WEBVTT - #274 Jason Flom with Robert Roberson 0:00:02.680 --> 0:00:06.199 Robert Robertson grew up in abject poverty in Texas, struggling 0:00:06.200 --> 0:00:10.000 with drug addiction and undiagnosed autism. While in and out 0:00:10.039 --> 0:00:12.880 of prison on non violent charges and parole violations, he 0:00:12.920 --> 0:00:16.560 had three children. After a heated custody battle with the 0:00:16.600 --> 0:00:19.960 maternal grandparents of his youngest, Nicky Bowman, Robert and his 0:00:20.000 --> 0:00:23.880 parents once shared custody just as Nicki's long standing respiratory 0:00:23.920 --> 0:00:28.080 issues were raging out of control. In late January two 0:00:28.160 --> 0:00:32.000 thousand and two, while suffering from nausea, diarrhea, fever, and 0:00:32.080 --> 0:00:36.600 respiratory distress, Nicki was improperly diagnosed with an acute respiratory 0:00:36.600 --> 0:00:40.199 ailment along with codine. Two year old Nicki was prescribed 0:00:40.200 --> 0:00:43.520 in medication that now comes with a warning for potentially 0:00:43.600 --> 0:00:48.720 causing fatal respiratory depression and children. In the early hours 0:00:48.720 --> 0:00:51.519 of January thirty first, two thousand and two, Robert comforted 0:00:51.600 --> 0:00:54.280 Nicki after she had fallen out of bed. When he 0:00:54.360 --> 0:00:57.720 woke again, Nicki was unresponsive and turning blue, so he 0:00:57.840 --> 0:01:00.240 rushed her to the hospital, where her symptoms included the 0:01:00.280 --> 0:01:04.040 triad of findings previously associated with the junk science of 0:01:04.120 --> 0:01:08.080 shaken baby syndro. The potential causes for her symptoms included 0:01:08.200 --> 0:01:12.720 undiagnosed viral pneumonia, the prescription drugs, the shortfall, the attempts 0:01:12.720 --> 0:01:17.880 to revive Niki, or some combination thereof. Disregarding these factors, 0:01:17.959 --> 0:01:20.000 a leap in logic was made by those who had 0:01:20.000 --> 0:01:24.000 previously misdiagnosed Niki to accuse Robert of fatally abusing his daughter. 0:01:24.520 --> 0:01:28.480 Then diaper rash was misconstrued as anal tearing, creating the 0:01:28.520 --> 0:01:32.160 specter of potential sexual abuse. Over the proceedings that sent 0:01:32.240 --> 0:01:49.200 Robert to death row. This is wrongful conviction. Welcome back 0:01:49.200 --> 0:01:53.160 to wrongful conviction. I'm Jason Flahman. Today's case, unfortunately, is 0:01:53.200 --> 0:01:57.200 going to sound like familiar territory. It's a shaken baby prosecution, 0:01:57.400 --> 0:01:59.840 and all of which was based on a hypothesis that 0:01:59.880 --> 0:02:03.160 is now rejected by not only the original scientists, but 0:02:03.240 --> 0:02:06.080 also the scientific and medical communities that once held it 0:02:06.120 --> 0:02:09.480 to be a decided matter. Now, unfortunately, some of those 0:02:09.639 --> 0:02:12.160 attacked with that ill fated diagnosis in a court of 0:02:12.240 --> 0:02:14.560 law are still languishing in prison. Too many, I mean 0:02:14.600 --> 0:02:19.280 countless people, including our guest today who is on death 0:02:19.360 --> 0:02:23.440 row in Texas, Robert Robertson Now, my producer Connor Hall, 0:02:23.480 --> 0:02:26.240 and I who trek down to the Polunski unit in Livingston, 0:02:26.280 --> 0:02:29.240 Texas to record an interview with Robert. You'll hear pieces 0:02:29.280 --> 0:02:32.839 of that interspersed throughout our coverage today. Joining us now 0:02:32.919 --> 0:02:36.440 is his appellate attorney since about twenty sixteen, a fierce 0:02:36.480 --> 0:02:40.840 and well respected advocate in the innosence community, Gretchen Swen. Gretchen, 0:02:41.280 --> 0:02:42.560 Welcome to Wrongful Conviction. 0:02:43.000 --> 0:02:44.280 Thank you so much. Jason. 0:02:44.639 --> 0:02:47.200 Now, before we get into Robert's case, I want to 0:02:47.200 --> 0:02:49.640 give a little background about the junk science of shaking 0:02:49.680 --> 0:02:52.480 baby syndrome. We go further in depth about it on 0:02:52.520 --> 0:02:54.880 our show Junk Science, and we'll have that episode linked 0:02:54.919 --> 0:02:58.200 in the bio. Please check it out. It's mind blowing. 0:02:58.560 --> 0:03:01.280 And in that episode, the executive director of the Center 0:03:01.280 --> 0:03:04.480 for Integrity and Forensic Sciences, Kate Judson, spoke with our 0:03:04.480 --> 0:03:08.080 host Josh Dubin about the shaken baby hypothesis and its effects, 0:03:08.120 --> 0:03:11.880 of which there are many. We've covered the cases of 0:03:11.960 --> 0:03:16.560 Amanda Brumfield, Stephanie Spurgeon, Melissa Lucio, who's also on death 0:03:16.600 --> 0:03:18.959 row in Texas and just recently won a stay of execution. 0:03:19.440 --> 0:03:23.120 We hope for a positive outcome there as well. And 0:03:23.360 --> 0:03:27.080 of course Kate Judson joined us again to explain how 0:03:27.120 --> 0:03:30.600 this junk science scourge pertained to the case of John Jones, 0:03:31.080 --> 0:03:34.720 who still languishes in an Ohio prison. Here's what Kate 0:03:34.840 --> 0:03:39.120 said in that episode about this hypothesis turned childcare nightmare. 0:03:40.080 --> 0:03:43.600 Shakan baby syndrome was originally proposed as a hypothesis to 0:03:43.720 --> 0:03:47.880 explain a phenomenon that a pediatric neurosurgeon in Great Britain 0:03:47.960 --> 0:03:50.440 was seeing in his patients. He would sometimes have infants 0:03:50.440 --> 0:03:53.200 who died or were seriously ill without a clear cause 0:03:53.320 --> 0:03:57.800 and without external trauma, and yet the internal features looked 0:03:58.080 --> 0:04:00.360 a lot like kids who had suffer some. 0:04:00.320 --> 0:04:01.360 Kind of traumatic injury. 0:04:01.680 --> 0:04:05.160 So those findings were subdural hematoma, which is bleeding between 0:04:05.160 --> 0:04:07.880 the coverings of the brain, retinal hemorrhage, which is bleeding 0:04:07.880 --> 0:04:11.560 at the back of the eye, and encephalopathy and cerebral edema, 0:04:11.560 --> 0:04:14.080 which sort of acts together as one leg of what 0:04:14.280 --> 0:04:15.480 sometimes people. 0:04:15.240 --> 0:04:18.560 Call the triad. Currebril edema is brain swelling. 0:04:18.200 --> 0:04:21.960 And encephalopathy is brain dysfunction, and so doctor guth Kelch, 0:04:22.000 --> 0:04:25.680 the piatric neurosurgeon was seeing these findings in kids and 0:04:25.720 --> 0:04:28.080 they looked injured on the inside but not on the outside, 0:04:28.120 --> 0:04:30.800 and he thought that one reason for that might be 0:04:30.960 --> 0:04:35.400 a common disciplinary technique in his home of Northern England 0:04:35.480 --> 0:04:36.840 in the seventies. 0:04:36.320 --> 0:04:37.200 Which was shaking. 0:04:37.520 --> 0:04:41.119 And so what doctor goth Kelch said is that these 0:04:41.240 --> 0:04:44.039 medical findings could be due to shaking. And doctor goth 0:04:44.120 --> 0:04:46.839 Kelch wasn't claiming to have the answers, but rather that 0:04:46.880 --> 0:04:50.480 he was hypothesizing about what might be causing these findings. 0:04:50.640 --> 0:04:52.200 So that started to evolve. 0:04:52.600 --> 0:04:55.640 A radiologist in New York, John Caffey, built on that 0:04:55.800 --> 0:04:58.719 and he published articles saying the same thing, right, that 0:04:58.839 --> 0:05:00.919 parents should be gentle with infants. 0:05:00.960 --> 0:05:02.000 But neither of these. 0:05:01.800 --> 0:05:05.400 Doctors suggested that the medical findings that they associated with 0:05:05.480 --> 0:05:09.760 shaking were exclusively diagnostic to shaking, nor did they say 0:05:10.120 --> 0:05:13.039 that there was a reliable way to place blame on 0:05:13.080 --> 0:05:16.400 a caregiver when a child had these medical findings. And 0:05:16.440 --> 0:05:19.080 there's a little bit of a gap in understanding between 0:05:19.120 --> 0:05:21.479 the mid to late nineteen seventies and then when we 0:05:21.560 --> 0:05:25.719 start to see these cases appear in published appellate decisions 0:05:25.760 --> 0:05:28.719 in the late eighties, and we started to see prosecutors 0:05:28.880 --> 0:05:33.520 and pediatricians in particular also pathologists saying that when children 0:05:33.600 --> 0:05:34.760 had this collection of. 0:05:34.720 --> 0:05:37.120 Findings, that shaking could be diagnosed. 0:05:37.120 --> 0:05:39.560 And that's when it comes into the criminal legal system 0:05:39.560 --> 0:05:42.120 and we start to see the trajectory that we're on 0:05:42.200 --> 0:05:46.120 today where parents are wrongfully accused based on only the 0:05:46.160 --> 0:05:48.400 existence of a particular set of medical findings. 0:05:50.240 --> 0:05:52.520 So, since this hypoth this was picked up here in 0:05:52.520 --> 0:05:55.080 the States in the ages, we've seen decades of parents 0:05:55.160 --> 0:05:59.400 and caregivers prosecuted with the support of medical personnel in 0:05:59.400 --> 0:06:04.039 the courtroom, making a bizarre leap in logic from this 0:06:04.160 --> 0:06:07.360 triad of findings which we now know have a universe 0:06:07.360 --> 0:06:12.599 of potential causes, to diagnosing that not only abuse was 0:06:12.640 --> 0:06:14.919 the root cause, but also that they could reliably place 0:06:14.960 --> 0:06:18.760 blame on the most recent caregiver. Now, this recipe for 0:06:18.800 --> 0:06:22.120 prosecution has fallen apart, starting in the late two thousands, 0:06:22.160 --> 0:06:24.919 when more research began to be done on this topic. 0:06:25.240 --> 0:06:27.880 We now know that there are many many causes of 0:06:28.000 --> 0:06:31.200 this constellation of findings. There is the possibility of abusive 0:06:31.240 --> 0:06:33.520 head trauma, but in order to cause that kind of 0:06:33.560 --> 0:06:38.600 internal damage with no external injuries or even minimal external injuries, 0:06:39.120 --> 0:06:42.160 that major spinal injuries would have to be present, and 0:06:42.800 --> 0:06:46.320 if some sort of trauma was the cause, accidental or intentional, 0:06:46.360 --> 0:06:48.640 it can take up to seventy two hours for complications 0:06:48.640 --> 0:06:52.120 to arise, making it impossible to pin it on the 0:06:52.160 --> 0:06:56.520 most recent caregiver in the absence again of severe spinal 0:06:57.000 --> 0:07:01.240 and exterior injuries. Finally, researchers have now compiled a list 0:07:01.279 --> 0:07:03.880 of eighty eight conditions and counting that can cause this 0:07:04.000 --> 0:07:08.400 constellation of findings absent any abuse, injury or trauma, which 0:07:08.560 --> 0:07:11.520 certainly seems to be the case here with Nicki Bowman. 0:07:11.640 --> 0:07:14.080 And I want to quote doctor guth Kelch here from 0:07:14.080 --> 0:07:17.680 a twenty twelve article titled After forty Years of Consideration, 0:07:18.040 --> 0:07:21.480 where he said, and I quote, I think we need 0:07:21.560 --> 0:07:23.560 to go back to the drawing board and make a 0:07:23.640 --> 0:07:26.920 more thorough assessment of these fatal cases. And I'm going 0:07:27.000 --> 0:07:29.679 to bet that we are going to find in every 0:07:29.800 --> 0:07:31.840 or at least the large majority of cases, that the 0:07:31.920 --> 0:07:34.920 child had another severe illness of some sort which was 0:07:35.040 --> 0:07:39.840 missed until too late end quote. Unfortunately, it appears that's 0:07:39.880 --> 0:07:42.400 exactly what we have here in the case of Nicki Bowman, 0:07:42.480 --> 0:07:47.480 the daughter of our guest today Robert Robertson. But before 0:07:47.520 --> 0:07:50.440 we get to Nicky's tragic end, Gretchen, can you give 0:07:50.480 --> 0:07:52.440 our audience a little background on Robert. 0:07:52.760 --> 0:07:58.040 This is somebody who grew up dirt poor in East Texas. 0:07:58.320 --> 0:08:02.280 There was a lot of violence in the home, but 0:08:02.520 --> 0:08:06.040 you know, had a mother who loved him dearly, and 0:08:06.760 --> 0:08:11.360 the kid had no record of ever engaging in physical violence. 0:08:11.920 --> 0:08:14.880 He was in special ed classes. He was the one 0:08:14.880 --> 0:08:18.440 who was bullied. He was the one coming to school 0:08:18.480 --> 0:08:21.280 with bruises. You know, he was on the radar in 0:08:21.360 --> 0:08:23.200 terms of this is a struggling kid. But you know, 0:08:23.240 --> 0:08:27.200 he drops out in ninth grade and stumbles into what 0:08:27.280 --> 0:08:30.640 happens with so many poor, traumatized kids. He struggles with 0:08:30.720 --> 0:08:34.720 drug addiction. But this is a gentle soul. And you know, 0:08:34.760 --> 0:08:37.640 you spend five minutes with Robert and you see his 0:08:37.720 --> 0:08:41.120 speech is unusual and he has this sort of flat 0:08:41.200 --> 0:08:44.400 affect and he struggles to speak. 0:08:44.840 --> 0:08:49.480 Okay, so so so yeah, y'a got some questions or something. 0:08:50.640 --> 0:08:53.480 Sure, So yeah, let me just introduce. First of all, 0:08:53.559 --> 0:08:57.680 this is dramful conviction from death row in Texas. We're 0:08:57.679 --> 0:09:00.400 here on the Polunsky unit where we've been ford to 0:09:00.480 --> 0:09:03.240 visit rob will and Rodney Reid. Today we're here with 0:09:03.320 --> 0:09:06.840 another innocent man, man named Robertson. The man himself is 0:09:06.880 --> 0:09:09.160 like a big teddy bear. He's sitting right across from 0:09:09.200 --> 0:09:12.080 me through this window of bulletproof glass. Robert, thank you 0:09:12.160 --> 0:09:14.960 for being here to talk to us today. 0:09:15.080 --> 0:09:16.120 Thank you for being here. 0:09:16.200 --> 0:09:19.280 And Robert, going back to the beginning, did you grow 0:09:19.360 --> 0:09:20.319 up in Texas? 0:09:20.600 --> 0:09:22.800 I was born in Minneola, Texas and stuff, and we 0:09:22.840 --> 0:09:25.040 lived in Winnsboro until I was six years old, you know, 0:09:25.559 --> 0:09:28.080 and then my dad worked for the railroad and his 0:09:28.200 --> 0:09:29.719 job transferred to Palestine. 0:09:29.800 --> 0:09:32.920 Anderson Kenny, You know you had a very difficult childhood. 0:09:32.920 --> 0:09:33.920 Is that fair to say? Oh? 0:09:34.920 --> 0:09:37.000 My dad was real rough and my mom was My 0:09:37.080 --> 0:09:39.839 mom was like the glue to the family and stuff, 0:09:39.880 --> 0:09:41.320 you know, like the protector stuff. 0:09:41.320 --> 0:09:42.560 But dad would like to provide her. 0:09:43.160 --> 0:09:44.880 Just say, because I've read a lot about you, your 0:09:44.920 --> 0:09:48.080 story and your case. Of course, you endured a lot 0:09:48.120 --> 0:09:50.720 of abuse as a child, ran away when you were 0:09:50.760 --> 0:09:53.640 twelve for the first time, you stained to fall from 0:09:53.679 --> 0:09:57.600 a ladder, ended up with some severe head trauma from that, 0:09:57.840 --> 0:10:01.920 and of course football injuries. So you've been banged around 0:10:01.960 --> 0:10:03.360 a lot, I would say, right. 0:10:03.440 --> 0:10:05.280 And co works and stuff, you know, when I got 0:10:05.280 --> 0:10:06.280 older and stuff, you know. 0:10:07.000 --> 0:10:09.120 And then you ended up going into the military. Is 0:10:09.160 --> 0:10:09.800 I wanted to. 0:10:09.760 --> 0:10:14.240 The military when I was seventeen Army and they gave 0:10:14.240 --> 0:10:16.959 me a medical discharge letter letter on because they said 0:10:16.960 --> 0:10:18.600 I couldn't adapt or something, you know, you know what 0:10:18.640 --> 0:10:20.920 they said, you know, like training discharge. 0:10:20.920 --> 0:10:21.080 You know. 0:10:22.480 --> 0:10:25.200 At age twenty, Robert had moved to Alabama with a 0:10:25.240 --> 0:10:28.280 woman who was also dependent on drugs. They had two kids, 0:10:28.760 --> 0:10:31.679 both of whom had special needs, so, you know, out 0:10:31.679 --> 0:10:34.720 of desperation, he started committing petty crimes. 0:10:34.920 --> 0:10:37.400 The criminal activity he had gauged him before had to 0:10:37.400 --> 0:10:40.480 do with Burgley of a habitation related to his drug addiction. 0:10:41.320 --> 0:10:43.760 And when he spent time in prison, he was such 0:10:43.800 --> 0:10:45.960 a model prisoner. He was made a trustee. 0:10:46.120 --> 0:10:48.520 Then he paroled out. But as we know, even the 0:10:48.520 --> 0:10:51.480 most well behaved person will have difficulty maintaining their freedom 0:10:51.480 --> 0:10:54.640 while on parole. There are thousands of reasons they can 0:10:54.760 --> 0:10:57.520 use to throw you back in there. And that's what 0:10:57.559 --> 0:10:58.480 he was dealing with. 0:10:58.720 --> 0:11:02.400 The parole violation is being out of county. That means 0:11:02.400 --> 0:11:05.720 he traveled to Fort Worth looking for work, which is 0:11:05.720 --> 0:11:09.720 where he hooked up with Nicki's biological mother. They were 0:11:09.760 --> 0:11:13.160 both from this little town Palestine, Texas, had this brief 0:11:13.200 --> 0:11:16.600 little affair, she ends up pregnant, he's back in prison, 0:11:16.840 --> 0:11:21.960 and meanwhile, this custody battle explodes between the grandparents that 0:11:22.040 --> 0:11:25.120 assume custody of this child from the hospital bed because 0:11:25.160 --> 0:11:29.439 CPS won't let the mom keep her, and then Robert's mom, 0:11:29.520 --> 0:11:32.400 who's like, well, if this is Robert's child, you know, 0:11:32.760 --> 0:11:36.240 we want to be involved. That goes on for nearly 0:11:36.320 --> 0:11:40.600 a year of Nicky's life with Robert out of the picture. 0:11:41.679 --> 0:11:43.800 But what Robert also doesn't know about is this kid 0:11:43.880 --> 0:11:49.040 is chronically sick. This is a child on Medicaid. You know, 0:11:49.120 --> 0:11:52.040 she's being brought in They're like, Ah, this antibiotic doesn't 0:11:52.040 --> 0:11:54.200 seem to work, let's give her another one, you know, 0:11:54.360 --> 0:11:56.200 over and over again. And so there is a real 0:11:56.320 --> 0:11:59.640 tragedy in this child's short life of just the medical 0:11:59.679 --> 0:12:02.200 failure to get at what's going on with her. But 0:12:02.280 --> 0:12:05.199 I think that's sort of where the story begins. And then, 0:12:05.320 --> 0:12:07.240 you know, if you get to the point of trial, 0:12:07.559 --> 0:12:10.800 they acted like this history did not exist. Or certainly 0:12:10.800 --> 0:12:14.839 didn't matter that you have a kid infected from eight 0:12:14.920 --> 0:12:16.920 days old pretty much onward. 0:12:16.920 --> 0:12:20.480 Infected and neglected by a system that didn't care about 0:12:20.480 --> 0:12:22.760 her and doesn't care about a lot of kids like her. 0:12:22.840 --> 0:12:25.520 I mean, let's call it what it is. I imagine, had 0:12:25.559 --> 0:12:28.600 they had access to different kinds of health care that's 0:12:28.640 --> 0:12:32.680 afforded to people of means, she may well be alive today, 0:12:32.720 --> 0:12:35.200 and who knows, maybe even would have graduated college. But 0:12:35.640 --> 0:12:38.520 we'll never know that because that's not how it worked out. 0:12:38.559 --> 0:12:40.800 And so back in January of two thousand and two, 0:12:40.880 --> 0:12:43.680 Robert had a girlfriend who was having her own medical 0:12:43.679 --> 0:12:46.240 issues and was about to have a hysterectomy, and he 0:12:46.280 --> 0:12:48.760 and his parents were sharing custody of baby Nikki with 0:12:48.800 --> 0:12:52.480 the maternal grandparents. Now, Robert's life was hectic, and he's 0:12:52.520 --> 0:12:55.680 helping support Nicki with two paper roots that he was doing. 0:12:55.720 --> 0:12:58.640 And then there's the events of January thirty first that 0:12:58.760 --> 0:13:04.600 resulted in Nicky's untimely, a tragic death and Robert's unjust arrest. 0:13:05.120 --> 0:13:07.760 Can you explain the situation at what led to this 0:13:07.800 --> 0:13:08.600 horrible outcome? 0:13:09.000 --> 0:13:11.800 As I noted, you know, Nicki had been sick from 0:13:12.040 --> 0:13:17.320 essentially birth. But the week before her collapse, she had 0:13:17.360 --> 0:13:21.760 been brought to the er with initially one hundred and 0:13:21.840 --> 0:13:25.760 three point five fever. I believe she was throwing up. 0:13:25.840 --> 0:13:30.040 She had chronic diarrhea and trouble breathing. At this point, 0:13:30.440 --> 0:13:36.480 she has prescribed this medication, Finnergen, which contains promethazine, which 0:13:36.520 --> 0:13:39.040 now has a black box warning from the FDA that 0:13:39.080 --> 0:13:41.520 you don't give this to kids under the age of ten, 0:13:41.720 --> 0:13:45.480 and certainly don't give it to kids with respiratory issues 0:13:45.520 --> 0:13:48.880 because it might cause death. A few days later, they 0:13:48.920 --> 0:13:53.679 also give her another prescription for Finnergen along with codine 0:13:53.840 --> 0:13:56.200 cough serrah. You know they're treating it as if it's 0:13:56.240 --> 0:14:00.120 some you know, annoying cold, but you're having trouble breathing. 0:14:00.200 --> 0:14:05.600 Then you give someone coding, which metastasizes into morphine. You know, 0:14:05.640 --> 0:14:10.040 you're suppressing the respiratory system of a kid already in distress. 0:14:10.120 --> 0:14:13.160 So she at the doctor the day after the emergency 0:14:13.200 --> 0:14:17.280 visit had a fever over one hundred and four. This 0:14:17.360 --> 0:14:20.080 is the follow up from the er. They send her 0:14:20.120 --> 0:14:25.280 home with these prescriptions and it's a day later, essentially 0:14:25.520 --> 0:14:28.040 after she's been through all this distress, she's been given 0:14:28.080 --> 0:14:31.840 all these medications. When Robert is called by the grandparents, 0:14:31.880 --> 0:14:33.840 who have been feuding with his mom for a year, 0:14:34.320 --> 0:14:37.640 to come get this child who is sick and take 0:14:37.680 --> 0:14:40.160 her home back to his place. To me, this is 0:14:40.200 --> 0:14:42.000 another part of the mystery. If you have a sick 0:14:42.080 --> 0:14:44.560 two year old, I wonder what parent wants somebody to 0:14:44.600 --> 0:14:47.400 come out to the country pick up the child at 0:14:47.480 --> 0:14:51.480 nine o'clock at night, and knowing he's alone because his 0:14:51.520 --> 0:14:54.560 girlfriend's getting a hysterectomy in the hospital. But oh no, 0:14:54.760 --> 0:14:57.400 Robert needs to come out and fetch this child take 0:14:57.400 --> 0:15:02.080 her home. It's in the night where he wakes up 0:15:02.520 --> 0:15:07.960 to this strange cry, and his report consistently was he 0:15:08.040 --> 0:15:10.320 found her on the floor at the foot of the bed. 0:15:11.560 --> 0:15:14.800 He'd heard this cry, woke up and didn't know what happened, 0:15:14.840 --> 0:15:17.120 but he saw a little bit of blood on her mouth. 0:15:18.120 --> 0:15:21.880 He got a washcloth, wiped it off, kept her sitting 0:15:21.960 --> 0:15:25.040 up for a while because she'd fallen out, so he 0:15:25.080 --> 0:15:27.120 thought maybe she hit her head. And he'd been told 0:15:27.120 --> 0:15:28.920 if somebody hits their head, you have to keep him 0:15:28.920 --> 0:15:34.360 awake and then they fall back asleep. His alarm goes 0:15:34.400 --> 0:15:38.360 off a few hours later, he wakes up, finds Nicky 0:15:38.640 --> 0:15:44.720 Blue not breathing, faint heartbeat. He panics, shakes her a 0:15:44.720 --> 0:15:48.840 little to try to rouse her, and then meanwhile his 0:15:48.920 --> 0:15:51.760 girlfriend's calling him from the hospital to come get her, 0:15:52.960 --> 0:15:56.040 and he reports, well, Nicky's not breathing, So the girlfriend 0:15:56.040 --> 0:15:59.080 starts yelling at him get her to the hospital. And 0:15:59.120 --> 0:16:02.880 so Robert's trying to like put clothes on this comatose child. 0:16:03.000 --> 0:16:05.440 The woman's calling back, He's trying to call the other grandmother. 0:16:05.760 --> 0:16:08.560 He gets in the car, drives the short distance to 0:16:08.600 --> 0:16:11.600 the hospital, but the child never really recovers from this, 0:16:12.240 --> 0:16:15.040 and we have no idea how long had she ceased breathing. 0:16:15.520 --> 0:16:18.520 Right, anyone who's ever taken a CPR class knows that 0:16:18.600 --> 0:16:22.320 you've got to start asap because it really doesn't take 0:16:22.560 --> 0:16:26.440 very long for oxygen deprivation to lead to brain death. So, 0:16:27.240 --> 0:16:29.840 just to recap, we've got a little toddler who had 0:16:29.880 --> 0:16:33.760 been experiencing several days of respiratory distress that was many 0:16:33.840 --> 0:16:37.040 years later discovered to have been viral pneumonia, which is 0:16:37.160 --> 0:16:39.560 one of the eighty eight medical issues that could cause 0:16:39.600 --> 0:16:43.640 the triad of findings associated with shaking baby syndrome an 0:16:43.640 --> 0:16:48.160 abusive head trauma. Further, she was given medications that actually 0:16:48.240 --> 0:16:51.800 depress respiration, one of which now comes with a warning 0:16:52.120 --> 0:16:55.200 that it can cause and this is a quote fatal 0:16:55.320 --> 0:17:00.760 respiratory depression and pediatric patients end quote. Then she had 0:17:00.760 --> 0:17:03.200 a short fall from her bed to the floor, which 0:17:03.240 --> 0:17:06.600 is another potential cause of that triad of findings. So 0:17:06.840 --> 0:17:08.560 what happened next at the hospital? 0:17:08.880 --> 0:17:11.920 He gets up there into the er, they see this, 0:17:12.080 --> 0:17:15.560 you know, guy standing there with a limp child, and 0:17:15.760 --> 0:17:19.879 immediately the judgments start. They immediately assume he did something 0:17:19.920 --> 0:17:23.439 to this child, and they whisk her away colde blue. 0:17:23.560 --> 0:17:27.040 They revive her, but by that point her eyes were 0:17:27.080 --> 0:17:31.360 already fixed and dilated, which means she'd probably already experience 0:17:31.440 --> 0:17:33.800 brain death. She'd you know, it doesn't take long. It's 0:17:33.800 --> 0:17:38.760 about twelve minutes without oxygen. The brain shuts down, but 0:17:38.800 --> 0:17:41.880 they get her heart going. We know from the medical notes. 0:17:41.920 --> 0:17:45.520 There's extensive triage. They intubate her, take her off to 0:17:45.600 --> 0:17:48.400 be X rayed. They realize the breathing tomb's in wrong, 0:17:48.480 --> 0:17:50.720 pull it out out to do it over again, so 0:17:51.000 --> 0:17:53.960 more not breathing, you know, way longer than it would 0:17:54.000 --> 0:17:56.920 take to sustain brain death. Once your brain dies, you're 0:17:56.960 --> 0:17:59.840 not coming back to life, but you revive the heart. 0:18:00.160 --> 0:18:02.480 You're pumping all this blood into the system that can 0:18:02.520 --> 0:18:04.840 no longer get into the brain. And it's about the 0:18:04.880 --> 0:18:07.800 same time they do a scan of her head and 0:18:07.880 --> 0:18:10.440 what they noticed they had felt it behind her head, 0:18:10.440 --> 0:18:12.520 that there was what was called a goose egg, you know, 0:18:12.560 --> 0:18:14.840 as someone falls, you remember it from the cartoons. You 0:18:14.880 --> 0:18:17.480 fall and you get a bump, you know, it's swollen 0:18:17.600 --> 0:18:20.600 tissue on the back of her head. But the cat 0:18:20.680 --> 0:18:24.159 scan showed that there was subdural bleeding and that the 0:18:24.240 --> 0:18:27.760 brain had swollen, and that then later on they realized 0:18:27.760 --> 0:18:31.639 they're also retinal hemorrhages, and this is the classic triad 0:18:31.840 --> 0:18:36.520 associated with shaking. So this bump on the head, you know, 0:18:36.880 --> 0:18:39.600 one doctor that sees her later that day says that 0:18:40.040 --> 0:18:44.679 was minor, that could have happened at another time. But 0:18:45.200 --> 0:18:48.560 all this internal stuff, oh, that must have been caused 0:18:48.560 --> 0:18:52.840 by violent shaking and then flinging the child down against something. 0:18:53.440 --> 0:18:57.080 This became the theory instantly, but it was based on 0:18:57.520 --> 0:19:01.120 all the trauma inside the head. Which people see trauma, 0:19:01.200 --> 0:19:06.280 they see blood, they think blows, they think shaking, but 0:19:06.440 --> 0:19:09.320 in fact what we now know is you can get 0:19:09.400 --> 0:19:14.240 that same triad of internal conditions simply because you've got 0:19:14.359 --> 0:19:18.760 oxygen deprivation, and then meanwhile you have this intervention by 0:19:18.800 --> 0:19:21.960 the medical community to revive her that is increasing the 0:19:22.000 --> 0:19:24.840 blood inside her head. And they treated this as if 0:19:24.880 --> 0:19:26.840 this was the injury she had when she was brought 0:19:26.880 --> 0:19:27.920 to the hospital, right. 0:19:27.840 --> 0:19:30.800 When in reality, the likely cause was either the viral pneumonia, 0:19:30.880 --> 0:19:34.280 the potentially fatal prescription drugs, perhaps the shortfall, or some 0:19:34.400 --> 0:19:37.440 combination of these things coupled with the attempts to revive her. 0:19:37.840 --> 0:19:41.520 But they either didn't know about or they just straight 0:19:41.600 --> 0:19:44.400 up ignored all these factors and instead jumped to conclusions 0:19:44.440 --> 0:19:47.679 about Robert being violently abusive to his daughter because of 0:19:47.720 --> 0:19:50.480 the prevailing accepted sureties of the day. 0:19:51.000 --> 0:19:53.600 You have to realize when Nicky is brought to the er, 0:19:53.960 --> 0:19:59.120 this is a small rural community. The same er doctor 0:19:59.720 --> 0:20:02.919 is on on duty. Who is the one who was 0:20:02.960 --> 0:20:06.080 giving her the fennergen and sending her home with a 0:20:06.160 --> 0:20:10.480 high fever. Oh boy, And the pediatrician that had had 0:20:10.480 --> 0:20:13.320 her come to the office and measured her fever at 0:20:13.320 --> 0:20:16.719 one oh four point five came to the hospital and 0:20:16.760 --> 0:20:20.520 he's weighing in. And these are the people interviewing Robert, 0:20:20.960 --> 0:20:26.760 which in my mind, these are interested witnesses, and they, 0:20:26.840 --> 0:20:30.800 along with this collection of nurses, are making judgments about 0:20:30.800 --> 0:20:33.359 this man. And a lot of the testimony at his trial, 0:20:33.400 --> 0:20:35.760 which I know we'll get to, but right away, they're 0:20:35.760 --> 0:20:40.480 these judgments. He wasn't crying at the right times, he 0:20:40.680 --> 0:20:45.320 wasn't showing enough concern, he was just standing there. You know, 0:20:45.359 --> 0:20:48.199 these are the comments. Now, Robert has, you know, a 0:20:48.280 --> 0:20:51.480 special way of presenting to the world. It is almost 0:20:51.760 --> 0:20:55.359 a forest gump like thing. He is not intellectually disabled, 0:20:55.840 --> 0:20:59.800 but he has finally, after decades, been diagnosed as being 0:21:00.080 --> 0:21:03.120 on the autism spectrum. And once you know that, it's 0:21:03.119 --> 0:21:07.080 like an epiphany. A lot of his behavior makes sense. 0:21:07.640 --> 0:21:10.760 And he does get into these sort of obsessive loops 0:21:10.880 --> 0:21:14.199 where he's focused on details he's noticed, and this was 0:21:14.240 --> 0:21:15.960 one of the things going on to the hospital. You know, 0:21:16.000 --> 0:21:18.200 he's like, I got her a sippy cup, I gave 0:21:18.240 --> 0:21:21.159 her turkey, I put on you know, in this place, 0:21:21.240 --> 0:21:23.439 and he's trying to go through everything he did that night, 0:21:23.480 --> 0:21:25.320 and they're like, none of that matters. And then he 0:21:25.440 --> 0:21:29.119 keeps saying, she fell off the bed and they're saying 0:21:29.160 --> 0:21:31.920 that doesn't matter. Fall doesn't explain this, and they keep 0:21:31.960 --> 0:21:34.399 telling him none of this works, so he keeps trying again. 0:21:35.000 --> 0:21:38.399 This is in the hospital while his daughter is in 0:21:39.040 --> 0:21:43.080 you know, triage. They're all coming at him. The police 0:21:43.080 --> 0:21:45.159 are called almost instantly. 0:21:45.119 --> 0:21:47.879 And at some point in his telling of events, he 0:21:48.000 --> 0:21:50.520 said that he tried to give her a little shake 0:21:50.880 --> 0:21:53.719 to wake her up. And you can easily picture it 0:21:53.920 --> 0:21:56.679 giving a slight rock to someone when they're asleep to 0:21:56.680 --> 0:21:59.120 wake them up. I think everyone's done that at some point. 0:21:59.760 --> 0:22:02.960 But that's all they needed to hear the word shake 0:22:03.520 --> 0:22:07.200 coming out of the mouth of this large autistic man. 0:22:08.520 --> 0:22:10.919 When I brought into the hospital, I was freaking out, 0:22:10.920 --> 0:22:12.760 freaking out and stuff, because that's kind of accused me 0:22:13.520 --> 0:22:15.680 but being responsible for what happened to her and stuff, 0:22:15.680 --> 0:22:19.000