being here and to to us today.
Speaker 1: Thank you for being here and Robert, going back to
Speaker 1: the beginning, did you grow up in Texas? I was
Speaker 1: born in Minneota, Texas and stuff, and we lived to
Speaker 1: Winsboro until I was six years old, you know, and
Speaker 1: then what my dad worked for the railroad and his
Speaker 1: job transferred to Palestine. Anderson Kenny, you know you had
Speaker 1: a very difficult childhood, as that fair to say. My
Speaker 1: dad was really rough and my mom was there. My
Speaker 1: mom was a like like the glue to the family
Speaker 1: and stuff, you know, the protector stuff. But dad would
Speaker 1: like to provide her, you'd actually say. Because I've read
Speaker 1: a lot about you, your story and your case. Of course,
Speaker 1: you endured a lot of abuse as a child, ran
Speaker 1: away when you were twelve for the first time, you
Speaker 1: sustaining the fall from a ladder, ended up with with
Speaker 1: some severe head trauma from that, and of course football injuries,
Speaker 1: so you've been banged around a lot, I would say, right,
Speaker 1: and co works and stuff, you know when I got
Speaker 1: older and stuff, you know, and then you ended up
Speaker 1: going into the military. Is I went into the military
Speaker 1: when I was seventeen Army and they give me a
Speaker 1: medical discharge letter letter letter on because they said I
Speaker 1: couldn't adapt or something, you know, you know what they said,
Speaker 1: you know, like training discharge. You know. At age twenty,
Speaker 1: Robert had moved to Alabama with a woman who was
Speaker 1: also dependent on drugs. They had two kids, both of
Speaker 1: whom had special needs. So, you know, out of desperation,
Speaker 1: he started committing petty crimes. The criminal activity he had
Speaker 1: gaged him before had to do with burglary of habitation
Speaker 1: related to his drug addiction. And when he spent time
Speaker 1: in prison, he was such a model prisoner who's made
Speaker 1: a trustee. Then he paroled out. But as we know,
Speaker 1: even the most well behaved person will have difficulty maintaining
Speaker 1: their freedom while on parole. There are thousands of reasons
Speaker 1: they can use to throw you back in there, and
Speaker 1: that's what he was dealing with. The parole violation is
Speaker 1: being out of county. That means he traveled to Fort
Speaker 1: Worth looking for work, which is where he hooked up
Speaker 1: with Nikki's biological mother. They were both from this little
Speaker 1: town Palestine, Texas, had this brief little affair, she ends
Speaker 1: up pregnant, he's back in prison, and meanwhile, this this
Speaker 1: custody battle explodes between the grandparents that assume custody of
Speaker 1: this child from the hospital bed because CPS won't let
Speaker 1: the mom keep her, and then Robert's mom, who's like, well,
Speaker 1: if this is Robert's child, you know, we want to
Speaker 1: be involved. That goes on for nearly a year of
Speaker 1: Nikki's life with Robert out of the picture. But what
Speaker 1: Robert also doesn't know about is this kid is chronically sick.
Speaker 1: This is a child on Medicaid. You know, she's being
Speaker 1: brought in there like, ah, this antibiotic doesn't seem to work,
Speaker 1: Let's give her another one, you know, over and over again.
Speaker 1: And so there is a real tragedy in this child's
Speaker 1: short life of just the medical fail years to get
Speaker 1: at what's going on with her. But I think that's
Speaker 1: sort of where the story begins. And then, you know,
Speaker 1: if you get to the point of trial, they acted
Speaker 1: like this history did not exist or certainly didn't matter
Speaker 1: that you have a kid infected from eight days old
Speaker 1: pretty much onward, infected and neglected by a system that
Speaker 1: didn't care about her and doesn't care about a lot
Speaker 1: of kids like her. I mean, let's call it what
Speaker 1: it is. I imagine had they had access to different
Speaker 1: kind of health care that's afforded to people of means,
Speaker 1: she may well be alive today, and who knows, maybe
Speaker 1: even would have graduated college. But we'll never know that
Speaker 1: because that's not how it worked out. And so back
Speaker 1: in January of two thousand two, Robert had a girlfriend
Speaker 1: who was having her own medical issues and was about
Speaker 1: to have his directed me and he and his parents
Speaker 1: were sharing custody of baby Nikki with the maternal grandparents. Now,
Speaker 1: Robert's life was hectic, and he's helping support Nikki with
Speaker 1: two paper routes that he was doing. And then there's
Speaker 1: the events of January thirty one that resulted in Nikki's
Speaker 1: untimely and tragic death and Robert's unjust arrest. Can you
Speaker 1: explain the situation of what led to this horrible outcome?
Speaker 1: As I noted, you know Nikki had been sick from
Speaker 1: essentially birth, but the week before her collapse, she had
Speaker 1: been brought to the er with initially a hundred and
Speaker 1: three point five fever. I believe she was throwing up.
Speaker 1: She had chronic diarrhea and trouble breathing. At this point,
Speaker 1: she has prescribed this medication, Finnergan, which contains promethazine, which
Speaker 1: now has a black box warning from the FDA that
Speaker 1: you don't give this to kids under the age of ten,
Speaker 1: and certainly don't give it to kids with respiratory issues
Speaker 1: because it might cause death. A few days later, they
Speaker 1: also give her another prescription for finnergan, along with codeine
Speaker 1: cought Sarah, you know they're treating it as if it's
Speaker 1: some you know, annoying cold, but you're having trouble breathing.
Speaker 1: And then you give someone coding which metastasizes into morphine.
Speaker 1: You know, you're suppressing the respiratory system of a kid
Speaker 1: already in distress. So she at the doctor the day
Speaker 1: after the emergency visit had a fever over a hundred
Speaker 1: and four. This is the follow up from the e er.
Speaker 1: They send her home with these prescriptions and it's a
Speaker 1: day later essentially, after she's been through all this distress,
Speaker 1: she's been given all these medications, when Robert is called
Speaker 1: by the grandparents who have been feuding with his mom
Speaker 1: for a year to come get this child who is
Speaker 1: sick and take her home back to his place. To me,
Speaker 1: this is another part of the mystery. If you have
Speaker 1: a sick two year old, I wonder what parent wants
Speaker 1: somebody to come out to the country pick up the
Speaker 1: child at nine o'clock at night and knowing he's alone
Speaker 1: because his girlfriend's getting a hyster direct to me in
Speaker 1: the hospital, but oh no, Robert needs to come out
Speaker 1: and fetch this child take her home. It's in the
Speaker 1: night where he wakes up to the strange cry, and
Speaker 1: his report consistently was he found her on the floor
Speaker 1: at the foot of the bed. He had heard this cry,
Speaker 1: woke up and didn't know what happened, but he saw
Speaker 1: a little bit of blood on her mouth. He got
Speaker 1: a washcloth, wiped it off, kept her sitting up for
Speaker 1: a while because she'd fallen out, So he thought maybe
Speaker 1: she hit her head. And he'd been told if somebody
Speaker 1: hits their head, you have to keep him awake and
Speaker 1: then they fall back asleep, his alarm goes off. A
Speaker 1: few hours later, he wakes up, finds Nikki Blue, not breathing,
Speaker 1: faint heartbeat. He panics, shakes her a little to try
Speaker 1: to rouse her, and then meanwhile his girlfriends calling him
Speaker 1: from the hospital to come get her, and he reports, well,
Speaker 1: Nikki's not breathing. So the girlfriend starts yelling at him
Speaker 1: get her to the hospital, and so roberts trying to
Speaker 1: like put clothes on this comma toast child. The woman's
Speaker 1: calling back, he's trying to call the other grandmother. He
Speaker 1: gets in the car, drives the short distance to the hospital,
Speaker 1: but the child never really recovers from this, and we
Speaker 1: have no idea how long which had she ses breathing. Right,
Speaker 1: anyone who's ever taken a CPR class knows that you've
Speaker 1: got to start a s a P because it really
Speaker 1: doesn't take very long for oxygen deprivation to lead to
Speaker 1: brain death. So, just to recap, we've got a little
Speaker 1: toddler who had been experiencing several days of respiratory distress
Speaker 1: that was many years later discovered to have been viral pneumonia,
Speaker 1: which is one of the medical issues that can cause
Speaker 1: the tryat of findings associated with jacing baby syndrome and
Speaker 1: abusive head trauma. Further, she was given medications that actually
Speaker 1: depressed respiration, one of which now comes with a warning
Speaker 1: that it can cause and this is a quote fatal
Speaker 1: respiratory depression and pediatric patients and quote. Then she had
Speaker 1: a short fall from her bed to the floor, which
Speaker 1: is another potential cause of that triad of findings. So
Speaker 1: what happened next at the hospital, He gets up there
Speaker 1: into the e er, they see this you know, guy
Speaker 1: standing there with a limp child, and immediately the judgments start.
Speaker 1: They immediately assume he did something to this child, and
Speaker 1: they whisk her away cold blue. They revive her, but
Speaker 1: by that point her eyes were already fixed and dilated,
Speaker 1: which means she'd probably already experienced brain death. She you know,
Speaker 1: it doesn't take long. It's about twelve minutes without oxygen.
Speaker 1: The brain shuts down, but they get her heart going.
Speaker 1: We know from the medical notes. There's extensive triage. They
Speaker 1: intubate her, take her off to be x rayed. They
Speaker 1: realized the breathing tubs in wrong, pull it out out
Speaker 1: to do it over again, so more not breathing, you know,
Speaker 1: way longer than it would take to sustain brain death.
Speaker 1: Once your brain dies, you're not coming back to life,
Speaker 1: but you revive the heart. You're pumping all this blood
Speaker 1: into the system that can no longer get into the brain.
Speaker 1: And it's about this same time there they do a
Speaker 1: scan of her head and what they noticed they had
Speaker 1: felt it behind her head, that there was what was
Speaker 1: called a goose egg, you know, as someone falls, you
Speaker 1: remember it from the cartoons. You fallen, you get a bump,
Speaker 1: you know, it's swollen tissue on the back of her head.
Speaker 1: But the cat scan showed that there was subdural bleeding
Speaker 1: and that the brain had swollen, and that then later
Speaker 1: on they realized they're also retinal hemorrhages. And this is
Speaker 1: the classic triad associated with shaking. So this bump on
Speaker 1: the head, you know, one doctor that sees her later
Speaker 1: that day says that was minor, that could have happened
Speaker 1: at another time. But all this internal stuff, oh, that
Speaker 1: must have been caused by violent shaking and then flinging
Speaker 1: the child down against something. This became the theory instantly,
Speaker 1: but it was based on all the trauma inside the head.
Speaker 1: Which people see trauma, they see blood, they think blows,
Speaker 1: they think shaking, but in fact, what we now know
Speaker 1: is you can get that same triad of internal conditions
Speaker 1: simply because you've got oxygen deprivation and the meanwhile you
Speaker 1: have this intervention by the medical community to revive her
Speaker 1: that is increasing the blood inside her head. And they
Speaker 1: treated this as if this was the injury she had
Speaker 1: when she was brought to the hospital, right when in reality,
Speaker 1: the likely cause was either the viral pneumonia, the potentially
Speaker 1: fatal prescription drugs, perhaps the shortfall, or some combination of
Speaker 1: these things coupled with the attempts to revive her, but
Speaker 1: they either didn't know about or they just straight up
Speaker 1: ignored all of these factors and instead jumped to conclusions
Speaker 1: about Robert being violently abusive to his daughter because of
Speaker 1: the prevailing accepted sureties of the day. You have to
Speaker 1: realize when Nikki is brought to the e R this
Speaker 1: is a small rural community. The same e R doctor
Speaker 1: is on duty, who is the one who was giving
Speaker 1: her the finnergan and sending her home with a high fever,
Speaker 1: and the pediatrician that had had her come to the
Speaker 1: office and measured her fever at one oh four point
Speaker 1: five came to the hospital and he's weighing in, and
Speaker 1: these are the people interviewing Robert, which in my mind,
Speaker 1: these are interested witnesses, and they, along with this collection
Speaker 1: of nurses, are making judgments about this man. And a
Speaker 1: lot of the testimony at his trial, which I know
Speaker 1: we'll get to, but right away there these judgments. He
Speaker 1: wasn't crying at the right times, he wasn't showing enough concern,
Speaker 1: he was just standing there. You know, these are the comments. Now,
Speaker 1: Robert has, you know, a special way of presenting to
Speaker 1: the world. It is almost a forest gump like thing.
Speaker 1: He is not intellectually disabled, but he has, finally, after decades,
Speaker 1: been diagnosed as being on the autism spectrum. And once
Speaker 1: you know that, it's like an epiphany. A lot of
Speaker 1: his behavior makes sense, and he does get into these
Speaker 1: sort of obsessive loops where he's focused on details he's noticed,
Speaker 1: and this was one of the things going on to
Speaker 1: the hospital. You know, he's like, I got her a
Speaker 1: sippy cup, I gave her turkey, I put on you know,
Speaker 1: in this place, and he's trying to go through everything
Speaker 1: he did that night, and they're like, none of that matters.
Speaker 1: And then he keeps saying she fell off the bed,
Speaker 1: and they're saying that doesn't matter. Fall doesn't explain this,
Speaker 1: and they keep telling him none of this work. So
Speaker 1: he keeps trying again. This is in the hospital while
Speaker 1: his daughter is in you know, triage. They're all coming
Speaker 1: at him. The police are called almost instantly, and at
Speaker 1: some point in his telling him events, he said that
Speaker 1: he tried to give her a little shake to wake
Speaker 1: her up. And you can easily picture it giving a
Speaker 1: slight rock to someone when they're asleep to wake them up.
Speaker 1: I think everyone's done that at some point. But that's
Speaker 1: all they needed to hear the words shake coming out
Speaker 1: of the mouth of this large autistic man. When I
Speaker 1: brought into the hospital, I was freaking up, freaking out
Speaker 1: and stuff, because that's kind of accused me but been
Speaker 1: responsible for what happened to her and stuff, you know.
Speaker 1: And then they didn't invest to get her medical history,
Speaker 1: like it said of them. And that's oh, because he's
Speaker 1: actually in a certain way, he must be guilty. You know,
Speaker 1: when you've been accused of something, and don't help to
Speaker 1: be praying you accused me something. You could be nervous,
Speaker 1: nervous or something you know, for that happened to your child, child,
Speaker 1: and stuff like get there. I don't think nobody's gonna
Speaker 1: be in the right mind, you know, stuff you know
Speaker 1: when your child isn't that the dying and stuff you know?
Speaker 1: You know of course, and then you're being put into
Speaker 1: the situation on top of it all. And it ripped
Speaker 1: my family's life, ripped my life, and stuff just destroyed
Speaker 1: it and stuff, you know, because it took me away
Speaker 1: from my mom and dad, took me away from my
Speaker 1: other children, and I lost my little girl. Losing her
Speaker 1: is better enough, but been accused of it, that's even wars,
Speaker 1: you know. So the police are brought in and they
Speaker 1: start with the presumption this guy is a guilty human being,
Speaker 1: but Robert volunteers to take him over to his house
Speaker 1: and show her where Nikki got injured, and showed the bed.
Speaker 1: The bed was really box springs and a mattress propped
Speaker 1: up on cinder blocks. This was his solution for his
Speaker 1: His fiance is coming home from the hospital. He's trying
Speaker 1: to elevate the bed. But you look at these pictures
Speaker 1: and his bed, it's precarious, you know, that's where Nikki
Speaker 1: was sleeping. So it's completely legit that a disorointented, sick
Speaker 1: child full of all these drugs tries to get up
Speaker 1: in the night and falls off the bed, and that
Speaker 1: would very easily explain this bump on the back of
Speaker 1: her head. What it doesn't explain is all the internal stuff.
Speaker 1: The medical examiner, Dr. Jill Urban, saw a large volume
Speaker 1: of subdural blood, assumed that the blood was caused by trauma,
Speaker 1: assumed the trauma had to have been inflicted, and then
Speaker 1: claimed that the blood was caused by quote blunt force
Speaker 1: head injuries. The medical examiner to this day insists that
Speaker 1: she saw evidence of multiple impact sites to Nikki's head
Speaker 1: because of all the blood underneath, and what Nikki had
Speaker 1: was this is critical only one impact site on her exterior.
Speaker 1: It doesn't work that way. She reached the conclusion that
Speaker 1: the matter of death was homicide without waiting for any
Speaker 1: test results, including a toxicology report that ultimately disclosed a
Speaker 1: lethal amount of promethazine also known as fennergan. So the
Speaker 1: same people who had missed all of the signs of
Speaker 1: her viral pneumonia and prescribed this deadly medication to the
Speaker 1: same toddler, when now the same people looking sideways or
Speaker 1: cross eyed what we're gonna call it at Robert, and
Speaker 1: they passed Nikki's case to Dallas Children's Hospital. Likely they
Speaker 1: passed it along with their own biases. Later that day,
Speaker 1: when Nikki has taken to Dallas Children's doctor Squire's who
Speaker 1: was the child abuse expert, they look at the cat
Speaker 1: scans and say, this is essentially classic shaken baby. Because
Speaker 1: of the triumph. The child abuse expert says, I was
Speaker 1: told that this was a healthy child. She was quote
Speaker 1: totally well right before her collapse. So the only explanation
Speaker 1: is that she was violently shaken. Now, first, as you
Speaker 1: know we were discussing earlier, it was it's a total
Speaker 1: lie to suggest this was a totally well child. This
Speaker 1: was a chronically ill child with infections that had resisted
Speaker 1: I think five different kinds of antibiotics. She has a
Speaker 1: viral infection. Nobody is getting it. She had a fall
Speaker 1: that could very well have started the subdural bleeding, but
Speaker 1: it wasn't a big fall because she didn't even have
Speaker 1: skull fractures, nothing like that. So another thing that we
Speaker 1: have to touch on here. Doctor Squires, who testified for
Speaker 1: the prosecution, gave an opinion at the trial that the
Speaker 1: one minor impact. She said that it may have quote
Speaker 1: happened at a different time. Now, let me unpack that
Speaker 1: for a second, right, so we know that, And the
Speaker 1: state didn't dispute that the baby was not in Robert's
Speaker 1: care in the hours probably days leading up to this
Speaker 1: horrible night when she became so deathly ill. So how
Speaker 1: could anyone hypothesize that it was him and not somebody
Speaker 1: else but the many other people that were in contact
Speaker 1: with her that we're in a position to care for
Speaker 1: or not little Nikki. Doctor Squires and the medical examiner
Speaker 1: Dr Jill Urban both told the jury that there could
Speaker 1: not be a lucid interval that looking at her condition
Speaker 1: at the time of collapse, they declared that had to
Speaker 1: have been, you know, so much violent force imposed this
Speaker 1: child that she would have immediately been rendered unconscious. And
Speaker 1: this is another fallacy associated with shaking baby syndrome that
Speaker 1: has been debunked, and it's tied to that one about
Speaker 1: the the idea that a short fall cannot cause serious injury.
Speaker 1: We now know that a short, unbraced fall where you
Speaker 1: hit your head not common, but if it happens, especially
Speaker 1: in a young child, there could be hours and even
Speaker 1: days before symptoms arise. You can have a traumatic brain
Speaker 1: injury and yet the manifestations aren't visible. So that initial
Speaker 1: part of the hypothesis, that instant loss of consciousness allowed
Speaker 1: you to pinpoint a perpetrator has fallen apart. And yet
Speaker 1: that was part of the testimony, you know, uncontested testimony
Speaker 1: that Robert's jury heard that he had to be the
Speaker 1: guilty one because for her to be that unconscious, he
Speaker 1: had to have done something to produce that right before
Speaker 1: she came to the hot total fallacy. So the theory
Speaker 1: was that Robert must have held this thirty pound child
Speaker 1: out in front of him and shook her vigorously, causing
Speaker 1: all of these internal issues. But other than this bump
Speaker 1: on the head, there were no external injuries that could
Speaker 1: have explained her internal issues. In an addition, something that
Speaker 1: has been proven time and again to be impossible to
Speaker 1: do is to cause these internal issues by violently shaking
Speaker 1: while not also causing any neck injuries. It's nonsensical, it's absurd,
Speaker 1: and Nikki had absolutely nothing wrong with her neck. And
Speaker 1: we tried this in court. We had a biomechanical engineer
Speaker 1: you know, that's the community that started to point out
Speaker 1: to the medical community that this hypothesis was unfounded. It's like,
Speaker 1: we're studying injuries to children. We're the ones that are
Speaker 1: coming up with things like car seats for children and helmets,
Speaker 1: and you know, shaking does not cause this kind of
Speaker 1: injury in any experiment that's ever been documented. So there
Speaker 1: are two fallacies at the very heart of the SPS phenomenon.
Speaker 1: One is that shaking could cause abridging veins in your
Speaker 1: dura to rupture. No, and that shaking would not cause
Speaker 1: neck injuries also No. But it was already orthodoxy by
Speaker 1: this point, like I said, it had been, it was
Speaker 1: being taught in medical schools. And that's why I think
Speaker 1: it just has such staying power as a legal phenomenon
Speaker 1: when it has no scientific support, because so many people's
Speaker 1: lives have been ruined, and so they keep tweaking how
Speaker 1: you're supposed to go about making the diagnosis. But in
Speaker 1: the day when Robert was quickly written off as guilty,
Speaker 1: there was no internal doubt within the medical community. So
Speaker 1: he's arrested that day on that information. I'm sure if
Speaker 1: you're like me, you're probably saying, well, this really can't
Speaker 1: get any worse. But you ain't heard nothing yet, Okay,
Speaker 1: Because now as they were all convincing themselves and each
Speaker 1: other that Robert's guilt was a certainty or whatever and
Speaker 1: ignoring the medical evidence, the local nurse, for reasons we'll
Speaker 1: never know, volunteered to do a sexual assault examination on
Speaker 1: this comatose child. And, by the way, let me not
Speaker 1: leave out the fact that this nurse was not certified
Speaker 1: to do these type of examinations. She reported to law
Speaker 1: enforcement and other hospital staff that she saw quote anal
Speaker 1: tears on Nikki, and this led to a whole another
Speaker 1: layer of insanity. Now again, I'm no doctor and I'm
Speaker 1: no nurse either, but you don't have to be to
Speaker 1: understand the poor child had had vicious diarrhea for days. Well, Jason,
Speaker 1: I do think this is the tail wagging the dog here.
Speaker 1: You have a week's worth of diarrhea you're going to
Speaker 1: have in a two year old child, you know, some
Speaker 1: redness on their bottom. But so nothing about this would
Speaker 1: follow the protocol you would be taught if you went
Speaker 1: through the full certification. You know about how you document
Speaker 1: things you're never supposed to. By the way, declare you
Speaker 1: see evidence of sexual abuse, You're just supposed to report
Speaker 1: what do you see? But she starts telling people, including
Speaker 1: the lead investigator in the hospital, what she sees. I
Speaker 1: think then you have mind blindness set in. All of
Speaker 1: the officers in urs looking at Robert through the lens
Speaker 1: of here is a man who potentially anally raped his
Speaker 1: two year old daughter. What a monster? All right, it
Speaker 1: is crazy, But then that takes over. Now they share
Speaker 1: this finding quote unquote with the medical team at Dallas
Speaker 1: Children's Well the each old abuse expert, who apparently you know,
Speaker 1: is looking all the time for sexual abuse, says she
Speaker 1: does not see what this nurse saw. All she saw
Speaker 1: is what she said at trial was what every mother
Speaker 1: has probably seen, which you know, looks akin to diaper rash.
Speaker 1: They also went to the medical examiner before the autopsy
Speaker 1: has done and said, yes, we have a nurse it
Speaker 1: saw evidence of anal tears. Again, the medical examiner couldn't
Speaker 1: endorse this, but they don't drop it. They do a
Speaker 1: sexual assault test on swabs taken from this child. Nothing.
Speaker 1: They test everything they can find in the bedroom, nothing,
Speaker 1: nothing to confirm this sexual assault hypothesis. And yet they
Speaker 1: dare they dare to indict him on this. And every
Speaker 1: single potential juror is asked about the sexual abuse component
Speaker 1: that's going to be a part of this trial along
Speaker 1: with shaking baby. Every single juror is told that's the
Speaker 1: theory the state has, that there was sexual assault and
Speaker 1: that's the motivation for him to violently shake her to
Speaker 1: cover this up. That that is the state story. It
Speaker 1: is all not just false, it is defamatory beyond belief.
Speaker 1: Your trial was it was a farce. I mean, they
Speaker 1: pulled dirty tricks accusing you of sexually abusing the child
Speaker 1: when they knew that that was not the case, and
Speaker 1: they knew that she had had this horrible diarrhea that
Speaker 1: would have provided an exact explanation for why these symptoms
Speaker 1: were present. They decided to to taint the jury by
Speaker 1: bringing that ridiculous theory, which was later dropped. And they
Speaker 1: did taint the jury because you hear a story about
Speaker 1: the child of stuff, and it makes a lot of
Speaker 1: people may head right, of course, and made the jurymad.
Speaker 1: It tainted the jury. They painted you into a monster.
Speaker 1: And I'm sitting here, you know, staring you right in
Speaker 1: the eyes. I mean it, man, there's no monster, I
Speaker 1: can tell you right off the bat, and I'm kind
Speaker 1: a friend friendly really, you know, said you're us and
Speaker 1: I'm not the father no more, you know, friendly, you know.
Speaker 1: And again I won't say that this was a conscious plot,
Speaker 1: but I do think they had expected Robert would take
Speaker 1: a plea deal. He adamantly would not. And I would
Speaker 1: say in almost any death penalty case, what the state
Speaker 1: recognizes implicitly is that they must turn the defendant into
Speaker 1: a monster, because normal human beings don't want to come
Speaker 1: in and sign off on killing a fellow member of
Speaker 1: the human species. So if you're gonna get that result,
Speaker 1: if you're gonna justify all the resources and time you spent,
Speaker 1: well this better be a monster they're looking at. They
Speaker 1: sounded this horrifically prejudicial theme from the moment she was
Speaker 1: brought to the hospital through Robert's trial, and then dropped
Speaker 1: it right when it went to the jury because they
Speaker 1: really had no evidence except for this one nurse, who
Speaker 1: by the way, was the state star witness at trial.
Speaker 1: She was on the stand pretty much longer than anyone else,
Speaker 1: so he was not convicted of that, but they maintained
Speaker 1: that well, there was no evidence he didn't do it.
Speaker 1: I am not kidding you. There was closing argument about
Speaker 1: how even if they weren't going to decide the issue,
Speaker 1: they should consider it and judge allout it. The judge
Speaker 1: was concerned, but when he was told there was a
Speaker 1: nurse who would testify about this, he let the state
Speaker 1: put it on. And you know, again, Robert had no
Speaker 1: defense attorneys who were bringing in experts of their own.
Speaker 1: There was cross examination of this nurse and that's how
Speaker 1: it came out that, you know, for instance, she didn't
Speaker 1: have the certification, but that's not the same as bringing
Speaker 1: in an expert to expose everything that this woman did.
Speaker 1: It was contrary to the sexual certain nurse examiner protocol.
Speaker 1: If you read this trial transcript, you you could not
Speaker 1: believe this is happening in America in the twentieth century,
Speaker 1: that this was a trial that was seen as at
Speaker 1: all legally appropriate. The the evidence that was paraded in
Speaker 1: front of this jury, and the abdication by defense counsel
Speaker 1: because they too believe shaken baby syndrome was the only
Speaker 1: way to explain this child's death. So I think they
Speaker 1: just you know, I thought, well, he's not a bad guy.
Speaker 1: He didn't really mean to kill her. But yes, this
Speaker 1: must have been the way this child died. Right, So
Speaker 1: he was represented, if we can call it that, by
Speaker 1: Steve Evans and John Van Meter. Talk to us about
Speaker 1: their efforts are lack thereof. These are two local attorneys
Speaker 1: appointed to represent Robert. You know this is true of
Speaker 1: you know, the vast majority of criminal defendants in this
Speaker 1: country who are too poor to retain a council. They
Speaker 1: stated on the record in opening statements that this was
Speaker 1: unfortunately a shaken baby case, no doubt about it, you know,
Speaker 1: And they saw their job as just to try to
Speaker 1: prevent entry of a death sentence, and that that was
Speaker 1: their position. They did resist the sexual assault allegations, but
Speaker 1: again only through cross examination. Meanwhile, the States bringing in
Speaker 1: experts who are telling the jury this kid was violently shaken,
Speaker 1: and so if you're told that, and then you also
Speaker 1: have a nurse saying and by the way, I also
Speaker 1: think there was sexual abuse. Someone that would violently take
Speaker 1: a child, well they might have also abused a child.
Speaker 1: These things become possible. There was no counter narrative. And
Speaker 1: again in Palestine, Texas in two thousand one, two thousand two,
Speaker 1: two thousand three, I don't see that these defense lawyers
Speaker 1: would have had the resources or wherewithal to go and
Speaker 1: recruit world class experts to come in and challenge the
Speaker 1: States causation theory, because at that time there were very
Speaker 1: few of those experts even available in this country. Some
Speaker 1: of the people that came to our aid only recently,
Speaker 1: some very famous, renowned experts were just starting to sound
Speaker 1: the alarm. So they weren't really serving or acting as
Speaker 1: defense lors as much as sort of adjunct prosecutors, if
Speaker 1: you could say that. And they didn't they didn't believe
Speaker 1: in him, They didn't believe in his innocence. They probably
Speaker 1: didn't understand a lot of it. Well, my Tony of
Speaker 1: Troil had too. They had tried to do a plea
Speaker 1: board though, and I told I didn't do nothing. My
Speaker 1: mama said, I didn't do nothing to take nothing right.
Speaker 1: So my trail attorney and went kind of kind of
Speaker 1: like went against me, you know. He keept saying they
Speaker 1: didn't know what what war, trying to make it a
Speaker 1: shaking baby case. And thank you my family lawyer, my
Speaker 1: MoMA family lawyer had gave her pamphlet to go to
Speaker 1: try to develop a community college and Athens for seminar
Speaker 1: on those topic cases. Who did she see there? The
Speaker 1: head d A. He didn't know what was going on either,
Speaker 1: do douglow. He went to that seminar two because he
Speaker 1: didn't know nothing about it. First time we ever heard
Speaker 1: something about it was one of the trying to make
Speaker 1: the type of case. Then my mom sent him over
Speaker 1: there at the seminar taking taking that class with her,
Speaker 1: you know, to learn to learn about it. Right wow.
Speaker 1: So I mean, I don't even know what to say.
Speaker 1: It's crazy neither and I was just like space space
Speaker 1: listen stuff, you know, I know, I couldn't couldn't win
Speaker 1: that warring stuff. And he kept saying that we're gonna
Speaker 1: win this way. We're gonna win this way, We're gonna
Speaker 1: win this way. So you have a prosecution team and
Speaker 1: a defense team who were totally out of their depth
Speaker 1: taking seminars on shaking baby syndrome, and a seminar at
Speaker 1: that time would have been administered by somebody who fully
Speaker 1: believed in this proven junk science. His defense teams saw
Speaker 1: it as their job to just keep him from getting
Speaker 1: the death penalty, so they basically just agreed with the
Speaker 1: prosecution that it killed his daughter, but that he just
Speaker 1: didn't intend to. I mean, talk about being sold down
Speaker 1: the river, but I mean, but then again, they believed
Speaker 1: in SPS to shake a baby syndrome, just as everybody
Speaker 1: else did at the time. The child abuse expert Doctor
Speaker 1: Squires and the medical examiner Dr Jill Urban both testified
Speaker 1: for the prosecution, and as Gretchen pointed out, even if
Speaker 1: they wanted to present a competing expert, who are they
Speaker 1: going to get? Who are you going to get? And
Speaker 1: I think they certainly could have and should have consulted
Speaker 1: with other experts. But I do think you know, what's
Speaker 1: critical to Robert's hope at this point is that we
Speaker 1: recognize the science has changed. Never in a contemporary attempt
Speaker 1: to prosecute a parent for abuse would you jump to
Speaker 1: conclusions the way the medical community did in his case.
Speaker 1: There is an obligation to do what's called a differential diagnosis,
Speaker 1: where you try to eliminate all the other possibilities before
Speaker 1: you jumped to the abuse prospect um. Here it was
Speaker 1: completely turned on its head because shaken baby was seen,
Speaker 1: as you know, to use an annoying legal term, raise
Speaker 1: its liquid or which means the thing speaks for itself.
Speaker 1: You see that triad. It had to have been abuse.
Speaker 1: And this was two thousand and two. Everybody believed shaken
Speaker 1: baby was an article of faith. It had been accepted
Speaker 1: by the American Pediatric Association. But I can't name you
Speaker 1: any other causal theory where it's because you have no evidence,
Speaker 1: you can jump to the conclusion and say I'm correct,
Speaker 1: But that is what happened, you know, in modern American medicine.
Speaker 1: And it is terrifying, I think to anybody who's been
Speaker 1: around a kid to think that you could be blamed
Speaker 1: for a murder that was caused by an accidental or
Speaker 1: a natural phenomenon that just nobody's figuring out. Robert was convicted, unvalutized.
Speaker 1: They actually ironically have two thousand three and sentenced to
Speaker 1: death so that the jury comes back in At the time,
Speaker 1: did you have still have some hope that they would
Speaker 1: see the truth and that they would end this nightmare?
Speaker 1: I was hoping hoping they would so, because attorney kept
Speaker 1: telling me, even though the way the turney was going,
Speaker 1: we can win this case. We can win this kid.
Speaker 1: This case is winnable case. He's blown behind, you know,
Speaker 1: he he was, he just talking you know, but he
Speaker 1: attorney was talking about this is wonderable case, and I
Speaker 1: had my hopes up when they came back talking about
Speaker 1: guilty and stuff. You know, I don't know what I
Speaker 1: really thought at the time. And my mom wasn't there
Speaker 1: and stuff. But before the punishment my mom, my mom
Speaker 1: had to leave. My mom had to go check on
Speaker 1: my dad. Here's in the false song. You know. When
Speaker 1: she got back, they don't convicted, gave her the death
Speaker 1: sentence and stuff. You know, I was like shocked, shocked
Speaker 1: because you know, I was shocked, you know, I guess
Speaker 1: you could say shock. You know. I couldn't believe. Could
Speaker 1: couldn't believe that they convicted me of something that I
Speaker 1: didn't do. You know, I've looked up January thirty one,
Speaker 1: two thousands of two, so a little bit over twenty
Speaker 1: years I've been looked up. I don't wish just on
Speaker 1: my on my worst enemy and stuff, you know, because
Speaker 1: going through this the stuff, but being in a place,
Speaker 1: like you said, even though you get else, but it's
Speaker 1: like like a bad, bad bad dream, you know, like
Speaker 1: like a napamare and stuff. You know, especially when when
Speaker 1: you had when you hadn't done nothing, to be in
Speaker 1: the first place, you know. And then you know, I
Speaker 1: lost I lost my mom last September and stuff, and
Speaker 1: I love for my day since I've been in here
Speaker 1: and stuff. And uh at first, at first, you know,
Speaker 1: I'll excuse her, Nick, you be in responsible for her
Speaker 1: day at you know so, and uh I lost the
Speaker 1: chance to send my son and my daughter grow up,
Speaker 1: grow up? And uh been a word from family all
Speaker 1: this time, lost all those years and stuff and uh
Speaker 1: no stow from me, you know. So it destroyed my laugh.
Speaker 1: You know, it's absolutely heartbreaking. And the authorities appeared to
Speaker 1: have been doing what they, I guess thought was the
Speaker 1: right thing at the time. But our understanding of these
Speaker 1: instances has now advanced considerably. It's almost like a one
Speaker 1: eighty And what we do know now is that in
Speaker 1: the absence of any external injuries that could explain these
Speaker 1: internal issues and SPS prosecution is an unconscionable leap in logic.
Speaker 1: We've already laid that out. But Gretchen, before our more
Speaker 1: enlightened understanding of spr US, Robert based denials in his
Speaker 1: direct appeal and state habeas When and how did this
Speaker 1: case come to you? And what has happened since Robert,
Speaker 1: as we noted, was sentenced in two thousand three, he
Speaker 1: was on the verge of execution in two thousand and sixteen.
Speaker 1: That's when I was at a state public defender's office
Speaker 1: and we agreed to take on the case, and based
Speaker 1: on the change in science round the controversy of shaking Baby,
Speaker 1: we got this a state of his execution and the
Speaker 1: right to get back into state court to try to
Speaker 1: prove our claims. That then took many years. Right during
Speaker 1: this time, you were trying to uncover the cat scans
Speaker 1: from January two thousand two, and both medical centers had
Speaker 1: maintained that they had been lost or destroyed, as did
Speaker 1: the state. And then during the opening statements of his
Speaker 1: evidentiary hearing something really crazy happened. In the middle of
Speaker 1: my opening statement, this clerk with goodwill listened and thought, well,
Speaker 1: I wonder if this stuff she's referring to could be
Speaker 1: in this secret murder closet that I was just told
Speaker 1: about when I started the job. You know, had nothing
Speaker 1: to do with the motions I filed seeking Brady evidence
Speaker 1: that hadn't led to someone discovering this. It was this
Speaker 1: one woman just thinking could this be a possibility. Why
Speaker 1: the the scans were buried in the courthouse spacement, I
Speaker 1: do not know, But then we had a long hiatus
Speaker 1: so we could have a chance to have an expert
Speaker 1: look at that. We had these looked at by a radiologist,
Speaker 1: the only radiologist, by the way, who still seems to
Speaker 1: have ever looked at them. And it confirms that there
Speaker 1: was only one impact site on Nikki's head, and that
Speaker 1: was that small swollen tissue on the back right of
Speaker 1: Nikki's head that is exculpatory. That confirms that if she
Speaker 1: had a fall and hit her head, well, there's some evidence,
Speaker 1: but it's not evidence that explains her injuries, all right.
Speaker 1: And it also it could have been that she fell
Speaker 1: earlier and that the fall from the bed when she
Speaker 1: was with Robert didn't cause that. We don't know. No
Speaker 1: one witnessed the fall, but it does not It does
Speaker 1: not show that she had any other impact sites on
Speaker 1: her head. And yet the medical examiner to this day,
Speaker 1: who did not look at the head scans at the
Speaker 1: time and did not look at them now decades later,
Speaker 1: insists that she saw evidence of multiple impact sites to
Speaker 1: Nikki's head because of all the blood underneath nonsensical. It
Speaker 1: doesn't work that way. You cannot impact a child's head
Speaker 1: sufficiently enough to cause internal damage and leave no mark
Speaker 1: on the outside. And what Nikki had was minimal bruising
Speaker 1: on her exterior. The blood underneath cannot be read like
Speaker 1: tea leaves. And yet that is what this medical examiner
Speaker 1: has done. Where As the scans, which are the reliable
Speaker 1: evidence about whether or not their impact sites, shows that
Speaker 1: one side, one and only side which corroborates Robert's version
Speaker 1: of events. And then, in addition to the lead, the
Speaker 1: level of promethazine and Nikki's body, which we know can
Speaker 1: cause fatal respiratory depression and children, along with codeine and
Speaker 1: narcotic that also depresses respiration. She had viral pneumonia. So
Speaker 1: some combination of these factors, maybe all of them, stopped
Speaker 1: Nikki from breathing, and then the efforts made to save
Speaker 1: her only pumped more blood into her cranium with nowhere
Speaker 1: for it to go. Then the experts in two thousand
Speaker 1: two saw all that blood and said shaking and blunt
Speaker 1: force head trauma were to blame. So you now had
Speaker 1: compelling evidence to refute every single thing that the state
Speaker 1: had put on a trial. What happened next We finally
Speaker 1: had an evidence you're hearing, we were allowed eight days
Speaker 1: to put on our case. Here we are, twenty years later,
Speaker 1: having a mass in overwhelming amount of evidence from experts
Speaker 1: who are who have no dog in this fight. They're
Speaker 1: just looking for the truth. Who have identified the toxic
Speaker 1: level of prescription drugs in this child system, the interstitial
Speaker 1: viral pneumonia, the lack of evidence of impact sites, and
Speaker 1: all the change in the understanding of shaking baby syndrome.
Speaker 1: All of that was put before trial court and deemed
Speaker 1: not new evidence, which is absolutely bonkers. I mean, in
Speaker 1: this preceding doctor Urban admitted that she had never looked
Speaker 1: at these cast scans that proved that there was only
Speaker 1: one impact site, while she had gone ahead and said
Speaker 1: that there was evidence of multiple impacts. It's it's I
Speaker 1: can't even find the right words for how angry that
Speaker 1: makes me. This alone should have been enough to reject
Speaker 1: Dr Urban's position that a homicide had occurred, if we
Speaker 1: talk about why these things are so hard to unwine.
Speaker 1: Even if all the science the jury was told was
Speaker 1: junk is accepted as junk, but you still have a
Speaker 1: medical examiner saying, well, I think it's homicide anyway. The
Speaker 1: state is left saying, well, you know, I threw up
Speaker 1: my hands. But this medical examiner admitted that she did
Speaker 1: not consider any of this new evidence. She didn't even
Speaker 1: look at the cats cans, she didn't listen to the
Speaker 1: testimony of all these new experts. She didn't seem to
Speaker 1: understand the interstitial viral pneumonia in the lung tissues that
Speaker 1: she'd collected, and instead just seemed to stand by this
Speaker 1: idea that the blood in the subdural space was enough
Speaker 1: for her to say, oh, well, whether it was shaking
Speaker 1: or not, it was still abuse. So she's still just
Speaker 1: making leaps in logic. Did she present any testimony, any
Speaker 1: logic at all to support this assertion. Well, I'll give
Speaker 1: you one little anecdote. This was something I asked the
Speaker 1: medical examiner in Core. You know, I said, let's say
Speaker 1: I walk outside the courtroom. There are these marble steps,
Speaker 1: and no one else is around, and I slipped, and
Speaker 1: I hit the back of my head and I become unconscious.
Speaker 1: And later you take a look at me. What is
Speaker 1: it that your background, your training has taught you that
Speaker 1: you could look at me and determine whether or not
Speaker 1: I'd fallen, or someone had pushed me, or someone had
Speaker 1: come up and hit me in the back of the
Speaker 1: head with a blunt object, explained that to me, And
Speaker 1: of course she couldn't. Yeah, And and what is appalling
Speaker 1: about this is that the shaking hypothesis that she furthered
Speaker 1: at trial, along with the child abuse expert, she was
Speaker 1: telling the jury all about shaking, that that's why you
Speaker 1: look at the outside of this child. You don't see much,
Speaker 1: But the reason you know it's abuse is because shaking
Speaker 1: explains how all this stuff happens. Well, hey, we now
Speaker 1: know shaking doesn't. But she couldn't tell me how blunt
Speaker 1: forced trauma, even if it's not shaking, could be looked
Speaker 1: at after the fact and you could say whether it
Speaker 1: was inflicted or not, because there's no science that would
Speaker 1: allow you to do that. That would require, you know,
Speaker 1: voodoo or a leap in logic too, will add anything
Speaker 1: else to the exclusion of all other possibilities. That it
Speaker 1: was abuse, yes, but they don't rule it out. They
Speaker 1: just jumped to abuse an unconscionable leap in logic. So
Speaker 1: what is the status of his case right now? Robert's
Speaker 1: case has been submitted, as per Texas procedure, to the
Speaker 1: Court of Criminal Appeals, which is the highest court for
Speaker 1: criminal matters in the state of Texas, so they will,
Speaker 1: one hopes, look at the huge volume of new evidence
Speaker 1: and look at it a new and really evaluate the
Speaker 1: allegations about the change in the scientific perspective from the
Speaker 1: time of his trial, which is the fundamental basis for
Speaker 1: our claims for relief. We also have an actual innocence claim,
Speaker 1: which is much stronger now than when we filed the
Speaker 1: claim because of the evidence of pneumonia, of the cat
Speaker 1: scans that were finally produced, etcetera. But ultimately, you cannot
Speaker 1: read that trial transcript and compare that to contemporary understanding,
Speaker 1: even among people that believe shaking baby syndrome has some validity.
Speaker 1: You cannot read the trial transcript and fail to recognize
Speaker 1: it's full of falsehoods. And we hope the Court of
Speaker 1: Criminal Appeals will dig into that and then grant him
Speaker 1: a new trial, and then it's like, go back to
Speaker 1: the trial court again and see if they really want
Speaker 1: to try again to convict him based on this horrifically
Speaker 1: scanty evidentiary record. Well, if they give you a chance
Speaker 1: and try to go ahead with what they presented a
Speaker 1: two thousand two, I think they'd realize pretty quickly that
Speaker 1: we just didn't know better back then, and they'd let
Speaker 1: this go. Yeah, but listen, everyone that's listening now has
Speaker 1: the ability to do some thing. I know. Robert said
Speaker 1: he wants people to write to him, which is it
Speaker 1: sounds very simple and mundane, but I've heard from so
Speaker 1: many people that have been in similar situations that it
Speaker 1: means so much to them to get a letter from
Speaker 1: somebody the outside who cares. But and so but on
Speaker 1: a more proactive level, for people who do have the
Speaker 1: wherewithal and the time and the desire, what can they do?
Speaker 1: A wonderful supporter of Robert has created a website, So
Speaker 1: you know, I'd love for people to look at Robert's website.
Speaker 1: There are court filings there, and certainly the latest filing
Speaker 1: that amasses all the new evidence and explains why a
Speaker 1: new trial is worthwhile. We'll be up there. Well, we'll
Speaker 1: have that linked to the bio as well as ways
Speaker 1: our audience can reach out to Robert. And with that
Speaker 1: we move to closing arguments, where I thank you both
Speaker 1: for sharing your story, and then I'm going to turn
Speaker 1: my microphone off, leave my headphones on, and just listen
Speaker 1: for anything else that you feel is left to be said.
Speaker 1: Let's start off with you, Gretchen, and have Robert take
Speaker 1: us off into the sun to it. I mean, I
Speaker 1: would like for the audience to picture themselves as a
Speaker 1: parent or any parent they know, and put yourself in
Speaker 1: the shoes of Robert. But imagine yourself without resources, with
Speaker 1: an impairment that makes communication fundamentally difficult. And from the
Speaker 1: moment you arrive at the hospital with your commatose child,
Speaker 1: you're being interrogated, accused, and the accusations get worse and
Speaker 1: worse by the minute, so that by the end of
Speaker 1: a single day, you've gone from the worst time of
Speaker 1: your life. Your child, who's relatively new to your life,
Speaker 1: is gone, and they won't even allow you to go
Speaker 1: to the hospital to say farewell because you're being taken
Speaker 1: to jail. And before your there's even an indictment, there's
Speaker 1: a statement from a hospital saying it's gotta be shaken
Speaker 1: baby syndrome only explanation for this child's injuries. Yet no
Speaker 1: one assesses the medical records, and no one has still
Speaker 1: assessed the medical history and tried to put all these
Speaker 1: pieces together, and it is a complicated puzzle, but every
Speaker 1: single piece points away from a crime and towards a
Speaker 1: tragic story of a young child who was sick from
Speaker 1: the moment she was born, into unfortunate circumstances and then
Speaker 1: not given the fair shake that she deserved. It's not
Speaker 1: just about Robert. Nikki deserves a history that is based
Speaker 1: on the truth. Instead, her death itself is shrouded in
Speaker 1: a lie. And I urged people to just pay attention
Speaker 1: to what's being done in their names with our criminal
Speaker 1: justice systems. I came from a civil background, and everything
Speaker 1: I learned every day adds to my shock and outrage.
Speaker 1: But there is real joy in fighting for people like
Speaker 1: Robert because the gratitude he expresses and the inspiration he
Speaker 1: vibes with his resilience is remarkable. I'm so grateful for
Speaker 1: this podcast for shedding light on these kinds of cases.
Speaker 1: They're far too many of them, And of course, to me,
Speaker 1: Robert is unique and that he's uniquely vulnerable because of
Speaker 1: who he is and the system where we're left trying
Speaker 1: to get someone to hear us. But I thank you
Speaker 1: for for allowing us to be heard and especially allowing
Speaker 1: his boys to get out there. Okay, Okay, what I
Speaker 1: want to occurse both of y'all to continue to do
Speaker 1: what y'all doing and stuff, because I believe in y'all
Speaker 1: and uh, everybody else that's doing doing fighting against this
Speaker 1: corrupt legal system is to wrongful convictions. You know, keep doing,
Speaker 1: keep on, keep on doing what you're doing. You know,
Speaker 1: I'm gonna continue and continue to fight because you know,
Speaker 1: because you know God knows and I know you know
Speaker 1: that that guy that that was not wrong in stuff
Speaker 1: and he's luck very grateful for what y'all doing, very
Speaker 1: grateful for everybody that's involved in it. And uh, but
Speaker 1: y'all have a safe trip by come and stop by
Speaker 1: the Lord bless y'all and shout up his flasor p
Speaker 1: and uh and just like concurse, both of you are
Speaker 1: to continue to do what you're doing. And I'm very
Speaker 1: happy and I'm very proud of both of you. And uh,
Speaker 1: keep on keep oning. Okay, thank you for listening to
Speaker 1: Wrongful Conviction. I'd like to thank our production team Connor Hall,
Speaker 1: Jeff Clyburn, and Kevin Wardis with research by Lila Robinson.
Speaker 1: The music in this production was supplied by three time
Speaker 1: OSCAR nominated composer Jay Ralph. Be sure to follow us
Speaker 1: on Instagram at Wrongful Conviction, on Facebook at Wrongful Conviction podcast,
Speaker 1: and on Twitter at wrong Conviction, as well as at
Speaker 1: Lava for Good. On all three platforms, you can also
Speaker 1: follow me on both TikTok and Instagram at it's Jason
Speaker 1: flam Raleful Conviction is a production of Lava for Good
Speaker 1: Podcasts and association with Signal Company. Number one all time
Speaker 1: the N word