Chapter 1: 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.
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Chapter 2: 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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Chapter 3: How did Brian Wharton become involved in Robert's case?
For me, it just feels like if you remove shaken baby from the conversation, the whole thing falls apart. I mean, that was the basis of prosecution, talking about shaken baby syndrome. Then you've got to make a whole different case. Gretchen told Brian about Nikki's medical history, that she'd seen doctors more than 40 times in her short life and was terribly ill the week she died.
Nikki was a very ill child. Did you have a chance to look into her medical history before arresting Robert? No. No, we did not look into her medical history. Each new detail Gretchen shared with Brian, from Nikki's medical history to the outdated science, chipped away at what Brian believed he knew about the case.
But it's what she told him next that forever changed the way he thought about Robert Robertson. I remember telling him about Robert being diagnosed with autism spectrum disorder, and you could see that light bulb going off. From the moment we met him in the hospital, you know, we all kind of clued in that he's a little different, he's a little off.
And that answers quite a few questions for us about his demeanor and the way he processes information, the way he speaks. Brian began to see the case through a different lens. He now believed he'd made a grave mistake. We didn't hear Robert. Robert told us his story, and we chose to disbelieve him. We never really listened to Robert, and we never asked enough questions based on his story.
Gretchen believed Brian's support could be a turning point. She asked if he would testify at the upcoming hearing. Brian said yes. The lead detective who oversaw the investigation was willing to testify for the man he helped put on death row.
Robert's case was gaining strength, but there was still one piece of critical evidence Gretchen couldn't find, CAT scans of Nikki's head, taken soon after she arrived at the hospital. Gretchen was convinced they could be crucial, possibly holding the answer to what really happened to Nikki. They'd been missing for 15 years. They were about to show up when she least expected it.
On an August morning in 2018, inside the Palestine, Texas courthouse, Robert's lawyer, Gretchen Swinn, stood before a judge to make her case that Robert deserved a new trial, that the evidence that convicted him had been discredited, that he was innocent. Gretchen said the doctors had simply gotten it wrong, mistaking illness for violence, all because of outdated, shaken baby science.
There was no crime. There was this tragic death of a chronically ill child. The doctors missed the fact she had a severe life-threatening pneumonia and then prescribed medications that could only have pushed her further over the edge by suppressing her ability to breathe. Prosecutors disagreed with Gretchen, saying the debate over shaken baby science was irrelevant.
They said they'd always argued Nikki was a victim of blunt force trauma. Well, that was surprising because throughout the transcript, there are well over 200 references to shaking and shaking baby terminology. They had a shaken baby expert. Just a few hours into that first day of the 2018 hearing, Gretchen told the judge about the missing CAT scans of Nikki's head.
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Chapter 4: What impact did shaken baby syndrome evidence have on Robert's conviction?
At this time, the chair calls Brian Wharton. What would you like to say to any constitutional officers of the state of Texas? Based on what I know, what I believe, I think we should just apologize to Robert and send him home. Now is the moment. There is literally a life hanging in the balance. The committee also heard from Anderson County District Attorney Allison Mitchell.
She wasn't the prosecutor at Robert's trial, but she'd overseen his case for the past decade. I have you registered as Allison Mitchell, representing the Anderson County Criminal District Attorney's Office. Mitchell said her experts disagreed with Gretchen's theory that Nikki's death was a result of natural causes.
Dr. Downs, James Downs, testified that through his looking at the tissue in Nikki, he disagreed and said there was no pneumonia. Mitchell wasn't backing down. But when she was asked about what happened at Robert's trial, she didn't seem to have a full command of the facts. I do not know. I'd have to refer back to the records. I apologize.
Do you know who gave permission for her to be removed from life support? I do not know the answer to that question. I'd have to refer back to the transcripts. I would expect, with all due respect, Ms. Mitchell, for you to have more personal knowledge of the trial record and of these facts. Very basic facts. Were you satisfied that a murder had been committed? Yes. What was that based on?
The totality of the evidence at the original trial, post-writs that have been filed, and the hearings that have been held.
Just to be clear, you're referencing evidence that no less than 30 times in this hearing you have said that you have no knowledge of at the moment. Is that correct? I'm sorry, sir. What was your question?
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Chapter 5: What was revealed about Nikki's medical history during the investigation?
I'll move on. After more than six hours of testimony, Robert's lawyer, Gretchen Swinn, was the day's final witness. I often get very impassioned about my point of view, and that can hurt me as an advocate. And part of what I have struggled with in this case is what on earth more could I have done? And that will trouble me.
Time is running out for a Texas man we have been reporting on in this broadcast who is scheduled to be executed tomorrow night in a case that has sparked wide outrage. Less than an hour after Gretchen's testimony, as the committee was about to adjourn, a stunning turn of events. Mr. Chairman. Yes, Representative Harrison. I would like at this time to make a motion.
I'd recognize you for that motion. Thank you. Roberson to provide all relevant testimony and information concerning the committee's inquiry. In an unprecedented and deliberate maneuver, the lawmakers subpoenaed Robert to appear at the state capitol to testify. The date set for after his execution, meaning to honor the subpoena, Robert would have to stay alive.
It triggered a historic legal showdown with Robert's life on the line. The next morning, on October 17th, 2024, Robert woke up in his cell at the Polunsky unit. Today, Robert Robertson is set to be executed. His property packed, his life now measured in minutes. The death warrant gave Texas a six-hour window to execute Robert, no earlier than 6 p.m., no later than midnight.
The lawmakers who subpoenaed him the night before raced to court, asking for a stay. If he was dead, he couldn't come to the Capitol. Robert was driven 50 miles to the death chamber in Huntsville. Outside, protesters began to gather. When I say death row, y'all say hell no! Death row, hell no! Death row, hell no! Inside, the machinery of death lurched forward. Robert was issued a clean uniform.
He started to say his final goodbyes. Texas allows a condemned person to invite five people to witness their death. One of the people on Robert's list was Brian Wharton. I spoke with Brian by Zoom hours before he headed to the prison. He's asked me to be present and I owe that to him. He has asked me to be there and so I will to be with him. to make sure he knows that he's not alone.
I don't know if you'll have a chance to communicate with Robert before the execution, but what is your message to him? I love you, Robert. It doesn't matter what the state says and what happens in the next few hours. I love you now, and I will for as long as I endure. Soon after we spoke, Brian arrived at Huntsville and was led inside. His phone confiscated. No updates, no news.
He and a handful of Robert's supporters were taken to a waiting room. They prayed together. Brian remembers it was cold and quiet. And you're watching the clock because you know if we get to midnight and nothing has happened, then they have to start all over again. And it's just miserable. I can't imagine what it feels like to be in Robert's shoes.
Meanwhile, Gretchen Swinn, Roberts' lawyer, was throwing anything she could at the courts. She filed an emergency plea with the U.S. Supreme Court. It was denied. Justice Sonia Sotomayor dissented, writing, "...few cases more urgently call for such a remedy than one where the accused has made a serious showing of actual innocence, as Robertson has here."
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