3 - A Date to Die

29m
As Robert Roberson’s execution nears, his attorney uncovers critical evidence and unlikely new allies, including Texas lawmakers and the detective who helped put Robert on death row.

Press play and read along

Runtime: 29m

Transcript

Speaker 1 Need to restock inventory, cover seasonal dips, or manage payroll? OnDeck's small business line of credit provides immediate access to funds up to $200,000 exactly when your business needs it.

Speaker 1 With flexible draws, transparent pricing, and full control over repayment, you can tackle unexpected expenses without missing a beat.

Speaker 1 Apply today at ondeck.com and funds could be available as soon as tomorrow. Depending on certain loan attributes, your business loan may be issued by ONDEC or Celtic Bank.

Speaker 1 OnDeck does not lend in North Dakota, all loans and amounts subject to lender approval.

Speaker 2 Not sure if you have the experience to start your dream job?

Speaker 1 Good news.

Speaker 2 These days, it's the skills that count. Udemy can help you get those in-demand skills.

Speaker 1 Want to be an AI mastermind? Learn with us. Game developer, we've got you covered.

Speaker 2 AWS certified cloud practitioner?

Speaker 4 We can help you prep.

Speaker 2 You'll learn from real-world experts who love what they do so that you can love what you do. Go to udemy.com for the skills to get you started and get set for your dream job.

Speaker 9 Gretchen Swinn has spent thousands of hours poring over Robert Robertson's case.

Speaker 3 All right, I'm going to send this to somebody now.

Speaker 11 Now, it was 2018 and Gretchen was gearing up for a critical court hearing.

Speaker 15 Robert's one shot to convince a judge that he deserved a new trial.

Speaker 13 She wasn't just just reviewing files anymore.

Speaker 16 She was knocking on doors, finding the people who helped convict Robert to see what they knew.

Speaker 11 To Gretchen, one of them mattered more than the rest.

Speaker 7 Brian Wharton, former chief of detectives in Palestine.

Speaker 3 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.

Speaker 13 Brian was no longer with the Palestine Police Department.

Speaker 19 He traded in his badge for a Bible.

Speaker 8 You retired from policing? Yes.

Speaker 10 And decided to become a Methodist minister?

Speaker 8 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.

Speaker 8 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.

Speaker 7 Questions about justice had been nagging at Brian for years.

Speaker 20 Then one day, the one case he couldn't shake showed up again, unannounced, on his doorstep.

Speaker 3 You know, it's a long shot. And, you know, in Texas, a lot of people have guns.
So people would think. And we knock on the door, and there's this man.

Speaker 8 Gretchen Swin came to my door and said, I'm Gretchen, and I'm Robert's attorney. And can we talk for a minute?

Speaker 3 And he dropped his head.

Speaker 8 And I told her, I've kind of been expecting you, so yeah, come on in.

Speaker 3 Why was he waiting for someone to come?

Speaker 22 I'm Lester Holt, and this is

Speaker 17 The Last Appeal, a podcast from Dateline, episode 3,

Speaker 24 A Date to Die.

Speaker 25 It had been more than a decade since Brian Wharton helped put Robert in prison.

Speaker 19 His law enforcement career was a distant memory.

Speaker 20 But he could never shake the memory of what happened to Robert, so he invited Gretchen in.

Speaker 19 They talked for hours.

Speaker 3 He explained that he'd just really been bothered by this case, that nothing had ever felt right.

Speaker 7 Brian opened up about what had been haunting him.

Speaker 26 that sexual assault allegation made against Robert.

Speaker 8 When Nikki was in the emergency room, one of the nurses that was attending to her was a sexual assault nurse examiner.

Speaker 16 The nurse, who declined to speak with us, told Brian she believed Nikki was a victim of sexual assault.

Speaker 9 So he sent evidence from Robert's home out for testing.

Speaker 8 We sent all the bed sheets, everything. There was no DNA evidence, nothing to support that.

Speaker 7 Both the pediatric specialists who examined Nikki and the medical examiner who conducted the autopsy found no evidence either.

Speaker 6 Yet prosecutors charge Robert with sexual assault anyway.

Speaker 18 On direct testimony at Robert's 2003 trial, the nurse said that she was a certified sane nurse, a sexual assault nurse examiner.

Speaker 16 But when asked about that on cross-examination, she said, I am not actually certified.

Speaker 3 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.

Speaker 16 In the trial transcripts, the words sexual assault appear more than 80 times.

Speaker 6 But before closing arguments, prosecutors dropped the charge.

Speaker 16 Too late, Brian said. The damage was done.

Speaker 8 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.

Speaker 26 Gretchen told Brian that since Roberts' conviction, the certainty of shaken baby science had collapsed.

Speaker 10 How did the new evidence regarding shaken baby syndrome affect your overall feeling toward the case?

Speaker 8 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 the prosecution, talking about shaken baby syndrome.

Speaker 8 Then you've got to make a whole different case.

Speaker 11 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.

Speaker 15 Nikki was a very ill child.

Speaker 25 Did you have a chance to look into her medical history before arresting Robert?

Speaker 8 No. No, we did not look into her medical history.

Speaker 7 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.

Speaker 7 But it's what she told him next that forever changed the way he thought about Robert Robertson.

Speaker 3 I remember telling him about Robert being diagnosed with autism spectrum disorder, and you could see that light bulb going off.

Speaker 8 From the moment we met him in the hospital, you know, we all kind of glued in that he's a little different, he's a little off.

Speaker 8 And that answers quite a few questions for us about his demeanor and the way he processes information, the way he speaks.

Speaker 16 Brian began to see the case through a different lens.

Speaker 20 He now believed he'd made a grave mistake.

Speaker 8 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.

Speaker 26 Gretchen believed Brian's support could be a turning point.

Speaker 29 She asked if he would testify at the upcoming hearing.

Speaker 16 Brian said yes.

Speaker 7 The lead detective who oversaw the investigation was willing to testify for the man he helped put on death row.

Speaker 19 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.

Speaker 25 Gretchen was convinced they could be crucial, possibly holding the answer to what really happened to Nikki.

Speaker 33 They'd been missing for 15 years.

Speaker 13 They were about to show up when she least expected it.

Speaker 1 OnDeck is built to back small businesses like yours. Whether you're buying equipment, expanding your team, or bridging cash flow gaps, Ondeck's loans up to $250,000 help make it happen fast.

Speaker 1 Rated A by the Better Business Bureau and earning thousands of five-star trust pilot reviews, ONDEC delivers funding you can count on. Apply in minutes at ondeck.com.

Speaker 1 Depending on certain loan attributes, your business loan may be issued by ONDAC or Celtic Bank. Ondeck does not lend in North Dakota.
All loans and amounts subject to lender approval.

Speaker 5 Hi, I'm Angie Hicks, co-founder of Angie. When you use Angie for your home projects, you know all your jobs will be done well.
Roof repair? Done well. Kitchen sink install? Done well.
Deck upgrades?

Speaker 5 Done well. Electrical upgrade? Done well.
Angie's been connecting homeowners with skilled pros for nearly 30 years, so we know the difference between done and done well.

Speaker 5 Hire high quality pros at Angie.com.

Speaker 4 Hi, we're Emochi Health, your long-term weight loss solution. We'll connect you with a board-certified provider to discuss your unique goals.

Speaker 4 Eligible patients can access custom formulated GLP-1 medications at an affordable fixed price, deliver to their door monthly.

Speaker 4 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.
Results may vary.

Speaker 4 Eligible GOP1 patients typically lose £1 to £2 per week in their first six months with Mochi combined with a healthy lifestyle.

Speaker 15 On an August morning in 2018, inside the Palestine, Texas courthouse, Robert's lawyer, Gretchen Swin, 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.

Speaker 19 Gretchen said the doctors had simply gotten it wrong, mistaking illness for violence, all because of outdated shaken baby science.

Speaker 3 There was no crime. There was this tragic death of a chronically ill child.

Speaker 3 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.

Speaker 15 Prosecutors disagreed with Gretchen, saying the debate over shaken baby science was irrelevant.

Speaker 13 They said they'd always argued Nikki was a victim of blunt force trauma.

Speaker 3 Well, that was surprising because throughout the transcript, there are

Speaker 3 well over 200 references to shaking and shaking baby terminology. They had a shaken baby expert.

Speaker 7 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.

Speaker 33 Critical evidence, missing for 15 years.

Speaker 9 Evidence never presented at Roberts' trial.

Speaker 3 And it just seemed to me very odd in a case that supposedly involved a head condition. Where were the scans? The most objective medical evidence of her condition, where are they?

Speaker 11 During a break in the proceedings, Gretchen got an answer.

Speaker 3 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.

Speaker 33 The clerk went to check.

Speaker 16 She walked down to the basement and a locked closet.

Speaker 13 She turned a key, opened the door, and saw them gathering dust.

Speaker 26 The missing evidence was there, including those long-lost CAT scans of Nikki's head taken shortly after she arrived at the hospital.

Speaker 6 Evidence that had been missing for 15 years.

Speaker 18 That court clerk is still there. We found her in the hallway of the Palestine courthouse.

Speaker 14 Where did you find it?

Speaker 22 The skins.

Speaker 8 Well, if you saw that room, they're built-in shelves. So built-in shelves have backings, and they slid down the back, all the way behind the other stuff.

Speaker 13 Behind a shelf, the discovery brought the hearing to a halt.

Speaker 3 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.

Speaker 3 See what it in fact is.

Speaker 13 Finding out what those scans revealed would take Gretchen longer than she expected.

Speaker 3 They had to be converted from the film to digital, which everybody uses now.

Speaker 22 She had to find a radiologist to analyze them and write a report.

Speaker 16 The scans revealed extraordinary information.

Speaker 18 A snapshot of Nikki's head just after she got to the hospital.

Speaker 11 According to the radiologist, the scans contradicted the medical examiner's conclusion that Nikki had suffered multiple blows.

Speaker 3 We asked,

Speaker 3 is there evidence of multiple impact sites? No, there's clearly one impact site.

Speaker 3 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

Speaker 19 gretchen says the scans prove injuries the medical examiners saw on nikki's head during the autopsy were really the result of doctors trying to keep nikki alive

Speaker 3 after she's been through extensive medical intervention, she looks very different.

Speaker 3 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.

Speaker 3 But the medical examiner told Roberts' jury this was an impact site. It's not an impact site.

Speaker 6 Gretchen learned that Dr.

Speaker 11 Jill Urban, the medical examiner, never looked at those scans.

Speaker 16 We tried to reach Dr.

Speaker 22 Urban, but we never heard back.

Speaker 28 Gretchen thought the scans were game-changing evidence.

Speaker 16 She was eager to get in front of a judge again.

Speaker 11 But there were several delays.

Speaker 20 Then, as Robert lingered on death row, COVID hit.

Speaker 7 It was 2021.

Speaker 14 By the time his case was finally back in front of the judge, Gretchen was ready.

Speaker 19 She immediately focused on the newly found scans, saying her experts concluded they proved that Nikki did not suffer blunt force trauma.

Speaker 25 And Gretchen called former detective Brian Wharton to the stand.

Speaker 24 For the first time publicly, he said he'd been wrong.

Speaker 3 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.

Speaker 13 We were chasing an abuse case.

Speaker 8 We had no notion that any prior medical history was playing into what we were seeing right then and right there.

Speaker 8 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.

Speaker 3 You know, he was willing to just be forthcoming about, I didn't know this, didn't know this, didn't know this.

Speaker 27 The district attorney's office called the medical examiner who stood by the finding of blunt force trauma and a forensic pathologist agreed.

Speaker 7 Sitting in the courtroom, listening to Gretchen and the prosecutors was Nikki's brother, Matthew Bowman.

Speaker 18 He was just four years old when she died.

Speaker 36 This has been my whole life.

Speaker 36 I feel like I had a person just

Speaker 36 ripped from me.

Speaker 7 He said he didn't buy Gretchen's theory about Nikki being sick.

Speaker 36 Every baby gets sick, every child. And my daughter has had pneumonia.
Her brain never swell against her skull. It just doesn't line up.
We were supposed to have new evidence, and nothing was brought.

Speaker 7 Gretchen thought the evidence she presented spoke for itself.

Speaker 19 It was clear Robert deserved a new trial.

Speaker 32 The judge disagreed and ordered Robert's execution to proceed.

Speaker 3 There's no legitimate way I can compare what I'm feeling to what Robert must be feeling.

Speaker 3 But 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.

Speaker 3 We will not acknowledge it. Denied, denied, denied.

Speaker 31 When Gretchen broke the bad news to Robert, she said he had trouble understanding it.

Speaker 3 Why can't I go home now? That's what he asked me.

Speaker 12 Gretchen filed more appeals.

Speaker 13 They were all denied.

Speaker 29 Robert was given his second date to die.

Speaker 7 Brian Wharton couldn't believe a judge had not stepped in.

Speaker 7 Now, the former detective who had been consumed by the question of justice made Robert's case a personal mission.

Speaker 9 He wanted to look Robert in the eye and ask for forgiveness, and he vowed to do everything he could to help Gretchen.

Speaker 8 I owe Robert nothing less. My life in law enforcement, my life in general, has always been about truth, and I hope justice.

Speaker 16 They would soon find allies in the most unlikely place, sparking a historic and unprecedented legal showdown.

Speaker 38 I would expect, with all due respect, for you to have more personal knowledge of the trial record and of these facts.

Speaker 1 OnDeck is built to back small businesses like yours. Whether you're buying equipment, expanding your team, or bridging cash flow gaps, ONDEC's loans up to $250,000 help make it happen fast.

Speaker 1 Rated A by the Better Business Bureau and earning thousands of five-star trust pilot reviews, Ondeck delivers funding you can count on. Apply in minutes at on deck.com.

Speaker 1 Depending on certain loan attributes, your business loan may be issued by Ondeck or Celtic Bank. OnDeck does not lend in North Dakota, all loans and amount subject to lender approval.

Speaker 5 Hi, I'm Angie Hicks, co-founder of Angie. When you use Angie for your home projects, you know all your jobs will be done well.
Roof repair? Done well. Kitchen sink install? Done well.
Deck upgrades?

Speaker 5 Done well. Electrical upgrade? Done well.
Angie's been connecting homeowners with skilled pros for nearly 30 years, so we know the difference between done and done well.

Speaker 5 Hire high-quality pros at Angie.com.

Speaker 4 Hi, we're Emoji Health, your long-term weight loss solution. We'll connect you with a board-certified provider to discuss your unique goals.

Speaker 4 Eligible patients can access custom formulated GLP-1 medications at an affordable fixed price. Deliver to their door monthly.

Speaker 4 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.
Results may vary.

Speaker 4 Eligible GLP-1 patients typically lose one to two pounds per week in their first six months with Mochi when combined with a healthy lifestyle.

Speaker 4 This is recorded.

Speaker 25 It's September 2024.

Speaker 18 Robert Robertson has 23 days to live.

Speaker 11 I'm on my way to speak with him.

Speaker 30 I flew in overnight from New York to Houston, now making the 90-minute drive to the prison in Livingston, Texas.

Speaker 20 We spoke the way all conversations happen on death row, through plexiglass, on a phone.

Speaker 8 How you doing, Mr. Hope?

Speaker 14 I'm good, good.

Speaker 23 You all set?

Speaker 8 Yes, sir. Okay.

Speaker 8 What do you want people to know about what you're going through right now?

Speaker 8 But I'm going through pain pain because I'd 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. Are you afraid?

Speaker 8 No, sir.

Speaker 13 No fear.

Speaker 8 No fear.

Speaker 8 Because I know where I'm going. I'm going to heaven to be with Jesus.

Speaker 10 Do you focus on your execution? Are you counting down the days?

Speaker 8 No, I'm not focusing on that.

Speaker 13 But other people were focused on it.

Speaker 16 One of them was Brian Wharton, who had recently traveled to Death Row to visit Robert.

Speaker 10 So all these years later, Detective Wharton has come back in your life.

Speaker 8 Yes, sir. He's now fighting to save your life.

Speaker 8 He's fighting to save my life, yes, sir. He now believes in you.
Yes, sir.

Speaker 10 And he believes that the prosecution got this case wrong.

Speaker 8 Yes, sir. Does that shock you? It shocks me, but then it don't and stuff, you know.
And he even visits me up here and stuff, you know.

Speaker 8 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.

Speaker 8 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.

Speaker 8 You forgave him. Yes, sir.

Speaker 8 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. He is very sincere, and there's no anger in him.
Why aren't you bitter?

Speaker 8 Bitterness only hurts me. If I don't forgive, it hurts me, hold bitterness.

Speaker 16 The week after I met him, we aired a story about his case.

Speaker 26 This is NBC Nightly News with Lester Holt.

Speaker 16 For the first time, Robert's story would be national news.

Speaker 40 Robert Robertson has spent more than two decades on Texas's death row, convicted of fatally shaking his two-year-old daughter, Nikki, in 2002.

Speaker 18 Awareness was growing now in an unexpected place, the state capitol.

Speaker 6 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.

Speaker 16 Some of the lawmakers went to visit Robert on death death row in the weeks before his scheduled death and prayed with him.

Speaker 41 And it was just a very moving experience.

Speaker 34 We leave here with more hope that he will hopefully get the new fair trial that he deserves.

Speaker 25 Pressure was building in Austin.

Speaker 7 Inside the state capitol, two Texas lawmakers decided to act.

Speaker 29 Jeff Leach, a Republican, and Joe Moody, a Democrat, members of the Texas House Criminal Jurisprudence Committee, led an emergency hearing.

Speaker 7 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.

Speaker 12 That was the law that won Robert a stay years earlier.

Speaker 11 The legislators wanted to understand why the junk science law hadn't won Robert a new trial.

Speaker 7 I spoke with Representatives Moody and Leach.

Speaker 14 The new science evidence matters.

Speaker 42 He needs to be afforded that relief. He needs to be afforded that opportunity.

Speaker 43 My support of the death penalty is contingent upon knowing beyond a shadow of a doubt that that inmate is in fact guilty.

Speaker 43 And with Robert Robertson's case, there are just way too many questions, way too many concerns for us to stay silent on this.

Speaker 18 On October 16th, 2024, with Robert about 30 hours away from death, Representative Moody called the hearing to order.

Speaker 37 The time is now 10.15 a.m. The House Committee on Criminal Jurisprudence will come to order.

Speaker 13 The clerk will call a rule.

Speaker 14 They called eight people to testify, including one of Gretchen's experts.

Speaker 42 Do you believe it is right that a jury was able to make a decision without knowing any of the details?

Speaker 44 I don't think it's right. No, I mean, because there are so many natural causes here that could have caused her death.

Speaker 6 Brian Wharton testified, too.

Speaker 37 At this time, the chair calls Brian Warden.

Speaker 45 What would you like to say to any constitutional officers of the state of Texas?

Speaker 13 Based on what I

Speaker 8 know,

Speaker 13 what I believe,

Speaker 8 I think we should just

Speaker 8 apologize to Robert and send him home.

Speaker 13 Now is the moment.

Speaker 8 There is literally a life hanging in the balance.

Speaker 6 The committee also heard from Anderson County District Attorney Allison Mitchell.

Speaker 28 She wasn't the prosecutor at Roberts' trial, but she'd overseen his case for the past decade.

Speaker 13 I have you registered

Speaker 37 as Allison Mitchell, representing the Anderson County Criminal District Attorney's Office.

Speaker 15 Mitchell said her experts disagreed with Gretchen's theory that Nikki's death was a result of natural causes.

Speaker 35 Dr. Downs, James Downs, testified that through his

Speaker 35 looking at the tissue in Nikki, he disagreed and said there was no pneumonia.

Speaker 11 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.

Speaker 35 I do not know. I'd have to refer back to the records on apology.

Speaker 43 Do you know who gave permission for her to be removed from life support?

Speaker 35 I do not know the answer to that question. I'd have to refer back to the transcripts.

Speaker 37 I would expect, with all due respect, Ms.

Speaker 38 Mitchell, for you to have more personal knowledge of the trial record and of these facts.

Speaker 38 Very basic facts.

Speaker 39 Were you satisfied that a murder had been committed?

Speaker 35 Yes.

Speaker 45 What was that based on?

Speaker 35 The totality of the evidence at the original trial post writs that have been filed and the hearings that have been held.

Speaker 45 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?

Speaker 35 I'm sorry, sir. What was the question?

Speaker 30 Now move on.

Speaker 11 After more than six hours of testimony, Roberts' lawyer, Gretchen Swinn, was the day's final witness.

Speaker 3 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?

Speaker 3 And

Speaker 13 that will trouble me.

Speaker 11 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.

Speaker 6 Less than an hour after Gretchen's testimony, as the committee was about to adjourn, a stunning turn of events.

Speaker 13 Mr.

Speaker 41 Chairman. Yes, Representative Harrison.

Speaker 45 I would like at this time to make a motion.

Speaker 22 I'd recommend you for that motion. Thank you.

Speaker 25 I move as follows.

Speaker 45 Robert Robertson, to provide all relevant testimony and information concerning the committee's inquiry.

Speaker 16 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.

Speaker 9 It triggered a historic legal showdown with Robert's life on the line.

Speaker 7 The next morning, on October October 17, 2024, Robert woke up in his cell at the Polonski unit.

Speaker 8 Today, Robert Robertson is set to be executed.

Speaker 16 His property packed, his life now measured in minutes.

Speaker 29 The death warrant gave Texas a six-hour window to execute Robert.

Speaker 20 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.

Speaker 12 If he was dead, he couldn't come to the Capitol.

Speaker 7 Robert was driven 50 miles to the death chamber in Huntsville.

Speaker 11 Outside, protesters began to gather. When I say death moment, you'll say, Elbrom, just mom, hell no, just mom, deliver.

Speaker 11 Inside, the machinery of death lurched forward.

Speaker 20 Robert was issued a clean uniform.

Speaker 29 He started to say his final goodbyes.

Speaker 6 Texas allows a condemned person to invite five people to witness their death.

Speaker 13 One of the people on Robert's list was Brian Wharton.

Speaker 25 I spoke with Brian by Zoom hours before he headed to the prison.

Speaker 46 He's asked me to be present and I owe that to him.

Speaker 13 He

Speaker 46 has asked me to be there and so I will. To be with him, to make sure he knows that he's not alone.

Speaker 21 I don't know if you'll have a chance to communicate with Robert before the execution, but what is your message to him?

Speaker 46 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.

Speaker 21 Soon after we spoke, Brian arrived at Huntsville and was led inside.

Speaker 29 His phone confiscated.

Speaker 17 No updates, no news.

Speaker 25 He and a handful of Robert's supporters were taken to a waiting room.

Speaker 11 They prayed together.

Speaker 16 Brian remembers it was cold and quiet.

Speaker 8 And you're you're watching the clock because you know

Speaker 8 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.

Speaker 16 Meanwhile, Gretchen Swinn, Robert's lawyer, was throwing anything she could at the courts.

Speaker 20 She filed an emergency plea with the U.S.

Speaker 16 Supreme Court. It was denied.

Speaker 11 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.

Speaker 18 Shortly after 4.30 p.m., a jolt of hope, just as I was about to go on the air.

Speaker 6 There is breaking news from Texas right now where a civil court judge has temporarily halted tonight's scheduled execution of Robert Robertson.

Speaker 12 It didn't last long.

Speaker 7 Texas Attorney General Ken Paxton struck back.

Speaker 16 Paxton rushed to the Court Court of Criminal Appeals.

Speaker 20 Texas wanted to kill Robert before his death warrant expired at midnight.

Speaker 18 The court vacated the stay.

Speaker 32 The execution

Speaker 13 was back on.

Speaker 19 The lawmakers who had subpoenaed Robert fired back, this time to the Texas Supreme Court, arguing they needed Robert alive to hear from him.

Speaker 18 Inside the deathhouse, Robert was given his last meal. The chaplain prayed with him.

Speaker 18 Then, just after 10 p.m., with less than two hours before a needle would be placed in his arm.

Speaker 47 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.

Speaker 25 Robert was saved, but only temporarily.

Speaker 15 One year later, he was given his third execution date, October 16, 2025.

Speaker 20 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?

Speaker 11 Next time, on the last appeal, how could it be that you were exonerated in the state of Texas and Robert Robertson is now facing death?

Speaker 29 That's what we're all asking, Lester. The whole world is watching! The whole world is watching!

Speaker 25 Have you thought about last words what you'll say?

Speaker 8 Well, that's a good one there.

Speaker 29 The Last Appeal is a production of Dateline and NBC News.

Speaker 11 It is written and produced by Dan Slepian, Liz Brown Kurloff, and Lynn Keller.

Speaker 16 Our field producers are Nick McElroy and Rachel Yang.

Speaker 20 Our associate producer is Sam Springer.

Speaker 11 It's edited by Colin Dow and Greg Smith, Deb Brown, and David Varga.

Speaker 13 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.

Speaker 18 Paul Ryan is executive producer, and Liz Cole is senior executive producer of Dayton.

Speaker 41 Why does every recipe I try need 18 ingredients, including a jar of something paste I'll never use again, but will sit in my fridge for nine months. I just want dinner in the oven fast.

Speaker 41 That's why I love Blue Apron's new one-pan assemble and baked meals. They send you fresh ingredients that are already chopped.
All you do is put it all together and bake. That's it.

Speaker 41 No chopping, no weird leftovers, just delicious, easy to make meals. Get 20% off your first two orders with code APRAN20.
Terms and conditions apply. Visit blueapron.com slash terms for more.