Latest / Wrongful Conviction / #274 Jason Flom with Robert Roberson

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#274 Jason Flom with Robert Roberson · Wrongful Conviction

0:02
Speaker 1: Robert Robertson grew up in abject poverty in Texas, struggling
0:06
Speaker 1: with drug addiction and undiagnosed autism. While in and out
0:10
Speaker 1: of prison on non violent charges and parole violations, he
0:12
Speaker 1: had three children. After a heated custody battle with the
0:16
Speaker 1: maternal grandparents of his youngest, Nicky Bowman, Robert and his
0:20
Speaker 1: parents once shared custody just as Nicki's long standing respiratory
0:23
Speaker 1: issues were raging out of control. In late January two
0:28
Speaker 1: thousand and two, while suffering from nausea, diarrhea, fever, and
0:32
Speaker 1: respiratory distress, Nicki was improperly diagnosed with an acute respiratory
0:36
Speaker 1: ailment along with codine. Two year old Nicki was prescribed
0:40
Speaker 1: in medication that now comes with a warning for potentially
0:43
Speaker 1: causing fatal respiratory depression and children. In the early hours
0:48
Speaker 1: of January thirty first, two thousand and two, Robert comforted
0:51
Speaker 1: Nicki after she had fallen out of bed. When he
0:54
Speaker 1: woke again, Nicki was unresponsive and turning blue, so he
0:57
Speaker 1: rushed her to the hospital, where her symptoms included the
1:00
Speaker 1: triad of findings previously associated with the junk science of
1:04
Speaker 1: shaken baby syndro. The potential causes for her symptoms included
1:08
Speaker 1: undiagnosed viral pneumonia, the prescription drugs, the shortfall, the attempts
1:12
Speaker 1: to revive Niki, or some combination thereof. Disregarding these factors,
1:17
Speaker 1: a leap in logic was made by those who had
1:20
Speaker 1: previously misdiagnosed Niki to accuse Robert of fatally abusing his daughter.
1:24
Speaker 1: Then diaper rash was misconstrued as anal tearing, creating the
1:28
Speaker 1: specter of potential sexual abuse. Over the proceedings that sent
1:32
Speaker 1: Robert to death row. This is wrongful conviction. Welcome back
1:49
Speaker 1: to wrongful conviction. I'm Jason Flahman. Today's case, unfortunately, is
1:53
Speaker 1: going to sound like familiar territory. It's a shaken baby prosecution,
1:57
Speaker 1: and all of which was based on a hypothesis that
1:59
Speaker 1: is now rejected by not only the original scientists, but
2:03
Speaker 1: also the scientific and medical communities that once held it
2:06
Speaker 1: to be a decided matter. Now, unfortunately, some of those
2:09
Speaker 1: attacked with that ill fated diagnosis in a court of
2:12
Speaker 1: law are still languishing in prison. Too many, I mean
2:14
Speaker 1: countless people, including our guest today who is on death
2:19
Speaker 1: row in Texas, Robert Robertson Now, my producer Connor Hall,
2:23
Speaker 1: and I who trek down to the Polunski unit in Livingston,
2:26
Speaker 1: Texas to record an interview with Robert. You'll hear pieces
2:29
Speaker 1: of that interspersed throughout our coverage today. Joining us now
2:32
Speaker 1: is his appellate attorney since about twenty sixteen, a fierce
2:36
Speaker 1: and well respected advocate in the innosence community, Gretchen Swen. Gretchen,
2:41
Speaker 1: Welcome to Wrongful Conviction.
2:43
Speaker 2: Thank you so much. Jason.
2:44
Speaker 1: Now, before we get into Robert's case, I want to
2:47
Speaker 1: give a little background about the junk science of shaking
2:49
Speaker 1: baby syndrome. We go further in depth about it on
2:52
Speaker 1: our show Junk Science, and we'll have that episode linked
2:54
Speaker 1: in the bio. Please check it out. It's mind blowing.
2:58
Speaker 1: And in that episode, the executive director of the Center
3:01
Speaker 1: for Integrity and Forensic Sciences, Kate Judson, spoke with our
3:04
Speaker 1: host Josh Dubin about the shaken baby hypothesis and its effects,
3:08
Speaker 1: of which there are many. We've covered the cases of
3:11
Speaker 1: Amanda Brumfield, Stephanie Spurgeon, Melissa Lucio, who's also on death
3:16
Speaker 1: row in Texas and just recently won a stay of execution.
3:19
Speaker 1: We hope for a positive outcome there as well. And
3:23
Speaker 1: of course Kate Judson joined us again to explain how
3:27
Speaker 1: this junk science scourge pertained to the case of John Jones,
3:31
Speaker 1: who still languishes in an Ohio prison. Here's what Kate
3:34
Speaker 1: said in that episode about this hypothesis turned childcare nightmare.
3:40
Speaker 3: Shakan baby syndrome was originally proposed as a hypothesis to
3:43
Speaker 3: explain a phenomenon that a pediatric neurosurgeon in Great Britain
3:47
Speaker 3: was seeing in his patients. He would sometimes have infants
3:50
Speaker 3: who died or were seriously ill without a clear cause
3:53
Speaker 3: and without external trauma, and yet the internal features looked
3:58
Speaker 3: a lot like kids who had suffer some.
4:00
Speaker 4: Kind of traumatic injury.
4:01
Speaker 3: So those findings were subdural hematoma, which is bleeding between
4:05
Speaker 3: the coverings of the brain, retinal hemorrhage, which is bleeding
4:07
Speaker 3: at the back of the eye, and encephalopathy and cerebral edema,
4:11
Speaker 3: which sort of acts together as one leg of what
4:14
Speaker 3: sometimes people.
4:15
Speaker 4: Call the triad. Currebril edema is brain swelling.
4:18
Speaker 3: And encephalopathy is brain dysfunction, and so doctor guth Kelch,
4:22
Speaker 3: the piatric neurosurgeon was seeing these findings in kids and
4:25
Speaker 3: they looked injured on the inside but not on the outside,
4:28
Speaker 3: and he thought that one reason for that might be
4:30
Speaker 3: a common disciplinary technique in his home of Northern England
4:35
Speaker 3: in the seventies.
4:36
Speaker 4: Which was shaking.
4:37
Speaker 3: And so what doctor goth Kelch said is that these
4:41
Speaker 3: medical findings could be due to shaking. And doctor goth
4:44
Speaker 3: Kelch wasn't claiming to have the answers, but rather that
4:46
Speaker 3: he was hypothesizing about what might be causing these findings.
4:50
Speaker 4: So that started to evolve.
4:52
Speaker 3: A radiologist in New York, John Caffey, built on that
4:55
Speaker 3: and he published articles saying the same thing, right, that
4:58
Speaker 3: parents should be gentle with infants.
5:00
Speaker 4: But neither of these.
5:01
Speaker 3: Doctors suggested that the medical findings that they associated with
5:05
Speaker 3: shaking were exclusively diagnostic to shaking, nor did they say
5:10
Speaker 3: that there was a reliable way to place blame on
5:13
Speaker 3: a caregiver when a child had these medical findings. And
5:16
Speaker 3: there's a little bit of a gap in understanding between
5:19
Speaker 3: the mid to late nineteen seventies and then when we
5:21
Speaker 3: start to see these cases appear in published appellate decisions
5:25
Speaker 3: in the late eighties, and we started to see prosecutors
5:28
Speaker 3: and pediatricians in particular also pathologists saying that when children
5:33
Speaker 3: had this collection of.
5:34
Speaker 4: Findings, that shaking could be diagnosed.
5:37
Speaker 3: And that's when it comes into the criminal legal system
5:39
Speaker 3: and we start to see the trajectory that we're on
5:42
Speaker 3: today where parents are wrongfully accused based on only the
5:46
Speaker 3: existence of a particular set of medical findings.
5:50
Speaker 1: So, since this hypoth this was picked up here in
5:52
Speaker 1: the States in the ages, we've seen decades of parents
5:55
Speaker 1: and caregivers prosecuted with the support of medical personnel in
5:59
Speaker 1: the courtroom, making a bizarre leap in logic from this
6:04
Speaker 1: triad of findings which we now know have a universe
6:07
Speaker 1: of potential causes, to diagnosing that not only abuse was
6:12
Speaker 1: the root cause, but also that they could reliably place
6:14
Speaker 1: blame on the most recent caregiver. Now, this recipe for
6:18
Speaker 1: prosecution has fallen apart, starting in the late two thousands,
6:22
Speaker 1: when more research began to be done on this topic.
6:25
Speaker 1: We now know that there are many many causes of
6:28
Speaker 1: this constellation of findings. There is the possibility of abusive
6:31
Speaker 1: head trauma, but in order to cause that kind of
6:33
Speaker 1: internal damage with no external injuries or even minimal external injuries,
6:39
Speaker 1: that major spinal injuries would have to be present, and
6:42
Speaker 1: if some sort of trauma was the cause, accidental or intentional,
6:46
Speaker 1: it can take up to seventy two hours for complications
6:48
Speaker 1: to arise, making it impossible to pin it on the
6:52
Speaker 1: most recent caregiver in the absence again of severe spinal
6:57
Speaker 1: and exterior injuries. Finally, researchers have now compiled a list
7:01
Speaker 1: of eighty eight conditions and counting that can cause this
7:04
Speaker 1: constellation of findings absent any abuse, injury or trauma, which
7:08
Speaker 1: certainly seems to be the case here with Nicki Bowman.
7:11
Speaker 1: And I want to quote doctor guth Kelch here from
7:14
Speaker 1: a twenty twelve article titled After forty Years of Consideration,
7:18
Speaker 1: where he said, and I quote, I think we need
7:21
Speaker 1: to go back to the drawing board and make a
7:23
Speaker 1: more thorough assessment of these fatal cases. And I'm going
7:27
Speaker 1: to bet that we are going to find in every
7:29
Speaker 1: or at least the large majority of cases, that the
7:31
Speaker 1: child had another severe illness of some sort which was
7:35
Speaker 1: missed until too late end quote. Unfortunately, it appears that's
7:39
Speaker 1: exactly what we have here in the case of Nicki Bowman,
7:42
Speaker 1: the daughter of our guest today Robert Robertson. But before
7:47
Speaker 1: we get to Nicky's tragic end, Gretchen, can you give
7:50
Speaker 1: our audience a little background on Robert.
7:52
Speaker 2: This is somebody who grew up dirt poor in East Texas.
7:58
Speaker 2: There was a lot of violence in the home, but
8:02
Speaker 2: you know, had a mother who loved him dearly, and
8:06
Speaker 2: the kid had no record of ever engaging in physical violence.
8:11
Speaker 2: He was in special ed classes. He was the one
8:14
Speaker 2: who was bullied. He was the one coming to school
8:18
Speaker 2: with bruises. You know, he was on the radar in
8:21
Speaker 2: terms of this is a struggling kid. But you know,
8:23
Speaker 2: he drops out in ninth grade and stumbles into what
8:27
Speaker 2: happens with so many poor, traumatized kids. He struggles with
8:30
Speaker 2: drug addiction. But this is a gentle soul. And you know,
8:34
Speaker 2: you spend five minutes with Robert and you see his
8:37
Speaker 2: speech is unusual and he has this sort of flat
8:41
Speaker 2: affect and he struggles to speak.
8:44
Speaker 5: Okay, so so so yeah, y'a got some questions or something.
8:50
Speaker 1: Sure, So yeah, let me just introduce. First of all,
8:53
Speaker 1: this is dramful conviction from death row in Texas. We're
8:57
Speaker 1: here on the Polunsky unit where we've been ford to
9:00
Speaker 1: visit rob will and Rodney Reid. Today we're here with
9:03
Speaker 1: another innocent man, man named Robertson. The man himself is
9:06
Speaker 1: like a big teddy bear. He's sitting right across from
9:09
Speaker 1: me through this window of bulletproof glass. Robert, thank you
9:12
Speaker 1: for being here to talk to us today.
9:15
Speaker 5: Thank you for being here.
9:16
Speaker 1: And Robert, going back to the beginning, did you grow
9:19
Speaker 1: up in Texas?
9:20
Speaker 5: I was born in Minneola, Texas and stuff, and we
9:22
Speaker 5: lived in Winnsboro until I was six years old, you know,
9:25
Speaker 5: and then my dad worked for the railroad and his
9:28
Speaker 5: job transferred to Palestine.
9:29
Speaker 1: Anderson Kenny, You know you had a very difficult childhood.
9:32
Speaker 1: Is that fair to say? Oh?
9:34
Speaker 6: My dad was real rough and my mom was My
9:37
Speaker 6: mom was like the glue to the family and stuff,
9:39
Speaker 6: you know, like the protector stuff.
9:41
Speaker 5: But dad would like to provide her.
9:43
Speaker 1: Just say, because I've read a lot about you, your
9:44
Speaker 1: story and your case. Of course, you endured a lot
9:48
Speaker 1: of abuse as a child, ran away when you were
9:50
Speaker 1: twelve for the first time, you stained to fall from
9:53
Speaker 1: a ladder, ended up with some severe head trauma from that,
9:57
Speaker 1: and of course football injuries. So you've been banged around
10:01
Speaker 1: a lot, I would say, right.
10:03
Speaker 5: And co works and stuff, you know, when I got
10:05
Speaker 5: older and stuff, you know.
10:07
Speaker 1: And then you ended up going into the military. Is
10:09
Speaker 1: I wanted to.
10:09
Speaker 6: The military when I was seventeen Army and they gave
10:14
Speaker 6: me a medical discharge letter letter on because they said
10:16
Speaker 6: I couldn't adapt or something, you know, you know what
10:18
Speaker 6: they said, you know, like training discharge.
10:20
Speaker 5: You know.
10:22
Speaker 1: At age twenty, Robert had moved to Alabama with a
10:25
Speaker 1: woman who was also dependent on drugs. They had two kids,
10:28
Speaker 1: both of whom had special needs, so, you know, out
10:31
Speaker 1: of desperation, he started committing petty crimes.
10:34
Speaker 2: The criminal activity he had gauged him before had to
10:37
Speaker 2: do with Burgley of a habitation related to his drug addiction.
10:41
Speaker 2: And when he spent time in prison, he was such
10:43
Speaker 2: a model prisoner. He was made a trustee.
10:46
Speaker 1: Then he paroled out. But as we know, even the
10:48
Speaker 1: most well behaved person will have difficulty maintaining their freedom
10:51
Speaker 1: while on parole. There are thousands of reasons they can
10:54
Speaker 1: use to throw you back in there. And that's what
10:57
Speaker 1: he was dealing with.
10:58
Speaker 2: The parole violation is being out of county. That means
11:02
Speaker 2: he traveled to Fort Worth looking for work, which is
11:05
Speaker 2: where he hooked up with Nicki's biological mother. They were
11:09
Speaker 2: both from this little town Palestine, Texas, had this brief
11:13
Speaker 2: little affair, she ends up pregnant, he's back in prison,
11:16
Speaker 2: and meanwhile, this custody battle explodes between the grandparents that
11:22
Speaker 2: assume custody of this child from the hospital bed because
11:25
Speaker 2: CPS won't let the mom keep her, and then Robert's mom,
11:29
Speaker 2: who's like, well, if this is Robert's child, you know,
11:32
Speaker 2: we want to be involved. That goes on for nearly
11:36
Speaker 2: a year of Nicky's life with Robert out of the picture.
11:41
Speaker 2: But what Robert also doesn't know about is this kid
11:43
Speaker 2: is chronically sick. This is a child on Medicaid. You know,
11:49
Speaker 2: she's being brought in They're like, Ah, this antibiotic doesn't
11:52
Speaker 2: seem to work, let's give her another one, you know,
11:54
Speaker 2: over and over again. And so there is a real
11:56
Speaker 2: tragedy in this child's short life of just the medical
11:59
Speaker 2: failure to get at what's going on with her. But
12:02
Speaker 2: I think that's sort of where the story begins. And then,
12:05
Speaker 2: you know, if you get to the point of trial,
12:07
Speaker 2: they acted like this history did not exist. Or certainly
12:10
Speaker 2: didn't matter that you have a kid infected from eight
12:14
Speaker 2: days old pretty much onward.
12:16
Speaker 1: Infected and neglected by a system that didn't care about
12:20
Speaker 1: her and doesn't care about a lot of kids like her.
12:22
Speaker 1: I mean, let's call it what it is. I imagine, had
12:25
Speaker 1: they had access to different kinds of health care that's
12:28
Speaker 1: afforded to people of means, she may well be alive today,
12:32
Speaker 1: and who knows, maybe even would have graduated college. But
12:35
Speaker 1: we'll never know that because that's not how it worked out.
12:38
Speaker 1: And so back in January of two thousand and two,
12:40
Speaker 1: Robert had a girlfriend who was having her own medical
12:43
Speaker 1: issues and was about to have a hysterectomy, and he
12:46
Speaker 1: and his parents were sharing custody of baby Nikki with
12:48
Speaker 1: the maternal grandparents. Now, Robert's life was hectic, and he's
12:52
Speaker 1: helping support Nicki with two paper roots that he was doing.
12:55
Speaker 1: And then there's the events of January thirty first that
12:58
Speaker 1: resulted in Nicky's untimely, a tragic death and Robert's unjust arrest.
13:05
Speaker 1: Can you explain the situation at what led to this
13:07
Speaker 1: horrible outcome?
13:09
Speaker 2: As I noted, you know, Nicki had been sick from
13:12
Speaker 2: essentially birth. But the week before her collapse, she had
13:17
Speaker 2: been brought to the er with initially one hundred and
13:21
Speaker 2: three point five fever. I believe she was throwing up.
13:25
Speaker 2: She had chronic diarrhea and trouble breathing. At this point,
13:30
Speaker 2: she has prescribed this medication, Finnergen, which contains promethazine, which
13:36
Speaker 2: now has a black box warning from the FDA that
13:39
Speaker 2: you don't give this to kids under the age of ten,
13:41
Speaker 2: and certainly don't give it to kids with respiratory issues
13:45
Speaker 2: because it might cause death. A few days later, they
13:48
Speaker 2: also give her another prescription for Finnergen along with codine
13:53
Speaker 2: cough serrah. You know they're treating it as if it's
13:56
Speaker 2: some you know, annoying cold, but you're having trouble breathing.
14:00
Speaker 2: Then you give someone coding, which metastasizes into morphine. You know,
14:05
Speaker 2: you're suppressing the respiratory system of a kid already in distress.
14:10
Speaker 2: So she at the doctor the day after the emergency
14:13
Speaker 2: visit had a fever over one hundred and four. This
14:17
Speaker 2: is the follow up from the er. They send her
14:20
Speaker 2: home with these prescriptions and it's a day later, essentially
14:25
Speaker 2: after she's been through all this distress, she's been given
14:28
Speaker 2: all these medications. When Robert is called by the grandparents,
14:31
Speaker 2: who have been feuding with his mom for a year,
14:34
Speaker 2: to come get this child who is sick and take
14:37
Speaker 2: her home back to his place. To me, this is
14:40
Speaker 2: another part of the mystery. If you have a sick
14:42
Speaker 2: two year old, I wonder what parent wants somebody to
14:44
Speaker 2: come out to the country pick up the child at
14:47
Speaker 2: nine o'clock at night, and knowing he's alone because his
14:51
Speaker 2: girlfriend's getting a hysterectomy in the hospital. But oh no,
14:54
Speaker 2: Robert needs to come out and fetch this child take
14:57
Speaker 2: her home. It's in the night where he wakes up
15:02
Speaker 2: to this strange cry, and his report consistently was he
15:08
Speaker 2: found her on the floor at the foot of the bed.
15:11
Speaker 2: He'd heard this cry, woke up and didn't know what happened,
15:14
Speaker 2: but he saw a little bit of blood on her mouth.
15:18
Speaker 2: He got a washcloth, wiped it off, kept her sitting
15:21
Speaker 2: up for a while because she'd fallen out, so he
15:25
Speaker 2: thought maybe she hit her head. And he'd been told
15:27
Speaker 2: if somebody hits their head, you have to keep him
15:28
Speaker 2: awake and then they fall back asleep. His alarm goes
15:34
Speaker 2: off a few hours later, he wakes up, finds Nicky
15:38
Speaker 2: Blue not breathing, faint heartbeat. He panics, shakes her a
15:44
Speaker 2: little to try to rouse her, and then meanwhile his
15:48
Speaker 2: girlfriend's calling him from the hospital to come get her,
15:52
Speaker 2: and he reports, well, Nicky's not breathing, So the girlfriend
15:56
Speaker 2: starts yelling at him get her to the hospital. And
15:59
Speaker 2: so Robert's trying to like put clothes on this comatose child.
16:03
Speaker 2: The woman's calling back, He's trying to call the other grandmother.
16:05
Speaker 2: He gets in the car, drives the short distance to
16:08
Speaker 2: the hospital, but the child never really recovers from this,
16:12
Speaker 2: and we have no idea how long had she ceased breathing.
16:15
Speaker 1: Right, anyone who's ever taken a CPR class knows that
16:18
Speaker 1: you've got to start asap because it really doesn't take
16:22
Speaker 1: very long for oxygen deprivation to lead to brain death. So,
16:27
Speaker 1: just to recap, we've got a little toddler who had
16:29
Speaker 1: been experiencing several days of respiratory distress that was many
16:33
Speaker 1: years later discovered to have been viral pneumonia, which is
16:37
Speaker 1: one of the eighty eight medical issues that could cause
16:39
Speaker 1: the triad of findings associated with shaking baby syndrome an
16:43
Speaker 1: abusive head trauma. Further, she was given medications that actually
16:48
Speaker 1: depress respiration, one of which now comes with a warning
16:52
Speaker 1: that it can cause and this is a quote fatal
16:55
Speaker 1: respiratory depression and pediatric patients end quote. Then she had
17:00
Speaker 1: a short fall from her bed to the floor, which
17:03
Speaker 1: is another potential cause of that triad of findings. So
17:06
Speaker 1: what happened next at the hospital?
17:08
Speaker 2: He gets up there into the er, they see this,
17:12
Speaker 2: you know, guy standing there with a limp child, and
17:15
Speaker 2: immediately the judgments start. They immediately assume he did something
17:19
Speaker 2: to this child, and they whisk her away colde blue.
17:23
Speaker 2: They revive her, but by that point her eyes were
17:27
Speaker 2: already fixed and dilated, which means she'd probably already experience
17:31
Speaker 2: brain death. She'd you know, it doesn't take long. It's
17:33
Speaker 2: about twelve minutes without oxygen. The brain shuts down, but
17:38
Speaker 2: they get her heart going. We know from the medical notes.
17:41
Speaker 2: There's extensive triage. They intubate her, take her off to
17:45
Speaker 2: be X rayed. They realize the breathing tomb's in wrong,
17:48
Speaker 2: pull it out out to do it over again, so
17:51
Speaker 2: more not breathing, you know, way longer than it would
17:54
Speaker 2: take to sustain brain death. Once your brain dies, you're
17:56
Speaker 2: not coming back to life, but you revive the heart.
18:00
Speaker 2: You're pumping all this blood into the system that can
18:02
Speaker 2: no longer get into the brain. And it's about the
18:04
Speaker 2: same time they do a scan of her head and
18:07
Speaker 2: what they noticed they had felt it behind her head,
18:10
Speaker 2: that there was what was called a goose egg, you know,
18:12
Speaker 2: as someone falls, you remember it from the cartoons. You
18:14
Speaker 2: fall and you get a bump, you know, it's swollen
18:17
Speaker 2: tissue on the back of her head. But the cat
18:20
Speaker 2: scan showed that there was subdural bleeding and that the
18:24
Speaker 2: brain had swollen, and that then later on they realized
18:27
Speaker 2: they're also retinal hemorrhages, and this is the classic triad
18:31
Speaker 2: associated with shaking. So this bump on the head, you know,
18:36
Speaker 2: one doctor that sees her later that day says that
18:40
Speaker 2: was minor, that could have happened at another time. But
18:45
Speaker 2: all this internal stuff, oh, that must have been caused
18:48
Speaker 2: by violent shaking and then flinging the child down against something.
18:53
Speaker 2: This became the theory instantly, but it was based on
18:57
Speaker 2: all the trauma inside the head. Which people see trauma,
19:01
Speaker 2: they see blood, they think blows, they think shaking, but
19:06
Speaker 2: in fact what we now know is you can get
19:09
Speaker 2: that same triad of internal conditions simply because you've got
19:14
Speaker 2: oxygen deprivation, and then meanwhile you have this intervention by
19:18
Speaker 2: the medical community to revive her that is increasing the
19:22
Speaker 2: blood inside her head. And they treated this as if
19:24
Speaker 2: this was the injury she had when she was brought
19:26
Speaker 2: to the hospital, right.
19:27
Speaker 1: When in reality, the likely cause was either the viral pneumonia,
19:30
Speaker 1: the potentially fatal prescription drugs, perhaps the shortfall, or some
19:34
Speaker 1: combination of these things coupled with the attempts to revive her.
19:37
Speaker 1: But they either didn't know about or they just straight
19:41
Speaker 1: up ignored all these factors and instead jumped to conclusions
19:44
Speaker 1: about Robert being violently abusive to his daughter because of
19:47
Speaker 1: the prevailing accepted sureties of the day.
19:51
Speaker 2: You have to realize when Nicky is brought to the er,
19:53
Speaker 2: this is a small rural community. The same er doctor
19:59
Speaker 2: is on on duty. Who is the one who was
20:02
Speaker 2: giving her the fennergen and sending her home with a
20:06
Speaker 2: high fever. Oh boy, And the pediatrician that had had
20:10
Speaker 2: her come to the office and measured her fever at
20:13
Speaker 2: one oh four point five came to the hospital and
20:16
Speaker 2: he's weighing in. And these are the people interviewing Robert,
20:20
Speaker 2: which in my mind, these are interested witnesses, and they,
20:26
Speaker 2: along with this collection of nurses, are making judgments about
20:30
Speaker 2: this man. And a lot of the testimony at his trial,
20:33
Speaker 2: which I know we'll get to, but right away, they're
20:35
Speaker 2: these judgments. He wasn't crying at the right times, he
20:40
Speaker 2: wasn't showing enough concern, he was just standing there. You know,
20:45
Speaker 2: these are the comments. Now, Robert has, you know, a
20:48
Speaker 2: special way of presenting to the world. It is almost
20:51
Speaker 2: a forest gump like thing. He is not intellectually disabled,
20:55
Speaker 2: but he has finally, after decades, been diagnosed as being
21:00
Speaker 2: on the autism spectrum. And once you know that, it's
21:03
Speaker 2: like an epiphany. A lot of his behavior makes sense.
21:07
Speaker 2: And he does get into these sort of obsessive loops
21:10
Speaker 2: where he's focused on details he's noticed, and this was
21:14
Speaker 2: one of the things going on to the hospital. You know,
21:16
Speaker 2: he's like, I got her a sippy cup, I gave
21:18
Speaker 2: her turkey, I put on you know, in this place,
21:21
Speaker 2: and he's trying to go through everything he did that night,
21:23
Speaker 2: and they're like, none of that matters. And then he
21:25
Speaker 2: keeps saying, she fell off the bed and they're saying
21:29
Speaker 2: that doesn't matter. Fall doesn't explain this, and they keep
21:31
Speaker 2: telling him none of this works, so he keeps trying again.
21:35
Speaker 2: This is in the hospital while his daughter is in
21:39
Speaker 2: you know, triage. They're all coming at him. The police
21:43
Speaker 2: are called almost instantly.
21:45
Speaker 1: And at some point in his telling of events, he
21:48
Speaker 1: said that he tried to give her a little shake
21:50
Speaker 1: to wake her up. And you can easily picture it
21:53
Speaker 1: giving a slight rock to someone when they're asleep to
21:56
Speaker 1: wake them up. I think everyone's done that at some point.
21:59
Speaker 1: But that's all they needed to hear the word shake
22:03
Speaker 1: coming out of the mouth of this large autistic man.
22:08
Speaker 6: When I brought into the hospital, I was freaking out,
22:10
Speaker 6: freaking out and stuff, because that's kind of accused me
22:13
Speaker 6: but being responsible for what happened to her and stuff,
22:15
Speaker 6: you know. And then they didn't investigate her medical history
22:19
Speaker 6: like it should have been.
22:20
Speaker 5: And that's all because he's.
22:21
Speaker 6: Actually a certain way, he must be guilty. You know,
22:25
Speaker 6: when you've been accused of something, or don't have to
22:27
Speaker 6: be praying you' accusing something. You could be nervous or something,
22:29
Speaker 6: you know, for that to happen to your child, child
22:33
Speaker 6: and stuff like, get there. I don't think nobody's gonna
22:36
Speaker 6: be in the racked mind, you know, stuff you know
22:38
Speaker 6: when your child is in that dea of dying.
22:41
Speaker 1: Stuff you know, no of course, and then you're being
22:43
Speaker 1: put into the situation on top of it all.
22:46
Speaker 6: And it ripped my family's life, rupped my life, and
22:49
Speaker 6: stuff just destroyed it and stuff, you know, because it
22:51
Speaker 6: took me away from my mom and dad, took me
22:53
Speaker 6: away from my other.
22:54
Speaker 5: Children, and I lost my little girl.
22:57
Speaker 6: Losingers bad enough, but been accused of it, that's even
23:00
Speaker 6: war female.
23:17
Speaker 2: So the police are brought in and they start with
23:21
Speaker 2: the presumption this guy is a guilty human being. But
23:25
Speaker 2: Robert volunteers to take him over to his house and
23:28
Speaker 2: show her where Nicki got injured, and showed the bed.
23:33
Speaker 2: The bed was really box springs and a mattress propped
23:36
Speaker 2: up on cinderblocks. This was his solution for his fiances
23:41
Speaker 2: coming home from the hospital. He's trying to elevate the bed.
23:44
Speaker 2: But you look at these pictures. In this bed, it's precarious,
23:47
Speaker 2: you know, that's where Nicki was sleeping. So it's completely
23:51
Speaker 2: legit that a disapointed, sick child full of all these drugs,
23:56
Speaker 2: tries to get up in the night and falls off
23:59
Speaker 2: the bed, and that would very easily explain this bump
24:03
Speaker 2: on the back of her head. What it doesn't explain
24:06
Speaker 2: is all the internal stuff.
24:08
Speaker 1: The medical examiner, doctor Jill Urban, saw a large volume
24:11
Speaker 1: of subdual blood, assumed that the blood was caused by trauma,
24:16
Speaker 1: assumed the trauma had to have been inflicted, and then
24:18
Speaker 1: claimed that the blood was caused by quote blunt force
24:21
Speaker 1: head injuries.
24:23
Speaker 2: The medical examiner to this day insists that she saw
24:27
Speaker 2: evidence of multiple impact sites to Nicki's head because of
24:31
Speaker 2: all the blood underneath, and what Nikki had was this
24:35
Speaker 2: is critical only one impact site on her exterior. It
24:40
Speaker 2: doesn't work that way.
24:41
Speaker 1: She reached the conclusion that the matter of death was
24:43
Speaker 1: homicide without waiting for any test results, including a toxicology
24:46
Speaker 1: report that ultimately disclosed a lethal amount of promethazine also
24:50
Speaker 1: known as fennergen. So the same people who had missed
24:54
Speaker 1: all of the signs of her viral aneumonia and prescribed
24:56
Speaker 1: this deadly medication to the same toddler were now the
25:00
Speaker 1: same people looking sideways or cross eyed where we're gonna
25:04
Speaker 1: call it at Robert, and they passed Nicki's case to
25:07
Speaker 1: Dallas Children's Hospital. Likely they passed it along with their
25:11
Speaker 1: own biases.
25:12
Speaker 2: Later that day, when Nicki has taken to Dallas Children's
25:16
Speaker 2: doctor Squires, who was the child abuse expert, they look
25:19
Speaker 2: at the cat scans and say, this is essentially classic
25:22
Speaker 2: shaken baby because of the triad. The child abuse expert says,
25:26
Speaker 2: I was told that this was a healthy child. She
25:30
Speaker 2: was quote totally well right before her collapse. So the
25:33
Speaker 2: only explanation is that she was violently shaken. Now first,
25:38
Speaker 2: as you know we were discussing earlier, it's a total
25:40
Speaker 2: lie to suggest this was a totally well child. This
25:43
Speaker 2: was a chronically ill child with infections that had resisted
25:46
Speaker 2: I think five different kinds of antibiotics. She has a
25:50
Speaker 2: viral infection. Nobody is getting it. She had a fall
25:53
Speaker 2: that could very well have started the subdurable bleeding, but
25:56
Speaker 2: it wasn't a big fall because she didn't even have
25:58
Speaker 2: skull fractures, nothing like that.
26:00
Speaker 1: Another thing that we have to touch on here. Doctor Squier's,
26:03
Speaker 1: who testified for the prosecution, gave an opinion at the
26:06
Speaker 1: trial that the one minor impact. She said that it
26:09
Speaker 1: may have quote happened at a different time. Now, let
26:12
Speaker 1: me unpack that for a second. Right, so we know that,
26:15
Speaker 1: and the state didn't dispute that the baby was not
26:18
Speaker 1: in Robert's care in the hours, probably days leading up
26:22
Speaker 1: to this horrible night when she became so deathly ill.
26:28
Speaker 1: So how could anyone hypothesize that it was him and
26:34
Speaker 1: not somebody else but the many other people that were
26:37
Speaker 1: in contact with her that were in a position to
26:40
Speaker 1: care for or not little Nikki.
26:42
Speaker 2: Doctor Squires and the medical examiner, doctor Jill Urban, both
26:46
Speaker 2: told the jury that there could not be a lucid
26:49
Speaker 2: interval that looking at her condition at the time of collapse,
26:55
Speaker 2: they declared that had to have been you know, so
26:57
Speaker 2: much violent force impose this child that she would have
27:00
Speaker 2: immediately been rendered unconscious. And this is another fallacy associated
27:06
Speaker 2: with shaken baby syndrome that has been debunked, and it's
27:09
Speaker 2: tied to that one about the idea that a short
27:11
Speaker 2: fall cannot cause serious injury. We now know that a short,
27:17
Speaker 2: unmbraced fall where you hit your head not common, but
27:20
Speaker 2: if it happens, especially in a young child, there could
27:23
Speaker 2: be hours and even days before symptoms arise. You can
27:28
Speaker 2: have a traumatic brain injury. And yet the manifestations aren't visible.
27:33
Speaker 2: So that initial part of the hypothesis that instant loss
27:38
Speaker 2: of consciousness allowed you to pinpoint a perpetrator has fallen apart.
27:42
Speaker 2: And yet that was part of the testimony, you know,
27:45
Speaker 2: uncontested testimony that Robert's jury heard that he had to
27:51
Speaker 2: be the guilty one because for her to be that unconscious,
27:55
Speaker 2: he had to have done something to produce that right
27:58
Speaker 2: before she came to the high total fallacy.
28:01
Speaker 1: So the theory was that Robert must have held this
28:04
Speaker 1: thirty pound child out in front of him and shook
28:08
Speaker 1: her vigorously, causing all of these internal issues. But other
28:12
Speaker 1: than the bump on the head, there were no external
28:15
Speaker 1: injuries that could have explained her internal issues. And in addition,
28:18
Speaker 1: something that has been proven time and again to be
28:21
Speaker 1: impossible to do is to cause these internal issues by
28:25
Speaker 1: violently shaking while not also causing any neck injuries.
28:28
Speaker 2: It's nonsensical, it's absurd, and Nikki had absolutely nothing wrong
28:33
Speaker 2: with her neck. And we tried this in court. We
28:35
Speaker 2: had a biomechanical engineer, you know, that's the community that
28:39
Speaker 2: started to point out to the medical community that this
28:43
Speaker 2: hypothesis was unfounded. It's like we're studying injuries to children.
28:49
Speaker 2: We're the ones that are coming up with things like
28:52
Speaker 2: car seats for children and helmets, and you know, shaking
28:55
Speaker 2: does not cause this kind of injury in any experiment
29:00
Speaker 2: that's ever been documented. So there are two fallacies at
29:04
Speaker 2: the very heart of the SPS phenomenon. One is that
29:07
Speaker 2: shaking could cause a bridging veins in your dura to rupture. No,
29:13
Speaker 2: and that shaking would not cause neck injuries also No.
29:19
Speaker 2: But it was already orthodoxy by this point, Like I said,
29:23
Speaker 2: it was being taught in medical schools. And that's why
29:26
Speaker 2: I think it just has such staying power as a
29:30
Speaker 2: legal phenomenon when it has no scientific support, because so
29:34
Speaker 2: many people's lives have been ruined, and so they keep
29:38
Speaker 2: tweaking how you're supposed to go about making the diagnosis.
29:41
Speaker 2: But in the day when Robert was quickly written off
29:46
Speaker 2: as guilty, there was no internal doubt within the medical community.
29:49
Speaker 2: So he's arrested that day on that information.
29:53
Speaker 1: I'm sure if you're like me, you're probably saying, well,
29:57
Speaker 1: this really can't get any worse, But you ain't heard
30:01
Speaker 1: nothing yet. Okay, Because now as they were all convincing
30:06
Speaker 1: themselves in each other that Robert's guilt was a certainty
30:10
Speaker 1: or whatever, ignoring the medical evidence. The local nurse, for
30:16
Speaker 1: reasons will never know, volunteered to do a sexual assault
30:20
Speaker 1: examination on this comatose child. And, by the way, let
30:25
Speaker 1: me not leave out the fact that this nurse was
30:29
Speaker 1: not certified to do these type of examinations. She reported
30:33
Speaker 1: to law enforcement and other hospital staff that she saw
30:36
Speaker 1: quote anal tears on Niki, and this led to a
30:40
Speaker 1: whole nother layer of insanity. Now again, I'm no doctor
30:46
Speaker 1: and I'm no nurse either, but you don't have to
30:49
Speaker 1: be to understand the poor child had had vicious diarrhea
30:55
Speaker 1: for days.
30:56
Speaker 2: Well, Jason, I do think this is the tale wagging
31:00
Speaker 2: the dog here. You have a week's worth of diarrhea
31:03
Speaker 2: you're going to have in a two year old child,
31:06
Speaker 2: you know, some redness on their bottom. But so nothing
31:10
Speaker 2: about this would follow the protocol you would be taught
31:14
Speaker 2: if you went through the full certification. You know about
31:17
Speaker 2: how you document things you're never supposed to, by the way,
31:19
Speaker 2: declare you see evidence of sexual abuse? You're just supposed
31:23
Speaker 2: to report what do you see? But she starts telling people,
31:27
Speaker 2: including the lead investigator in the hospital what she sees.
31:32
Speaker 2: I think, then you have mind blindness set in all
31:35
Speaker 2: of the officers in hers looking at Robert through the
31:38
Speaker 2: lens of here is a man who potentially anally raped
31:42
Speaker 2: his two year old daughter. What a monster? All right,
31:47
Speaker 2: it is crazy, But then that takes over. Now they
31:51
Speaker 2: share this finding quote unquote with the medical team at
31:57
Speaker 2: Dallas Children's Well the mild abuse expert, who apparently, you know,
32:02
Speaker 2: is looking all the time for sexual abuse, says, she
32:04
Speaker 2: does not see what this nurse saw. All she saw
32:08
Speaker 2: is what she said at trial was what every mother
32:11
Speaker 2: has probably seen, which you know, looks akin to diaper rash.
32:14
Speaker 2: They also went to the medical examiner before the autopsy
32:17
Speaker 2: has done and said, yes, we have a nurse that
32:20
Speaker 2: saw evidence of anal tears. Again, the medical examiner couldn't
32:26
Speaker 2: endorse this, but they don't drop it. They do a
32:30
Speaker 2: sexual assault test on swabs taken from this child. Nothing.
32:34
Speaker 2: They test everything they can find in the bedroom, nothing
32:37
Speaker 2: to confirm this sexual assault hypothesis. And yet they dare,
32:42
Speaker 2: they dare to indict him on this. And every single
32:47
Speaker 2: potential juror is asked about the sexual abuse component that's
32:52
Speaker 2: going to be a part of this trial along with
32:54
Speaker 2: shaken baby. Every single juror is told that's the theory
32:58
Speaker 2: the state has that there was sexual assault and that's
33:02
Speaker 2: the motivation for him to violently shake her to cover
33:05
Speaker 2: this up. That is the state story. It is all
33:08
Speaker 2: not just false, it is defamatory beyond belief.
33:14
Speaker 1: Your trial was a farce. I mean they pulled dirty
33:19
Speaker 1: tricks accusing you of sexually abusing the child when they
33:22
Speaker 1: knew that that was not the case, and they knew
33:24
Speaker 1: that she had had this horrible diarrhea that would have
33:28
Speaker 1: provided an exact explanation for why these symptoms were present.
33:32
Speaker 1: They decided to sort of taint the jury by bringing
33:38
Speaker 1: that ridiculous theory, which was later dropped.
33:40
Speaker 6: And they did take the jury because you hear a
33:42
Speaker 6: story about the child and stuff.
33:43
Speaker 5: It makes a lot.
33:44
Speaker 6: Of people mad, right of course, it made the jury mad.
33:47
Speaker 6: It tainted that jury.
33:48
Speaker 1: They painted you into a monster. And I'm sitting here,
33:51
Speaker 1: you know, staring you right in the eyes. I mean,
33:53
Speaker 1: this man is no monster. I can tell you right
33:55
Speaker 1: off the bat, and I'm kind of.
33:57
Speaker 5: A friend friendly really.
33:58
Speaker 6: You know, people said, no, I'm not a father, no more,
34:01
Speaker 6: I'm the lever, you know, friendly, you know.
34:04
Speaker 2: And again I won't say that this was a conscious plot,
34:08
Speaker 2: but I do think they had expected Robert would take
34:11
Speaker 2: a plea deal. He adamantly would not. And I would
34:15
Speaker 2: say in almost any death penalty case, what the state
34:19
Speaker 2: recognizes implicitly is that they must turn the defendant into
34:25
Speaker 2: a monster, because normal human beings don't want to come
34:28
Speaker 2: in and sign off on killing a fellow member of
34:33
Speaker 2: the human species. So if you're going to get that result,
34:37
Speaker 2: if you're going to justify all the resources and time
34:40
Speaker 2: you spent, well this better be a monster they're looking at.
34:43
Speaker 2: They sounded this horrifically prejudicial theme from the moment she
34:48
Speaker 2: was brought to the hospital through Robert's trial, and then
34:51
Speaker 2: dropped it right when it went to the jury because
34:54
Speaker 2: they really had no evidence except for this one nurse,
34:57
Speaker 2: who by the way, was the state's star witness trial.
35:00
Speaker 2: She was on the stand pretty much longer than anyone else.
35:04
Speaker 2: So he was not convicted of that, but they maintained that, well,
35:09
Speaker 2: there was no evidence he didn't do it. I am
35:12
Speaker 2: not kidding you. There was closing argument about how even
35:16
Speaker 2: if they weren't going to decide the issue, they should.
35:19
Speaker 1: Consider it, and the judge allows.
35:21
Speaker 2: That judge allowed it. The judge was concerned, but when
35:24
Speaker 2: he was told there was a nurse who would testify
35:27
Speaker 2: about this, he let the state put it on. And
35:30
Speaker 2: you know, again, Robert had no defense attorneys who were
35:33
Speaker 2: bringing in experts of their own. There was cross examination
35:37
Speaker 2: of this nurse and that's how it came out that
35:40
Speaker 2: you know, for instance, she didn't have the certification, but
35:44
Speaker 2: that's not the same as bringing in an expert to
35:46
Speaker 2: expose everything that this woman did. It was contrary to
35:51
Speaker 2: the sexual assertain nurse examiner protocol. If you read this
35:55
Speaker 2: trial transcript, you could not believe this is happening in
35:58
Speaker 2: America in the twentieth century, that this was a trial
36:02
Speaker 2: that was seen as at all legally appropriate. The evidence
36:06
Speaker 2: that was paraded in front of this jury, and the
36:09
Speaker 2: abdication by defense counsel because they too believe shaken baby
36:14
Speaker 2: syndrome was the only way to explain this child's death.
36:17
Speaker 2: So I think they just, you know, thought, well, he's
36:19
Speaker 2: not a bad guy, he didn't really mean the killer,
36:21
Speaker 2: but yes, this must have been the way this child died, right,
36:26
Speaker 2: So he.
36:26
Speaker 1: Was represented if we can call it that, by Steve
36:30
Speaker 1: Evans and John Van Meader talk to us about their
36:34
Speaker 1: efforts or lack thereof.
36:36
Speaker 2: These are two local attorneys appointed to represent Robert. You know,
36:42
Speaker 2: this is true of you know, the vast majority of
36:44
Speaker 2: criminal defendants in this country who are too poor to
36:48
Speaker 2: retain a council. They stated on the record in opening
36:53
Speaker 2: statements that this was unfortunately a shaken baby case, no
36:57
Speaker 2: doubt about it, you know. And they saw their job
37:01
Speaker 2: as just to try to prevent entry of a death sentence,
37:05
Speaker 2: and that was their position. They did resist the sexual
37:10
Speaker 2: assault allegations, but again only through cross examination. Meanwhile, the
37:16
Speaker 2: States bringing in experts who are telling the jury this
37:20
Speaker 2: kid was violently shaken, and so if you're told that,
37:23
Speaker 2: and then you also have a nurse saying and by
37:25
Speaker 2: the way, I also think there was sexual abuse. Someone
37:28
Speaker 2: that would violently shake a child, well they might have
37:31
Speaker 2: also abused a child. These things become possible. There was
37:34
Speaker 2: no counter narrative. And again in Palestine, Texas in two
37:41
Speaker 2: thousand one, two thousand and two, two thousand and three.
37:45
Speaker 2: I don't see that these defense lawyers would have had
37:48
Speaker 2: the resources or wherewithal to go and recruit world class
37:53
Speaker 2: experts to come in and challenge the state's causation theory,
37:58
Speaker 2: because at that time there were very few of those
38:01
Speaker 2: experts even available in this country. Some of the people
38:05
Speaker 2: that came to our aid only recently, some very famous,
38:09
Speaker 2: renowned experts were just starting to sound the alarm.
38:14
Speaker 1: So they weren't really serving or acting as defense lar
38:18
Speaker 1: is as much as sort of adjunct prosecutors, if you
38:21
Speaker 1: could say that. And they didn't. They didn't believe in him,
38:25
Speaker 1: They didn't believe in his innocence. They probably didn't understand a
38:27
Speaker 1: lot of it.
38:29
Speaker 6: Well, my attorney at Troll had two They had tried
38:33
Speaker 6: to do a plea barg stuff, and I told him
38:35
Speaker 6: I didn't do nothing. My mama said, I didn't do nothing,
38:37
Speaker 6: don't take nothing right. So my own trail attorney kind
38:41
Speaker 6: of like went against me. You know, he kept saying
38:44
Speaker 6: they didn't know what what war, trying to make it
38:47
Speaker 6: a shaken baby case. The thing he is my family lawyer,
38:51
Speaker 6: my mama family lawyer, had gave her a pamphlet to
38:53
Speaker 6: go to try to develop a community college and Athenes
38:56
Speaker 6: for seminar on those topic cases. Who does she see there?
39:00
Speaker 6: The head da He didn't know what was going on
39:02
Speaker 6: either douglow. He went to that seminar too, because he
39:07
Speaker 6: didn't know nothing about it. First time we ever heard
39:09
Speaker 6: something about it was one of the trying to make
39:12
Speaker 6: the type of case. And then my mom sent him
39:14
Speaker 6: over there the seminar, tak taking that class with her,
39:17
Speaker 6: you know, to learn to learn about it.
39:19
Speaker 5: Right.
39:20
Speaker 1: Wow. So I mean, I I don't even know what
39:23
Speaker 1: to say neither.
39:26
Speaker 6: I was just like spaceless and stuff. You know, I know,
39:29
Speaker 6: I could couldn't win win that way and stuff. And
39:32
Speaker 6: he kept saying, Oh, we're gonna win this way. We're
39:34
Speaker 6: gonna win this way, We're gonna win this way.
39:38
Speaker 1: So you have a prosecution team and a defense team
39:40
Speaker 1: who were totally out of their depth taking seminars on
39:44
Speaker 1: shaking baby syndrome, and a seminar at that time would
39:47
Speaker 1: have been administered by somebody who fully believed in this
39:51
Speaker 1: proven junk science. His defense team saw it as their
39:55
Speaker 1: job to just keep him from getting the death penalty.
39:57
Speaker 1: So they basically just agreed with the prosecution that were
40:00
Speaker 1: killed his daughter, but that he just didn't intend to.
40:04
Speaker 1: I mean, talk about being sold down the river. But
40:06
Speaker 1: I mean, but then again, they believed in SBS or
40:11
Speaker 1: shake a baby syndrome, just as everybody else did at
40:13
Speaker 1: the time. The child abuse expert doctor Squire's and the
40:16
Speaker 1: medical examiner doctor Jill Urbin both testified for the prosecution,
40:19
Speaker 1: and as Gretchen pointed out, even if they wanted to
40:23
Speaker 1: present a competing expert, who were they going to get?
40:26
Speaker 2: Right? Who are you going to get? And I think
40:29
Speaker 2: they certainly could have and should have consulted with other experts.
40:33
Speaker 2: But I do think, you know, what's critical to Robert's
40:37
Speaker 2: hope at this point is that we recognize the science
40:40
Speaker 2: has changed. Never in a contemporary attempt to prosecute a
40:45
Speaker 2: parent for abuse would you jump to conclusions the way
40:50
Speaker 2: the medical community did in his case. There is an
40:53
Speaker 2: obligation to do what's called a differential diagnosis, where you
40:58
Speaker 2: try to eliminate all the other possibilities before you jump
41:03
Speaker 2: to the abuse prospect. Here it was completely turned on
41:07
Speaker 2: its head because shaken baby was seen, as you know,
41:12
Speaker 2: to use an annoying legal term raise ipsel loquidor which
41:16
Speaker 2: means the thing speaks for itself. You see that triad.
41:21
Speaker 2: It had to have been abuse. And this was two
41:24
Speaker 2: thousand and two. Everybody believed shaken baby was an article
41:29
Speaker 2: of faith. It had been accepted by the American Pediatric Association.
41:33
Speaker 2: But I can't name you any other causal theory where
41:36
Speaker 2: it's because you have no evidence, you can jump to
41:39
Speaker 2: the conclusion and say I'm correct. But that is what happened,
41:43
Speaker 2: you know, in modern American medicine. And it is terrifying,
41:47
Speaker 2: I think to anybody who's been around a kid to
41:50
Speaker 2: think that you could be blamed for a murder that
41:54
Speaker 2: was caused by an accidental or a natural phenomenon that
41:57
Speaker 2: just nobody's figuring out.
42:00
Speaker 1: Was convicted on Valentine's Day actually ironically have two thousand
42:03
Speaker 1: and three and sentenced to death. So the jury comes
42:06
Speaker 1: back in at the time, did you have still have
42:09
Speaker 1: some hope that they would see the truth and that
42:11
Speaker 1: they would end this nightmare.
42:14
Speaker 6: I was hoping hoping they would because attorney kept telling
42:18
Speaker 6: me even though the way the attorney was going and
42:21
Speaker 6: we can win this case, we can win this kid.
42:23
Speaker 6: This case is winning vocase he's blown air behind you know,
42:28
Speaker 6: he was he just talking, you know, by head. The
42:32
Speaker 6: attorney was talking about this is one of okays. And
42:34
Speaker 6: I had my hopes up. When they came back talking
42:37
Speaker 6: about guilty and stuff. You know, I don't know what
42:44
Speaker 6: I already thought of the time. And my mom wasn't
42:46
Speaker 6: there and stuff. But before the punishment, my mom, my
42:50
Speaker 6: mom had to leave. My mom had to go check
42:52
Speaker 6: on my dad. Here was an old folks home, you know,
42:54
Speaker 6: and when she got back, they didn't convict gave me
42:56
Speaker 6: the death sentence and stuff. You know, I was a
42:59
Speaker 6: lot shocked, shocked, because you know, I was shocked, you know,
43:02
Speaker 6: I guess you could say shock.
43:04
Speaker 5: You know.
43:05
Speaker 6: I couldn't believe, couldn't believe they convicted me of something
43:10
Speaker 6: that I didn't do.
43:10
Speaker 5: You know.
43:29
Speaker 6: I was locked up January thirty first, two thousand and two.
43:33
Speaker 6: So a little bit over twenty years, I've been looked up.
43:37
Speaker 6: I don't wish it's my my worst enemy and stuff,
43:39
Speaker 6: you know, because going through this stuff, being in a place,
43:42
Speaker 6: like you said, even.
43:43
Speaker 5: Though you get else, but it's like like a bad dream,
43:48
Speaker 5: you know, like like a nightmare and stuff, you know.
43:51
Speaker 6: Especially when you hadn't done, when you hadn't done nothing
43:53
Speaker 6: to be here in the first place, you know, And
43:56
Speaker 6: then you know, I lost I lost my mom last
43:58
Speaker 6: September and stuff, and I my dad since I've been
44:01
Speaker 6: in here and stuff. And at first, at first, you know,
44:05
Speaker 6: I'll excuse your nick. You've been responsible for that her day,
44:08
Speaker 6: you know, stuff, And I lost a chance to send
44:13
Speaker 6: my son and my daughter grew up, grew up and
44:17
Speaker 6: been away from family all this time, lost all those
44:20
Speaker 6: years and stuff, and it stole for me, you know.
44:25
Speaker 5: So it destroyed my life. You know.
44:28
Speaker 1: It's absolutely heartbreaking. And the authorities appear to have been
44:33
Speaker 1: doing what they, I guess thought was the right thing
44:36
Speaker 1: at the time. But our understanding of these instances has
44:39
Speaker 1: now advanced considerably. It's almost like a one to eighty.
44:43
Speaker 1: And what we do know now is that in the
44:45
Speaker 1: absence of any external injuries that could explain these internal issues,
44:49
Speaker 1: a SBS prosecution is an unconscionable leap in logic. We've
44:54
Speaker 1: already laid that out. But Gretchen, before our more enlightened
44:58
Speaker 1: understanding of SBI, Robert based denials in his direct appeal
45:03
Speaker 1: and state habeas When and how did this case come
45:06
Speaker 1: to you? And what has happened since so?
45:09
Speaker 2: Robert, as we noted, was sentenced in two thousand and three.
45:14
Speaker 2: He was on the verge of execution in twenty sixteen,
45:18
Speaker 2: that's when I was at a state public defender's office
45:21
Speaker 2: and we agreed to take on the case, and based
45:25
Speaker 2: on the change in science round the controversy of Shake
45:28
Speaker 2: and Baby, we got a state of his execution and
45:31
Speaker 2: the right to get back into state court to try
45:34
Speaker 2: to prove our claims. That then took many years.
45:38
Speaker 1: Right during this time, you were trying to uncover the
45:40
Speaker 1: cat scans from January thirty first, two thousand and two,
45:43
Speaker 1: and both medical centers had maintained that they had been
45:45
Speaker 1: lost or destroyed, as did the state. And then during
45:48
Speaker 1: the opening statements of this evidentiary hearing something really crazy happened.
45:54
Speaker 2: In the middle of my opening statement, this clerk with
45:58
Speaker 2: goodwill listened and thought, well, I wonder if this stuff
46:02
Speaker 2: she's referring to could be in this secret murder closet
46:05
Speaker 2: that I was just told about when I started the job.
46:09
Speaker 2: You had nothing to do with the motions I filed
46:11
Speaker 2: seeking Brady evidence that hadn't led to someone discovering this.
46:15
Speaker 2: It was this one woman just thinking could this be
46:19
Speaker 2: a possibility. Why the scans were buried in the courthouse
46:23
Speaker 2: basement I do not know. But then we had a
46:25
Speaker 2: long hiatus, so we could have a chance to have
46:28
Speaker 2: an expert look at that. We had these looked at
46:30
Speaker 2: by a radiologist, the only radiologist, by the way, who
46:34
Speaker 2: still seems to have ever looked at them. And it
46:36
Speaker 2: confirms that there was only one impact site on Nicky's head,
46:42
Speaker 2: and that was that small swollen tissue on the back
46:46
Speaker 2: right of Nicki's head that is exculpatory. That confirms that
46:52
Speaker 2: if she had a fall and hit her head, well,
46:55
Speaker 2: there's some evidence, but it's not evidence that explains her injuries.
47:00
Speaker 2: But it also it could have been that she fell
47:02
Speaker 2: earlier and that the fall from the bed when she
47:05
Speaker 2: was with Robert didn't cause that. We don't know. No
47:07
Speaker 2: one witnessed the fall, but it does not It does
47:11
Speaker 2: not show that she had any other impact sites on
47:15
Speaker 2: her head. And yet the medical examiner to this day,
47:20
Speaker 2: who did not look at the head scans at the
47:23
Speaker 2: time and did not look at them now decades later,
47:28
Speaker 2: insists that she saw evidence of multiple impact sites to
47:32
Speaker 2: Nicky's head because of all the blood underneath. Nonsensical. It
47:38
Speaker 2: doesn't work that way. You cannot impact a child's head
47:42
Speaker 2: sufficiently enough to cause internal damage and leave no mark
47:46
Speaker 2: on the outside. And what Nikki had was minimal bruising
47:50
Speaker 2: on her exterior. The blood underneath cannot be read like
47:55
Speaker 2: tea leaves, and yet that is what this medical examiner
47:58
Speaker 2: has done. Where As the scans, which are the reliable
48:03
Speaker 2: evidence about whether or not there were impact sites, shows
48:06
Speaker 2: that one side, one and only side.
48:08
Speaker 1: Which corroborates Robert's version of events. And then, in addition
48:12
Speaker 1: to the lethal level of promethazine in Nikki's body, which
48:15
Speaker 1: we know can cause fatal respiratory depression and children, along
48:18
Speaker 1: with codeine, a narcotic that also depresses respiration, she had
48:22
Speaker 1: viral pneumonia. So some combination of these factors, maybe all
48:27
Speaker 1: of them, stop Nikki from breathing. And then the efforts
48:29
Speaker 1: made to save her only pumped more blood into her
48:32
Speaker 1: cranium with nowhere for it to go. Then the experts
48:36
Speaker 1: in two thousand and two saw all that blood and
48:38
Speaker 1: said shaking and blunt force head trauma were to blame.
48:42
Speaker 1: So you now had compelling evidence to refute every single
48:46
Speaker 1: thing that the state had put on a trial. What
48:49
Speaker 1: happened next.
48:50
Speaker 2: We finally had an evidence you're hearing, we were allowed
48:53
Speaker 2: eight days to put on our case. Here we are
48:56
Speaker 2: twenty years later, having amassed and overwhelming amount of evidence
49:01
Speaker 2: from experts who are who have no dog in this fight,
49:05
Speaker 2: they're just looking for the truth, who have identified the
49:10
Speaker 2: toxic level of prescription drugs in this child system, the
49:14
Speaker 2: interstitial viral pneumonia, the lack of evidence of impact sites,
49:20
Speaker 2: and all the change in the understanding of shake and
49:24
Speaker 2: baby syndrome. All of that was put before trial court
49:27
Speaker 2: and deemed not new evidence.
49:30
Speaker 1: Which is absolutely bonkers. I mean, in this proceeding, doctor
49:33
Speaker 1: Urban admitted that she had never looked at these cascans
49:36
Speaker 1: that proved that there was only one impact site, while
49:40
Speaker 1: she had gone ahead and said that there was evidence
49:43
Speaker 1: of multiple impacts. It's it's I can't even find the
49:49
Speaker 1: right words for how angry that makes me. This alone
49:52
Speaker 1: should have been enough to reject doctor Urban's position that
49:55
Speaker 1: a homicide had occurred.
49:56
Speaker 2: If we talk about why these things are so hard
49:59
Speaker 2: to unwhine, Even if all the science the jury was
50:02
Speaker 2: told was junk is accepted as johnk but you still
50:06
Speaker 2: have a medical examiner saying, well, I think it's homicide anyway.
50:11
Speaker 2: The state is left saying, well, you know, I threw
50:13
Speaker 2: up my hands. But this medical examiner admitted that She
50:17
Speaker 2: did not consider any of this new evidence. She didn't
50:20
Speaker 2: even look at the cat scans, she didn't listen to
50:23
Speaker 2: the testimony of all these new experts. She didn't seem
50:27
Speaker 2: to understand the interstitial viral pneumonia in the lung tissues
50:32
Speaker 2: that she'd collected, and instead just seemed to stand by
50:36
Speaker 2: this idea that the blood in the subdural space was
50:40
Speaker 2: enough for her to say, Oh, well, whether it was
50:43
Speaker 2: shaking or not, it was still abuse.
50:46
Speaker 1: So she's still just making leaps in logic. Did she
50:49
Speaker 1: present any testimony, any logic at all to support this assertion.
50:54
Speaker 2: Well, I'll give you one little anecdote. This is something
50:57
Speaker 2: I asked the medical examiner in Core. You know, I said,
51:01
Speaker 2: Let's say I walk outside the courtroom. There are these
51:05
Speaker 2: marble steps, and no one else is around, and I
51:08
Speaker 2: slip and I hit the back of my head, and
51:11
Speaker 2: I become unconscious. And later you take a look at me.
51:16
Speaker 2: What is it that your background, your training has taught
51:21
Speaker 2: you that you could look at me and determine whether
51:26
Speaker 2: or not I'd fallen, or someone had pushed me, or
51:30
Speaker 2: someone had come up and hit me in the back
51:32
Speaker 2: of the head with a blunt object. Explain that to me,
51:37
Speaker 2: and of course she couldn't or shook you. Yeah, And
51:40
Speaker 2: what is appalling about this is that the shaking hypothesis
51:44
Speaker 2: that she furthered at trial along with the child abuse expert,
51:48
Speaker 2: she was telling the jury all about shaking, that that's
51:51
Speaker 2: why you look at the outside of this child. You
51:53
Speaker 2: don't see much. But the reason you know it's abuse
51:56
Speaker 2: is because shaking explains how all this stuff happens. Well, a,
52:00
Speaker 2: we now know shaking doesn't. But she couldn't tell me
52:02
Speaker 2: how blunt force trauma, even if it's not shaking, could
52:06
Speaker 2: be looked at after the fact and you could say
52:09
Speaker 2: whether it was inflicted or not, because there's no science
52:12
Speaker 2: that would allow you to do that. That would require,
52:15
Speaker 2: you know.
52:16
Speaker 1: Voodoo or a leap in logic to allot anything else
52:18
Speaker 1: to the exclusion of all other possibilities.
52:21
Speaker 2: That it was abuse, yes, but they don't rule it out.
52:24
Speaker 2: They just jump to.
52:25
Speaker 1: Abuse an unconscionable leap in logic. So what is the
52:28
Speaker 1: status of his case right now?
52:31
Speaker 2: Robert's case has been submitted, as per Texas procedure, to
52:36
Speaker 2: the Court of Criminal Appeals, which is the highest court
52:40
Speaker 2: for criminal matters in the state. Of Texas, so they will,
52:44
Speaker 2: one hopes, look at the huge volume of new evidence
52:49
Speaker 2: and look at it anew and really evaluate the allegations
52:55
Speaker 2: about the change and the scientific perspective from the time
52:58
Speaker 2: of his trial, which is the fundamental basis for our
53:01
Speaker 2: claims for relief. We also have an actual innocence claim,
53:04
Speaker 2: which is much stronger now than when we filed the
53:07
Speaker 2: claim because of the evidence of pneumonia, of the cat
53:11
Speaker 2: scans that were finally produced, et cetera. But ultimately, you
53:15
Speaker 2: cannot read that trial transcript and compare that to contemporary understanding,
53:19
Speaker 2: even among people that believe shaking baby syndrome has some validity.
53:25
Speaker 2: You cannot read the trial transcript and fail to recognize
53:28
Speaker 2: it's full of falsehoods. And we hope the Court of
53:32
Speaker 2: Criminal Appeals will dig into that and then grant him
53:35
Speaker 2: a new trial. And then it's like, go back to
53:38
Speaker 2: the trial court again and see if they really want
53:41
Speaker 2: to try again to convict him based on this horrifically
53:44
Speaker 2: scanty evidence youry record.
53:46
Speaker 1: Well, if they give you a chance and try to
53:48
Speaker 1: go ahead with what they presented in two thousand and two,
53:50
Speaker 1: I think they'd realize pretty quickly that we just didn't
53:53
Speaker 1: know better back then, and they'd let this go. Yeah,
53:56
Speaker 1: but listen, everyone that's listening now has the ability to
53:59
Speaker 1: do something thing. I know Robert said he wants people
54:01
Speaker 1: to write to him, which is it sounds very simple
54:04
Speaker 1: and mundane, but I've heard from so many people that
54:08
Speaker 1: have been in similar situations that it means so much
54:11
Speaker 1: to them to get a letter from somebody the outside
54:13
Speaker 1: who cares and so. But on a more proactive level,
54:16
Speaker 1: for people who do have the wherewithal and the time
54:19
Speaker 1: and the desire, what can they do?
54:21
Speaker 2: A wonderful supporter of Robert has created a website, so
54:26
Speaker 2: you know, I'd love for people to look at Robert's website.
54:28
Speaker 2: There are court filings there, and certainly the latest filing
54:33
Speaker 2: that amasses all the new evidence and explains why a
54:36
Speaker 2: new trial is worthwhile will be up there.
54:39
Speaker 1: Well, we'll have that linked to the bio as well
54:41
Speaker 1: as ways our audience can reach out to Robert. And
54:44
Speaker 1: with that we move to closing arguments, where I thank
54:46
Speaker 1: you both for sharing your story, and then I'm going
54:49
Speaker 1: to turn my microphone off, leave my headphones on, and
54:52
Speaker 1: just listen for anything else that you feel is left
54:55
Speaker 1: to be said. Let's start off with you, Gretchen, and
54:57
Speaker 1: have Robert take us off into the sun.
55:00
Speaker 2: I mean, I would like for the audience to picture
55:05
Speaker 2: themselves as a parent or any parent they know, and
55:10
Speaker 2: put yourself in the shoes of Robert, but imagine yourself
55:14
Speaker 2: without resources, with an impairment that makes communication fundamentally difficult.
55:21
Speaker 2: And from the moment you arrive at the hospital with
55:24
Speaker 2: your comatose child, you're being interrogated, accused, and the accusations
55:29
Speaker 2: get worse and worse by the minute, so that by
55:31
Speaker 2: the end of a single day, you've gone from the
55:36
Speaker 2: worst time of your life. Your child, who's relatively new
55:39
Speaker 2: to your life, is gone. And they won't even allow
55:43
Speaker 2: you to go to the hospital to say farewell, because
55:46
Speaker 2: you're being taken to jail. And before you there's even
55:50
Speaker 2: an indictment, there's a statement from a hospital saying it's
55:55
Speaker 2: got to be shaken baby syndrome only explanation for this
55:58
Speaker 2: child's injuries. Yet no one assesses the medical records, and
56:03
Speaker 2: no one has still assessed the medical history and tried
56:06
Speaker 2: to put all these pieces together. And it is a
56:08
Speaker 2: complicated puzzle, but every single piece points away from a
56:13
Speaker 2: crime and towards a tragic story of a young child
56:17
Speaker 2: who was sick from the moment she was born, into
56:20
Speaker 2: unfortunate circumstances, and then not given the fair shake that
56:24
Speaker 2: she deserved. It's not just about Robert NICKI deserves a
56:28
Speaker 2: history that is based on the truth. Instead, her death
56:32
Speaker 2: itself is shrouded in a lie, and I urge people
56:37
Speaker 2: to just pay attention to what's being done in their
56:40
Speaker 2: names with our criminal justice systems. I came from a
56:44
Speaker 2: civil background, and everything I learned every day adds to
56:48
Speaker 2: my shock and outrage. But there is real joy in
56:51
Speaker 2: fighting for people like Robert because the gratitude he expresses
56:57
Speaker 2: and the inspiration he vides with his resilience is remarkable.
57:03
Speaker 2: I'm so grateful for this podcast for shedding light on
57:07
Speaker 2: these kinds of cases. There are far too many of them,
57:10
Speaker 2: and of course, to me, Robert is unique and that
57:12
Speaker 2: he's uniquely vulnerable because of who he is and the
57:16
Speaker 2: system where we're left trying to get someone to hear us.
57:19
Speaker 2: But I thank you for allowing us to be heard,
57:22
Speaker 2: and especially allowing his boys to get out there.
57:26
Speaker 6: Okay, okay, what I want to courage both of y'all
57:28
Speaker 6: to continue to do what y'all doing and stuff, because
57:30
Speaker 6: I believe in y'all and everybody else that's doing doing
57:34
Speaker 6: fighting against this corrupt legal system is wrong for convictions.
57:37
Speaker 5: You know, keep doing, keep on, keep on doing what
57:39
Speaker 5: you're doing.
57:40
Speaker 6: You know, I'm gonna continue and continue to fight because
57:43
Speaker 6: you know, because you know, God knows, and I know.
57:45
Speaker 5: You know that that that was not wrong and stuff,
57:48
Speaker 5: and it's luck.
57:52
Speaker 6: I'm very grateful for what y'all doing, very grateful for
57:55
Speaker 6: everybody that's involved in it. And uh, now y'all have
57:59
Speaker 6: a safe trip by home and stuff. May the Lord
58:01
Speaker 6: bless y'all and shut up his face upon y'all. Uh,
58:06
Speaker 6: and just like encourage both of y'all to continue to
58:08
Speaker 6: do what you're doing. And I'm very happy and I'm
58:11
Speaker 6: very proud of both of you. And keep phone, keep phone.
58:16
Speaker 1: Okay, thank you for listening to Wrongful Conviction. I'd like
58:26
Speaker 1: to thank our production team Connor Hall, Jeff Clibern.
58:29
Speaker 7: And Kevin Wardis. With research by Lyla Robinson. The music
58:33
Speaker 7: in this production was supplied by three time OSCAR nominated
58:35
Speaker 7: composer Jay Ralph. Be sure to follow us on Instagram
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Speaker 7: at Wrongful Conviction on Facebook at Wrongful Conviction podcast and
58:44
Speaker 7: on Twitter at wrong Conviction, as well as at Lava
58:47
Speaker 7: for Good.
58:47
Speaker 1: On all three platforms, you can also follow me on
58:50
Speaker 1: both TikTok and Instagram at it's Jason flam Raeful Conviction
58:55
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58:58
Speaker 1: with Signal Company Number One.
59:00
Speaker 3: They returned the wind was wort to me.