2 - “I’m Astonished”

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Speaker 16 You're about to be put to death.

Speaker 4 Yes, sir.

Speaker 16 I have to ask you, did you harm your daughter, Nikki?

Speaker 4 No, sir. I did not harm my daughter.

Speaker 16 Did you ever violently shake her? No, sir.

Speaker 4 You did nothing that led to her death? No, sir.

Speaker 16 Robert Robertson is scheduled to die on October 16, 2025. He's been on death row in Texas for 22 years,

Speaker 16 convicted of killing his two-year-old daughter, Nikki.

Speaker 16 Robert insists he's innocent. From the beginning, he said Nikki fell out of bed and hit her head.

Speaker 4 And you told the medical staff that she had fallen? Yes, sir. And what did they say to that? They didn't believe my story.
They called the detectives in the police department in.

Speaker 4 did you understand why i didn't understand because i brought her to the hospital and stuff you know then the next thing you know the way they was acting kind of funny and stuff strange and stuff act like i did something you know

Speaker 4 robert swears he would have never hurt his little girl i'm not sure what happened to her because i can't explain what happened to her exactly

Speaker 16 The state says it knows exactly what happened.

Speaker 17 Based on the totality of the evidence has upstated, a murder took place here.

Speaker 16 But what if Robert is telling the truth?

Speaker 18 But I saw Robert with Nikki many times. What I saw was a loving father.

Speaker 19 If they go through with it, they're killing an innocent man.

Speaker 16 I'm Lester Holt, and this is The Last Appeal,

Speaker 16 a podcast from Dateline, episode two.

Speaker 16 I'm astonished.

Speaker 16 One, two, three, four. We'll be chatting like this.

Speaker 4 Hello. Lester.
Gretchen. Pleasure.
Thank you so much.

Speaker 16 Thank you very much for doing this. Gretchen Swin doesn't look like the kind of lawyer who would pick a fight with the state of Texas.
You're from Texas, right? Right here. Oh, my goodness.

Speaker 16 She's five foot two, calm, measured, approachable.

Speaker 16 But beneath that demeanor, Gretchen is a bulldog, relentless.

Speaker 19 I just always had that hunger. I want to do something meaningful.

Speaker 16 She began her career as an actress in local theater productions, but in her mid-30s, she gave up the stage for law law school.

Speaker 19 I always had this sort of dueling force in myself, the sort of artist and then the social activist, and had trouble putting them together.

Speaker 16 About a decade ago, Gretchen was working at a Texas public defender's office that handles death penalty cases when she first heard the name Robert Robertson.

Speaker 16 Turns out, Robert's upcoming execution on October 16th is not the first time he's had a date to die.

Speaker 19 This was like April 2016 and he had a June 2016 execution date. So it was a crisis situation.
There was this commotion with Robert who was trying to get lawyers to take on his case.

Speaker 19 He'd long claimed he was innocent and yet nobody had ever investigated that claim.

Speaker 16 So one of her colleagues asked her to take a look at Robert's case. Stacks of paperwork landed on her desk.

Speaker 16 Gretchen had no clue whether or not Robert was innocent, but she wanted to know more after learning that shaken baby syndrome had been a key argument to prove Robert's guilt.

Speaker 19 So I said yes, not really knowing entirely what I was getting into. And there was that race against the clock and got a PhD in shaken baby very fast.

Speaker 16 The theory of shaken baby syndrome was this.

Speaker 16 If a child showed three symptoms, swelling in the brain, bleeding on the brain, and bleeding behind the eyes, also known as the triad, there was only one cause, violent shaking.

Speaker 18 A young British nanny went to America for a job opportunity. Now she's in big trouble, accused of shaking a baby to death.

Speaker 16 Most of America first heard of shaken baby syndrome in 1997 because of a case that made international headlines.

Speaker 19 Today we focus on what has become known as the nanny trial.

Speaker 16 Louise Woodward, a British nanny, was charged with murder when Matthew Epin, an eight-month-old baby, died in her care.

Speaker 16 Doctors found that triad of symptoms, concluding Matthew, had been shaken to death. An angry Woodward lost control, violently shook the little boy.

Speaker 16 At her trial, Woodward's attorney, Barry Scheck, argued that shaken baby syndrome was junk science.

Speaker 20 That's not true. That's not science.

Speaker 17 That's based on the data.

Speaker 16 The jury sided with the prosecution.

Speaker 20 After 27 hours of deliberation, the jury in the so-called nanny trial of 19-year-old Louise Woodward came in with a conviction.

Speaker 16 The nanny trial sparked an awareness campaign, billboards on highways, urgent public service announcements.

Speaker 18 Some things you shake, some things you don't. Never, never, never shake a baby.

Speaker 16 Prosecutors began to use shaken baby syndrome syndrome to charge people with crimes like child abuse or murder. In courtrooms from coast to coast, convictions piled up.

Speaker 16 Robert Robertsons was one of them.

Speaker 16 But over time, certainty about the shaken baby diagnosis crumbled. Obviously, shaking a baby can cause catastrophic damage.

Speaker 16 But new research proved the triad of symptoms could be explained by other things, like a fall, an infection, a a loss of oxygen. Even Dr.

Speaker 16 Norman Guthkelch, who first suggested the theory in the early 1970s, reversed course,

Speaker 16 warning that prosecutors were overcharging people. Here he is in a 2015 interview with The Retro Report.

Speaker 21 I was against

Speaker 21 defining this thing as a syndrome in the first instance. To go on to say, every time you see it, it's a crime.
It became a sort of

Speaker 21 easy way into jail.

Speaker 16 Gretchen thought the controversy about shaken baby syndrome was an opening for Robert.

Speaker 19 The shaken baby diagnosis used to convict him had been discredited.

Speaker 16 In 2013, Texas had passed a law enabling people convicted on the basis of outdated or discredited science to file something commonly called a junk science writ to request a new day in court.

Speaker 16 As Robert's 2016 execution date was fast approaching, Gretchen made her move.

Speaker 19 We filed within days of the execution. Literally, we ran a box down the street to the court to make sure they had, back in that point, they wanted paper copies.
And make sure they had it.

Speaker 19 We had to file it in Palestine itself. Clock is ticking.

Speaker 16 It was a Hail Mary. And it worked.
A judge halted Robert's execution, but Gretchen's work work was just getting started.

Speaker 16 She'd won Robert a new hearing, a chance to argue that he should be given a new trial. It was going to be an uphill battle.

Speaker 16 She had to counter the doctors who testified that Nikki had been shaken and abused.

Speaker 16 So, if Nikki wasn't the victim of Shaken Baby, could there be a different explanation? Gretchen was determined to find out.

Speaker 19 I almost cannot believe what I'm reading.

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Speaker 16 Gretchen Swin had stopped the clock on Robert's execution. She'd won him a hearing, forcing Texas to re-examine the shaken baby science that helped convict Robert.

Speaker 16 But before she faced a judge, Gretchen wanted to dissect the evidence and find out if anything could have been overlooked. She began by learning about Nikki's medical history.

Speaker 16 When I spoke with Nikki's grandparents, Larry and Verna Bowman, they told me Nikki had always been a healthy little girl.

Speaker 4 I mean, other than regular doctor visits,

Speaker 4 she never really had no problems. She had her little bouts with colds and stuff like that, but she was in good health.

Speaker 16 But that's not what Gretchen read in Nikki's medical records. Far from it.

Speaker 19 I started looking and it's like, this child has been sick from day one. If you look at her medical records, you see a child who had been sick almost her entire life, starting at eight days old.

Speaker 16 In Nikki's short life, she'd suffered from constant infections, repeated fevers, possible seizures.

Speaker 16 Gretchen saw that Nikki had been taken to a doctor more than 40 times before Robert had custody of her.

Speaker 16 Not only that, she learned Nikki had experienced episodes of breathing apnea and had been rushed to the hospital by her grandparents on several occasions.

Speaker 19 She would inexplicably stop breathing, collapse, turn blue, and then have to be revived.

Speaker 16 But to Gretchen, the most explosive information was this.

Speaker 16 The week Nikki died, she had been terribly sick. When Robert brought Nikki to the Palestine hospital, it wasn't the first time.

Speaker 16 He'd taken her there three days earlier because Nikki had a fever, was vomiting, coughing, congested, and had diarrhea.

Speaker 16 A doctor prescribed Nikki a powerful drug called Fenergan, a medication that now has an FDA black box warning for children under two

Speaker 16 because of the risk of respiratory failure and even death.

Speaker 16 The day after Nikki was given that medication, Robert asked her grandparents, the Bowmans, to watch her.

Speaker 16 He said he wanted to be with his girlfriend Teddy, who was in the hospital, recovering from that surgery. But Nikki was getting worse.
The Bowmans took her to a doctor again.

Speaker 16 Her fever had spiked to 104.5 degrees. Nikki was diagnosed with a respiratory infection and given more fenerigin.
This time, it was mixed with codeine, a narcotic.

Speaker 19 We're talking about a two-year-old child who is having breathing difficulties. Both of these drugs, fenerigin and codeine, are associated with suppressing breathing and causing fatalities.

Speaker 16 Nikki's grandparents told us Nikki had always been healthy. We asked them about her long medical history.

Speaker 4 How do you reconcile this narrative out there that she was a sickly child? That's them trying to make people feel sorry for Robert. She had her little colds, you know.

Speaker 4 Obviously, we don't know anything, but what's in the record from her hospital visits yeah was that she had sleep apnea she had surgery on her ears with tubes in yeah she did have that she had like she had gone to the hospital or the doctor more than 40 times in two years that's what the record says

Speaker 4 other than her normal visits she I mean we took her everywhere she went I don't

Speaker 4 know

Speaker 16 what we do know is that 24 hours after the Bowmans took Nikki to the doctor with a 104.5 degree fever, they called Robert, telling him to pick her up.

Speaker 19 They live out in the country.

Speaker 19 She's been sick, but of course, he's going to do right by this child. He goes out there, they put crying Nikki in the car seat, and he drives her home to his little rental house.

Speaker 16 By the next morning, Robert was driving his daughter back to the hospital, saying she'd fallen off the bed.

Speaker 16 Kelly Gerganis, the nurse who first saw Nikki that morning, said the ER doctor immediately recognized Nikki.

Speaker 16 He was the same doctor who had prescribed Fenergan three days earlier when Robert took her there.

Speaker 23 The doctor that assessed her. His words to me were, Kelly, what did I miss?

Speaker 16 Gretchen hired experts to examine Nikki's records. They concluded she'd been fighting pneumonia and the medication made everything worse.

Speaker 19 This child has been sick from day one. Isn't that meaningful? Yet at trial, all of her medical history was dismissed as minor, insignificant, not relevant to any of this.

Speaker 19 And that is completely contrary to contemporary medical understanding. It also wasn't accurate.

Speaker 16 Roberts' jury never heard the extent of Nikki's long medical history. His lawyer, Steve Evans, had a different strategy.

Speaker 19 I almost cannot believe what I'm reading.

Speaker 16 As Gretchen studied the trial transcript, transcript, she thought Evans sounded more like a prosecutor than a defense attorney.

Speaker 19 I mean, this trial was so fraught with due process problems. This guy never had a fighting chance.

Speaker 16 Evans never argued Robert was not guilty. Instead, he agreed with the prosecution, telling the jury, this is a shaken baby case.
We were confused about that. And when I spoke with Evans, he was too.

Speaker 4 You make your opening statements. You tell the jury, this is not a capital case.
This is a shaken baby case. No, I never told him it was a shaken baby case.
I told him it wasn't a shaken baby case.

Speaker 4 This was an accidental drop case. I'm looking at the transcript from the opening, and you say this is not a capital case, and the evidence will not support it.

Speaker 4 This is, however, unfortunately, a shaken baby case. This seems to have you saying that this was a shaken baby case.
I don't recall ever saying that it was a shaken baby case.

Speaker 4 That was anathema to my soul, basically,

Speaker 4 as I recall it.

Speaker 4 Because if you admit shaken baby, you're admitting the basically mechanics of death.

Speaker 4 You're admitting that this wouldn't be an accident. This would not be something that was unintentional.
It would be intentional.

Speaker 16 Evans had just acknowledged to me that his words may have sabotaged his own client.

Speaker 4 And then at the end of the trial, your closing arguments, yes, I came here in opening and presented to you that there is a responsibility in this case.

Speaker 4 Yes, this is a shaken baby case, but no, this is not a murder case.

Speaker 4 Right. I don't believe it was a shaken baby case.
And

Speaker 4 I'm astonished by what you've related of the transcript. I defer to the transcript, of course.

Speaker 16 He told us his goal was to persuade the jury that Robert didn't mean to kill Nikki, that even if it was a shaken baby case, her death was an accident.

Speaker 4 Here's how you define a win in capital cases. You save their life.

Speaker 4 I still beat myself up as was there any other way? Because to me, the chance of him getting death was very high because of the nature of the case.

Speaker 16 Gretchen believes Steve Evans failed Robert. She was determined not to do the same thing.
And she was about to uncover information about Robert that changed the way she saw him and the entire case.

Speaker 19 No one believed him.

Speaker 19 And that sickens me. I've always told him, I'm not walking away from this, Robert.

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Speaker 5 That can be pretty stressful.

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Speaker 9 Doesn't Odoo sound amazing?

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Speaker 14 That's odoo.com.

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Speaker 15 Eligible patients can access custom-formulated GLP-1 medications at an affordable fixed price. Deliver to their door monthly.

Speaker 15 Take our free eligibility quiz at joinmochi.com and use code AUDIO40 at checkout for $40 off your first month of membership. That's joinmochi.com.
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Speaker 16 We've been driving across Texas finding new details about Nikki's short life.

Speaker 16 But there was more to learn about Robert and who he was in the years leading up to his daughter's death.

Speaker 16 His younger brother, Thomas, and his wife, Jennifer, agreed to speak with me in Palestine, where Thomas and Robert grew up.

Speaker 4 When people see his name and they read that he murdered his daughter, they're not reading the whole story.

Speaker 24 He's kind and gentle, and he worries more about you than he worries about himself.

Speaker 4 When Robert finally started seeing little Nikki, he had such a big smile on his face. Did he ever raise a hand on Nikki that you know of? No.
Did he spank her?

Speaker 4 I've never seen him spanking her. Obviously, it's, you know, just the idea that someone could kill a child is shocking and

Speaker 4 difficult to accept. I mean, if a person would kill a child, then why would they bring a child to the hospital?

Speaker 24 We have lots of questions. There's just a lot of things that people aren't taking into account in this story.

Speaker 16 One of the first people to ask questions after Roberts' 2002 arrest was his court-appointed defense investigator, the only one in town.

Speaker 4 Hey, Lester Olton. Well, y'all got here good.

Speaker 4 Yeah, we stopped off, grabbed a few provisions.

Speaker 16 His name is Rex Olson. He told us he'd known Robert for years.

Speaker 16 He used to deliver my newspaper right here. He'd drive by and put it in there and just say hello.
Rex said he had had other clients accused of child abuse, and Robert didn't act like any of them.

Speaker 16 He knew that child was injured, and he got out to the hospital.

Speaker 4 I've had two or three of those death cases. They never ever do that.
So in your view, he acted like a concerned father would.

Speaker 4 What was your impression of Robert once you started working on the case? You know, he had a strange thing.

Speaker 4 This guy could handle some numbers way above me. He could calculate his money and

Speaker 4 saving money and stuff.

Speaker 4 He reminds me of that movie. Rainman? Yeah,

Speaker 4 there was a little taste of that with him, with Robinson. I don't see him as someone

Speaker 4 wanting to or really even to know to hurt someone.

Speaker 16 Gretchen also thought there was something a little different about Robert. She noticed it the first time she spoke with him.

Speaker 16 It was in 2016, right after she won him that stay of execution and a hearing.

Speaker 19 And we had him on speakerphone, and, you know, a handful of us were there to try to break the good news. And he sounded like he couldn't comprehend who we were, what had happened.

Speaker 19 But I also realized this man is so impaired. You know, he had this very pronounced stammer and

Speaker 19 this sort of childlike way of speaking. And he was trying to explain something about a bag of chips.
And suddenly, it was like a light bulb for me.

Speaker 16 Gretchen had Robert evaluated by a neuropsychologist. He was diagnosed with autism.

Speaker 19 As I got to know Robert, as he's so much more than just a very impaired person, the best analogy I can give is that he's like Forrest Gump. He has no guile.

Speaker 19 He does not lie. He takes everything very literally.

Speaker 16 She thought back to those witnesses who would describe Robert's demeanor as suspicious.

Speaker 23 He had a total flat affect.

Speaker 4 no emotion, no

Speaker 4 nothing.

Speaker 23 That's not wrong.

Speaker 4 He's not responding to us in a typical way. There was just something off.

Speaker 16 How he hadn't called 911, how he made a ham sandwich while his daughter was fighting for her life. He has autism.

Speaker 19 He's in this state of shock. And one of the fundamental symptoms of autism is that when you're experiencing high stress, you actually shut down.

Speaker 19 Your ability to convey your emotions becomes even more crippled.

Speaker 16 Gretchen was curious if the witnesses who testified against Robert would have felt differently if they'd known about Robert's autism.

Speaker 19 Wondered if that would make any difference to some of these witnesses who had judged him really quite harshly as an unfeeling, uncaring person because he, you know, they kept talking about he just sat there.

Speaker 19 He sat slumped in a chair. He didn't cry.
He didn't make eye contact. Well, all of that means something different if you understand his disability.

Speaker 16 She jumped in her car and went looking for Robert's girlfriend, Teddy Cox.

Speaker 4 His girlfriend at the time said he shook Nikki. His girlfriend's daughter and niece said that Robert abused Nikki.

Speaker 16 It sounds pretty damning.

Speaker 19 His girlfriend had never told anybody that Robert was abusive. She admitted on the stand she'd been hospitalized for mental health breakdown, not a credible witness.

Speaker 16 When Gretchen found Teddy, they didn't talk long. Gretchen says Teddy seemed confused and wasn't making sense.

Speaker 16 Later, Gretchen's private investigator tracked down Teddy's sister, Patricia Conklin, the defense witness at Robert's trial. The investigator asked Patricia to record her sworn affidavit.

Speaker 25 Today I'm at the home of Patricia Conklin, and Ms. Conklin is going to read

Speaker 25 a declaration that she had signed in a case that I've been working on, which is the Robert Robertson case. Okay?

Speaker 25 Go ahead, Patricia.

Speaker 25 I received my nursing degree at Trinity Valley College in 2003. I have been working as a nurse ever since.

Speaker 16 Patricia said that Robert was never anything but loving towards his daughter.

Speaker 25 But I saw Robert with Nikki many times. What I saw was a loving father.
He was attentive, encouraged Nikki to play, and was never dismissive or short with her.

Speaker 25 I never saw him do anything hurtful to her. Robert does not have a mean bone in his body.

Speaker 18 He is a little slow, but I never saw him be mean to anybody.

Speaker 16 And then Patricia made a jaw-dropping accusation. She said Child Protective Services came to speak with her sister Teddy and her before the trial.

Speaker 25 Caseworkers with CPS came to me wanting me to report that I had seen Robert mistreating Nikki. Teddy and I talked about this.

Speaker 25 We were both threatened with having our kids taken away from us if we didn't get on board with accusing Robert.

Speaker 25 I'm a stronger person than my sister and had better understanding of my rights.

Speaker 25 This pressure did not work on me, but Teddy is different. And when she is scared, she tends to tell people what she thinks they want to hear.

Speaker 16 We reached out to the Texas Department of Family and Protective Services to ask for comment. The agency declined.
We were unable to track Teddy down.

Speaker 16 Gretchen was now convinced Robert was actually innocent. But there was one more person Gretchen wanted to speak with, an important one.

Speaker 16 You've done a lot of door knocking.

Speaker 19 One of the people I wanted to talk to was the former lead detective.

Speaker 16 Next time, on The Last Appeal.

Speaker 19 We were able to pray with Robert.

Speaker 18 It was just a very moving experience.

Speaker 16 As a death penalty supporter myself, there are just way too many questions, way too many concerns for us to stay silent on this.

Speaker 4 I told her, I've kind of been expecting you, so yeah, come on in.

Speaker 16 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 Yong.

Speaker 16 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.

Speaker 16 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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