The Last Appeal - Ep. 3: A Date to Die

0:06Gretchen Swinn has spent thousands of hours ploring over Robert Robertson's case. All right, I'm going to send this to somebody now. 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.

0:51He 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.

1:40unannounced on his doorstep. You know, it was a long shot. And, you know, in Texas, a lot of people have guns. Some people think, and we knock on the door, and there's this man. 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.

2:23It 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.

3:07So he sent evidence from Robert's home out for testing. We sent all the bedsheets, everything. There was no DNA evidence, nothing to support that. Both the pediatric specialists 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.

3:51No one had suggested this child had been sexually abused. This nurse just took this upon herself. 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?

4:38For 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.

5:25But it's what she told him next that forever changed the way he thought about Robert Roberson. 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.

6:08We 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.

6:52They'd been missing for 15 years. They were about to show up when she least expected it.

7:10On 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.

8:00Prosecutors 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. Critical evidence missing for 15 years. Evidence never presented at Robert's trial. And it just seemed to me very odd in a case that supposedly involved a head condition.

8:46Where were the scans, the most objective medical evidence of her condition? Where are they? During a break in the proceedings, Gretchen got an answer. It turns out that the very newly elected district clerk had been in the courtroom and thought to herself, I wonder if that evidence might be locked up in the courthouse basement. The clerk went to check. She walked down to the basement in a locked closet. She turned a key, opened the door, and saw them gathering dust. The missing evidence was there, including those long-lost CAT scans of Nikki's head, taken shortly after she arrived at the hospital, evidence that had been missing for 15 years.

9:33That court clerk is still there. We found her in the hallway of the Palestine courthouse. Where did you find it? The scans? Well, if you saw that room, they're built-in shelves. So built-in shelves have backings, and they slip down the back, all the way behind the other stuff. Behind a shelf, the discovery brought the hearing to a halt. She brought them to the judge. I get called to the judge's chambers not knowing any of this, and this bombshell drops. And we all agree we need to stop, and this is meaningful evidence, see what it in fact is. Finding out what those scans revealed would take Gretchen longer than she expected.

10:20They had to be converted from the film to digital, which everybody uses now. She had to find a radiologist to analyze them and write a report. The scans revealed extraordinary information. A snapshot of Nikki's head just after she got to the hospital. According to the radiologist, the scans contradicted the medical examiner's conclusion that Nikki had suffered multiple blows. We asked, is there evidence of multiple impact sites? No, there's clearly one impact site. What was present when Nikki was brought to the hospital is evidence of a single soft tissue bump on the back of her head. No skull fractures, not even a hairline fracture, and a tiny bit of subdural bleeding.

11:11Gretchen says the scans prove injuries the medical examiner saw on Nikki's head during the autopsy were really the result of doctors trying to keep Nikki alive. After she's been through extensive medical intervention, she looks very different. And one very obvious example is they had surgically affixed a pressure monitor to her skull to try to lower the pressure inside her head. And then that was removed. But the medical examiner told Robert's jury this was an impact site. It's not an impact site. Gretchen learned that Dr. Jill Urban, the medical examiner, never looked at those scans. We tried to reach Dr.

11:57Urban, but we never heard back. Gretchen thought the scans were game-changing evidence. She was eager to get in front of a judge again. But there were several delays. Then, as Robert lingered on death row, COVID hit. It was 2021. By the time his case was finally back in front of the judge, Gretchen was ready. She immediately focused on the newly found scans, saying her experts concluded they proved that Nikki did not suffer blunt force trauma. And Gretchen called former detective Brian Wharton to the stand. For the first time publicly, he said he'd been wrong. And what he admitted that there were so many things he did not know, that he never considered her medical history, didn't look into any of that, didn't know anything about her medications.

12:50We were chasing an abuse case. We had no notion that any prior medical history was playing into what we were seeing right then and right there. It would have taken some further investigation in the family or some kind of indication from the medical professionals that she had a medical history. You know, he was willing to just be forthcoming about, I didn't know this, didn't know this, didn't know this. The district attorney's office called the medical examiner, who stood by the finding of blunt force trauma. And a forensic pathologist agreed. Sitting in the courtroom, listening to Gretchen and the prosecutors, was Nikki's brother, Matthew Bowman.

13:30He was just four years old when she died. This has been my whole life. I feel like I had a person just ripped from me. He said he didn't buy Gretchen's theory about Nikki being sick. Every baby gets sick. Every child. My daughter has had pneumonia. Her brain never swole against her skull. It just doesn't line up. We were supposed to have new evidence, and nothing was brought. Gretchen thought the evidence she presented spoke for itself. It was clear Robert deserved a new trial. The judge disagreed and ordered Robert's execution to proceed. There's no legitimate way I can compare what I'm feeling to what Robert must be feeling.

14:22But it does feel a bit like I'm trapped in this nightmare where the system just keeps refusing to admit to the mistakes. There's just this ostrich approach. We will not see it. We will not acknowledge it. Denied, denied, denied. When Gretchen broke the bad news to Robert, she said he had trouble understanding it. Why can't I go home now? That's what he asked me. Gretchen filed more appeals. They were all denied. Robert was given his second date to die. Brian Wharton couldn't believe a judge had not stepped in. Now, the former detective who'd been consumed by the question of justice made Robert's case a personal mission.

15:11He wanted to look Robert in the eye and ask for forgiveness. And he vowed to do everything he could to help Gretchen. I owe Robert nothing less. My life in law enforcement, my life in general, has always been about truth. And I hope justice. They would soon find allies in the most unlikely place, sparking a historic and unprecedented legal showdown. I would expect, with all due respect, for you to have more personal knowledge of the trial record and of these facts.

15:56It's September 2024. Robert Robertson has 23 days to live. I'm on my way to speak with him. I flew in overnight from New York to Houston, now making the 90-minute drive to the prison in Livingston, Texas. We spoke the way all conversations happen on death row, through plexiglass, on a phone. How you doing, Mr. Hope? I'm good. You all set? Yes, sir. Okay. What do you want people to know about what you're going through right now? But I'm going through pain because I like to believe our justice system will do the right thing. And I would like the public to know that I'm innocent. I'm not guilty of this.

16:43Are you afraid? No, sir. No fear? No fear. Because I know where I'm going. I'm going to heaven, to be with Jesus. Do you focus on your execution? Are you counting down the days? No, I'm not focusing on that. But other people were focused on it. One of them was Brian Wharton, who had recently traveled to death row to visit Robert. So all these years later, Detective Wharton has come back in your life. Yes, sir. He's now fighting to save your life. He's fighting to save my life, yes, sir. He now believes in you. Yes, sir. And he believes that the prosecution got this case wrong. Yes, sir. Does that shock you?

17:27It shocks me, but then it don't and stuff, you know. And he even comes and visits me up here and stuff, you know. Can you share with me what you told Robert when you visited him for the first time on death row? I can't remember exactly the words I said to him, but I apologized. I told him I was sorry that I had anything to do with putting him there. We failed you. The system continues to fail you. He asked me for forgiveness. I forgave him and stuff, you know. You forgave him? Yes, sir. I was a little bit taken aback by it, that it came so freely and so easily, his forgiveness. Robert is a very gentle spirit.

18:05He is very sincere. There's no anger in him. Why aren't you bitter? Bitterness only hurts. If I don't forgive, it hurts me, how bitter it is. The week after I met him, we heard a story about his case. This is NBC Nightly News with Lester Holt. For the first time, Robert's story would be national news. Robert Roberson has spent more than two decades on Texas' death row, convicted of fatally shaking his two-year-old daughter Nikki in 2002. Awareness was growing, now in an unexpected place, the state capitol. 86 Texas lawmakers, Democrats, and even pro-death penalty Republicans joined together to ask for mercy from the governor or the Board of Pardons and Paroles.

19:00Some of the lawmakers went to visit Robert on death row in the weeks before his scheduled death and prayed with him. And it was just a very moving experience. We leave here with more hope that he will hopefully get the new fair trial that he deserves. Pressure was building in Austin. Inside the state capitol, two Texas lawmakers decided to act. Jeff Leach, a Republican, and Joe Moody, a Democrat, members of the Texas House Criminal Jurisprudence Committee, led an emergency hearing. It focused on that so-called junk science law, which enabled people to request a new day in court if their conviction had been based on outdated or discredited science.

19:45That was the law that won Robert a stay years earlier. The legislators wanted to understand why the junk science law hadn't won Robert a new trial. I spoke with Representatives Moody and Leach. The new science evidence matters. He needs to be afforded that relief. He needs to be afforded that opportunity. My support of the death penalty is contingent upon knowing beyond a shadow of a doubt that that inmate is, in fact, guilty. And with Robert Robertson's case, there are just way too many questions, way too many concerns for us to stay silent on this. On October 16th, 2024, with Robert about 30 hours away from death, Representative Moody called the hearing to order.

20:28The time is now 10.15 a.m. The House Committee on Criminal Church Prudence will come to order. The clerk will call the roll. They called eight people to testify, including one of Gretchen's experts. Do you believe it is right that a jury was able to make a decision without knowing any of the details? I don't think it's right, no. I mean, because there are so many natural causes here that could have caused her death. Brian Wharton testified, too. 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.

21:22Now 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.

22:08But 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-writ that have been filed and the hearings that have been held.

22:55Just 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 the question? 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.

23:45Less 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. I move as follows. Robert 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.

24:31The next morning, on October 17, 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's wrong, I'll say hell no. Death's wrong, hell no.

25:18Death's wrong, 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?

26:03I 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.

26:44Meanwhile, Gretchen Swinn, Robert's 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. Shortly after 4.30 p.m., a jolt of hope, just as I was about to go on the air. There is breaking news from Texas right now, where a civil court judge has temporarily halted tonight's scheduled execution of Robert Roberson. It didn't last long. Texas Attorney General Ken Paxton struck back.

27:31Paxton rushed to the Court of Criminal Appeals. Texas wanted to kill Robert before his death warrant expired at midnight. The court vacated the stay. The execution was back on. The lawmakers who had subpoenaed Robert fired back, this time to the Texas Supreme Court, arguing they needed Robert alive to hear from him. Inside the death house, Robert was given his last meal. The chaplain prayed with him. Then, just after 10 p.m., with less than two hours before a needle would be placed in his arm... Hey, we start tonight with breaking news. This has just been an incredible turn of events, and now it is the Texas Supreme Court that is blocking the execution, at least for now, of Robert Robertson.

28:22Robert was saved, but only temporarily. One year later, he was given his third execution date, October 16, 2025. It left his supporters asking why had others convicted of shaken baby syndrome been exonerated, even in Texas, when Texas was trying to kill Robert? Next time on The Last Appeal, how could it be that you were exonerated in the state of Texas and Robert Roberson is now facing death? That's what we're all asking, Lester. The whole world is watching. The whole world is watching. Have you thought about last words, what you'll say? Well, that's a good one there. The Last Appeal is a production of Dateline and NBC News.

29:13It is written and produced by Dan Slepian, Liz Brown-Kurloff, and Lynn Keller. Our field producers are Nick McElroy and Rachel Yong. Our associate producer is Sam Springer. It's edited by Colin Dow and Greg Smith, Deb Brown, and David Varga. From NBC News Audio, sound mixing by Rob Byers, Joe Plourd, Rick Kwan, with help from Rich Cutler. Head of audio production is Bryson Barnes. Paul Ryan is executive producer. And Liz Cole is senior executive producer of Dateline.