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