The Last Appeal - Ep. 3: A Date to Die
episodePreviously titled “3 - A Date to Die” — renamed by the publisher on Aug 2, 2026
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What is the main topic discussed in this episode?
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Gretchen Swinn has spent thousands of hours ploring over Robert Robertson's case. Now, it was 2018, and Gretchen was gearing up for a critical court hearing. Robert's one shot to convince a judge that he deserved a new trial. She wasn't just reviewing files anymore. She was knocking on doors, finding the people who helped convict Robert to see what they knew. To Gretchen, one of them mattered more than the rest. Brian Wharton, former chief of detectives in Palestine. I wanted to talk to him because I felt his testimony at trial for the state was very buttoned up. He didn't speculate. He was just reporting on what he observed. Brian was no longer with the Palestine Police Department. He traded in his badge for a Bible.
You retired from policing? Yes. And decided to become a Methodist minister? I am, yes. United Methodist, yes. The fact that I was a police officer to begin with was because I thought that was justice for me. But the longer I did it, I could see that it was part of what justice is. And in my life, it's in Scripture, in the life and teaching of Jesus the Christ. Questions about justice had been nagging at Brian for years. Then one day, the one case he couldn't shake showed up again, unannounced, on his doorstep. You know, it was a long shot. And, you know, in Texas, a lot of people have guns. And we knock on the door, and there's this man.
What critical evidence did Robert Roberson's attorney uncover?
Gretchen Swinn came to my door and said, I'm Gretchen, and I'm Robert's attorney, and can we talk for a minute? And he dropped his head. And I told her, I've kind of been expecting you, so yeah, come on in. Why was he waiting for someone to come? I'm Lester Holt, and this is The Last Appeal, a podcast from Dateline. Episode 3, A Date to Die. A Date to Die. It had been more than a decade since Brian Wharton helped put Robert in prison. His law enforcement career was a distant memory. But he could never shake the memory of what happened to Robert, so he invited Gretchen in. They talked for hours. He explained that he'd just really been bothered by this case, that nothing had ever felt right. Brian opened up about what had been haunting him, that sexual assault allegation made against Robert.
When Nikki was in the emergency room, one of the nurses that was attending to her was a sexual assault nurse examiner. The nurse, who declined to speak with us, told Brian she believed Nikki was a victim of sexual assault. So he sent evidence from Robert's home out for testing. We sent all the bed sheets, everything. There was no DNA evidence, nothing to support that. Both the pediatric specialist who examined Nikki and the medical examiner who conducted the autopsy found no evidence either. Yet prosecutors charged Robert with sexual assault anyway. On direct testimony at Robert's 2003 trial, the nurse said that she was a certified SANE nurse, a sexual assault nurse examiner. But when asked about that on cross-examination, she said, I am not actually certified.
Turns out she wasn't really a certified SANE nurse. No one had suggested this child had been sexually abused. This nurse just took this upon herself immediately. In the trial transcripts, the words sexual assault appear more than 80 times. But before closing arguments, prosecutors dropped the charge. Too late, Brian said. The damage was done. It was never corroborated. It was just an allegation. But it got before the jury. You know, those are bullets that don't go back into the gun. You can't take that back once the jury has heard that. Gretchen told Brian that since Robert's conviction, the certainty of shaken baby science had collapsed. How did the new evidence regarding shaken baby syndrome affect your overall feeling toward the case?
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Chapters
5 chapters
1
What is the main topic discussed in this episode?
0:00–2:21
2
What critical evidence did Robert Roberson's attorney uncover?
2:21–5:08
3
How did Brian Wharton become involved in Robert's case?
5:08–23:01
4
What impact did shaken baby syndrome evidence have on Robert's conviction?
23:01–25:09
5
What was revealed about Nikki's medical history during the investigation?
25:09–32:17
Speakers
5 identifiedMore from Dateline NBC
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