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#473 Jason Flom with Robert Roberson · Wrongful Conviction

0:06
Speaker 1: Okay, this is as serious as it gets. Another victim
0:11
Speaker 1: of the junk science of shaken baby syndrome, Robert Robertson,
0:15
Speaker 1: is scheduled for execution in the state of Texas on
0:18
Speaker 1: October seventeenth, twenty twenty four. I visited Robert at the
0:22
Speaker 1: Polunski unit outside Houston, just after Memorial Day twenty twenty two,
0:26
Speaker 1: and I remember walking away from him with a sick
0:30
Speaker 1: feeling in my stomach, knowing that the day might come
0:35
Speaker 1: when he would be put to death for a crime
0:38
Speaker 1: that never even happened. And here we are now on
0:41
Speaker 1: the precipice. Since our original coverage on July seventh, twenty
0:45
Speaker 1: twenty two, coverage that gained Robert even more pro bono
0:49
Speaker 1: support from the powerful law firm scatin Arps, even the
0:53
Speaker 1: lead detective in this case has come forward to acknowledge
0:58
Speaker 1: his mistake and asked Robert to forgive him.
1:03
Speaker 2: We'll link that video along with.
1:04
Speaker 1: Action steps in the episode description, because it looks like
1:07
Speaker 1: it's going to take all of our help now if
1:12
Speaker 1: this innocent man is going to survive. Here's a new
1:15
Speaker 1: edit of.
1:16
Speaker 2: Our original coverage of Robert Robertson.
1:23
Speaker 1: On January thirty, first, two thousand and two, thirty five
1:27
Speaker 1: year old Texan Robertson said that his two year old daughter, Nicki,
1:31
Speaker 1: had fallen out of bed in the middle of the night,
1:34
Speaker 1: and after comforting her, they both fell back to sleep.
1:39
Speaker 1: When he awoke again, Nicky wasn't breathing. Emergency rumor suscitation
1:44
Speaker 1: efforts ultimately failed, and little Nicky was.
1:47
Speaker 2: Pronounced dead along with a bump on her head.
1:51
Speaker 1: An examination revealed brain swelling as well as intracranial and
1:55
Speaker 1: retinal bleeding, the findings commonly associated with the now deep
1:59
Speaker 1: bunk shaken baby syndrome hypothesis, despite a number of viable
2:05
Speaker 1: causes of death. Instead, Robert was accused of violently shaking
2:10
Speaker 1: his daughter to death. So the state of Texas now
2:14
Speaker 1: intends to put Robert to death as well.
2:18
Speaker 2: But this is wrongful conviction.
2:28
Speaker 1: Wrongful conviction has always given voice to innocent people in prison,
2:32
Speaker 1: and now we're expanding that voice to you. Call us
2:36
Speaker 1: at eight three three two O seven four six sixty
2:39
Speaker 1: six and tell us how these stories make you feel
2:41
Speaker 1: and what you've done to help the cause, even if
2:44
Speaker 1: it's something as simple as telling a friend or sharing
2:47
Speaker 1: on social media. And you might just hear yourself in
2:50
Speaker 1: a future episode. Call us eight three three two oh seven,
2:54
Speaker 1: four six sixty six. Welcome back to Wrongful Conviction. I'm
3:07
Speaker 1: Jason Flauman. Today's case, unfortunately, is going to sound like
3:10
Speaker 1: familiar territory. It's a Shaken Baby prosecution which was based
3:14
Speaker 1: on a hypothesis that is now rejected by not only
3:18
Speaker 1: the original scientists, but also the scientific and medical communities
3:21
Speaker 1: that once held it to be a decided matter. Now, unfortunately,
3:24
Speaker 1: some of those attacked with that ill fated diagnosis in
3:27
Speaker 1: a court of law are still languishing in prison. Too many,
3:30
Speaker 1: I mean countless people, including our guest today who is
3:34
Speaker 1: on death row in Texas, Robert Robertson. Now, my producer
3:38
Speaker 1: Connor Hall, and I who trek down to the Polunski
3:41
Speaker 1: unit in Livingston, Texas to.
3:42
Speaker 2: Record an interview with Robert.
3:44
Speaker 1: You'll hear pieces of that interspersed throughout our coverage today.
3:48
Speaker 1: Joining us now is his appellate attorney, Gretchen Swen. Gretchen,
3:52
Speaker 1: Welcome to Ronful Conviction.
3:54
Speaker 3: Thank you so much, Jason.
3:55
Speaker 1: Now, before we get into Robert's case, I want to
3:57
Speaker 1: refer everyone to our coverage of Shake Baby syndrome on
4:01
Speaker 1: wrongful conviction junk science, which will be linked in the
4:04
Speaker 1: episode description. For decades, when a medical examiner was presented
4:08
Speaker 1: with brain swelling, bleeding inside the skull, and bleeding behind
4:12
Speaker 1: the eyes of an infant or a toddler, all other
4:15
Speaker 1: causes were not first ruled out, but totally ignored, and
4:20
Speaker 1: a leap in logic was made to two conclusions. First
4:25
Speaker 1: that this triad of findings were caused by violent shaking
4:28
Speaker 1: and later abusive head trauma was included, and second that
4:33
Speaker 1: the most recent caregiver must be the one responsible. Since
4:37
Speaker 1: the late nineties, over eighty medical conditions and still counting,
4:41
Speaker 1: have been found to cause that exact triad of findings. Additionally,
4:46
Speaker 1: biomechanical studies have revealed that violent shaking simply cannot cause
4:52
Speaker 1: the triad without also first causing a spinal injury. Further,
4:57
Speaker 1: it's been proven that up to seventy two hours can
5:00
Speaker 1: pass by before a child succumbs to these conditions, whether
5:04
Speaker 1: the cause was traumatic or simply a medical issue. The
5:08
Speaker 1: conclusion is that we cannot determine if a child was
5:12
Speaker 1: abused or violently shaken without first ruling out all the
5:16
Speaker 1: other causes and after doing so, we cannot reliably place
5:21
Speaker 1: blame on the last person with them, And unfortunately, Robert
5:25
Speaker 1: Robertson was that final caretaker and he was particularly vulnerable
5:29
Speaker 1: to prosecution.
5:30
Speaker 3: This is somebody who grew up dirt poor in East Texas.
5:36
Speaker 3: He was in special ed classes. He was the one
5:39
Speaker 3: who was bullied. There was a lot of violence in
5:42
Speaker 3: the home. But you had a mother who loved him dearly.
5:47
Speaker 3: But you know, he drops out in ninth grade. You know,
5:49
Speaker 3: he was on the radar in terms of this is
5:51
Speaker 3: a struggling kid and stumbles into what happens with so
5:55
Speaker 3: many poor, traumatized kids. He struggles with drug addiction. But
5:59
Speaker 3: this is a intul soul. And you know, you spend
6:02
Speaker 3: five minutes with Robert and you see his speech is
6:06
Speaker 3: unusual and he has this sort of flat affect and
6:09
Speaker 3: he struggles to speak.
6:12
Speaker 4: Okay, so you got some questions of something.
6:16
Speaker 2: Sure, So yeah, let me just introduce.
6:18
Speaker 1: First of all, this is drawn for conviction from death
6:21
Speaker 1: row in Texas. We're here on the Polunsky unit, where
6:25
Speaker 1: we've been before to visit Rob will and Rodney Reid.
6:28
Speaker 1: Today we're here with another innocent man, man named Robert Robertson.
6:31
Speaker 1: The man himself is like a big teddy bear. He's
6:34
Speaker 1: sitting right across from me through this window of bulletproof glass.
6:37
Speaker 2: Robert, thank you for being here to talk to us today.
6:40
Speaker 4: Thank you for being here.
6:42
Speaker 1: And Robert, going back to the beginning, did you grow
6:45
Speaker 1: up in Texas?
6:46
Speaker 4: I was born in Minneola, Texas and stuff, and we
6:48
Speaker 4: lived in Winnsboro until I was six years old, you know,
6:51
Speaker 4: and then my dad worked for the railroad and his
6:54
Speaker 4: job transferred to Palestine.
6:55
Speaker 1: Anderson Kenny, you know, you had a very difficult childhood,
6:58
Speaker 1: is that fair to say?
7:00
Speaker 4: My dad was real rough and my mom.
7:02
Speaker 5: My mom was like the glue to the family and stuff,
7:05
Speaker 5: you know, like the protection stuff, but dad would like
7:07
Speaker 5: to provide her.
7:09
Speaker 2: And then you ended up going into the military.
7:11
Speaker 5: And I went to the military when I was seventeen
7:14
Speaker 5: Army and they gave me a medical discharge letter on
7:17
Speaker 5: because they said I couldn't adapt, or something like a
7:20
Speaker 5: training discharge. You know.
7:22
Speaker 1: It has since been determined that Robert is on the
7:25
Speaker 1: autism spectrum, but at that time he was just twenty
7:28
Speaker 1: years old with two children.
7:29
Speaker 2: Who had special needs.
7:31
Speaker 1: Robert and the kid's mother depended on the grandparents for help. Eventually,
7:36
Speaker 1: Robert had a third child, Nicki Bowman, whose custody was
7:39
Speaker 1: also shared, but there was a more contentious relationship with
7:42
Speaker 1: her grandparents. In addition, Nicki was born with a host
7:46
Speaker 1: of medical issues that it appears were never properly diagnosed
7:50
Speaker 1: or treated.
7:52
Speaker 3: Nicki had been sick from essentially birth. This is a
7:56
Speaker 3: child on Medicaid. You know, she's being brought in and
8:00
Speaker 3: they're like, Ah, this antibiotic doesn't seem to work, let's
8:02
Speaker 3: give her another one, you know, over and over again.
8:05
Speaker 3: And so there is a real tragedy in this child's
8:07
Speaker 3: short life of just the medical failures to get at
8:10
Speaker 3: what's going on with her. But I think that's sort
8:13
Speaker 3: of where the story begins. And then, you know, if
8:15
Speaker 3: you get to the point of trial, they acted like
8:18
Speaker 3: this history did not exist or certainly didn't matter that
8:21
Speaker 3: you have a kid infected from eight days old pretty
8:25
Speaker 3: much onward. But the week before her collapse, she had
8:30
Speaker 3: been brought to the er with initially one hundred and
8:34
Speaker 3: three point five fever. I believe she was throwing up.
8:38
Speaker 3: She had chronic diarrhea and trouble breathing. At this point,
8:43
Speaker 3: she has prescribed this medication, Finnergen, which contains promethazine, which
8:49
Speaker 3: now has a black box warning from the FDA that
8:51
Speaker 3: you don't give this to kids under the age of ten,
8:54
Speaker 3: and certainly don't give it to kids with respiratory issues
8:58
Speaker 3: because it might cause death. A few days later, she
9:01
Speaker 3: at the doctor the day after the emergency visit, had
9:05
Speaker 3: a fever over one hundred and four. They also give
9:08
Speaker 3: her another prescription for Finnergen, along with codine costster and
9:13
Speaker 3: which metastasizes into morphine. You know, they're treating it as
9:17
Speaker 3: if it's some you know, annoying cold, but you're suppressing
9:22
Speaker 3: the respiratory system of a kid already in distress. So
9:25
Speaker 3: a day later, Robert is called by the grandparents who
9:29
Speaker 3: had been feuding with his mom for a year, to
9:31
Speaker 3: come get this child who is sick and take her
9:35
Speaker 3: home back to his place. To me, this is another
9:37
Speaker 3: part of the mystery. If you have a sick two
9:39
Speaker 3: year old, I wonder what parent wants somebody to come
9:42
Speaker 3: out to the country pick up the child at nine
9:45
Speaker 3: o'clock at night and knowing he's alone because his girlfriend's
9:49
Speaker 3: getting a hysterectomy in the hospital. But oh, no, Robert
9:52
Speaker 3: needs to come out and fetch this child, take her home.
9:55
Speaker 1: This was January thirtieth into the thirty first of two
9:58
Speaker 1: thousand and two, and on this particular night, Robert was
10:01
Speaker 1: prepared to care for his then fiance in the wake
10:05
Speaker 1: of her has.
10:05
Speaker 3: Directed me his fiance is coming home from the hospital.
10:08
Speaker 3: He's trying to elevate the bed. The bed was really
10:12
Speaker 3: box springs and a mattress propped up on cinderblocks. But
10:16
Speaker 3: you look at these pictures in this bed, it's precarious.
10:19
Speaker 3: You know, that's where Nikki was sleeping. So it's completely
10:23
Speaker 3: legit that a disoriented, sick child full of all these
10:26
Speaker 3: drugs tries to get up in the night and falls
10:30
Speaker 3: off the bed, and that would very easily explain this
10:34
Speaker 3: bump on the back of her head. It's in the
10:36
Speaker 3: night where he wakes up to this strange cry. And
10:41
Speaker 3: his report consistently was he found her on the floor
10:45
Speaker 3: at the foot of the bed. Didn't know what happened,
10:47
Speaker 3: but he saw a little bit of blood on her mouth.
10:50
Speaker 3: He got a washcloth, wiped it off, kept her sitting
10:53
Speaker 3: up for a while because she'd fallen out, so he
10:56
Speaker 3: thought maybe she hit her head and he'd been told
10:59
Speaker 3: if somebody hits their head, you have to keep him awake,
11:02
Speaker 3: and then they fall back asleep. His alarm goes off.
11:06
Speaker 3: A few hours later, he wakes up, finds Nicky Blue
11:11
Speaker 3: not breathing, faint heartbeat. He panics, shakes her a little
11:16
Speaker 3: to try to rouse her. Meanwhile, his girlfriend's calling him
11:19
Speaker 3: from the hospital to come get her, and he reports, well,
11:23
Speaker 3: Nicky's not breathing. He gets in the car, drives the
11:26
Speaker 3: short distance to the hospital. But the child never really
11:29
Speaker 3: recovers from this, and we have no idea how long
11:32
Speaker 3: had she ceased breathing. He gets up there into the er.
11:36
Speaker 3: They see this, you know, guy standing there with a
11:39
Speaker 3: limp child.
11:40
Speaker 1: And let's not forget how Robert presents to the world.
11:43
Speaker 1: He's a large man, well over six feet two hundred
11:47
Speaker 1: pounds and socially awkward.
11:50
Speaker 3: Immediately the judgment start, they assume he did something to
11:53
Speaker 3: this child, whisk her away, clothe Blue, but by that
11:56
Speaker 3: point her eyes were already fixed and dilated, which means
12:00
Speaker 3: she'd probably already experience brain death. It doesn't take long,
12:03
Speaker 3: it's about twelve minutes without oxygen. The brain shuts down.
12:07
Speaker 3: Once your brain dies you're not coming back to life,
12:09
Speaker 3: but you revive the heart. You're pumping all this blood
12:12
Speaker 3: into the system, increasing the blood inside her head that
12:15
Speaker 3: can no longer get into the brain. They get her
12:18
Speaker 3: heart going and it's about the same time they do
12:20
Speaker 3: a scan of her head and they notice the goose egg,
12:24
Speaker 3: you know, swollen tissue on the back of her head.
12:27
Speaker 3: But the cat scan showed that there was subdural bleeding
12:31
Speaker 3: and that the brain had swollen, and that then later
12:34
Speaker 3: on they realized they're also retinal hemorrhages, and this is
12:37
Speaker 3: the classic triad associated with shaking. So this bump on
12:42
Speaker 3: the head. One doctor that sees her later that day
12:46
Speaker 3: says that was minor, that could have happened at another time.
12:50
Speaker 3: But all this internal stuff, oh, that must have been
12:53
Speaker 3: caused by violent shaking and then flinging the child down
12:57
Speaker 3: against something. This became the theory instant.
13:00
Speaker 1: Late soon Nikki was pronounced dead, and it appears there
13:04
Speaker 1: are several avenues that could have led to both her
13:07
Speaker 1: demise as well as the triad of findings Number one.
13:11
Speaker 1: There are now FDA warnings that fenrigan can cause respiratory
13:14
Speaker 1: failure in children under age ten. Codine can also lead
13:18
Speaker 1: to suppressed respiration. In this case, there are two subsequent possibilities.
13:23
Speaker 1: A oxygen deprivation is one of the over eighty medical
13:27
Speaker 1: conditions that can cause the triad of findings, and B
13:30
Speaker 1: the post brain death resuscitation effort pumped blood into her
13:35
Speaker 1: cranial cavity, yet was viewed as a symptom with which
13:39
Speaker 1: she had arrived at the hospital. The second avenue short falls,
13:44
Speaker 1: like the one Robert said Nikki had taken from the
13:46
Speaker 1: elevated bed, has been enough in previous cases to cause
13:49
Speaker 1: the same triad and therefore her death. Not to mention
13:54
Speaker 1: that any accidental trauma of this type could have occurred
13:58
Speaker 1: up to seventy two hours before her untimely demise.
14:02
Speaker 3: We now know that a short umbraced fall where you
14:06
Speaker 3: hit your head, especially in a young child, there could
14:09
Speaker 3: be hours and even days before symptoms arise. You can
14:14
Speaker 3: have a traumatic brain injury and yet the manifestations aren't visible.
14:19
Speaker 2: It's terrifying but true. Now.
14:22
Speaker 1: Thirdly, years later, a re examination of Nikki's medical records
14:26
Speaker 1: and autopsy have revealed that she was suffering from viral pneumonia,
14:30
Speaker 1: another one of the non violent medical causes for the
14:33
Speaker 1: triad of findings and therefore her death. Yet somehow all
14:38
Speaker 1: of these possibilities were not ruled out but ignored.
14:43
Speaker 3: You have to realize that this is a small rural community.
14:46
Speaker 3: The same er doctor is on duty, who is the
14:51
Speaker 3: one who was giving her the finnergen oh boy, and
14:55
Speaker 3: the pediatrician that it had her come to the office
14:58
Speaker 3: and measured her fever at one oh four point five,
15:01
Speaker 3: came to the hospital and he's weighing in. And these
15:04
Speaker 3: are the people interviewing Robert, which in my mind, these
15:09
Speaker 3: are interested witnesses, and they, along with this collection of nurses,
15:15
Speaker 3: are making judgments about this man. And a lot of
15:17
Speaker 3: the testimony at his trial, which I know we'll get to,
15:20
Speaker 3: but right away, they're these judgments. He wasn't crying at
15:23
Speaker 3: the right times, he wasn't showing enough concern. He was
15:28
Speaker 3: just standing there.
15:31
Speaker 5: When I brought into the hospital, I was freaking out,
15:33
Speaker 5: freaking out and stuff because that kind of accused me
15:36
Speaker 5: being responsible for what happened to her and stuff, you know,
15:38
Speaker 5: And that's oh, because he's.
15:40
Speaker 4: Actually a certain way he must be guilty.
15:42
Speaker 5: You know, when you've been accused of something, you could
15:45
Speaker 5: be nervous or something you know, for that to happen
15:48
Speaker 5: to your child, child and stuff like getting there, I
15:51
Speaker 5: don't think nobody's.
15:52
Speaker 4: Gonna be in the right mind, you know stuff.
15:54
Speaker 5: You know, losinger is bad enough, but been accused of
15:57
Speaker 5: it that's even worse.
15:58
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16:13
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16:16
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16:26
Speaker 3: She had a fall that could very well have started
16:29
Speaker 3: the subdural bleeding, but she didn't even have skull fractures.
16:32
Speaker 3: What Nikki had was this is critical, only one impact
16:36
Speaker 3: sites on her exterior. To this day, the medical examiner
16:40
Speaker 3: insists that she saw evidence of multiple impact sites to
16:45
Speaker 3: Nicki's head because of all the blood underneath.
16:49
Speaker 1: Interestingly, the cat scans that could have debunked this assertion
16:53
Speaker 1: went missing for almost twenty years, so even though there
16:55
Speaker 1: was only one bump on Nikki's head, this medical examiner,
16:58
Speaker 1: doctor Jill Urban, claimed that the subdural up leading was
17:01
Speaker 1: the result of multiple blood force head injuries, ruling the
17:05
Speaker 1: death of homicide before any other testing, including a toxicology
17:10
Speaker 1: report that disclosed a lethal amount of fettergan. So the
17:13
Speaker 1: same people who had missed the viral pneumonia and unknowingly
17:18
Speaker 1: prescribed a deadly drug to the same toddler were the
17:22
Speaker 1: exact people looking at Roberts sideways. But it gets even worse.
17:26
Speaker 1: A nurse, who by the way, was not certified to
17:29
Speaker 1: perform sexual assault exams, volunteered to examine the child and
17:34
Speaker 1: proceeded to tell hospital staff and law enforcement that she
17:36
Speaker 1: saw anal tearing.
17:38
Speaker 3: Jason, I do think this is the tail wagging the
17:42
Speaker 3: dog here. You have a week's worth of diarrhea. You're
17:46
Speaker 3: going to have in a two year old child, some
17:48
Speaker 3: redness on their bottom. But she starts telling people, including
17:52
Speaker 3: the lead investigator in the hospital, what she sees. I
17:56
Speaker 3: think then you have mind blindness set in all of
17:59
Speaker 3: the officers. Nurse looking at Robert through the lens of
18:03
Speaker 3: here is a man who potentially anally raped his two
18:06
Speaker 3: year old daughter. Then that takes over. They do a
18:10
Speaker 3: sexual assault test on swabs taken from this child. Nothing.
18:14
Speaker 3: They test everything they can find in the bedroom, nothing
18:18
Speaker 3: to confirm this sexual assault hypothesis. Now they share this finding,
18:24
Speaker 3: quote unquote with the medical team at Dallas Children's well,
18:30
Speaker 3: the child abuse expert doctor Squires, who apparently you know,
18:33
Speaker 3: is looking all the time for sexual abuse, says she
18:35
Speaker 3: does not see what this nurse saw. All she saw
18:39
Speaker 3: is what she said at trial, was what every mother
18:42
Speaker 3: has probably seen, which you know looks akin to diaper rash.
18:46
Speaker 1: Yet that was not the last time this accusation was raised.
18:50
Speaker 1: In the meantime, this rural hospital also looked to Dallas
18:54
Speaker 1: Children's Hospital to confirm their finding of homicide.
18:58
Speaker 3: When Nikki is taken to Dallas Children's they look at
19:01
Speaker 3: the cat scans and say this is essentially classic shaken
19:04
Speaker 3: baby because of the triad. The child abused expert doctor
19:08
Speaker 3: Squires says, I was told that this was a healthy child.
19:12
Speaker 3: She was quote totally well right before her collapse. So
19:16
Speaker 3: the only explanation is that she was violently shaken. Now, first,
19:20
Speaker 3: as you know we were discussing earlier, it was it's
19:22
Speaker 3: a total lie to suggest this was a totally well child.
19:25
Speaker 3: This was a chronically ill child with infections that had
19:29
Speaker 3: resisted I think five different kinds of antibiotics. She has
19:32
Speaker 3: a viral infection. Nobody is getting it.
19:34
Speaker 1: So doctor Squire supported the homicide ruling without knowing Icky's
19:38
Speaker 1: medical history. In addition, the medical community at that time
19:41
Speaker 1: was unaware of the potential for a lucid interval of
19:44
Speaker 1: up to seventy two hours from the time of a
19:46
Speaker 1: traumatic event or of the health condition induced onset of
19:50
Speaker 1: the triad, and even though Robert had just received Nikki
19:52
Speaker 1: from her grandparents, that left only him as a possible
19:55
Speaker 1: shaking suspect. In addition, the medical community at this time
19:59
Speaker 1: was also on aware that in order for shaking to
20:02
Speaker 1: cause this triad, there had to have first been a
20:05
Speaker 1: neck injury, and that was not present in Nicki's case.
20:09
Speaker 1: She had no neck injury. But unfortunately, tragically, this discovery
20:15
Speaker 1: was a few years too late to help Robert. When
20:17
Speaker 1: it was made by biomechanical engineers.
20:20
Speaker 3: That's the community that started to point out to the
20:23
Speaker 3: medical community that this hypothesis was unfounded. It's like, we're
20:28
Speaker 3: studying injuries to children. We're the ones that are coming
20:32
Speaker 3: up with things like car seats for children and helmets,
20:35
Speaker 3: and you know, shaking does not cause this kind of
20:39
Speaker 3: injury in any experiment that's ever been documented. So there
20:43
Speaker 3: are two fallacies at the very heart of the SBS phenomenon.
20:47
Speaker 3: One is that shaking could cause bridging veins in your
20:51
Speaker 3: dura to rupture. No, and that shaking would not cause
20:56
Speaker 3: neck injuries. Also, No, and Nikki had absolutely nothing wrong
21:01
Speaker 3: with her neck. But it was already orthodoxy by this point,
21:05
Speaker 3: it was being taught in medical schools. And that's why
21:07
Speaker 3: I think it just has such staying power as a
21:10
Speaker 3: legal phenomenon when it has no scientific support, because so
21:14
Speaker 3: many people's lives have been ruined, so they keep tweaking
21:17
Speaker 3: how you're supposed to go about making the diagnosis. But
21:21
Speaker 3: in the day when Robert was quickly written off as guilty,
21:25
Speaker 3: there was no internal doubt within the medical community. So
21:28
Speaker 3: he's arrested that day on that information.
21:31
Speaker 1: And then the prosecutor once again raised the sexual assault allegations,
21:35
Speaker 1: even though their own medical experts would not support.
21:39
Speaker 3: It, and yet they dare to indict him on this.
21:43
Speaker 3: And every single potential juror is asked about the sexual
21:48
Speaker 3: abuse component that's going to be a part of this
21:50
Speaker 3: trial along with shaken baby. Every single juror is told
21:54
Speaker 3: that's the theory the state has, that there was sexual
21:57
Speaker 3: assault and that's the motivation for him to violently shake
22:01
Speaker 3: her to cover this effort.
22:02
Speaker 1: So He was represented, if we can call it that,
22:06
Speaker 1: by Steve Evans and John Van Meader. Talk to us
22:09
Speaker 1: about their efforts or lack thereof.
22:13
Speaker 3: They stated on the record in opening statements that this
22:18
Speaker 3: was unfortunately a shaken baby case, no doubt about it.
22:22
Speaker 3: At that time, there were very few experts even available
22:27
Speaker 3: to come in and challenge the state's causation theory. This
22:31
Speaker 3: was two thousand and two. Everybody believed shaken baby was
22:36
Speaker 3: an article of faith. It had been accepted by the
22:39
Speaker 3: American Pediatric Association. Some of the people that came to
22:43
Speaker 3: our aid only recently, some very famous, renowned experts in
22:48
Speaker 3: two thousand and one, two thousand and two, two thousand
22:51
Speaker 3: and three were just starting to sound the alarm.
22:55
Speaker 1: So the knowledge wasn't even really readily available to his
22:58
Speaker 1: own attorneys for them to even believe in his innocence.
23:02
Speaker 3: And they saw their job as just to try to
23:05
Speaker 3: prevent entry of a death sentence.
23:08
Speaker 5: Mantonia Trull had two where they had tried to do
23:11
Speaker 5: a plea barg stuff. And I told him I didn't
23:13
Speaker 5: do nothing. My mama said, I didn't do nothing. Don't
23:15
Speaker 5: take nothing right. The thing he is my mama, family
23:18
Speaker 5: lawyer had gave her a pamphlet to go to Trinity
23:20
Speaker 5: develop a community college, and Athens for seminar I was
23:24
Speaker 5: shaking baby cases.
23:25
Speaker 4: Who did she see there? Douglow the head DA he
23:29
Speaker 4: didn't know what was going on either.
23:31
Speaker 1: It appears that the prosecution and the defense team were
23:34
Speaker 1: totally out of their depth. The state side taking seminars
23:38
Speaker 1: likely given by someone who was a true believer in
23:42
Speaker 1: this now proven chunk science. And while the defense was
23:47
Speaker 1: essentially agreeing to some degree of murder without intent, the
23:51
Speaker 1: state was trying to take it a step further.
23:54
Speaker 2: Your trial was a farce.
23:56
Speaker 1: I mean, they pulled dirty tricks accusing you of sexually
24:00
Speaker 1: abusing the job when they knew that that was not
24:02
Speaker 1: the case, and they knew that she had had this
24:05
Speaker 1: horrible diarrhea that would have provided an exact explanation for
24:09
Speaker 1: why these symptoms were present. They decided to sort of
24:13
Speaker 1: taint the jury by bringing that ridiculous theory, which was
24:17
Speaker 1: later dropped.
24:18
Speaker 5: And they did take the jury because you hear a
24:20
Speaker 5: story about the child and stuff.
24:21
Speaker 4: It makes a lot of people mad, right of course,
24:23
Speaker 4: and made the jury mad, tainted the jury.
24:26
Speaker 1: They painted you into a monster, and I'm sitting here
24:29
Speaker 1: staring you right in the eyes. I mean, it's man
24:30
Speaker 1: who's no monster, I can tell you right off the bat.
24:33
Speaker 5: And I'm quite a friend friendly really, you know. They
24:36
Speaker 5: said you for us Now I'm not no father, no
24:38
Speaker 5: more on the lever you know, friendly, you know.
24:40
Speaker 3: And again I won't say that this was a conscious plot,
24:44
Speaker 3: but I do think they had expected Robert would take
24:47
Speaker 3: a plea deal. He adamantly would not. And I would say,
24:51
Speaker 3: in almost any death penalty case, what the state recognizes
24:57
Speaker 3: implicitly is that they must turn the defendant into a monster,
25:02
Speaker 3: because normal human beings don't want to come in and
25:05
Speaker 3: sign off on killing a fellow member of the human species.
25:10
Speaker 3: They sounded this horrifically prejudicial sexual theme and then dropped
25:15
Speaker 3: it right when it went to the jury because they
25:18
Speaker 3: really had no evidence except for this one nurse, who,
25:20
Speaker 3: by the way, was on the stand pretty much longer
25:23
Speaker 3: than anyone else. Roberts flattorneys did resist the sexual assault allegations,
25:30
Speaker 3: but only through cross examination. Meanwhile, the states bringing in
25:34
Speaker 3: experts who are telling the jury this kid was violently
25:38
Speaker 3: shaken and so if you're told that, and then you
25:41
Speaker 3: also have a nurse saying, and by the way, I
25:43
Speaker 3: also think there was sexual abuse. Someone that would violently
25:45
Speaker 3: take a child, well, they might have also abused a child.
25:49
Speaker 3: These things become possible. There was no counter narrative, and
25:53
Speaker 3: he was not convicted of that, but they maintained that, well,
25:57
Speaker 3: there was no evidence he didn't do it. I am
26:01
Speaker 3: not kidding you. There was closing argument about how even
26:04
Speaker 3: if they weren't going to decide the issue, they should
26:07
Speaker 3: consider it, and.
26:09
Speaker 2: The judge allows.
26:10
Speaker 3: Judge allowed it.
26:11
Speaker 1: So the jury comes back in. At the time, did
26:14
Speaker 1: you have still have some hope that they would see
26:17
Speaker 1: the truth and that they would end this nightmare?
26:20
Speaker 5: I was hoping they would so because attorney kept telling me,
26:23
Speaker 5: we can win this case, we can win this kid.
26:25
Speaker 5: This case is well okays. When they came back talking
26:28
Speaker 5: about guilty and stuff, you know, I don't know what
26:31
Speaker 5: I already thought of the time, and my mom wasn't
26:33
Speaker 5: there and stuff. But before the punishment, my mom had
26:37
Speaker 5: to go check on my dad here was an old
26:39
Speaker 5: folks home.
26:39
Speaker 4: You know, And once she got back, they gave me
26:42
Speaker 4: the death sentence and stuff.
26:43
Speaker 2: You know.
26:44
Speaker 4: I couldn't believe, couldn't believe they convicted me of something
26:47
Speaker 4: that I didn't do.
26:48
Speaker 5: You know, I've looked up January thirty first, two thousand
27:09
Speaker 5: and two, so little bit over twenty years I've been
27:12
Speaker 5: knocked up. I don't wish he's my worst enemy and stuff,
27:16
Speaker 5: you know, because being in a place like you said,
27:18
Speaker 5: like in that marriage stuff, you know, especially when you
27:21
Speaker 5: had done nothing to be here.
27:23
Speaker 4: In the first place.
27:23
Speaker 5: You know, and then you know, I lost I lost
27:26
Speaker 5: my mom last September, and I lost my dad since
27:28
Speaker 5: I've been in here, and stuff. I lost the chance
27:31
Speaker 5: to send my son and my daughter to grow up,
27:33
Speaker 5: being away from family all this time, lost all those years.
27:36
Speaker 4: And stuff that stole from me, you know, So it
27:39
Speaker 4: destroyed my life.
27:40
Speaker 2: You know.
27:43
Speaker 1: It's absolutely heartbreaking. And the authorities appear to have been
27:47
Speaker 1: doing what they, I guess thought was the right thing
27:50
Speaker 1: at the time. But our understanding of these instances has
27:53
Speaker 1: now advanced considerably. It's almost like a one to eighty.
27:57
Speaker 1: But before are more enlightened under standing of sbs. Robert
28:02
Speaker 1: based denials in his direct appeal and state habeas.
28:06
Speaker 3: Robert was on the verge of execution in twenty sixteen.
28:10
Speaker 3: That's when I was at a state public defender's office
28:13
Speaker 3: and we agreed to take on the case, and based
28:17
Speaker 3: on the change in science round the controversy of Shaking Baby,
28:21
Speaker 3: we got a state of his execution and the right
28:24
Speaker 3: to get back into state court to try to prove
28:27
Speaker 3: our claims. That then took many years.
28:31
Speaker 1: During this time, Gretchen was trying to uncover the cat
28:33
Speaker 1: scans from January thirty first, two thousand and two, and
28:36
Speaker 1: both medical centers had maintained that they had been lost
28:38
Speaker 1: or destroyed, as did the state. And then during the
28:41
Speaker 1: opening statements of this evidentiary hearing, something really crazy happened.
28:47
Speaker 3: In the middle of my opening statement, this clerk with
28:50
Speaker 3: goodwill listened and thought, well, I wonder if this stuff
28:54
Speaker 3: she's referring to could be buried in the courthouse basement.
28:58
Speaker 3: You know, had nothing to do with the motions I've
29:00
Speaker 3: filed seeking Brady evidence that hadn't led to someone discovering this.
29:03
Speaker 3: It was this one woman. Why the scans were buried
29:07
Speaker 3: in the courthouse basement, I do not know, But then
29:09
Speaker 3: we had a long hiatus so we could have a
29:12
Speaker 3: chance to have an expert look at them, and it
29:14
Speaker 3: confirms that there was only one impact site on Nicki's head,
29:19
Speaker 3: and that was that small swollen tissue on the back
29:23
Speaker 3: right of Nicki's head that is exculpatory. The medical examiner,
29:28
Speaker 3: who did not look at the head scans at the
29:31
Speaker 3: time and now decades later to this day, she insists
29:36
Speaker 3: that she saw evidence of multiple impact sites to Nicki's
29:40
Speaker 3: head because of all the blood underneath. Nonsensical. It doesn't
29:45
Speaker 3: work that way. You cannot impact a child's head sufficiently
29:50
Speaker 3: enough to cause internal damage and leave no mark on
29:53
Speaker 3: the outside. And what Nikki had was minimal bruising on
29:57
Speaker 3: her exterior. The blood underneath cannot be read like tea leaves,
30:02
Speaker 3: and yet that is what this medical examiner has done.
30:06
Speaker 3: Whereas the scans, which are the reliable evidence about whether
30:11
Speaker 3: or not there were impact sites, shows that one side,
30:14
Speaker 3: one and only side.
30:15
Speaker 1: Even though this didn't run counter to doctor Squire's ruling
30:18
Speaker 1: that this was an SBS case, which, of course, and
30:20
Speaker 1: I can't emphasize this enough, SBS is not a real thing.
30:25
Speaker 2: It's been debunked.
30:26
Speaker 1: However, the missing CT scan supported Robert's version of events,
30:30
Speaker 1: while directly contradicting doctor Urban, who was the one who
30:33
Speaker 1: had initially ruled Nicky's death a homicide, and that was
30:36
Speaker 1: enough to win an evidentiary hearing, and after being delayed
30:39
Speaker 1: by COVID, it resumed in March twenty twenty one.
30:42
Speaker 3: Here we are, twenty years later, having amassed an overwhelming
30:46
Speaker 3: amount of evidence from experts who have identified the toxic
30:51
Speaker 3: level of prescription drugs in this child system, the interstitial
30:55
Speaker 3: viral pneumonia, the lack of evidence of impact sites, and
31:00
Speaker 3: all the change in the understanding of shake and baby syndrome.
31:04
Speaker 3: All of that was put before trial court and deemed
31:08
Speaker 3: not new evidence.
31:10
Speaker 1: It's absolutely breaking bonkers. The biomechanical strides alone prove that
31:16
Speaker 1: if shaking was the cause of the triadive findings, there
31:19
Speaker 1: would first need to be a spinal or a neck injury,
31:23
Speaker 1: and Nikki had none. The state's theory just didn't hold water.
31:28
Speaker 1: It made room for every viable avenue that we'd laid
31:32
Speaker 1: out at the beginning, the lethal those of Bennigan causing
31:35
Speaker 1: respiratory arrest with oxygen deprivation, or the resuscitation effort causing
31:40
Speaker 1: the triad or her undiagnosed viral pneumonia. Even the shortfall
31:46
Speaker 1: alone could have done it. While being the source of
31:49
Speaker 1: the single swollen impact site. Meanwhile, doctor Urban admitted to
31:53
Speaker 1: never having looked at the CT scans when she said
31:57
Speaker 1: that there were multiple impacts and ruled the death of
31:59
Speaker 1: Huh aside.
32:01
Speaker 3: This medical examiner admitted that she didn't even look at
32:04
Speaker 3: the cat scans, She didn't listen to the testimony of
32:08
Speaker 3: all these new experts. She didn't seem to understand the
32:12
Speaker 3: interstitial viral pneumonia in the lung tissues that she'd collected,
32:17
Speaker 3: and instead just seemed to stand by this idea that
32:20
Speaker 3: the blood in the subdural space was enough for her
32:24
Speaker 3: to say, oh, well, whether it was shaking or not,
32:27
Speaker 3: it was still abuse. This was something I asked the
32:30
Speaker 3: medical examiner in court. You know, I said, Let's say
32:33
Speaker 3: I walk outside the courtroom. There are these marble steps
32:39
Speaker 3: and no one else is around, and I slip and
32:41
Speaker 3: I hit the back of my head and I become unconscious.
32:44
Speaker 3: And later you take a look at me. What is
32:47
Speaker 3: it that your background, your training has taught you that
32:51
Speaker 3: you could look at me and determine whether or not
32:56
Speaker 3: I'd fallen, or someone had pushed me, or someone had
33:00
Speaker 3: come up and hit me in the back of the
33:02
Speaker 3: head with a blunt object. Explain that to me or
33:05
Speaker 3: shook you yeah, And of course she couldn't. And what
33:08
Speaker 3: is appalling about this is that the shaking hypothesis that
33:12
Speaker 3: she furthered at trial, along with the child abuse expert,
33:16
Speaker 3: she was telling the jury all about shaking, that that's
33:19
Speaker 3: why you look at the outside of this child. You
33:20
Speaker 3: don't see much, but the reason you know its abuse
33:23
Speaker 3: is because shaking explains how all this stuff happens. Well, a,
33:27
Speaker 3: we now know shaking doesn't. But she couldn't tell me
33:29
Speaker 3: how blunt forced trauma, even if it's not shaking, could
33:34
Speaker 3: be looked at after the fact and you could say
33:36
Speaker 3: whether it was inflicted or not, because there's no science
33:40
Speaker 3: that would allow you to do that, that would require,
33:42
Speaker 3: you know, voodoo.
33:44
Speaker 1: With doctor Urban having undermined her own credibility, left Squires,
33:48
Speaker 1: for which Gretchen presented the updated scientific consensus on the matter,
33:52
Speaker 1: along with instances in which doctor Squire's recanted testimony in
33:56
Speaker 1: other Texas SBS cases. The Center for Integrity and Forensics
34:00
Speaker 1: Science has also submitted an amicus brief supporting Robert, but
34:03
Speaker 1: ultimately the motion was denied, with the court citing that
34:08
Speaker 1: no new evidence had been submitted.
34:11
Speaker 2: I mean, make it, make sense.
34:14
Speaker 3: Robert's case has been submitted, as per Texas procedure, to
34:19
Speaker 3: the Court of Criminal Appeals, which is the highest court
34:22
Speaker 3: for criminal matters in the state of Texas, so they will,
34:26
Speaker 3: one hopes, look at the huge volume of new evidence
34:31
Speaker 3: and look at it anew and really evaluate the allegations
34:36
Speaker 3: about the change in the scientific perspective from the time
34:39
Speaker 3: of his trial, which is the fundamental basis for our
34:41
Speaker 3: claims for relief. We also have an actual innocence claim,
34:45
Speaker 3: which is much stronger now than when we filed the
34:47
Speaker 3: claim because of the evidence of pneumonia, of the cat
34:51
Speaker 3: scans that were finally produced, et cetera. But ultimately, you
34:55
Speaker 3: cannot read that trial transcript and compare that to contemporary
34:59
Speaker 3: unders standing even among people that believe shaking baby syndrome
35:03
Speaker 3: has some validity. You cannot read the trial transcript and
35:07
Speaker 3: fail to recognize it's full of falsehoods. And we hope
35:11
Speaker 3: the Court of Criminal Appeals will dig into that and
35:15
Speaker 3: then grant him a new trial, and then it's like,
35:17
Speaker 3: go back to the trial court again and see if
35:20
Speaker 3: they really want to try again to convict him based
35:23
Speaker 3: on this horrifically scanty evidence.
35:25
Speaker 1: Your record well if they give you a chance and
35:28
Speaker 1: try to go ahead with what they presented in two
35:30
Speaker 1: thousand and two, I think they'd realize pretty quickly that
35:32
Speaker 1: we just didn't know better back then, and they'd let
35:35
Speaker 1: this go. Yeah, everyone that's listening, now, what can they do?
35:39
Speaker 3: A wonderful supporter of Robert has created a website. There
35:43
Speaker 3: are court filings there, and certainly the latest filing that
35:47
Speaker 3: amasses all the new evidence and explains why a new
35:51
Speaker 3: trial is worthwhile.
35:52
Speaker 1: Well, we'll have that linked to the bio as well
35:54
Speaker 1: as ways our audience can reach out to Robert. And
35:56
Speaker 1: with that we move to closing arguments, where I think
35:59
Speaker 1: you both for sharing your story, and then I'm going
36:02
Speaker 1: to turn my microphone off, leave my headphones on, and
36:05
Speaker 1: just listen for anything else that you feel is left
36:08
Speaker 1: to be said. Let's start off with you, Gretchen, and
36:10
Speaker 1: have Robert take us off into the sunset.
36:13
Speaker 3: I mean, I would like for the audience to picture
36:16
Speaker 3: themselves as a parent or any parent they know, and
36:20
Speaker 3: put yourself in the shoes of Robert, but imagine yourself
36:25
Speaker 3: without resources, an impairment that makes communication fundamentally difficult, and
36:31
Speaker 3: from the moment you arrive at the hospital with your
36:33
Speaker 3: comatose child. You're being interrogated, accused, and the accusations get
36:39
Speaker 3: worse and worse by the minute, so that by the
36:41
Speaker 3: end of a single day, you've gone from your child
36:45
Speaker 3: who's relatively new to your life, is gone, and they
36:49
Speaker 3: won't even allow you to say farewell because you're being
36:52
Speaker 3: taken to jail. And before there's even an indictment, there's
36:57
Speaker 3: a statement from a hospital saying it's got to be
37:00
Speaker 3: shaken baby syndrome. Yet no one assesses the medical records
37:04
Speaker 3: and try to put all these pieces together. And it
37:07
Speaker 3: is a complicated puzzle, but every single piece points away
37:11
Speaker 3: from a crime and towards a tragic story of a
37:16
Speaker 3: young child who was sick from the moment she was born,
37:18
Speaker 3: into unfortunate circumstances, and then not given the fair shake
37:23
Speaker 3: that she deserved. It's not just about Robert NICKI deserves
37:27
Speaker 3: a history that is based on the truth. And I
37:30
Speaker 3: urge people to just pay attention to what's being done
37:35
Speaker 3: in their names with our criminal justice systems. I came
37:38
Speaker 3: from a civil background, and everything I learned every day
37:42
Speaker 3: adds to my shock and outrage.
37:45
Speaker 5: Okay, okay, what I want to courage both of y'all
37:48
Speaker 5: to continue to do what y'all doing and stuff, because
37:50
Speaker 5: I believe in y'all and everybody else that's doing fighting
37:54
Speaker 5: against this corrupt legal systems, wrong for convictions.
37:57
Speaker 4: You know, keep on doing what you're doing.
37:58
Speaker 5: You know, I'm gonna continue and continue to fight up
38:01
Speaker 5: because you know, God knows, and I know you know
38:04
Speaker 5: that that was done wrong and stuff, And very grateful
38:08
Speaker 5: for what y'all doing. Very grateful for everybody that's involved
38:11
Speaker 5: in it. And uh now y'all have a safe trip
38:14
Speaker 5: back home and stuff. Made the Lord bless y'all and
38:17
Speaker 5: shine up his face upon y'all, and just like, encourage
38:20
Speaker 5: both of y'all to continue to do what you're doing.
38:29
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
38:32
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38:41
Speaker 1: production team, Connor Hall and Kathleen Fink, as well as
38:44
Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn.
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Speaker 1: The music in this production was supplied by three time
38:50
Speaker 1: Oscar nominated composer Jay Ralph. Be sure to follow us
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