Transcript of “I'm Astonished”

You're about to be put to death.

Yes, sir.

I have to ask you, did you harm your daughter, Nicki?

No, sir, I did not harm my daughter.

Did you ever violently shake her? No, sir. You did nothing that led to her death? No, sir. Robert Robertson is scheduled to die on October 16th. He's been on death row in Texas for 22 years, convicted of killing his two-year-old daughter, Nikki. Robert insists he's innocent. From the beginning, he said Nikki fell out of bed and hit her head. 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 detectors in the Police Department in.

Did you understand why?

I didn't understand because I brought her to the hospital and stuff. Then the next thing you know, the way they was acting, funny and stuff, strange and stuff, acting like I did something.

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.

The state says it knows exactly what happened.

Based on the totality of the evidence, is that stated, a murder took place here.

But what if Robert is telling the truth?

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

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

I'm Lester Holt, and this is The Last Appeal, a podcast from Dateland. Episode 2, I'm Astonished. One, two, three, four. We'll be chatting like this. Hello. Lester.

Gretchen. Pleasure. Thank you so much.

Thank you very much for doing this. Gretchen Swinn doesn't look like the lawyer who would pick a fight with the state of Texas. You're from Texas, right? Right here. Oh, my goodness. She's 5'2, calm, measured, approachable. But beneath that demeanor, Gretchen is a bulldog, relentless.

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

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

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

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

This was April 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. He long claimed he was innocent, and yet nobody had ever investigated that claim.

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

So I said yes, not really knowing entirely what I was getting into. And there was that race against the clock. Got a PhD in Shaken Baby very fast.

The theory of Shaken Baby syndrome was this. 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. A young British nanny went to America for a job opportunity. Now she's in big trouble, accused of shaking a baby to death. Most of America first heard of Shaken Baby Syndrome in 1997 because of a case that made international headlines. Today, we focus on what has become known as the Nanny Trial. Louise Woodward, a British nanny, was charged with murder when Matthew Eepen, an eight-month-old baby, died in her care. Doctors found that triad of symptoms, concluding Matthew had been shaken to death.

An angry Woodward lost control, violently shook the little boy.

At her trial, Woodward's attorney, Barry Sheck, argued that shaken baby syndrome was junk science. That's not true. That's not science. That's based on the data. The jury sided with the prosecution. After 20 seven hours of deliberation, the jury in the so-called Nanny Trial of 19-year-old Louise Woodward came in with a conviction. The Nanny Trial sparked an awareness campaign. Billboards on highways, urgent public service announcements.

Some things you shake, some things you don't.

Never, never, never shake a baby.

Prosecutors began to use shaken baby syndrome to charge people with crimes like child abuse or murder. In courtrooms from Coast to Coast, convictions piled up. Robert Robertson's was one of them. But over time, certainty about the shaken baby diagnosis crumbled. Obviously, shaking a baby can cause catastrophic damage, but new research proved the triad of symptoms could be explained by other things, like a fall, an infection, a loss of oxygen. Even Dr. Lauren Guff-Kelj, who first suggested the theory in the early 1970s, reverse course, warning that prosecutors were overcharging people. Here he is in a 2015 interview with the Retro Report.

I was against 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 easy way into jail.

Gretchen thought the controversy about Shaken Baby syndrome was an opening for Robert.

The Shaken Baby diagnosis used to convict him had been discredited.

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

We filed within days of the execution. Literally, we ran a box down the street to the court to make sure they... Back in that point, they wanted paper copies and make sure They had it. We had to file it in Palestine itself. Clock is ticking.

It was a hale Mary, and it worked. A judge halted Robert's execution, but Gretchen's work was just getting started. 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. She had to counter the doctors who testified that Nicki had been shaken and abused. So if Nicki wasn't the victim of Shaken Baby, could there be a different explanation? Gretchen was determined to find out.

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New episodes out every Tuesday. Gretchen Swinn had stopped the clock on Robert's execution. She'd want him a hearing, forcing Texas to re examine the shaken baby science that helped convict Robert. 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 Nicki's medical history. When I spoke with Nicki's grandparents, Larry and Verna Bowman, they told me Nicki had always been a healthy little girl.

Other than regular doctor visits, she never really had no problems. She had her little bounce with colds and stuff like that. I've seen good health.

But that's not what Gretchen read in Nicki's medical records. Far from it.

I started looking, and I was 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.

In Nicki's short life, she'd suffered from constant infections, repeated fevers, possible seizures. Gretchen saw that Nicki had been taken to a doctor more than 40 times before Robert had custody of her. Not only that, she learned Nicki had experienced episodes of breathing apnea and had been rushed to the hospital by her grandparents on several occasions.

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

But to Gretchen, the most explosive information was this. The week Nikki died, she had been terribly sick. When Robert brought Nicki to the Palestine hospital, it wasn't the first time. He'd taken her there three days earlier because Nicki had a fever, was vomiting, coughing, congested, and had diarrhea. A doctor prescribed Nicki a powerful drug called Phenergan, a medication that now has an FDA black box warning for children under two because of the risk of respiratory failure and even death. The day after Nicki was given that medication, Robert asked her grandparents, the Bowmans, to watch her. He said he wanted to be with his girlfriend, Teddy, who was in the hospital, recovering from that surgery. But Nicki was getting worse. The Bowmans took her to a doctor again. Her fever had spiked to 104. 5 degrees. Nicki was diagnosed with a respiratory infection and given more Phenogen, this time it was mixed with Codine, a narcotic.

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

Nicki's grandparents told us Nicki had always been healthy. We asked them about her long medical history. 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 cold.

Obviously, we don't know anything.

But what's in the record from her hospital visits was that she had sleep apnea. She had surgery on her ears with tubes in. Yeah, she did have that. She had gone to the hospital or the doctor more than 40 times in two years. That's what the record says. Other than her normal visits. I mean, we took her everywhere she went. I don't know.

What we do know is that 24 hours after the Bowmans took Nikki to the doctor with a 104 4. 5 degree fever, they called Robert, telling him to pick her up.

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

By the next morning, Robert was driving his daughter back to the hospital, saying she'd fallen off the bed. Kelly Garganis, the nurse who first saw Nicki that morning, said the ER doctor immediately recognized Nikki. He was the same doctor who had prescribed Phenergen three days earlier when Robert took her there.

The doctor that assessed her, his words to me were, Kelly, what did I miss?

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

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

Robert's jury never heard the extent of Nicki's long medical history. His lawyer, Steve Evans, had a different strategy.

I almost cannot believe what I'm reading.

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

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

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. 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 them it was a shaken baby case. I told them it wasn't a shaken baby case. 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. 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, that was anethment to my soul, basically, as I recall it. Because if you admit shaken baby, you're admitting the basically mechanics of death. You're admitting that this wouldn't be an accident. This would not be something that was unintentional. It would be intentional.

Evans had just acknowledged to me that his words may have sabotaged his own client. And then at the end of the trial, you're closing arguments. Yes, I came here in opening and presented to you that there is a responsibility in this case. Yes, this is a shaken baby case, but no, this is not a murder case.

Right. I don't believe it was a shaken baby case, and I'm astonished by what you've related of the transcript. I deferred to the transcript, of course.

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.

Here's how you define a win in capital cases. You saved their life. 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.

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.

No one believed him, and that sickens me. I've always told him, I'm not walking away from this, Robert.

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We've been driving across Texas finding new details about Nicki's short life, but there was more to learn about Robert and who he was in the years leading up to his daughter's death. His younger brother, Thomas, and his wife, Jennifer, agreed to speak with me in Palestine, where Thomas and Robert grew up.

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

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

When Robert finally started seeing little Nicki, he had such a big smile on his face.

Did he ever raise a hand on Nicki that you know of? No. Did he spank her?

I've never seen him spanking her.

Obviously, it's just the idea that someone could kill a child. It's shocking and it's difficult to accept.

I mean, If a person would kill a child, then why would they bring a child to the hospital? We have lots of questions. There's just a lot of things that people aren't taking into account in this story.

There.

One of the first people to ask questions after Robert's 2002 arrest was his court-appointed defense investigator, the only one in town Hey, Lester.

Well, you all got here good.

Yeah, we stopped off, grabbed a few provisions. His name is Rex Olson. He told us he'd known Robert for years.

He used to It was a remind 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.

He knew that child was injured, and he got to the hospital. 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. Yeah. What was your impression of Robert once you started working on the case?

He had strange things. That's This guy could handle some numbers way above me. He could calculate his money and he was saving money and stuff. It reminds me of that movie.

Raymond?

Yeah, there was a little taste of that with him, with Robinson. I don't see him as someone wanting to or really even know to hurt someone.

Gretchen also thought there was something a little different about Robert. She noticed it the first time she spoke with him. It was in 2016, right after she won him that stay of execution and a hearing.

We had him on speaker phone, and 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. But I also realized this man is so impaired. He had this very pronounced stammer and this 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.

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

As I got to know Robert, is he's so much more than just a very impaired person. The best analogy I can get is that he's like Forrest Gump. He has no guile. He does not lie. He takes everything very literally.

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

He had a total flat affect, no emotion, no nothing.

That's not normal.

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

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

He has autism. 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. Your ability to convey your emotions becomes even more crippled.

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

I 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 they kept talking about he just sat there. 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.

She jumped in her car and went looking for Robert's girlfriend, Teddy Cox. His girlfriend at the time said he shook Nicki. His girlfriend's daughter and niece said that Robert abused Nicki. It sounds pretty damning.

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.

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

Today, I'm at the home of Patricia Conklin. Ms. Conklin is going to read a declaration that she had signed in a case that I've been working on, which is the Robert Roberson case. Okay? Go ahead, Patricia. I received my nursing degree at Trinity Valley College in 2003. I have been working as a nurse ever since.

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

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. I never I never saw him do anything hurtful to her. Robert does not have a mean bone in his body. He is a little slow, but I never saw him be mean to anybody.

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.

Caseworkers with CPS came to me wanting me to report that I had seen Robert mistreating Nikki. Teddy and I talked about this. We were both threatened with having our kids taken away from us if we didn't get on board with accusing Robert. I'm a stronger person than my sister and had better understanding of my rights. 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.

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. Gretchen was now convinced Robert was actually innocent. But there was one more person Gretchen wanted to speak with, an important one. You've done a lot of door knocking.

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

Next time on The Last Appeal.

We were able to pray with Robert. It was just a very moving experience. As a death penalty supporter myself, there are just way too many questions, way too many concerns for us to stay silent on this.

And I told her, I've been expecting you. So, yeah, come on in.

The Last Appeal is a production of Dateland and NBC News. It is written and produced by Dan Slepian, Liz Brown, Kerloff, and Lynn Keller. Our field producers are nick McElroy and Rachel Yang, with production help from Sam Springer. It's edited by Colin Dow and Greg Smith, with help from Dev Brown and David Varga. From NBC News Audio, Sound Mixing by Rob Byers, Joe Plourd, and Rich Cutler. Head of audio production is Bryson Barnes. Paul Ryan is executive producer, and Liz Cole is senior executive producer of Datelive.

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