September 5, 2024 • 39 mins
On January 31, 2002, Robert Roberson was awakened at his home in Palestine, TX by a cry and went to find his two year old daughter, Nikki Curtis, on the floor at the foot of the bed with a small amount of blood on her mouth. He cleaned up her mouth and kept her up for a while, then they both fell back to sleep.
A few hours later, Robert awoke up to find Nikki unconscious and turning blue. He tried to revive her but she was unresponsive.
Robert brought his daughter to the emergency room and after extensive triage, including reviving her heart (but not her brain), Nikki was driven to Dallas for further treatment and eventually taken off of life support. She passed away on February 1, 2002.
Robert was eventually indicted and ultimately convicted for capital murder for Nikki’s death and sentenced to death by lethal injection.
To learn more and get involved, visit:
https://innocenceproject.org/petitions/justice-for-robert-roberson/
https://justiceforroberson.com/
To write Robert:
Robert Roberson
TDCJ 999442
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351
https://lavaforgood.com/podcast/410-wrongful-conviction-junk-science-shaken-baby-syndrome/
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:06):
Okay, this is as serious as it gets. Another victim
of the junk science of shaken baby syndrome, Robert Robertson,
is scheduled for execution in the state of Texas on
October seventeenth, twenty twenty four. I visited Robert at the
Polunski unit outside Houston, just after Memorial Day twenty twenty two,
(00:26):
and I remember walking away from him with a sick
feeling in my stomach, knowing that the day might come
when he would be put to death for a crime
that never even happened. And here we are now on
the precipice. Since our original coverage on July seventh, twenty
twenty two, coverage that gained Robert even more pro bono
(00:49):
support from the powerful law firm scatin Arps, even the
lead detective in this case has come forward to acknowledge
his mistake and asked Robert to forgive him. We'll link
that video along with action steps in the episode description,
because it looks like it's going to take all of
(01:09):
our help now if this innocent man is going to survive.
Here's a new edit of our original coverage of Robert
Robertson on January thirty, first, two thousand and two, thirty
five year old Texan Robertson said that his two year
(01:30):
old daughter, Nicki, had fallen out of bed in the
middle of the night, and after comforting her, they both
fell back to sleep. When he awoke again, Nicky wasn't breathing.
Emergency rumor suscitation efforts ultimately failed, and little Nicky was
pronounced dead along with a bump on her head. An
(01:51):
examination revealed brain swelling as well as intracranial and retinal bleeding,
the findings commonly associated with the now deep bunk shaken
baby syndrome hypothesis, despite a number of viable causes of death. Instead,
Robert was accused of violently shaking his daughter to death.
(02:12):
So the state of Texas now intends to put Robert
to death as well. But this is wrongful conviction. Wrongful
conviction has always given voice to innocent people in prison,
and now we're expanding that voice to you. Call us
(02:36):
at eight three three two O seven four six sixty
six and tell us how these stories make you feel
and what you've done to help the cause, even if
it's something as simple as telling a friend or sharing
on social media. And you might just hear yourself in
a future episode. Call us eight three three two oh seven,
four six sixty six. Welcome back to Wrongful Conviction. I'm
(03:07):
Jason Flauman. Today's case, unfortunately, is going to sound like
familiar territory. It's a Shaken Baby prosecution which was based
on a hypothesis that is now rejected by not only
the original scientists, but also the scientific and medical communities
that once held it to be a decided matter. Now, unfortunately,
some of those attacked with that ill fated diagnosis in
(03:27):
a court of law are still languishing in prison. Too many,
I mean countless people, including our guest today who is
on death row in Texas, Robert Robertson. Now, my producer
Connor Hall, and I who trek down to the Polunski
unit in Livingston, Texas to record an interview with Robert.
You'll hear pieces of that interspersed throughout our coverage today.
(03:48):
Joining us now is his appellate attorney, Gretchen Swen. Gretchen,
Welcome to Ronful Conviction.
Speaker 2 (03:54):
Thank you so much, Jason.
Speaker 1 (03:55):
Now, before we get into Robert's case, I want to
refer everyone to our coverage of Shake Baby syndrome on
wrongful conviction junk science, which will be linked in the
episode description. For decades, when a medical examiner was presented
with brain swelling, bleeding inside the skull, and bleeding behind
the eyes of an infant or a toddler, all other
causes were not first ruled out, but totally ignored, and
(04:20):
a leap in logic was made to two conclusions. First
that this triad of findings were caused by violent shaking
and later abusive head trauma was included, and second that
the most recent caregiver must be the one responsible. Since
the late nineties, over eighty medical conditions and still counting,
(04:41):
have been found to cause that exact triad of findings. Additionally,
biomechanical studies have revealed that violent shaking simply cannot cause
the triad without also first causing a spinal injury. Further,
it's been proven that up to seventy two hours can
pass by before a child succumbs to these conditions, whether
(05:04):
the cause was traumatic or simply a medical issue. The
conclusion is that we cannot determine if a child was
abused or violently shaken without first ruling out all the
other causes and after doing so, we cannot reliably place
blame on the last person with them, And unfortunately, Robert
(05:25):
Robertson was that final caretaker and he was particularly vulnerable
to prosecution.
Speaker 2 (05:30):
This is somebody who grew up dirt poor in East Texas.
He was in special ed classes. He was the one
who was bullied. There was a lot of violence in
the home. But you had a mother who loved him dearly.
But you know, he drops out in ninth grade. You know,
he was on the radar in terms of this is
(05:51):
a struggling kid and stumbles into what happens with so
many poor, traumatized kids. He struggles with drug addiction. But
this is a mental soul. And you know, you spend
five minutes with Robert and you see his speech is
unusual and he has this sort of flat affect and
he struggles to speak.
Speaker 3 (06:12):
Okay, so you got some questions or something.
Speaker 1 (06:16):
Sure, So yeah, let me just introduce. First of all,
this is drawn for conviction from death row in Texas.
We're here on the Polunsky unit where we've been before
to visit rob will and Rodney Reid. Today we're here
with another innocent man, man named Robert Robertson. The man
himself is like a big teddy bear. He's sitting right
across from me through this window of bulletproof glass. Robert,
(06:37):
thank you for being here to talk to us today.
Speaker 3 (06:40):
Thank you for being here.
Speaker 1 (06:42):
And Robert, going back to the beginning, did you grow
up in Texas?
Speaker 3 (06:46):
I was born in Minneola, Texas and stuff, and we
lived in Winnsboro until I was six years old, you know,
and then my dad worked for the railroad and his
job transferred to Palestine.
Speaker 1 (06:55):
Anderson Kenny, you know, you had a very difficult childhood,
is that fair to say?
Speaker 3 (07:00):
My dad was real rough and my mom.
Speaker 4 (07:02):
My mom was like the glue to the family and stuff,
you know, like the protection store, but dad would like
to provide her.
Speaker 1 (07:09):
And then you ended up going into the military.
Speaker 4 (07:11):
And I went to the military when I was seventeen
Army and they gave me a medical discharge letter on
because they said I couldn't adapt, or something like a
training discharge. You know.
Speaker 1 (07:22):
It has since been determined that Robert is on the
autism spectrum, but at that time he was just twenty
years old with two children who had special needs. Robert
and the kid's mother depended on the grandparents for help. Eventually,
Robert had a third child, Nicki Bowman, whose custody was
also shared, but there was a more contentious relationship with
(07:42):
her grandparents. In addition, Nicki was born with a host
of medical issues that it appears were never properly diagnosed
or treated.
Speaker 2 (07:52):
Nicki had been sick from essentially birth. This is a
child on Medicaid. You know, she's being brought in and
they're like, Ah, this antibiotic doesn't seem to work, let's
give her another one, you know, over and over again.
And so there is a real tragedy in this child's
short life of just the medical failures to get at
what's going on with her. But I think that's sort
(08:13):
of where the story begins. And then, you know, if
you get to the point of trial, they acted like
this history did not exist or certainly didn't matter that
you have a kid infected from eight days old pretty
much onward. But the week before her collapse, she had
been brought to the er with initially one hundred and
(08:34):
three point five fever. I believe she was throwing up.
She had chronic diarrhea and trouble breathing. At this point,
she has prescribed this medication, Finnergen, which contains promethazine, which
now has a black box warning from the FDA that
you don't give this to kids under the age of ten,
and certainly don't give it to kids with respiratory issues
(08:58):
because it might cause death. A few days later, she
at the doctor the day after the emergency visit, had
a fever over one hundred and four. They also give
her another prescription for Finnergen, along with codine costster and
which metastasizes into morphine. You know, they're treating it as
if it's some you know, annoying cold, but you're suppressing
(09:22):
the respiratory system of a kid already in distress. So
a day later, Robert is called by the grandparents who
had been feuding with his mom for a year, to
come get this child who is sick and take her
home back to his place. To me, this is another
part of the mystery. If you have a sick two
year old, I wonder what parent wants somebody to come
out to the country pick up the child at nine
(09:45):
o'clock at night and knowing he's alone because his girlfriend's
getting a hysterectomy in the hospital. But oh, no, Robert
needs to come out and fetch this child, take her home.
Speaker 1 (09:55):
This was January thirtieth into the thirty first of two
thousand and two, and on this particular night, Robert was
prepared to care for his then fiance in the wake
of her has.
Speaker 2 (10:05):
Directed me his fiance is coming home from the hospital.
He's trying to elevate the bed. The bed was really
box springs and a mattress propped up on cinderblocks. But
you look at these pictures and this bed, it's precarious.
You know, that's where Nikki was sleeping. So it's completely
legit that a disoriented, sick child full of all these
(10:26):
drugs tries to get up in the night and falls
off the bed, and that would very easily explain this
bump on the back of her head. It's in the
night where he wakes up to this strange cry. And
his report consistently was he found her on the floor
at the foot of the bed. Didn't know what happened,
(10:47):
but he saw a little bit of blood on her mouth.
He got a washcloth, wiped it off, kept her sitting
up for a while because she'd fallen out, so he
thought maybe she hit her head and he'd been told
if somebody hits their head, you have to keep him awake,
and then they fall back asleep. His alarm goes off.
A few hours later, he wakes up, finds Nicky Blue
(11:11):
not breathing, faint heartbeat. He panics, shakes her a little
to try to rouse her. Meanwhile, his girlfriend's calling him
from the hospital to come get her, and he reports, well,
Nicky's not breathing. He gets in the car, drives the
short distance to the hospital. But the child never really
recovers from this, and we have no idea how long
(11:32):
had she ceased breathing. He gets up there into the er.
They see this, you know, guy standing there with a
limp child.
Speaker 1 (11:40):
And let's not forget how Robert presents to the world.
He's a large man, well over six feet two hundred
pounds and socially awkward.
Speaker 2 (11:50):
Immediately the judgment start, they assume he did something to
this child, whisk her away, clothe Blue, but by that
point her eyes were already fixed and dilated, which means
she'd probably already experience brain death. It doesn't take long,
it's about twelve minutes without oxygen. The brain shuts down.
Once your brain dies you're not coming back to life,
but you revive the heart. You're pumping all this blood
(12:12):
into the system, increasing the blood inside her head that
can no longer get into the brain. They get her
heart going and it's about the same time they do
a scan of her head and they notice the goose egg,
you know, swollen tissue on the back of her head.
But the cat scan showed that there was subdural bleeding
and that the brain had swollen, and that then later
(12:34):
on they realized they're also retinal hemorrhages, and this is
the classic triad associated with shaking. So this bump on
the head. One doctor that sees her later that day
says that was minor, that could have happened at another time.
But all this internal stuff, oh, that must have been
caused by violent shaking and then flinging the child down
(12:57):
against something. This became the theory instant.
Speaker 1 (13:00):
Late soon Nikki was pronounced dead, and it appears there
are several avenues that could have led to both her
demise as well as the triad of findings Number one.
There are now FDA warnings that fenrigan can cause respiratory
failure in children under age ten. Codine can also lead
to suppressed respiration. In this case, there are two subsequent possibilities.
(13:23):
A oxygen deprivation is one of the over eighty medical
conditions that can cause the triad of findings, and B
the post brain death resuscitation effort pumped blood into her
cranial cavity, yet was viewed as a symptom with which
she had arrived at the hospital. The second avenue short falls,
(13:44):
like the one Robert said Nikki had taken from the
elevated bed, has been enough in previous cases to cause
the same triad and therefore her death. Not to mention
that any accidental trauma of this type could have occurred
up to seventy two hours before her untimely demise.
Speaker 2 (14:02):
We now know that a short umbraced fall where you
hit your head, especially in a young child, there could
be hours and even days before symptoms arise. You can
have a traumatic brain injury and yet the manifestations aren't visible.
Speaker 1 (14:19):
It's terrifying but true. Now. Thirdly, years later, a re
examination of Nikki's medical records and autopsy have revealed that
she was suffering from viral pneumonia, another one of the
non violent medical causes for the triad of findings and
therefore her death. Yet somehow all of these possibilities were
(14:40):
not ruled out but ignored.
Speaker 2 (14:43):
You have to realize that this is a small rural community.
The same er doctor is on duty, who is the
one who was giving her the finnergen oh boy, and
the pediatrician that it had her come to the office
and measured her fever at one oh four point five,
came to the hospital and he's weighing in. And these
(15:04):
are the people interviewing Robert, which in my mind, these
are interested witnesses, and they, along with this collection of nurses,
are making judgments about this man. And a lot of
the testimony at his trial, which I know we'll get to,
but right away, they're these judgments. He wasn't crying at
the right times, he wasn't showing enough concern. He was
(15:28):
just standing there.
Speaker 4 (15:31):
When I brought into the hospital, I was freaking out,
freaking out and stuff because that kind of accused me
being responsible for what happened to her and stuff, you know,
And that's oh, because he's.
Speaker 3 (15:40):
Actually a certain way he must be guilty.
Speaker 4 (15:42):
You know, when you've been accused of something, you could
be nervous or something you know, for that to happen
to your child, child and stuff like getting there, I
don't think nobody's gonna be in the right mind, you
know stuff. You know, losinger is bad enough, but been
accused of it that's even worse.
Speaker 1 (15:58):
You know, you're listening to wrongful conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ad free by subscribing to Lava for
(16:19):
Good Plus on Apple Podcasts.
Speaker 2 (16:26):
She had a fall that could very well have started
the subdural bleeding, but she didn't even have skull fractures.
What Nikki had was this is critical, only one impact
sites on her exterior. To this day, the medical examiner
insists that she saw evidence of multiple impact sites to
Nicki's head because of all the blood underneath.
Speaker 1 (16:49):
Interestingly, the cat scans that could have debunked this assertion
went missing for almost twenty years, so even though there
was only one bump on Nicki's head, this medical examiner,
doctor Jill Urban, claimed that the subduralp leading was the
result of multiple blood force head injuries, ruling the death
of homicide before any other testing, including a toxicology report
(17:10):
that disclosed a lethal amount of fettergan. So the same
people who had missed the viral pneumonia and unknowingly prescribed
a deadly drug to the same toddler were the exact
people looking at Robert sideways. But it gets even worse.
A nurse, who by the way, was not certified to
perform sexual assault exams, volunteered to examine the child and
(17:34):
proceeded to tell hospital staff and law enforcement that she
saw anal tearing.
Speaker 2 (17:38):
Jason, I do think this is the tail wagging the
dog here. You have a week's worth of diarrhea. You're
going to have in a two year old child, some
redness on their bottom. But she starts telling people, including
the lead investigator in the hospital, what she sees. I
think then you have mind blindness set in all of
(17:59):
the officers. Nurse looking at Robert through the lens of
here is a man who potentially anally raped his two
year old daughter. Then that takes over. They do a
sexual assault test on swabs taken from this child. Nothing.
They test everything they can find in the bedroom, nothing
to confirm this sexual assault hypothesis. Now they share this finding,
(18:24):
quote unquote with the medical team at Dallas Children's Well
the child abuse expert doctor Squires, who apparently you know,
is looking all the time for sexual abuse, says she
does not see what this nurse saw. All she saw
is what she said at trial, was what every mother
has probably seen, which you know looks akin to diaper rash.
Speaker 1 (18:46):
Yet that was not the last time this accusation was raised.
In the meantime, this rural hospital also looked to Dallas
Children's Hospital to confirm their finding of homicide.
Speaker 2 (18:58):
When Nikki is taken to Dallas Children's they look at
the cat scans and say this is essentially classic shaken
baby because of the triad. The child abused expert doctor
Squires says, I was told that this was a healthy child.
She was quote totally well right before her collapse. So
the only explanation is that she was violently shaken. Now, first,
(19:20):
as you know we were discussing earlier, it was it's
a total lie to suggest this was a totally well child.
This was a chronically ill child with infections that had
resisted I think five different kinds of antibiotics. She has
a viral infection. Nobody is getting it.
Speaker 1 (19:34):
So doctor Squire supported the homicide ruling without knowing Icky's
medical history. In addition, the medical community at that time
was unaware of the potential for a lucid interval of
up to seventy two hours from the time of a
traumatic event or of the health condition induced onset of
the triad, and even though Robert had just received Nikki
from her grandparents, that left only him as a possible
(19:55):
shaking suspect. In addition, the medical community at this time
was also on aware that in order for shaking to
cause this triad, there had to have first been a
neck injury, and that was not present in Nicki's case.
She had no neck injury. But unfortunately, tragically, this discovery
was a few years too late to help Robert. When
(20:17):
it was made by biomechanical engineers.
Speaker 2 (20:20):
That's the community that started to point out to the
medical community that this hypothesis was unfounded. It's like, we're
studying injuries to children. We're the ones that are coming
up with things like car seats for children and helmets,
and you know, shaking does not cause this kind of
injury in any experiment that's ever been documented. So there
(20:43):
are two fallacies at the very heart of the SBS phenomenon.
One is that shaking could cause bridging veins in your
dura to rupture. No, and that shaking would not cause
neck injuries. Also, No, and Nikki had absolutely nothing wrong
with her neck. But it was already orthodoxy by this point,
(21:05):
it was being taught in medical schools. And that's why
I think it just has such staying power as a
legal phenomenon when it has no scientific support, because so
many people's lives have been ruined, so they keep tweaking
how you're supposed to go about making the diagnosis. But
in the day when Robert was quickly written off as guilty,
there was no internal doubt within the medical community. So
(21:28):
he's arrested that day on that information.
Speaker 1 (21:31):
And then the prosecutor once again raised the sexual assault allegations,
even though their own medical experts would not support.
Speaker 2 (21:39):
It, and yet they dare to indict him on this.
And every single potential juror is asked about the sexual
abuse component that's going to be a part of this
trial along with shaken baby. Every single juror is told
that's the theory the state has, that there was sexual
assault and that's the motivation for him to violently shake
(22:01):
her to cover this effort.
Speaker 1 (22:02):
So He was represented, if we can call it that,
by Steve Evans and John Van Meader. Talk to us
about their efforts or lack thereof.
Speaker 2 (22:13):
They stated on the record in opening statements that this
was unfortunately a shaken baby case, no doubt about it.
At that time, there were very few experts even available
to come in and challenge the state's causation theory. This
was two thousand and two. Everybody believed shaken baby was
(22:36):
an article of faith. It had been accepted by the
American Pediatric Association. Some of the people that came to
our aid only recently, some very famous, renowned experts in
two thousand and one, two thousand and two, two thousand
and three were just starting to sound the alarm.
Speaker 1 (22:55):
So the knowledge wasn't even really readily available to his
own attorneys for them to even believe in his innocence.
Speaker 2 (23:02):
And they saw their job as just to try to
prevent entry of a death sentence.
Speaker 4 (23:08):
Mantonia Trull had two where they had tried to do
a plea barg stuff. And I told him I didn't
do nothing. My mama said, I didn't do nothing. Don't
take nothing right. The thing he is my mama, family
lawyer had gave her a pamphlet to go to Trinity
develop a community college, and Athens for seminar I was
shaking baby cases.
Speaker 3 (23:25):
Who did she see there? Douglow the head DA he
didn't know what was going on either.
Speaker 1 (23:31):
It appears that the prosecution and the defense team were
totally out of their depth. The state side taking seminars
likely given by someone who was a true believer in
this now proven chunk science. And while the defense was
essentially agreeing to some degree of murder without intent, the
state was trying to take it a step further. Your
(23:54):
trial was a farce. I mean, they pulled dirty tricks
accusing you of sexually abusing the job when they knew
that that was not the case, and they knew that
she had had this horrible diarrhea that would have provided
an exact explanation for why these symptoms were present. They
decided to sort of taint the jury by bringing that
(24:16):
ridiculous theory, which was later dropped.
Speaker 4 (24:18):
And they did take the jury because you hear a
story about the child and stuff.
Speaker 3 (24:21):
It makes a lot of people mad, right of course,
and made the jury mad, tainted the jury.
Speaker 1 (24:26):
They painted you into a monster, and I'm sitting here
staring you right in the eyes. I mean, it's man
who's no monster, I can tell you right off the bat.
Speaker 4 (24:33):
And I'm quite a friend friendly really, you know. They
said you for us Now I'm not no father, no
more on the lever you know, friendly, you know.
Speaker 2 (24:40):
And again I won't say that this was a conscious plot,
but I do think they had expected Robert would take
a plea deal. He adamantly would not. And I would say,
in almost any death penalty case, what the state recognizes
implicitly is that they must turn the defendant into a monster,
(25:02):
because normal human beings don't want to come in and
sign off on killing a fellow member of the human species.
They sounded this horrifically prejudicial sexual theme and then dropped
it right when it went to the jury because they
really had no evidence except for this one nurse, who,
by the way, was on the stand pretty much longer
(25:23):
than anyone else. Roberts flattorneys did resist the sexual assault allegations,
but only through cross examination. Meanwhile, the states bringing in
experts who are telling the jury this kid was violently
shaken and so if you're told that, and then you
also have a nurse saying, and by the way, I
also think there was sexual abuse. Someone that would violently
(25:45):
take a child, well, they might have also abused a child.
These things become possible. There was no counter narrative, and
he was not convicted of that, but they maintained that, well,
there was no evidence he didn't do it. I am
not kidding you. There was closing argument about how even
if they weren't going to decide the issue, they should
(26:07):
consider it, and.
Speaker 1 (26:09):
The judge allows.
Speaker 2 (26:10):
Judge allowed it.
Speaker 1 (26:11):
So the jury comes back in. At the time, did
you have still have some hope that they would see
the truth and that they would end this nightmare?
Speaker 4 (26:20):
I was hoping they would so because attorney kept telling me,
we can win this case, we can win this kid.
This case is well okays. When they came back talking
about guilty and stuff, you know, I don't know what
I already thought of the time, and my mom wasn't
there and stuff. But before the punishment, my mom had
to go check on my dad here was an old
folks home, you know, And.
Speaker 3 (26:40):
Once she got back, they gave me the death sentence
and stuff. You know. I couldn't believe, couldn't believe they
convicted me of something that I didn't do.
Speaker 1 (26:48):
You know.
Speaker 4 (27:05):
I was looked up January thirty first, two thousand and two,
so little bit over twenty years I've been locked up.
I don't wish it's my worst enemy and stuff, you know,
because being in a place like you said, like in
that marriage stuff, you know, especially when you had done
nothing to be here in the first place, you know,
And then you know, I lost I lost my mom
(27:26):
last September, and I lost my dad since I've been
in here, and stuff. I lost the chance to send
my son and my daughter to grow up, being away
from family all this time, lost all those years.
Speaker 3 (27:36):
And stuff that stole from me, you know, So it
destroyed my life.
Speaker 4 (27:40):
You know.
Speaker 1 (27:43):
It's absolutely heartbreaking. And the authorities appear to have been
doing what they, I guess thought was the right thing
at the time. But our understanding of these instances has
now advanced considerably. It's almost like a one to eighty.
But before are more enlightened under standing of sbs. Robert
based denials in his direct appeal and state habeas.
Speaker 2 (28:06):
Robert was on the verge of execution in twenty sixteen.
That's when I was at a state public defender's office
and we agreed to take on the case, and based
on the change in science round the controversy of Shaking Baby,
we got a state of his execution and the right
to get back into state court to try to prove
(28:27):
our claims. That then took many years.
Speaker 1 (28:31):
During this time, Gretchen was trying to uncover the cat
scans from January thirty first, two thousand and two, and
both medical centers had maintained that they had been lost
or destroyed, as did the state. And then during the
opening statements of this evidentiary hearing, something really crazy happened.
Speaker 2 (28:47):
In the middle of my opening statement, this clerk with
goodwill listened and thought, well, I wonder if this stuff
she's referring to could be buried in the courthouse basement.
You know, had nothing to do with the motions I've
filed seeking Brady evidence that hadn't led to someone discovering this.
It was this one woman. Why the scans were buried
in the courthouse basement, I do not know, But then
(29:09):
we had a long hiatus so we could have a
chance to have an expert look at them, and it
confirms that there was only one impact site on Nicki's head,
and that was that small swollen tissue on the back
right of Nicki's head that is exculpatory. The medical examiner,
who did not look at the head scans at the
(29:31):
time and now decades later to this day, she insists
that she saw evidence of multiple impact sites to Nicki's
head because of all the blood underneath. Nonsensical. It doesn't
work that way. You cannot impact a child's head sufficiently
enough to cause internal damage and leave no mark on
(29:53):
the outside. And what Nikki had was minimal bruising on
her exterior. The blood underneath cannot be read like tea leaves,
and yet that is what this medical examiner has done.
Whereas the scans, which are the reliable evidence about whether
or not there were impact sites, shows that one side,
(30:14):
one and only side.
Speaker 1 (30:15):
Even though this didn't run counter to doctor Squire's ruling
that this was an SBS case, which, of course, and
I can't emphasize this enough, SBS is not a real thing.
It's been debunked. However, the missing CT scan supported Robert's
version of events, while directly contradicting doctor Urban, who was
the one who had initially ruled Nicky's death a homicide,
(30:35):
and that was enough to win an evidentiary hearing, and
after being delayed by COVID, it resumed in March twenty
twenty one.
Speaker 2 (30:42):
Here we are, twenty years later, having amassed an overwhelming
amount of evidence from experts who have identified the toxic
level of prescription drugs in this child system, the interstitial
viral pneumonia, the lack of evidence of impact sites, and
all the change in the understanding of shake and baby syndrome.
(31:04):
All of that was put before trial court and deemed
not new evidence.
Speaker 1 (31:10):
It's absolutely breaking bonkers. The biomechanical strides alone prove that
if shaking was the cause of the triadive findings, there
would first need to be a spinal or a neck injury,
and Nikki had none. The state's theory just didn't hold water.
It made room for every viable avenue that we'd laid
(31:32):
out at the beginning, the lethal those of Bennigan causing
respiratory arrest with oxygen deprivation, or the resuscitation effort causing
the triad or her undiagnosed viral pneumonia. Even the shortfall
alone could have done it. While being the source of
the single swollen impact site. Meanwhile, doctor Urban admitted to
(31:53):
never having looked at the CT scans when she said
that there were multiple impacts and ruled the death of
Huh aside.
Speaker 2 (32:01):
This medical examiner admitted that she didn't even look at
the cat scans, She didn't listen to the testimony of
all these new experts. She didn't seem to understand the
interstitial viral pneumonia in the lung tissues that she'd collected,
and instead just seemed to stand by this idea that
the blood in the subdural space was enough for her
(32:24):
to say, oh, well, whether it was shaking or not,
it was still abuse. This was something I asked the
medical examiner in court. You know, I said, Let's say
I walk outside the courtroom. There are these marble steps
and no one else is around, and I slip and
I hit the back of my head and I become unconscious.
And later you take a look at me. What is
(32:47):
it that your background, your training has taught you that
you could look at me and determine whether or not
I'd fallen, or someone had pushed me, or someone had
come up and hit me in the back of the
head with a blunt object. Explain that to me or
shook you yeah, And of course she couldn't. And what
(33:08):
is appalling about this is that the shaking hypothesis that
she furthered at trial, along with the child abuse expert,
she was telling the jury all about shaking, that that's
why you look at the outside of this child. You
don't see much, but the reason you know its abuse
is because shaking explains how all this stuff happens. Well, a,
we now know shaking doesn't. But she couldn't tell me
(33:29):
how blunt forced trauma, even if it's not shaking, could
be looked at after the fact and you could say
whether it was inflicted or not, because there's no science
that would allow you to do that, that would require,
you know, voodoo.
Speaker 1 (33:44):
With doctor Urban having undermined her own credibility, left Squires,
for which Gretchen presented the updated scientific consensus on the matter,
along with instances in which doctor Squire's recanted testimony in
other Texas SBS cases. The Center for Integrity and Forensics
Science has also submitted an amicus brief supporting Robert, but
ultimately the motion was denied, with the court citing that
(34:08):
no new evidence had been submitted. I mean, make it,
make sense.
Speaker 2 (34:14):
Robert's case has been submitted, as per Texas procedure, to
the Court of Criminal Appeals, which is the highest court
for criminal matters in the state of Texas, so they will,
one hopes, look at the huge volume of new evidence
and look at it anew and really evaluate the allegations
(34:36):
about the change in the scientific perspective from the time
of his trial, which is the fundamental basis for our
claims for relief. We also have an actual innocence claim,
which is much stronger now than when we filed the
claim because of the evidence of pneumonia, of the cat
scans that were finally produced, et cetera. But ultimately, you
cannot read that trial transcript and compare that to contemporary
(34:59):
unders standing even among people that believe shaking baby syndrome
has some validity. You cannot read the trial transcript and
fail to recognize it's full of falsehoods. And we hope
the Court of Criminal Appeals will dig into that and
then grant him a new trial, and then it's like,
go back to the trial court again and see if
(35:20):
they really want to try again to convict him based
on this horrifically scanty evidence.
Speaker 1 (35:25):
Your record well if they give you a chance and
try to go ahead with what they presented in two
thousand and two, I think they'd realized pretty quickly that
we just didn't know better back then, and they'd let
this go. Yeah, everyone that's listening, now, what can they do?
Speaker 2 (35:39):
A wonderful supporter of Robert has created a website. There
are court filings there, and certainly the latest filing that
amasses all the new evidence and explains why a new
trial is worthwhile.
Speaker 1 (35:52):
Well, we'll have that linked to the bio as well
as ways our audience can reach out to Robert. And
with that we move to closing arguments, where I think
you both for sharing your story, and then I'm going
to turn my microphone off, leave my headphones on, and
just listen for anything else that you feel is left
to be said. Let's start off with you, Gretchen, and
have Robert take us off into the sunset.
Speaker 2 (36:13):
I mean, I would like for the audience to picture
themselves as a parent or any parent they know, and
put yourself in the shoes of Robert, but imagine yourself
without resources, an impairment that makes communication fundamentally difficult, and
from the moment you arrive at the hospital with your
(36:33):
comatose child. You're being interrogated, accused, and the accusations get
worse and worse by the minute, so that by the
end of a single day, you've gone from your child
who's relatively new to your life, is gone, and they
won't even allow you to say farewell because you're being
taken to jail. And before there's even an indictment, there's
(36:57):
a statement from a hospital saying it's got to be
shaken baby syndrome. Yet no one assesses the medical records
and try to put all these pieces together. And it
is a complicated puzzle, but every single piece points away
from a crime and towards a tragic story of a
young child who was sick from the moment she was born,
(37:18):
into unfortunate circumstances, and then not given the fair shake
that she deserved. It's not just about Robert NICKI deserves
a history that is based on the truth. And I
urge people to just pay attention to what's being done
in their names with our criminal justice systems. I came
(37:38):
from a civil background, and everything I learned every day
adds to my shock and outrage.
Speaker 4 (37:45):
Okay, okay, what I want to courage both of y'all
to continue to do what y'all doing and stuff, because
I believe in y'all and everybody else that's doing fighting
against this corrupt legal systems to wrong for convictions.
Speaker 3 (37:57):
You know, keep on doing what you're doing.
Speaker 4 (37:58):
You know, I'm gonna continue and continue to fight up
because you know, God knows, and I know you know
that that was done wrong and stuff, And very grateful
for what y'all doing. Very grateful for everybody that's involved
in it. And uh now y'all have a safe trip
back home and stuff. Made the Lord bless y'all and
shine up his face upon y'all, and just like, encourage
(38:20):
both of y'all to continue to do what you're doing.
Speaker 1 (38:29):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ed free by subscribing to Lava for
Good Plus on Apple Podcasts. I want to thank our
production team, Connor Hall and Kathleen Fink, as well as
my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn.
The music in this production was supplied by three time
(38:50):
Oscar nominated composer Jay Ralph. Be sure to follow us
across all social media platforms at Lava for Good and
at Wrongful Conviction. You can also follow me on instat
at its Jason Vlahm. Wrongful Conviction is a production of
Lava for Good podcasts in association with Signal Company Number
one
Okay, this is as serious as it gets. Another victim
of the junk science of shaken baby syndrome, Robert Robertson,
is scheduled for execution in the state of Texas on
October seventeenth, twenty twenty four. I visited Robert at the
Polunski unit outside Houston, just after Memorial Day twenty twenty two,
(00:26):
and I remember walking away from him with a sick
feeling in my stomach, knowing that the day might come
when he would be put to death for a crime
that never even happened. And here we are now on
the precipice. Since our original coverage on July seventh, twenty
twenty two, coverage that gained Robert even more pro bono
(00:49):
support from the powerful law firm scatin Arps, even the
lead detective in this case has come forward to acknowledge
his mistake and asked Robert to forgive him. We'll link
that video along with action steps in the episode description,
because it looks like it's going to take all of
(01:09):
our help now if this innocent man is going to survive.
Here's a new edit of our original coverage of Robert
Robertson on January thirty, first, two thousand and two, thirty
five year old Texan Robertson said that his two year
(01:30):
old daughter, Nicki, had fallen out of bed in the
middle of the night, and after comforting her, they both
fell back to sleep. When he awoke again, Nicky wasn't breathing.
Emergency rumor suscitation efforts ultimately failed, and little Nicky was
pronounced dead along with a bump on her head. An
(01:51):
examination revealed brain swelling as well as intracranial and retinal bleeding,
the findings commonly associated with the now deep bunk shaken
baby syndrome hypothesis, despite a number of viable causes of death. Instead,
Robert was accused of violently shaking his daughter to death.
(02:12):
So the state of Texas now intends to put Robert
to death as well. But this is wrongful conviction. Wrongful
conviction has always given voice to innocent people in prison,
and now we're expanding that voice to you. Call us
(02:36):
at eight three three two O seven four six sixty
six and tell us how these stories make you feel
and what you've done to help the cause, even if
it's something as simple as telling a friend or sharing
on social media. And you might just hear yourself in
a future episode. Call us eight three three two oh seven,
four six sixty six. Welcome back to Wrongful Conviction. I'm
(03:07):
Jason Flauman. Today's case, unfortunately, is going to sound like
familiar territory. It's a Shaken Baby prosecution which was based
on a hypothesis that is now rejected by not only
the original scientists, but also the scientific and medical communities
that once held it to be a decided matter. Now, unfortunately,
some of those attacked with that ill fated diagnosis in
(03:27):
a court of law are still languishing in prison. Too many,
I mean countless people, including our guest today who is
on death row in Texas, Robert Robertson. Now, my producer
Connor Hall, and I who trek down to the Polunski
unit in Livingston, Texas to record an interview with Robert.
You'll hear pieces of that interspersed throughout our coverage today.
(03:48):
Joining us now is his appellate attorney, Gretchen Swen. Gretchen,
Welcome to Ronful Conviction.
Speaker 2 (03:54):
Thank you so much, Jason.
Speaker 1 (03:55):
Now, before we get into Robert's case, I want to
refer everyone to our coverage of Shake Baby syndrome on
wrongful conviction junk science, which will be linked in the
episode description. For decades, when a medical examiner was presented
with brain swelling, bleeding inside the skull, and bleeding behind
the eyes of an infant or a toddler, all other
causes were not first ruled out, but totally ignored, and
(04:20):
a leap in logic was made to two conclusions. First
that this triad of findings were caused by violent shaking
and later abusive head trauma was included, and second that
the most recent caregiver must be the one responsible. Since
the late nineties, over eighty medical conditions and still counting,
(04:41):
have been found to cause that exact triad of findings. Additionally,
biomechanical studies have revealed that violent shaking simply cannot cause
the triad without also first causing a spinal injury. Further,
it's been proven that up to seventy two hours can
pass by before a child succumbs to these conditions, whether
(05:04):
the cause was traumatic or simply a medical issue. The
conclusion is that we cannot determine if a child was
abused or violently shaken without first ruling out all the
other causes and after doing so, we cannot reliably place
blame on the last person with them, And unfortunately, Robert
(05:25):
Robertson was that final caretaker and he was particularly vulnerable
to prosecution.
Speaker 2 (05:30):
This is somebody who grew up dirt poor in East Texas.
He was in special ed classes. He was the one
who was bullied. There was a lot of violence in
the home. But you had a mother who loved him dearly.
But you know, he drops out in ninth grade. You know,
he was on the radar in terms of this is
(05:51):
a struggling kid and stumbles into what happens with so
many poor, traumatized kids. He struggles with drug addiction. But
this is a mental soul. And you know, you spend
five minutes with Robert and you see his speech is
unusual and he has this sort of flat affect and
he struggles to speak.
Speaker 3 (06:12):
Okay, so you got some questions or something.
Speaker 1 (06:16):
Sure, So yeah, let me just introduce. First of all,
this is drawn for conviction from death row in Texas.
We're here on the Polunsky unit where we've been before
to visit rob will and Rodney Reid. Today we're here
with another innocent man, man named Robert Robertson. The man
himself is like a big teddy bear. He's sitting right
across from me through this window of bulletproof glass. Robert,
(06:37):
thank you for being here to talk to us today.
Speaker 3 (06:40):
Thank you for being here.
Speaker 1 (06:42):
And Robert, going back to the beginning, did you grow
up in Texas?
Speaker 3 (06:46):
I was born in Minneola, Texas and stuff, and we
lived in Winnsboro until I was six years old, you know,
and then my dad worked for the railroad and his
job transferred to Palestine.
Speaker 1 (06:55):
Anderson Kenny, you know, you had a very difficult childhood,
is that fair to say?
Speaker 3 (07:00):
My dad was real rough and my mom.
Speaker 4 (07:02):
My mom was like the glue to the family and stuff,
you know, like the protection store, but dad would like
to provide her.
Speaker 1 (07:09):
And then you ended up going into the military.
Speaker 4 (07:11):
And I went to the military when I was seventeen
Army and they gave me a medical discharge letter on
because they said I couldn't adapt, or something like a
training discharge. You know.
Speaker 1 (07:22):
It has since been determined that Robert is on the
autism spectrum, but at that time he was just twenty
years old with two children who had special needs. Robert
and the kid's mother depended on the grandparents for help. Eventually,
Robert had a third child, Nicki Bowman, whose custody was
also shared, but there was a more contentious relationship with
(07:42):
her grandparents. In addition, Nicki was born with a host
of medical issues that it appears were never properly diagnosed
or treated.
Speaker 2 (07:52):
Nicki had been sick from essentially birth. This is a
child on Medicaid. You know, she's being brought in and
they're like, Ah, this antibiotic doesn't seem to work, let's
give her another one, you know, over and over again.
And so there is a real tragedy in this child's
short life of just the medical failures to get at
what's going on with her. But I think that's sort
(08:13):
of where the story begins. And then, you know, if
you get to the point of trial, they acted like
this history did not exist or certainly didn't matter that
you have a kid infected from eight days old pretty
much onward. But the week before her collapse, she had
been brought to the er with initially one hundred and
(08:34):
three point five fever. I believe she was throwing up.
She had chronic diarrhea and trouble breathing. At this point,
she has prescribed this medication, Finnergen, which contains promethazine, which
now has a black box warning from the FDA that
you don't give this to kids under the age of ten,
and certainly don't give it to kids with respiratory issues
(08:58):
because it might cause death. A few days later, she
at the doctor the day after the emergency visit, had
a fever over one hundred and four. They also give
her another prescription for Finnergen, along with codine costster and
which metastasizes into morphine. You know, they're treating it as
if it's some you know, annoying cold, but you're suppressing
(09:22):
the respiratory system of a kid already in distress. So
a day later, Robert is called by the grandparents who
had been feuding with his mom for a year, to
come get this child who is sick and take her
home back to his place. To me, this is another
part of the mystery. If you have a sick two
year old, I wonder what parent wants somebody to come
out to the country pick up the child at nine
(09:45):
o'clock at night and knowing he's alone because his girlfriend's
getting a hysterectomy in the hospital. But oh, no, Robert
needs to come out and fetch this child, take her home.
Speaker 1 (09:55):
This was January thirtieth into the thirty first of two
thousand and two, and on this particular night, Robert was
prepared to care for his then fiance in the wake
of her has.
Speaker 2 (10:05):
Directed me his fiance is coming home from the hospital.
He's trying to elevate the bed. The bed was really
box springs and a mattress propped up on cinderblocks. But
you look at these pictures and this bed, it's precarious.
You know, that's where Nikki was sleeping. So it's completely
legit that a disoriented, sick child full of all these
(10:26):
drugs tries to get up in the night and falls
off the bed, and that would very easily explain this
bump on the back of her head. It's in the
night where he wakes up to this strange cry. And
his report consistently was he found her on the floor
at the foot of the bed. Didn't know what happened,
(10:47):
but he saw a little bit of blood on her mouth.
He got a washcloth, wiped it off, kept her sitting
up for a while because she'd fallen out, so he
thought maybe she hit her head and he'd been told
if somebody hits their head, you have to keep him awake,
and then they fall back asleep. His alarm goes off.
A few hours later, he wakes up, finds Nicky Blue
(11:11):
not breathing, faint heartbeat. He panics, shakes her a little
to try to rouse her. Meanwhile, his girlfriend's calling him
from the hospital to come get her, and he reports, well,
Nicky's not breathing. He gets in the car, drives the
short distance to the hospital. But the child never really
recovers from this, and we have no idea how long
(11:32):
had she ceased breathing. He gets up there into the er.
They see this, you know, guy standing there with a
limp child.
Speaker 1 (11:40):
And let's not forget how Robert presents to the world.
He's a large man, well over six feet two hundred
pounds and socially awkward.
Speaker 2 (11:50):
Immediately the judgment start, they assume he did something to
this child, whisk her away, clothe Blue, but by that
point her eyes were already fixed and dilated, which means
she'd probably already experience brain death. It doesn't take long,
it's about twelve minutes without oxygen. The brain shuts down.
Once your brain dies you're not coming back to life,
but you revive the heart. You're pumping all this blood
(12:12):
into the system, increasing the blood inside her head that
can no longer get into the brain. They get her
heart going and it's about the same time they do
a scan of her head and they notice the goose egg,
you know, swollen tissue on the back of her head.
But the cat scan showed that there was subdural bleeding
and that the brain had swollen, and that then later
(12:34):
on they realized they're also retinal hemorrhages, and this is
the classic triad associated with shaking. So this bump on
the head. One doctor that sees her later that day
says that was minor, that could have happened at another time.
But all this internal stuff, oh, that must have been
caused by violent shaking and then flinging the child down
(12:57):
against something. This became the theory instant.
Speaker 1 (13:00):
Late soon Nikki was pronounced dead, and it appears there
are several avenues that could have led to both her
demise as well as the triad of findings Number one.
There are now FDA warnings that fenrigan can cause respiratory
failure in children under age ten. Codine can also lead
to suppressed respiration. In this case, there are two subsequent possibilities.
(13:23):
A oxygen deprivation is one of the over eighty medical
conditions that can cause the triad of findings, and B
the post brain death resuscitation effort pumped blood into her
cranial cavity, yet was viewed as a symptom with which
she had arrived at the hospital. The second avenue short falls,
(13:44):
like the one Robert said Nikki had taken from the
elevated bed, has been enough in previous cases to cause
the same triad and therefore her death. Not to mention
that any accidental trauma of this type could have occurred
up to seventy two hours before her untimely demise.
Speaker 2 (14:02):
We now know that a short umbraced fall where you
hit your head, especially in a young child, there could
be hours and even days before symptoms arise. You can
have a traumatic brain injury and yet the manifestations aren't visible.
Speaker 1 (14:19):
It's terrifying but true. Now. Thirdly, years later, a re
examination of Nikki's medical records and autopsy have revealed that
she was suffering from viral pneumonia, another one of the
non violent medical causes for the triad of findings and
therefore her death. Yet somehow all of these possibilities were
(14:40):
not ruled out but ignored.
Speaker 2 (14:43):
You have to realize that this is a small rural community.
The same er doctor is on duty, who is the
one who was giving her the finnergen oh boy, and
the pediatrician that it had her come to the office
and measured her fever at one oh four point five,
came to the hospital and he's weighing in. And these
(15:04):
are the people interviewing Robert, which in my mind, these
are interested witnesses, and they, along with this collection of nurses,
are making judgments about this man. And a lot of
the testimony at his trial, which I know we'll get to,
but right away, they're these judgments. He wasn't crying at
the right times, he wasn't showing enough concern. He was
(15:28):
just standing there.
Speaker 4 (15:31):
When I brought into the hospital, I was freaking out,
freaking out and stuff because that kind of accused me
being responsible for what happened to her and stuff, you know,
And that's oh, because he's.
Speaker 3 (15:40):
Actually a certain way he must be guilty.
Speaker 4 (15:42):
You know, when you've been accused of something, you could
be nervous or something you know, for that to happen
to your child, child and stuff like getting there, I
don't think nobody's gonna be in the right mind, you
know stuff. You know, losinger is bad enough, but been
accused of it that's even worse.
Speaker 1 (15:58):
You know, you're listening to wrongful conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ad free by subscribing to Lava for
(16:19):
Good Plus on Apple Podcasts.
Speaker 2 (16:26):
She had a fall that could very well have started
the subdural bleeding, but she didn't even have skull fractures.
What Nikki had was this is critical, only one impact
sites on her exterior. To this day, the medical examiner
insists that she saw evidence of multiple impact sites to
Nicki's head because of all the blood underneath.
Speaker 1 (16:49):
Interestingly, the cat scans that could have debunked this assertion
went missing for almost twenty years, so even though there
was only one bump on Nicki's head, this medical examiner,
doctor Jill Urban, claimed that the subduralp leading was the
result of multiple blood force head injuries, ruling the death
of homicide before any other testing, including a toxicology report
(17:10):
that disclosed a lethal amount of fettergan. So the same
people who had missed the viral pneumonia and unknowingly prescribed
a deadly drug to the same toddler were the exact
people looking at Robert sideways. But it gets even worse.
A nurse, who by the way, was not certified to
perform sexual assault exams, volunteered to examine the child and
(17:34):
proceeded to tell hospital staff and law enforcement that she
saw anal tearing.
Speaker 2 (17:38):
Jason, I do think this is the tail wagging the
dog here. You have a week's worth of diarrhea. You're
going to have in a two year old child, some
redness on their bottom. But she starts telling people, including
the lead investigator in the hospital, what she sees. I
think then you have mind blindness set in all of
(17:59):
the officers. Nurse looking at Robert through the lens of
here is a man who potentially anally raped his two
year old daughter. Then that takes over. They do a
sexual assault test on swabs taken from this child. Nothing.
They test everything they can find in the bedroom, nothing
to confirm this sexual assault hypothesis. Now they share this finding,
(18:24):
quote unquote with the medical team at Dallas Children's Well
the child abuse expert doctor Squires, who apparently you know,
is looking all the time for sexual abuse, says she
does not see what this nurse saw. All she saw
is what she said at trial, was what every mother
has probably seen, which you know looks akin to diaper rash.
Speaker 1 (18:46):
Yet that was not the last time this accusation was raised.
In the meantime, this rural hospital also looked to Dallas
Children's Hospital to confirm their finding of homicide.
Speaker 2 (18:58):
When Nikki is taken to Dallas Children's they look at
the cat scans and say this is essentially classic shaken
baby because of the triad. The child abused expert doctor
Squires says, I was told that this was a healthy child.
She was quote totally well right before her collapse. So
the only explanation is that she was violently shaken. Now, first,
(19:20):
as you know we were discussing earlier, it was it's
a total lie to suggest this was a totally well child.
This was a chronically ill child with infections that had
resisted I think five different kinds of antibiotics. She has
a viral infection. Nobody is getting it.
Speaker 1 (19:34):
So doctor Squire supported the homicide ruling without knowing Icky's
medical history. In addition, the medical community at that time
was unaware of the potential for a lucid interval of
up to seventy two hours from the time of a
traumatic event or of the health condition induced onset of
the triad, and even though Robert had just received Nikki
from her grandparents, that left only him as a possible
(19:55):
shaking suspect. In addition, the medical community at this time
was also on aware that in order for shaking to
cause this triad, there had to have first been a
neck injury, and that was not present in Nicki's case.
She had no neck injury. But unfortunately, tragically, this discovery
was a few years too late to help Robert. When
(20:17):
it was made by biomechanical engineers.
Speaker 2 (20:20):
That's the community that started to point out to the
medical community that this hypothesis was unfounded. It's like, we're
studying injuries to children. We're the ones that are coming
up with things like car seats for children and helmets,
and you know, shaking does not cause this kind of
injury in any experiment that's ever been documented. So there
(20:43):
are two fallacies at the very heart of the SBS phenomenon.
One is that shaking could cause bridging veins in your
dura to rupture. No, and that shaking would not cause
neck injuries. Also, No, and Nikki had absolutely nothing wrong
with her neck. But it was already orthodoxy by this point,
(21:05):
it was being taught in medical schools. And that's why
I think it just has such staying power as a
legal phenomenon when it has no scientific support, because so
many people's lives have been ruined, so they keep tweaking
how you're supposed to go about making the diagnosis. But
in the day when Robert was quickly written off as guilty,
there was no internal doubt within the medical community. So
(21:28):
he's arrested that day on that information.
Speaker 1 (21:31):
And then the prosecutor once again raised the sexual assault allegations,
even though their own medical experts would not support.
Speaker 2 (21:39):
It, and yet they dare to indict him on this.
And every single potential juror is asked about the sexual
abuse component that's going to be a part of this
trial along with shaken baby. Every single juror is told
that's the theory the state has, that there was sexual
assault and that's the motivation for him to violently shake
(22:01):
her to cover this effort.
Speaker 1 (22:02):
So He was represented, if we can call it that,
by Steve Evans and John Van Meader. Talk to us
about their efforts or lack thereof.
Speaker 2 (22:13):
They stated on the record in opening statements that this
was unfortunately a shaken baby case, no doubt about it.
At that time, there were very few experts even available
to come in and challenge the state's causation theory. This
was two thousand and two. Everybody believed shaken baby was
(22:36):
an article of faith. It had been accepted by the
American Pediatric Association. Some of the people that came to
our aid only recently, some very famous, renowned experts in
two thousand and one, two thousand and two, two thousand
and three were just starting to sound the alarm.
Speaker 1 (22:55):
So the knowledge wasn't even really readily available to his
own attorneys for them to even believe in his innocence.
Speaker 2 (23:02):
And they saw their job as just to try to
prevent entry of a death sentence.
Speaker 4 (23:08):
Mantonia Trull had two where they had tried to do
a plea barg stuff. And I told him I didn't
do nothing. My mama said, I didn't do nothing. Don't
take nothing right. The thing he is my mama, family
lawyer had gave her a pamphlet to go to Trinity
develop a community college, and Athens for seminar I was
shaking baby cases.
Speaker 3 (23:25):
Who did she see there? Douglow the head DA he
didn't know what was going on either.
Speaker 1 (23:31):
It appears that the prosecution and the defense team were
totally out of their depth. The state side taking seminars
likely given by someone who was a true believer in
this now proven chunk science. And while the defense was
essentially agreeing to some degree of murder without intent, the
state was trying to take it a step further. Your
(23:54):
trial was a farce. I mean, they pulled dirty tricks
accusing you of sexually abusing the job when they knew
that that was not the case, and they knew that
she had had this horrible diarrhea that would have provided
an exact explanation for why these symptoms were present. They
decided to sort of taint the jury by bringing that
(24:16):
ridiculous theory, which was later dropped.
Speaker 4 (24:18):
And they did take the jury because you hear a
story about the child and stuff.
Speaker 3 (24:21):
It makes a lot of people mad, right of course,
and made the jury mad, tainted the jury.
Speaker 1 (24:26):
They painted you into a monster, and I'm sitting here
staring you right in the eyes. I mean, it's man
who's no monster, I can tell you right off the bat.
Speaker 4 (24:33):
And I'm quite a friend friendly really, you know. They
said you for us Now I'm not no father, no
more on the lever you know, friendly, you know.
Speaker 2 (24:40):
And again I won't say that this was a conscious plot,
but I do think they had expected Robert would take
a plea deal. He adamantly would not. And I would say,
in almost any death penalty case, what the state recognizes
implicitly is that they must turn the defendant into a monster,
(25:02):
because normal human beings don't want to come in and
sign off on killing a fellow member of the human species.
They sounded this horrifically prejudicial sexual theme and then dropped
it right when it went to the jury because they
really had no evidence except for this one nurse, who,
by the way, was on the stand pretty much longer
(25:23):
than anyone else. Roberts flattorneys did resist the sexual assault allegations,
but only through cross examination. Meanwhile, the states bringing in
experts who are telling the jury this kid was violently
shaken and so if you're told that, and then you
also have a nurse saying, and by the way, I
also think there was sexual abuse. Someone that would violently
(25:45):
take a child, well, they might have also abused a child.
These things become possible. There was no counter narrative, and
he was not convicted of that, but they maintained that, well,
there was no evidence he didn't do it. I am
not kidding you. There was closing argument about how even
if they weren't going to decide the issue, they should
(26:07):
consider it, and.
Speaker 1 (26:09):
The judge allows.
Speaker 2 (26:10):
Judge allowed it.
Speaker 1 (26:11):
So the jury comes back in. At the time, did
you have still have some hope that they would see
the truth and that they would end this nightmare?
Speaker 4 (26:20):
I was hoping they would so because attorney kept telling me,
we can win this case, we can win this kid.
This case is well okays. When they came back talking
about guilty and stuff, you know, I don't know what
I already thought of the time, and my mom wasn't
there and stuff. But before the punishment, my mom had
to go check on my dad here was an old
folks home, you know, And.
Speaker 3 (26:40):
Once she got back, they gave me the death sentence
and stuff. You know. I couldn't believe, couldn't believe they
convicted me of something that I didn't do.
Speaker 1 (26:48):
You know.
Speaker 4 (27:05):
I was looked up January thirty first, two thousand and two,
so little bit over twenty years I've been locked up.
I don't wish it's my worst enemy and stuff, you know,
because being in a place like you said, like in
that marriage stuff, you know, especially when you had done
nothing to be here in the first place, you know,
And then you know, I lost I lost my mom
(27:26):
last September, and I lost my dad since I've been
in here, and stuff. I lost the chance to send
my son and my daughter to grow up, being away
from family all this time, lost all those years.
Speaker 3 (27:36):
And stuff that stole from me, you know, So it
destroyed my life.
Speaker 4 (27:40):
You know.
Speaker 1 (27:43):
It's absolutely heartbreaking. And the authorities appear to have been
doing what they, I guess thought was the right thing
at the time. But our understanding of these instances has
now advanced considerably. It's almost like a one to eighty.
But before are more enlightened under standing of sbs. Robert
based denials in his direct appeal and state habeas.
Speaker 2 (28:06):
Robert was on the verge of execution in twenty sixteen.
That's when I was at a state public defender's office
and we agreed to take on the case, and based
on the change in science round the controversy of Shaking Baby,
we got a state of his execution and the right
to get back into state court to try to prove
(28:27):
our claims. That then took many years.
Speaker 1 (28:31):
During this time, Gretchen was trying to uncover the cat
scans from January thirty first, two thousand and two, and
both medical centers had maintained that they had been lost
or destroyed, as did the state. And then during the
opening statements of this evidentiary hearing, something really crazy happened.
Speaker 2 (28:47):
In the middle of my opening statement, this clerk with
goodwill listened and thought, well, I wonder if this stuff
she's referring to could be buried in the courthouse basement.
You know, had nothing to do with the motions I've
filed seeking Brady evidence that hadn't led to someone discovering this.
It was this one woman. Why the scans were buried
in the courthouse basement, I do not know, But then
(29:09):
we had a long hiatus so we could have a
chance to have an expert look at them, and it
confirms that there was only one impact site on Nicki's head,
and that was that small swollen tissue on the back
right of Nicki's head that is exculpatory. The medical examiner,
who did not look at the head scans at the
(29:31):
time and now decades later to this day, she insists
that she saw evidence of multiple impact sites to Nicki's
head because of all the blood underneath. Nonsensical. It doesn't
work that way. You cannot impact a child's head sufficiently
enough to cause internal damage and leave no mark on
(29:53):
the outside. And what Nikki had was minimal bruising on
her exterior. The blood underneath cannot be read like tea leaves,
and yet that is what this medical examiner has done.
Whereas the scans, which are the reliable evidence about whether
or not there were impact sites, shows that one side,
(30:14):
one and only side.
Speaker 1 (30:15):
Even though this didn't run counter to doctor Squire's ruling
that this was an SBS case, which, of course, and
I can't emphasize this enough, SBS is not a real thing.
It's been debunked. However, the missing CT scan supported Robert's
version of events, while directly contradicting doctor Urban, who was
the one who had initially ruled Nicky's death a homicide,
(30:35):
and that was enough to win an evidentiary hearing, and
after being delayed by COVID, it resumed in March twenty
twenty one.
Speaker 2 (30:42):
Here we are, twenty years later, having amassed an overwhelming
amount of evidence from experts who have identified the toxic
level of prescription drugs in this child system, the interstitial
viral pneumonia, the lack of evidence of impact sites, and
all the change in the understanding of shake and baby syndrome.
(31:04):
All of that was put before trial court and deemed
not new evidence.
Speaker 1 (31:10):
It's absolutely breaking bonkers. The biomechanical strides alone prove that
if shaking was the cause of the triadive findings, there
would first need to be a spinal or a neck injury,
and Nikki had none. The state's theory just didn't hold water.
It made room for every viable avenue that we'd laid
(31:32):
out at the beginning, the lethal those of Bennigan causing
respiratory arrest with oxygen deprivation, or the resuscitation effort causing
the triad or her undiagnosed viral pneumonia. Even the shortfall
alone could have done it. While being the source of
the single swollen impact site. Meanwhile, doctor Urban admitted to
(31:53):
never having looked at the CT scans when she said
that there were multiple impacts and ruled the death of
Huh aside.
Speaker 2 (32:01):
This medical examiner admitted that she didn't even look at
the cat scans, She didn't listen to the testimony of
all these new experts. She didn't seem to understand the
interstitial viral pneumonia in the lung tissues that she'd collected,
and instead just seemed to stand by this idea that
the blood in the subdural space was enough for her
(32:24):
to say, oh, well, whether it was shaking or not,
it was still abuse. This was something I asked the
medical examiner in court. You know, I said, Let's say
I walk outside the courtroom. There are these marble steps
and no one else is around, and I slip and
I hit the back of my head and I become unconscious.
And later you take a look at me. What is
(32:47):
it that your background, your training has taught you that
you could look at me and determine whether or not
I'd fallen, or someone had pushed me, or someone had
come up and hit me in the back of the
head with a blunt object. Explain that to me or
shook you yeah, And of course she couldn't. And what
(33:08):
is appalling about this is that the shaking hypothesis that
she furthered at trial, along with the child abuse expert,
she was telling the jury all about shaking, that that's
why you look at the outside of this child. You
don't see much, but the reason you know its abuse
is because shaking explains how all this stuff happens. Well, a,
we now know shaking doesn't. But she couldn't tell me
(33:29):
how blunt forced trauma, even if it's not shaking, could
be looked at after the fact and you could say
whether it was inflicted or not, because there's no science
that would allow you to do that, that would require,
you know, voodoo.
Speaker 1 (33:44):
With doctor Urban having undermined her own credibility, left Squires,
for which Gretchen presented the updated scientific consensus on the matter,
along with instances in which doctor Squire's recanted testimony in
other Texas SBS cases. The Center for Integrity and Forensics
Science has also submitted an amicus brief supporting Robert, but
ultimately the motion was denied, with the court citing that
(34:08):
no new evidence had been submitted. I mean, make it,
make sense.
Speaker 2 (34:14):
Robert's case has been submitted, as per Texas procedure, to
the Court of Criminal Appeals, which is the highest court
for criminal matters in the state of Texas, so they will,
one hopes, look at the huge volume of new evidence
and look at it anew and really evaluate the allegations
(34:36):
about the change in the scientific perspective from the time
of his trial, which is the fundamental basis for our
claims for relief. We also have an actual innocence claim,
which is much stronger now than when we filed the
claim because of the evidence of pneumonia, of the cat
scans that were finally produced, et cetera. But ultimately, you
cannot read that trial transcript and compare that to contemporary
(34:59):
unders standing even among people that believe shaking baby syndrome
has some validity. You cannot read the trial transcript and
fail to recognize it's full of falsehoods. And we hope
the Court of Criminal Appeals will dig into that and
then grant him a new trial, and then it's like,
go back to the trial court again and see if
(35:20):
they really want to try again to convict him based
on this horrifically scanty evidence.
Speaker 1 (35:25):
Your record well if they give you a chance and
try to go ahead with what they presented in two
thousand and two, I think they'd realized pretty quickly that
we just didn't know better back then, and they'd let
this go. Yeah, everyone that's listening, now, what can they do?
Speaker 2 (35:39):
A wonderful supporter of Robert has created a website. There
are court filings there, and certainly the latest filing that
amasses all the new evidence and explains why a new
trial is worthwhile.
Speaker 1 (35:52):
Well, we'll have that linked to the bio as well
as ways our audience can reach out to Robert. And
with that we move to closing arguments, where I think
you both for sharing your story, and then I'm going
to turn my microphone off, leave my headphones on, and
just listen for anything else that you feel is left
to be said. Let's start off with you, Gretchen, and
have Robert take us off into the sunset.
Speaker 2 (36:13):
I mean, I would like for the audience to picture
themselves as a parent or any parent they know, and
put yourself in the shoes of Robert, but imagine yourself
without resources, an impairment that makes communication fundamentally difficult, and
from the moment you arrive at the hospital with your
(36:33):
comatose child. You're being interrogated, accused, and the accusations get
worse and worse by the minute, so that by the
end of a single day, you've gone from your child
who's relatively new to your life, is gone, and they
won't even allow you to say farewell because you're being
taken to jail. And before there's even an indictment, there's
(36:57):
a statement from a hospital saying it's got to be
shaken baby syndrome. Yet no one assesses the medical records
and try to put all these pieces together. And it
is a complicated puzzle, but every single piece points away
from a crime and towards a tragic story of a
young child who was sick from the moment she was born,
(37:18):
into unfortunate circumstances, and then not given the fair shake
that she deserved. It's not just about Robert NICKI deserves
a history that is based on the truth. And I
urge people to just pay attention to what's being done
in their names with our criminal justice systems. I came
(37:38):
from a civil background, and everything I learned every day
adds to my shock and outrage.
Speaker 4 (37:45):
Okay, okay, what I want to courage both of y'all
to continue to do what y'all doing and stuff, because
I believe in y'all and everybody else that's doing fighting
against this corrupt legal systems to wrong for convictions.
Speaker 3 (37:57):
You know, keep on doing what you're doing.
Speaker 4 (37:58):
You know, I'm gonna continue and continue to fight up
because you know, God knows, and I know you know
that that was done wrong and stuff, And very grateful
for what y'all doing. Very grateful for everybody that's involved
in it. And uh now y'all have a safe trip
back home and stuff. Made the Lord bless y'all and
shine up his face upon y'all, and just like, encourage
(38:20):
both of y'all to continue to do what you're doing.
Speaker 1 (38:29):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early and ed free by subscribing to Lava for
Good Plus on Apple Podcasts. I want to thank our
production team, Connor Hall and Kathleen Fink, as well as
my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn.
The music in this production was supplied by three time
(38:50):
Oscar nominated composer Jay Ralph. Be sure to follow us
across all social media platforms at Lava for Good and
at Wrongful Conviction. You can also follow me on instat
at its Jason Vlahm. Wrongful Conviction is a production of
Lava for Good podcasts in association with Signal Company Number
one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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