4 - The Reckoning

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In October 2024, Robert Robertson was less than two hours away from dying when he won a last-minute stay. That was a long day.

He recently shared with me what hardly anyone lives to describe, the choreography of an execution, the hours leading up to his own death. I had to strip and they gave me some

other fresh clothing and stuff and stuff and then they gave me a pair of

cloth slippers for my feet, you know, and

had to put the belt of the chain around me and handcuffs and lock it in place.

Officers loaded Robert into a van bound for the 50-mile drive to Huntsville, the death chamber.

He was led to a tiny cell.

So I was walking back and forth kind of pacing and stuff, you know, talking to the Lord, praying to the Lord, you know.

Then they

brought me some some, supposed to be last meal and stuff, you know. Had a choice between two of them.

One of them has like a hamburger Salisbury steak on it, and the other one has some rice mixture, kind of like Spanish style. I picked that one and stuff, you know.

Robert was counting down the final minutes of his life,

not knowing if the next footstep would be news of mercy or death. I believe it was around 6 or somewhere around there and

got to stay or something, but then I heard they took it back, right? Until shortly after 10 p.m., when the execution was called off, the Texas Supreme Court had issued a last-minute stay.

It was a very, very, very long day, sir, you know. Robert's prayers were answered.
But one year later, the clock was ticking again. And now the state, of course, has a new death date for you.

Yes, sir. Do you wish you had taken the plea bargain?

No, I'm glad that

I didn't. But look where you are.
Yeah, look where I'm at. Thank you.
It's about the truth. It's about the truth.

Have you thought about last words, what you'll say?

Well, that's a good one there.

And it's a hard question, right?

I'm Lester Holt, and this is The Last Appeal, a podcast from Dateline, episode four:

The Reckoning.

I move as follows. In October 2024, lawmakers had successfully saved Robert's life using an unprecedented and deliberate maneuver.

Robert Robertson to provide all relevant testimony and information concerning the committee's inquiry. They had summoned him to testify, but there was a catch.

The hearing was set after Robertson's scheduled execution. Robert was eager to to tell his story, but when the date came, he never made it to the Capitol.

Texas Attorney General Ken Paxton blocked him, arguing to the state's top court that the subpoena violated the law, and he said transporting Robert to the House chamber could be dangerous.

Still, the legislators pressed on with the hearing.

The House Committee on Criminal Jurisprudence will come to order the court. Instead, they called other witnesses to testify.
Mr. Grisham, are you able to hear me? I can hear you.
Yes, can you hear me?

Okay, perfect. All right.
Among them, best-selling author and lawyer John Grisham, who spoke with the committee through a video call. It's my honor to be here to speak for Robert Roberson.

He's been closely following Robert's case. I've been on the board of the Incidence Project in New York for a long, long time, and for the past 15 years or so,

we have been more and more concerned about the shaken baby syndrome, shaken baby convictions, and I know what it takes to have a fair trial. Robert's trial was grossly unfair.

It is a great honor to be here testifying before this committee. Another witness, someone you've already heard from in this podcast.
My name is Terry Compton.

I was one of the 12 jurors on the case of Robert Robertson's trial. And I took that position very seriously.
Terry Compton, the juror, had gotten a visit from Gretchen Swin, Robert's lawyer.

She said she was furious after Gretchen told her details that the jurors didn't know about Nikki's medical history, about Robert's autism. Now, Terry made a stunning admission.
If you had known that,

would that have made a difference in how you voted in this case? Yes, sir. How big of a difference? Very much difference.
I would have found him not guilty.

This must have weighed on you over the last few months. Very much.
When I spoke with Terry recently, she told me if Robert is killed, it's going to take a toll on her. I know it's going to be

something that I will have to live with for the rest of my life. It'll be a certain place of guilt that I'll have to carry around with me for the rest of my life.

So what are your hopes now in this case? My actual hopes or feelings is that they should should let him go because I think he is innocent.

With so much uncertainty surrounding Robert's case, discredited science, missing evidence, the lead detective admitting he was wrong, and now a juror changing her mind, we wanted to ask the prosecutor why Texas seems so intent on killing Robert.

I stopped by Allison Mitchell's office, the Anderson County District Attorney. So

we're just here to talk about the Robert Robertson case. Yes, yes.
I remember you called. So she's actually in a jury trial right now.

I was in the car when Mitchell sent an email. I heard from Allison Mitchell.
She says, sorry, I missed you today. I was in a jury trial.

She said she couldn't talk because the case is pending and suggested I reach out to the Attorney General's office. The AG is currently handling the case on behalf of this office.

We asked the AG Ken Paxton for an interview. We never heard back.

But in a press release last year, he called Robert violent, said he confessed to a jailhouse informant that he sexually assaulted Nikki, allegations that have never been proven.

He said all that talk of shaken baby syndrome was a red herring, that Nikki was beaten, a victim of blunt force trauma.

Paxton wrote, quote, the jury did not convict Robert on the basis of shaken baby syndrome. We asked Terry, the juror, about that.
Do you remember what the essence of the state's case was?

It was all about shaken baby syndrome. I remember them just keep going over and over that it had to be from this shaken baby.

Despite all the controversy and pleas for mercy, this past June, Paxton asked a judge to set Robert's new execution date.

Gretchen pleaded with the judge not to, pointing out Robert still has an appeal pending and the courts have not been responsive. Why now? She asked, when there was no legal reason to do so.

The judge told Gretchen he was sympathetic about the lack of response, but said, quote, a justice system that doesn't move is unjust.

The judge said it was time to move and scheduled Robert's third date with the death chamber. A judge has set a new execution date for the Texas man who criticized.
October 16th, 2025.

Nikki's brother, Matthew Bowman, said it was time. Do you think that Robert's execution will bring closure or simply start another difficult chapter? Be honest with you.

I mean, it would, if they do go ahead and do this, yes. My family will be finally able to breathe.

If Texas killed him, Robert would be the first person in the United States to be executed because of a shaken baby diagnosis.

So if Robert was about to be killed, his supporters wanted to know why others convicted under the same outdated medical theory had been exonerated.

How could it be that you were exonerated in the state of Texas and Robert Robertson is now facing death? That's what we're all asking, Lester.

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In In Texas, science, faith, and justice are colliding. Do not execute an innocent man, please!

With just 12 days left before Robert's scheduled execution, his supporters gathered at the Texas State Capitol.

One of them was Josh Burns.

I learned about Robert Robertson, who is a father on Texas death row and now scheduled to be executed under the same scientifically unsound shaken baby syndrome hypothesis that has caused my family so much harm.

In 2014, Josh, a commercial pilot from Michigan, called 911 after his two-month-old daughter became listless and unresponsive.

At the hospital, he told doctors that a couple of days earlier, she may have bumped her head. He came and did a bedside eye exam and found retinal hemorrhages.

One leg of the triad that once defined the shaken baby syndrome theory. The doctor said retinal hemorrhages are diagnostic of child abuse.

We're referring your daughter to a child abuse pediatrician who then accused us of shaken baby syndrome. It was just a theory from the child abuse pediatrician.

She says that the only thing this could be is shaken baby syndrome. Based on that, Josh was charged with second-degree child abuse, convicted, and served a year in jail.
His appeals were denied.

But a decade later, the Michigan Attorney General's Conviction Integrity Unit reviewed Josh's case. In 2024, he was exonerated.
There had been no crime, just a bad medical diagnosis.

Josh Burns isn't alone. Across the country, a reckoning is underway.
According to the National Registry of Exonerations, more than 40 people have been exonerated due to a shaken baby diagnosis.

Courts have taken notice. In Illinois, a federal district judge wrote that new developments arguably suggest shaken baby syndrome is more an article of faith than a proposition of science.

A New Jersey appellate court held that shaken baby syndrome lacks scientific reliability. In 2024, in Texas, where Robert Robertson is on death row, a man was exonerated in a shaken baby case.

Andrew, can you just please introduce yourself? Yes, my name is Andrew Rourke. Robert's supporters say the two cases are strikingly similar.

In 1997, Andrew Rourke was home alone watching his girlfriend's 13-month-old daughter, Brooke. Like Robert, who said Nikki had fallen from a bed, Andrew said Brooke had also fallen a short distance.

She had slipped and hit her head in a tub very very lightly. Andrew put Brooke down for a nap, only to later find her on the floor.
She's gasping for breath and unresponsive.

So I picked her up, ran to the phone, called 911.

Like Nikki, Brooke ended up at Dallas's Children's Medical Center, where she was evaluated by a pediatric specialist. who diagnosed her with shaken baby syndrome.

That specialist was the same one who saw Nikki, Dr. Janet Squires.

She declined our request for an interview.

Unlike Nikki, Brooks survived. Andrew was arrested for child abuse while leaving the hospital.

We end up at an elevator bank, and there's five DeSoto police officers jump me and arrest me right there in the hospital.

Andrew was convicted of injury to a child and sentenced to 35 years in prison. He served 13 before being released.

In October 2024, the same week Texas was preparing to kill Robert, Andrews' conviction was vacated.

In a statement, the Dallas County DA said, quote, current advancements in medical and scientific understanding would no longer support the state's theory at trial.

How could it be that you, going through a situation like this, were exonerated in the state of Texas and Robert Robertson is now facing death. That's what we're all asking, Lester.

Had the child died in my case, I would be in the same position he's in, because they sure as hell would have put me on death row for this, for sure.

Robert has never wavered. Brian Wharton, the detective turned minister who once helped build the case against Robert, was again fighting to stop the clock.
Robert is my friend.

I care about him deeply. I wouldn't go so far as to say say I love Robert.

I wasn't surprised. Brian was at that rally on the steps of the Capitol, begging the state for time and the crowd for faith.
Robert is a very

good

man,

full of grace and joy and forgiveness. Can his life be saved at this point? Gosh, I pray it can.
If we can't save someone like Robert, who is so clearly innocent, then truly we're lost.

How will you feel if he does not receive a stay? I will die a little myself.

I thank you for braving the really brutal sun. Gretchen's swin was there too.
She climbed the steps and addressed the crowd. It's a perfect metaphor for what we need.
We need the sunlight.

We need noise.

Reason,

judicial process

has failed us, has failed Robert.

And I have nothing but righteous rage on behalf of my client, Robert, because I know he's innocent.

She was still furiously working to save Robert.

We have countless appeals, it feels, pending, trying to plan out what happens if a door slams, what other door can be opened.

She thinks this podcast may have opened a door. I called Gretchen to find out why.
Thanks for doing this on short notice.

First of all, describe the significance of what you heard and how it figures into your case.

I listened to the first episode of your podcast on Monday morning, and quite shockingly is a revelation about an unknown fact.

What caught her ear was a detail Nikki's grandfather, Larry Bowman, told me about the final hours of Nikki's life in the hospital. Did you have to make the decision to take her off support?

Yeah,

we did.

Larry told me that a judge spoke with the hospital and informed them that he and his wife, not Robert, would make decisions about Nikki's medical care. Gretchen knew that.

What she didn't know was the judge's name. Matter of fact, Judge Bentley told him that we were the parents.
Judge Bascombe Bentley, the same judge who presided over Robert's murder trial.

He passed away in 2017. Now you have a name.
Now we have a name, and it's a big name.

I'm sorry if I sound agitated, but it was quite the shock to realize he was the judge that signed the arrest warrant and went on to preside over the entire trial.

To Gretchen, that was proof of something powerful that Judge Bentley had decided Robert was guilty before he'd been arrested.

I find it hard to imagine how someone wouldn't believe that this information shows that this judge had already made a decision that Robert was guilty.

Over the summer, Gretchen filed a motion about the parental rights issue. The state responded, arguing it was speculation that no judge ever spoke with the hospital.

Within 24 hours of listening to the podcast, Gretchen raced to court and amended her motion with the name of the judge that Larry had given us. The trial itself should be null and void.

The Attorney General didn't respond to the filing.

Gretchen won't give up, and Robert knows it. To me, she's perfect.
She's real compassionate, real kind, and real committed to this type of work, you know.

Robert, where and how does this story end in your mind? How does it end? I'm hoping and praying that they would do the right thing,

that I'd be fully exonerated, you know. You know, when we talked last time, I think we talked a little bit about hope.
Yes, sir. Is it harder to be hopeful now?

No, actually,

I'm still hopeful. I still got a lot of hope.
Robert was once again counting down the hours of his life, his third date with death. The whole world is watching.
Texas do not kill this innocent man.

But But one week before Robert was to die, a twist no one saw coming.

We have won a battle, but we have certainly not won the war.

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Just seven days before Texas planned to execute Robert Robertson on October 16th for murdering his two-year-old daughter, Nikki, the Texas Court of Criminal Appeals Appeals handed down a ruling.

I immediately called Robert's lawyer, Gretchen Swin.

Gretchen, I'm looking at a two-page ruling from the Court of Criminal Appeals of Texas. What does it say? The bottom line is it says Robert is not going to be killed by the state of Texas next week.

The court put Robert's execution on hold. You sound like you're holding your breath there.
Yeah. You can't believe this.

I'm somewhat in shock, and I'm reminded when I first spoke to Robert nearly 10 years ago to tell him about the stay he had received in June of 2016.

And he sounded like this little child and talking to me about a bag of chips. And I feel like I too have this weight on my heart and I'm struggling.

to process this and probably would like to go eat a bunch of chips or something. Robert's case has been sent back to a lower court judge for review.
The good news is,

you know, we live to fight another day. The bad news is the fight that has been so protracted

is not over. The new ruling that halted Robert's execution hinges on the case of Andrew Rourke.
It doesn't make any sense that mine

and his cases being so similar and me being on this side of it and he's still facing death.

After spending 13 years in prison, prosecutors said Andrew was innocent and agreed with medical experts, the science of shaken baby syndrome was outdated.

Now the court wants to know whether the finding of junk science in Andrew's case should apply to Roberts, too.

The Texas Attorney General did not return our request for comment, but in a press release last year, he insisted that Nikki was a victim of blunt force trauma and that the jury did not convict Robert on the basis of shaken baby syndrome.

So, this doesn't permanently stop the clock. It certainly doesn't mean they could never set another execution date.
If we go through all this and again lose, he would be back in this position again.

But if we go through it and win, what it will then mean is finally that new trial that we've been fighting for. Can you just give me your personal reaction to what we've learned today?

My personal reaction is that I'm both elated

and saddened, if that makes any sense. I'm very happy he's gonna be alive next week for me to visit him and go over this, but I'm sad.
He's, you know, he's almost 60 years old.

And, you know, here we are, you know, back at the beginning of another fight.

I cannot believe the outpouring of support. I would certainly say that the national spotlight that your podcast has shown on this case and the independent reporting elevated this story.

You know, I'm just so profoundly grateful for that. And I hope you'll stay with us as the fight's not over.
We will stay on this story wherever it goes.

The Last Appeal is a production of Dateline and NBC News. It is written and produced by Dan Slepian, Liz Brown Kurloff, and Lynn Keller.
Our field producers are Nick McElroy and Rachel Young.

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 Plord, 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.

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Warning, this product contains nicotine. Nicotine is an addictive chemical.