The Stay

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1:24Kayla Guo is a reporter for the Texas Tribune. She's talking about the case of a man on death Throw, named Robert Roberson. Robert Roberson was born in Mineola, Texas, in 1966. In his 20s, he spent time in prison for burglary and passing bad checks. By his mid-30s, he was living in a small town between Houston and Dallas and had a job delivering newspapers. In the early 2000s, he learned that he had a daughter, her name was Nikki, and he got custody of her just after she turned two. Her mother had lost custody soon after Nikki was born. Nikki had been sick for a lot of her life. By the time she was two, she'd been to the doctor more than 45 times.

2:11She had breathing problems and kept getting infections that were resistant to antibiotics. In January of 2002, a couple of months after Nikki had started living with Robert, He took her to the emergency room. She'd been coughing and vomiting for days. A doctor prescribed a drug called Phenergan to help with her nausea. Nikki was sent home, but her temperature started going up. At the pediatrician's office the next day, her temperature was 104.5. Her condition had only gotten worse, and she had been, again, sick for some time now. She was prescribed more Phenergan, but this time it was in a cough syrup with codeine.

2:59At the same time, Robert's girlfriend was in the hospital, and so Nikki stayed with her maternal grandparents. Robert picked Nikki up the next night. Robert says when they got home, he made Nikki a snack, and they watched a movie together until they were falling asleep. Robert put Nikki to bed in his bed so she wouldn't be sleeping alone. Robert says that around 5 a.m., he woke up because he heard a strange cry and saw that Nikki had fallen out of the bed. He says he talked to her for two hours to make sure she was okay, and then they went back to sleep. He says that when his alarm went off around 9 a.m., he couldn't wake her up, even when he grabbed her face and shook it, and her lips were turning blue.

3:45So he rushed her to the emergency room at that point. At the hospital, doctors performed CPR and intubated Nikki. Hospital staff noticed a bump on the back of her head and performed a CAT scan, which showed blood between her brain and her skull. The scan also showed brain swelling, but no fractures. Nikki was transferred to the Children's Medical Center in Dallas. Soon after she got there, she was given more scans, and she was also examined by a child abuse expert. The doctors saw symptoms that, at that time, told them to diagnose shaken baby syndrome. The idea of shaken baby syndrome first came about in the early 1970s when a neurosurgeon in England started noticing that some of the infants and children he was treating had bleeding between the brain and the skull without any outward signs of head injury.

4:46Social workers told him that they'd noticed parents attempting to discipline their babies by shaking them. And the neurosurgeon theorized that the mysterious bleeding could have been caused by shaking. A radiologist in Pennsylvania later came up with the term whiplash shaken infant syndrome. Eventually, it became a more formal diagnosis. And in 2001, the year before NICU was taken to the hospital, the American Association of Pediatrics published a paper that recommended a presumption of child abuse when an infant came in with certain symptoms. The medical consensus said that if a child presented with a triad of symptoms, that means unexplained bleeding in the brain, bleeding behind the retinas, and brain swelling, doctors could and should make a diagnosis of shaken baby syndrome, and they could presume that somebody had violently shaken this baby and caused these injuries.

5:47Nikki had all three symptoms. The day after she arrived at the medical center, she was taken off of life support. Robert was not told before. And how did he hear that Nikki had died? Nikki had been transported to Dallas without Robert knowing. And so I don't know exactly how he found out she had died, but she died when he was not with her and he was not in Dallas with her when she died. The child abuse expert at the hospital signed a statement that day, stating that in Nikki's case, there had been, quote, some flinging or shaking component, which resulted in bleeding between the brain and the skull, along with diffuse brain injury.

6:36Robert was arrested before the autopsy was performed and charged with capital murder. And what did he say when he was told that this was shaken baby syndrome and he was going to be charged with her murder. He has maintained his innocence through all of this. One of the aspects impacting the investigation is he's a man with autism and that wasn't a diagnosis that the doctors or investigators knew about at the time that he had at the time, but investigators have said they looked at his flat affect as evidence of his guilt. The lead investigator in his case, Brian Wharton, he said that Robert didn't seem too concerned in that moment, wasn't reacting how you might expect another parent to react in that situation when their child seems to be in grave danger.

7:38his emotional reaction to I think both Nikki's condition at the time and his arrest later on his expressive reaction was atypical and that was one of the things that I think investigators thought was evidence of his guilt at the time. At the trial the state's case hinged on this shaken baby diagnosis which again presumes abuse on the part of the caretaker in this case Robert they pointed to Nikki's autopsy report. They had a few medical experts come testify, one being the person who conducted the autopsy. And they described Nikki as ill, and they describe blunt force trauma to her head, which is consistent with shaken baby syndrome.

8:30Shaking is not distinguishable from what you might normally think of as blunt force. The medical examiner who performed the autopsy had concluded that Nikki's death was a homicide and testified that, quote, when a child is shaken hard enough, the brain is actually moving back and forth within the skull, impacting the skull itself. The child abuse expert at the hospital in Dallas testified that, quote, it is not something that ever happens accidentally. It is not something you see in normal children who are cared for by reasonable adults. And what did Robert Robertson and his defense attorney say had happened?

9:14At trial, Robert had maintained his innocence, but his defense attorney at the time did not pursue the innocence claim. His defense attorney's defense was mainly that Robert hadn't meant to kill Nikki in allegedly shaking her. And so that was the entirety of his defense, was that he didn't mean to ultimately kill her. Again, Robert has said he was innocent of it and that there was no shaking involved to begin with, that Nikki was just deeply ill and this was the final collapse. That she, he said that she was sick and had fallen off the bed. And yes, he had said immediately in the aftermath of it all that she had fallen off the bed and he couldn't explain.

10:01He didn't have the medical expertise to explain her condition. And that was what he said had just happened was he woke up to find her falling from the bed. And that's what prompted him to bring her to the emergency room. And the lawyer said, okay, fine, maybe, you know, she was shaken, but he didn't mean to hurt her. Right. In the medical community at the time, the consensus was if an infant shows up with these three symptoms, pretty much by default, automatically you assume abuse. And so I think that was a really strong driving factor in the course of the trial was this confidence, not just from these doctors who treated Nikki, but from the broader medical community, the broader medical guidance instructed doctors to do this, said, if you see these three things, it's abuse.

10:54And that, I think, really informed how the prosecutor handled it, how his defense attorney handled it, and how a jury handled it as well. Robert Roberson was convicted of murder and sentenced to death. Texas tends to go through with its executions once they're on the calendar, and so it seemed like that is how it would go. But never could I have guessed or imagined it would become the story that it did. Everything that happened was unprecedented, so there was no guidance or real ability to predict what might happen next. I'm Phoebe Judge. This is Criminal.

11:39We'll be right back.

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14:06It's been called the junk science law. It was a really widely heralded law. It was imitated across the country. Texas was seen as sort of a trailblazer. And lawmakers passed this law in an effort to acknowledge that science changes and the understanding of science and evidence evolves as scientific knowledge gets better. And the criminal justice system at this point wasn't equipped to acknowledge that. The science behind all kinds of forensic evidence that one seems certain has changed. Bite marks, burn patterns, blood spatter analysis. and also shaken baby syndrome, specifically the link between three symptoms and the assumption of abuse.

14:55Studies showed that many of those same symptoms could also be caused by shortfalls, some naturally occurring medical conditions, accidental traumas, and researchers also found that shaking baby that violently would likely have broken their neck, which Nikki didn't have a broken neck at the time. So the medical consensus around how to make these diagnoses has changed. The medical guidance now also emphasizes that a doctor should consider all other possible factors leading to these symptoms that aren't abused before they can conclude that it was abuse that did it. So it's a pretty fraught diagnosis.

15:34It's certainly a real condition. It's just fraught on how and when doctors make that diagnosis and point to abuse versus a naturally occurring medical condition or some other accidental trauma. In 2012, the neurosurgeon who had originally proposed the idea of shaken baby syndrome wrote that it was a hypothesis, not proven medical or scientific facts. By 2015, at least 16 people around the country who had been convicted using the shaken baby syndrome diagnosis had been exonerated. One judge called it more an article of faith than a proposition of science. Robert Roberson's execution was scheduled for June 21, 2016.

16:27He got a new lawyer who filed an appeal for him based on the junk science law. Saying the science around shaken baby syndrome has changed. That's clear in his case. The court should give it a second look. The state's highest criminal court agreed and said, okay, this warrants a second look. They sent his case back down to the trial court to handle the new evidence claim. And that is notable because the state's highest criminal court more often than not does not allow for that and usually affirms the state's case and is sort of prosecutorially minded. But in this case, they agreed. Yeah, let's give it a second look and instructed the trial court to do that.

17:12Robert Roberson's execution, which was scheduled five days later, was put on hold. His lawyers tried to get access to Nikki's medical records and asked experts to look at them and explain what they thought had happened. Robert's lawyers were especially interested in finding scans of Nikki's head that had been made immediately after she arrived at the emergency room. The jury in Robert Roberson's trial hadn't seen these scans, And neither had the medical examiner, who performed Nikki's autopsy. Initially, no one could find them. But then, in 2018, a new employee at the court found a box in a courthouse basement, which included the scans.

17:57And what they produced for a evidentiary hearing in 2021 was just reams and reams of evidence and experts saying, one, the consensus around shaken baby diagnoses has changed, and two, the evidence in Nikki's case doesn't support a shaken baby diagnosis to begin with. Experts pointed to the fact that Nikki had been a very sick child and that she had had breathing problems before her death. They also pointed out that she had been prescribed medications that are no longer prescribed to children, including high doses of Phenergan, which later had a black box warning against prescribing it to children who are under two or have a history of respiratory issues, and codeine, which is an opioid, that the FDA now restricts for children because of the risks of breathing problems and death.

18:57They also said that Nikki had had undiagnosed pneumonia. That, again, all contributed to her ultimate death and that it wasn't shaking. And they also point to a lot of problems, they say, in how Nikki was handled. They say that the doctor who performed the autopsy before she made her conclusion was already told that Robert had been arrested for homicide, which these days, I think experts would say, would taint an autopsy provider's ultimate conclusions about what caused this person's death. They also point to other problems in his trial, such as one nurse testifying that she saw evidence of sexual abuse on Nikki, that another expert refuted during the trial, and that the prosecutors didn't bring up any other evidence for, but still mentioned it in their closing statement.

19:49So they've raised all sorts of problems with the trial itself, and they've also tried to bring up all of this new evidence to offer an alternative explanation for Nikki's death. And they say it was natural and accidental. The state responded, saying that the evidence they'd presented at the trial, that Robert had shaken Nikki, was still convincing. Prosecutors called the medical examiner, who had performed the autopsy, to testify. And she said that she did not see any evidence that Nikki had chronic pneumonia, or that her injuries could have resulted from a short fall from the bed. She said that blunt force trauma, and not an infection stopped her breathing.

20:33The judge wrote, while the applicant has shown that there is new scientific evidence not available at the time of his trial, he has failed to show by a preponderance of evidence that had this new evidence been presented at trial, he would not have been convicted. The trial judge decided, let's move forward with his conviction, his execution. We think that the court handled it right the first time, the jury handled it right the first time. you know, cleared the way for Robert's execution to move forward at that point. And it really wasn't until last July that we had a new execution date and that it was set for October.

21:15So what options were left for Robert Robertson? They asked the court to reconsider. They asked the court to look again more carefully at the evidence they've presented. they say they don't believe the evidence has been meaningfully engaged with by the courts and they ask the courts to look again they get new experts to come in and and to give their evaluation of Nikki's medical records and understanding of shaken baby diagnoses and what can cause an infant to die like she did and they they just ask the court to try again and to look again and the court repeatedly says no we won't do it not because you know we've looked at what you're saying and we don't think that warrants a different action from us, not because we don't believe in the merits of your argument, but based on procedural grounds, you know, we just stand by what we decided beforehand.

22:10They emphasized blunt force trauma as the cause of death. They felt that it was still clear that Nikki's death was a homicide, as the autopsy had concluded, and the court seemed to agree. And that left Robert with fairly few options. And going into, in the week leading up to his execution date, it seemed his only option was to receive clemency from the Board of Pardons and Paroles or for the governor to step in. The governor has the authority to issue a one-time 30-day reprieve. But other than that, it didn't seem like he really had any options after all of his appeals were struck down by the court.

22:55At the same time, there's this public campaign brewing, urging somebody to do something at this point. He has advocates like John Grisham, who has spoken on his behalf. Dr. Phil, the lead investigator in his case, you know, has spoken to media and testified in public forums and has been very vocal about his belief that, you know, he got it wrong and this is an innocent person, he believes. Texas state lawmakers also weigh in and they're urging the clemency board to grant him clemency and to recommend clemency. They're urging the governor to step in. But at the end of the day, you know, he's still sentenced to death.

23:37That is still, you know, the facts of the case, no matter how many people speak out on his behalf. And it would have required either somebody on the the court's criminal court deciding maybe we got this wrong, maybe let's do yet another look, or the district attorney saying maybe there's some problems with how we prosecuted this case, or it would have required a few select few people had to change their minds in order to actually make a difference in his case. So all of this is going on in the days leading up to his execution, this gigantic public campaign, and his lawyers behind the scenes doing everything they can to try to convince someone to stop this execution.

24:20Yes. And also, in the week before his execution was set, the state's highest criminal court, the same court that has denied his appeals over and over again, overturned another shaken baby syndrome conviction out of Dallas County. in that opinion. The court, you know, acknowledged that the scientific knowledge around Shaken Baby has evolved and, you know, believes that this conviction and this other person's case was wrong. And so his lawyers are pointing to that as, you know, like, you've acknowledged that the science has changed. Why can't you acknowledge it also in Robert's case? And a large majority of the Texas House has signed a letter urging clemency at this point, which is really rare to get that number on, 86 lawmakers signed this letter urging clemency.

25:11It's rare to get that number on most things, much less, you know, something about the death penalty. But they were united in believing that something here had gone wrong, and this was someone who deserved another look.

25:26One day before Robert's scheduled execution, the Texas House Criminal Jurisprudence Committee met for a hearing. And at this hearing, they invited a bunch of different expert witnesses, people who study criminal justice in the state, medical experts, the prosecuting district attorney, and Roberts' appeals attorney to come testify. They laid out all this evidence that a jury had never heard, that had not been presented to the jury at the time, again, because the science was different at the time, taking this discussion over is he innocent or is he guilty out of the courtroom. and into sort of public discourse into the state capitol, which is not where death penalty cases are litigated, but this is where the lawmakers had taken it.

26:12Tell me about the testimony of the lead detective who investigated Nikki's death. It was intense. He, I believe, was the first witness to come before the committee that morning. The hearing room was fairly packed at that point, and his testimony was emotional. It was personal. And he was reaching 20 years into his memory to tell lawmakers about how he believed he got it wrong and how he helped send what he now thinks is an innocent man to death row. The hearing room was really tense. You know, I didn't even want to type for fear of, you know, making too much noise and sort of interrupting the moment.

27:08Kayla says the detective told lawmakers he'd relied too much on the medical consensus at the time. And he said his perception of Robert's flat affect as an indication of guilt was wrong. He hadn't known that Robert had autism. But he said that in the years after, he had always had this nagging feeling that this wasn't a slam dunk, and if you're going to send someone to death, it better be a slam dunk. It better be, you know, completely clear, no doubts whatsoever. The detective said, quote, I told my wife last week that I'm ashamed. I'm ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert.

27:51The hearing lasted more than eight hours.

28:21One of my co-workers had to bring me a granola bar at one point. So it was running on very little by the end of this hearing. It had mostly emptied. I was one of the few reporters who was still in there. I had already messaged my editor saying I was about to file the story I had written for the night and that the hearing was wrapping up. And then, the committee issued a subpoena for Robert Robertson to testify, four days after he was scheduled to be executed. He can't show up to a subpoena if he's dead. He can't show up to a subpoena if he's dead.

29:02We'll be right back.