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Season Five: Call This Number
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https://innocenceproject.org/robert-roberson-applies-for-clemency-to-stop-his-october-execution/
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Sources:
Various News Sources Mentioned by Name
https://www.chicagomag.com/chicago-magazine/june-2015/chicago-crime-stats/
https://footprintsattheriversedge.blogspot.com
https://fstoppers.com/education/biggest-dangers-photographers-face-299728#comment-thread
Recommended
Transcript
Introduction & Warning
00:00:00
Speaker
The content you're about to hear may be graphic in nature. Listener discretion is advised.
Case Introduction: Home for the Holiday Series
00:00:58
Speaker
So it's that time of year, like I've mentioned, we we get into these wrongful conviction cases and we do a ton of work on them. It kind of starts off, we get like a pile of cases and we check to make sure we're not redoing anything. We do those as part of our Home for the Holiday series, but this case felt like it was a little more important to tell people about. Had you ever heard of this case?
00:01:24
Speaker
It doesn't stand out, but it's possible that I had, because of sort of as we unwind it here, I've heard about several cases that are similar, right? I just don't know if it was this one particularly.
00:01:38
Speaker
Yeah, this is, I would call this more changing science, where we are starting to understand that we may be like wrong about some things. That's happened with a number of different types of forensic science over the year.
Robert Robertson's Legal Struggles
00:01:53
Speaker
This case, um where we can read about it to start off with, The Innocence Project put this out on September the 11th with sort of a very serious title. And that is breaking attorney statement response to denial of Robert Robertson's appeal and motion for state of evidence. The quote underneath that is by Gretchen Sims-Sween, who's one of Robert Robertson's attorneys. It says, Robert's fate is now at the mercy of the government.
00:02:25
Speaker
And it says that today, without reviewing the merits of the claim, the Texas Court of Criminal Appeals, the CCA, denied Robert Robertson's subsequent application for a writ of habeas corpus and motion for stay of execution, claiming that it did not meet procedural requirements for a subsequent appeal for habeas relief. Despite new medical and scientific evidence unavailable when its previous habeas application was filed in 2016,
00:02:57
Speaker
So in order to talk about this announcement, we kind of need to tell you a little bit about this case. There are some massive documents that come with this. I think what I read most recently ah with the CCA was over 160 pages. The Innocence Project in New York has taken up this case down in Texas. They do have Texas lawyers on it. It's a huge deal.
00:03:28
Speaker
So you guys are aware, as we're sitting here recording this, it's September 18th. Leslie Robertson III, who is the subject of today's episode, has an execution date of October 17th, 2024. Now, that could totally change. In fact, execution dates change all the time. But this denial of this 159 page document, it is a really, really big deal for a couple of reasons.
Shaken Baby Syndrome Controversy
00:04:03
Speaker
This is a case about shaken baby syndrome. So I kind of avoid these cases on the podcast a lot of the time. I have a little bit of a cringe every time because we know we it's been largely debunked at this point.
00:04:21
Speaker
And I cringe a little bit because I think about how many different cases, victims, parents, just everything that affects, right? Yeah. Yeah, it's a huge deal. And there have been people executed under those. Right, because it's ah true because if it were to ah if it were legitimate and somebody murdered their child that way, it's horrible.
00:04:48
Speaker
Yeah, ah just a ah little tiny bit about shaken baby syndrome, and this is your trigger warning. If you don't like cases that involve children, today's case is, this is a trigger warning for that. It's about a child. Shaken baby syndrome in some arenas is called abusive head trauma, and it can be known as either SBS or AHT. This is a medical condition in children that are typically under three years old, although they can be as old as five years old.
00:05:19
Speaker
It is purported to generally, very generally, be caused by blunt trauma to a child's body. It can also be from vigorous, quote, shaking of a child's body, and that's how it gets its name. If you go and read statistics or pull up the Wikipedia on this,
00:05:40
Speaker
It's going to tell you that, quote, SBS is the leading cause in fatal head head injuries for children under the age of two. The risk of death from this or related conditions is said to be about 25%. I'm just telling you that part so that you understand that's how it's viewed. The most common symptoms of shaken baby syndrome are bleeding in the eyes, fractures of the long bones, typically ah more than one fracture, or subdural hematoma with secondary swelling. So that would be bleeding inside of the brain. The condition is thought to be caused by violent shaking or hitting a child
00:06:34
Speaker
like in the head or hitting their head against something. And it can, those things can lead to long-term health consequences for these very, very small children. Diagnosis can be different. And frequently, this is a condition that can be asymptomatic until it's too late.
00:06:57
Speaker
There are CT scans that can be done to examine the child's brain if some kind of concern is present. This is an instance where typically a child a child abuse investigation will be kicked off. A pediatrician in these instances will do an eye exam, a full skeletal survey, could do an X-ray, possibly a CT scan. They say that over 70% of abusive head trauma cases tend to have a retinal hemorrhage or a um a bleeding in the eye, and that's opposed to 5% of cases where it has happened accidentally or, quote, non-abusive. In the legal field right now, this is there's a huge debate raging. The origin of
00:07:47
Speaker
shaken baby syndrome goes all the way back to the seventies. A guy named Norman Golcoth, who was a pediatric neurosurgeon in England, sometimes he's referred to as the first pediatric neurosurgeon. But what he definitely is, is he is the a pediatrician who connected whiplash injury and and subdural bleeding, as well as the retinal injuries to the concept of shaken baby syndrome. It was originally called the whiplash infant syndrome. This was introduced by a pediatric radiologist named John Caffee sometime in 1973. And what he described was when a set of symptoms would be found with no real external evidence of head trauma, you couldn't tell.
00:08:42
Speaker
There was no bruise, there was no cut. Sometimes he would document retinal bleeds and intracranial bleeds as well as subdural or subarachnoid bleeds. In the 70s and the 80s, the ability to sort of diagnose this condition advanced with technology.
00:09:01
Speaker
Now, the incidence of shaking baby syndrome and how often it happens, the the frequency, is unknown because it's very difficult to diagnose. The United States and most major developed countries have no centralized reporting system for pediatric abuse.
00:09:18
Speaker
There's no signs of maltreatment or if the acute head trauma is is not classified correctly. ah Basically, shaken baby syndrome can go completely unknown. Now, there are other things that can happen to small children um that yeah SIDS is ah another one of those syndromes that that have been put out there. Shaken baby syndrome has come under fire, legally speaking, in the last few years as to whether or not the science on it is sound.
New Evidence in Robertson's Case
00:09:49
Speaker
The common risk factors that pediatricians in the United States look for related to SBS or AHT would be perceived excessive crying, behavioral health problems. They would look for domestic violence in the home or a history of domestic violence in the home, frustrated or frustration intolerance, meaning ah if you don't if you can't make something happen, you get frustrated and it affects how you react as um like a parent.
00:10:15
Speaker
lack of childcare experience, young infant age, ah young parental age. Frequently, it's been associated with male infants. That's not the case here. Single-parent families, economic adversity, the list goes on and on of like what risk factors they kind of attach to shaken baby syndrome. The perpetrators of acute head trauma typically involve the father, stepfather, mother's boyfriend, female babysitters, mother, and I will add grandmother, because in the studies that I've read most recently, they do include the grandmother, and it's ah it's a lower ah proportion. And then after that, it's it's other relatives and other people who would be in the home assisting with some kind of childcare.
00:11:02
Speaker
From what they've said, the age group is basically from childbirth to about age four. They're at greater risk to SBS. um One of the primary things that they cite is the fact that like babies' heads are typically gigantic. like so Their anatomy is disproportionate. Picking up a baby, body small, head big.
00:11:22
Speaker
Also, the inability to protect themselves from a larger adult, which should be obvious to everyone who's ever held a baby, and the lack of or inability to communicate needs and expression of what's happening. Now, if you read deep into most of the cases that you'll find before different courts over the years, you'll see that it like is it's it's typically a much narrower window than birth to four years old. It's actually babies typically under six months old. That's not always true. There are treatments for shaken baby syndrome if it is identified in time. I'm not saying that shaken baby syndrome doesn't exist, by the way, with today's episode. I'm saying that it's there are aspects of it that are misunderstood. Right. um I would say that
00:12:19
Speaker
the general understanding of it being like something you can categorize like that, I don't think that really exists. Yeah, yeah, i am I'm really using that as sort of a jumping off point for this case, but you're right. To a degree, everything that I described is what is accepted, but does it doesn't seem to exist the way that we once thought it did. and It certainly is ah it is a number of of disorders and a number of factors going into it that may not be ah causally related to parents mistreating their child.
00:12:55
Speaker
Right. And it seems like now looking back, it was sort of a catch-all, a lot of injustice. Yeah. Yeah. So starting in 2011, there were multiple journal articles that popped out about this and then some warnings started coming out. In fact, the President's Council of Advisors on Science and Technology, or PCAST, they noted in September of 2016. So that's going to be eight years ago now.
00:13:20
Speaker
in a report that they put out that there were concerns about the scientific validity of forensic evidence of abusive head trauma. And that in their opinion, in 2016, those concerns required urgent legal attention. So the statistical models that have been put forth by many experts who get on the stand and testify in what amount to murder trials have been called into question ah related to how they determine the probability that a child's trauma was caused by abuse. There are multiple, even today, ah multiple statistical possibilities that have been put on the the table and around the world, not just in the United States, where they are proposing that the window be narrowed in how courts
00:14:14
Speaker
deal with child abuse cases that involve abusive head trauma or shaken baby syndrome. I'm kind of spoiling part of this on purpose because this is an important thing. Robert Robertson was convicted and sentenced to death in Texas in 2003 under the shaken baby hypothesis.
00:14:38
Speaker
In a statement, Gretchen Sims-Sween, who has her PhD and her JD, and is ah operating as one of his lawyers, she said, ah Robert's fate is not the mercy of the governor. He and the Texas Board of Pardons and Paroles are the only ones standing in the way of a horrific and irreversible mistake, and that is the execution of an innocent man. Robert Robertson lived every parent's nightmare when his beloved daughter experienced a medical crisis and collapsed in her sleep. The state compounded the horror by sending him to death row for more than 20 years for a crime that never occurred.
00:15:19
Speaker
New medical and scientific evidence from three experts from a range of medical specialties. Dr. Francis Green, an expert in lung pathology with over 46 years of experience. Dr. Keenan Bora, an expert in medical toxicology and emergency room medicine. And Dr. Julie Mack, an expert in pediatric radiology.
00:15:39
Speaker
prove that his daughter Nikki died of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock, but not of abuse. This evidence was never previously available. It took years of fighting to get complete medical records.
00:15:55
Speaker
We are devastated by this staggering development, but will continue to pursue any avenue to make sure that Mr. Robertson is not the first person in the United States executed under the discredited shaken baby hypothesis.
00:16:11
Speaker
Over the past two decades, since Mr. Robertson's conviction and death sentence, this shaken baby hypothesis has been debunked by evidence-based science, a fact recognized by courts in at least 18 states that have exonerated parents and caregivers like Mr. Robertson who were wrongly convicted under the controversial theory.
00:16:32
Speaker
Brian Wharton, the lead detective who investigated Mr. Robertson's case and testified against him, now believes that Mr. robinson Robertson's daughter died of accidental and natural causes. Mr. Wharton explained that he deferred to a doctor's shaken baby diagnosis when he had Mr. Robertson arrested and testified against him.
00:16:53
Speaker
He now publicly urges for relief for Mr. Robertson and has written, I'm convinced that Nikki was not murdered. Mr. Robertson is innocent and there was no crime. Mr. Robertson was a special education student who dropped out of school after ninth grade.
00:17:11
Speaker
He also has autism, which was undiagnosed at the time of his daughter's collapse. He was unable to explain his chronically ill two-year-old daughter's complex medical condition when he took her to the emergency room after she fell out of bed. She had been sick with a high fever, undiagnosed pneumonia, and unmedication that doctors prescribe that we now know are unsafe for children her age and in her condition.
00:17:37
Speaker
The hospital staff did not know Mr. Robertson had autism and misinterpreted his non-neurotypical demeanor as a lack of concern for his daughter. In 2003, at the time of Mr. Robertson's trial, the consensus in the medical community was that a child who presented with Nicky's set of symptoms must have been violently shaken or struck against a blunt surface by the last person with a child at the time. Grieving parents,
00:18:06
Speaker
who insisted they had not harmed their children were branded as callous liars. In the 20 years that have passed, the version of the shaken baby hypothesis put before Mr. Robertson's jury as a quote, fact has been entirely debunked by actual science.
Legal Proceedings and Challenges
00:18:22
Speaker
Science now teaches us that undiagnosed illnesses that affect breathing like Nicky's pneumonia and shortfalls that impact the head can produce the exact same internal head conditions long assumed incorrectly to be proof of inflicted head trauma. It is past time to end the nightmare of wrongful conviction for Robert Robertson before it's too late. So he put this forth to the Texas Court of Appeals and it's been kicked out. What do you think of all this? Well, I don't know that
00:18:56
Speaker
This matters, but I just wanna point out his petition for writ. So a writ of habeas corpus is to say that you're holding somebody against, you're holding someone illegally, love let them out, right? Yes. It's like this last ditch ever.
00:19:13
Speaker
Okay, the application for the RIT was dismissed. It was not denied. It was dismissed, meaning like they didn't take it into consideration at all because of a procedural reason. And so I just want to point that out. In order for it to have been denied,
00:19:35
Speaker
like, you know, ordered denied, it would have been considered, right? I'm not exactly sure. It's actually kind of strange. This is very close, right, time-wise, because like you said, it's a month from yesterday is his execution date. Yeah. It doesn't say what procedural ah issue.
00:19:58
Speaker
There was, right? yeah Have you seen why? This may be a cart horse situation, like I may be ahead of it. I just could not talk about it. No, at this point. So, okay, here's here's the deal here. um it The state of execution was denied. So the writ application was dismissed as it not properly before the court.
00:20:24
Speaker
um and Because having not followed followed like the procedural requirements, they don't have jurisdiction to say anything about it, right? Right. Okay. And then the his execution date has already been set.
00:20:42
Speaker
yeah and it remains. There is no stay on it. The next thing will be the system in this particular situation would be that the governor stays the execution. I really hope that happens and I would say like the sooner the better. This is a really interesting case. Do you want me to go through, you want me to introduce the case proper so that you could hear some of this?
00:21:05
Speaker
but I pulled it, and again... um i just You had asked me what I thought about it, and I just wanted to make the distinction that like nobody has said anything about the merits of what's being presented. right They've simply said this doesn't comport with procedures, so we can't hear it dismissed. right I wonder if this is something they would have had to have gone. ah know i think if for I think that they do have to exhaust they have to exhaust all state remedies before they can go federal. And in this particular case, with see I don't know exactly, but I imagine this is not the first writ. No, I pulled the um i pulled the history. And so that being said, ah there's a subsequent writ
00:21:55
Speaker
Now, granted, this is, like I said, very close to the execution date. And I don't know that I've seen it this close, but... Yeah. it So the Texas Court of Criminal Appeals, they halted this execution in 2016. And 2023 decided that doubt over the cause of death was not enough to overturn the death sentence. And then they set Robertson's new execution date for October 17th in July.
00:22:24
Speaker
Without reviewing the merits of the claims, Texas Court of Criminal Appeals last week dismissed the motion to halt the execution and and the final application for relief filed by Robertson's attorneys. That's interesting because it's almost like this filing might just be a procedural step anyways, but they screwed it up. No, that work, um the work that was done on ah the 160-page document, that was ah They were trying to get somewhere with it, um especially to trip up on a procedural error. Because to me, I think that they didn't petition for permission. Oh, you think they need a tutorial or something? I think that that before they filed that they should have petitioned for permission, which they may have done and they may have been denied permission. um The issue is you know impending execution. Yeah. ah
00:23:24
Speaker
and it it's interesting. there's been so There's been a lot of work done on this case, it looks like. Well, that's what I was going to get to as well. I want to hear some of your initial thoughts on it, but I want to say that I'm just so people are aware, this gets really technical.
Reevaluation of Medical Evidence
00:23:43
Speaker
Right, but right now, just sort of at the outset here, if you can kind of split it up into like, okay, so this is what's happening in the legal side of it, and then like what's happening in the case is different, right? Right, right, the medical side. The legal side of it, it literally is just them saying, yeah, we can't we have no jurisdiction to do anything about this because some rule was not followed. Now, I don't know which rule it was.
00:24:11
Speaker
It doesn't say. No, it does not. um it It just it didn't meet the procedural requirements. And depending on where you're at, like you said, it gets technical, right? Yes. Because usually it's a it's going to have been a deadline past a point of something, but it seems like
00:24:32
Speaker
That deadline might be contained within the petition, like the point where it started. So I'm not sure how they made that determination. But regardless, um this is where we're at. just Yeah, go ahead with the case. Yeah. So here's ah just the the facts of the case in terms of like what they presented.
00:24:53
Speaker
In 2003, an Anderson County jury in Palestine, Texas, convicted and sentenced Leslie Robertson III for allegedly murdering his chronically ill two-year-old daughter. And so the sentence was death. His two-year-old daughter is Nikki Curtis, and that is an incident from 2002.
00:25:15
Speaker
They opened with, in fact, Nikki died from a double pneumonia that had progressed to the point of sepsis. Robert did not harm Nikki in any way, and there was no crime, only the tragic natural death of a little girl. Nikki was seriously ill for a week before she died, coughing, vomiting, suffering from diarrhea with a fever up to 104.5 degrees. When Robert took her to multiple doctors, she was diagnosed with having a respiratory infection, likely viral and given prescriptions. Early in the morning, January 31st, 2002,
00:25:53
Speaker
Robert found Nicky had fallen out of bed. He comforted her and they both fell back asleep. Hours later, Robert woke to find Nicky had stopped breathing and turned blue. After he brought Nicky to the hospital, CAT scans were made of her head and doctors observed a set of internal head conditions, which were subdural bleeding, brain swelling, and retinal hemorrhages, quote, the triad.
00:26:20
Speaker
At that time, the medical consensus permitted presuming that a child with a triad must have been the victim of an inflicted head injury caused by a combination of shaking and blunt impact. And whoever was with the child when she collapsed was considered to be the perpetrator. That medical consensus is central to Robert's conviction. It was known as shaken baby syndrome or abusive head trauma. This version of SBS-HC h t
00:26:51
Speaker
So SBS slash AHT that was used to convict Robert has since been entirely discredited. Brian Wharton was the lead detective with the Palestine Police Department who investigated Nikki's death in 2002. He testified for the state in Robert's 2003 trial. Medical experts had informed Detective Wharton that Nikki's condition was caused by violent shaking and inflicted head trauma.
00:27:18
Speaker
He accepted the SBS diagnosis made by the child abuse expert in the Dallas hospital where Nikki was transported. Based on that diagnosis, Detective Wharton authorized Robert to rest even before an autopsy had been performed. Since then, Detective Wharton has learned about the evolution and the medical understanding of SBS slash AHT. He insists that no crime occurred and has publicly urged relief for Robert to prevent a horrible miscarriage of justice.
00:27:48
Speaker
and the execution of an innocent man. This is quoting Detective Wharton here. I am asking for those who care deeply about justice to urge another look at this case. Three new expert opinions reflecting different medical specialties can now explain precisely how Nikki died. These correlated opinions were only possible because of new evidence that emerged over the course of Robert's previous habeas proceedings.
00:28:18
Speaker
This new evidence was thus not available when his application was filed in 2016. The first new expert, Dr. Francis Green, is an expert in lung pathology. Dr. Green recently reviewed Nikki's medical history and examined her lung tissues under a microscope. His detailed report explains how two different types of pneumonia, both a viral and a bacterial infection, were ravishing Nikki's lungs.
00:28:44
Speaker
Dr. Green is the only forensic lung specialist to ever examine Nicky's lungs. His examination and reproductions of precisely what he observed under a microscope show the specific basis for his findings that interstitial viral pneumonia substantially thickened the cell walls of the tiny air sacs in Nicky's lungs, where oxygen is absorbed into the bloodstream. As those interstitial cell walls thickened,
00:29:13
Speaker
Nikki's ability to breathe was greatly inhibited, and eventually her brain and other organs were starved of oxygen. Dr. Green's detailed analysis shows that Nikki's pneumonia started many days, if not weeks, before her final hospitalization and cannot be explained by Nikki being on a ventilator after her collapse. This evidence from a highly qualified specialist rebuts the state's experts, provided in the earlier proceeding that Nikki's lung condition was only a function of time spent on a ventilator. The second new expert is Dr. Keenan Bora, an expert in medical tech psychology and emergency room medicine. He has concluded that a post-mortem toxicology report that shows Nicky had dangerously high levels of primathesin in her system, likely explained by the fact that two different doctors prescribed the drug on two consecutive days. Promathesin is a drug no longer prescribed to children Nicky's age and in her condition,
00:30:11
Speaker
because it impairs their ability to breathe, and it can be fatal. Dr. Borah has explained that promethazine would have exacerbated the respiratory problems caused by Nicky's undiagnosed pneumonia. Dr. Borah has also noted that the second promethazine prescription contained codeine. Codeine is a narcotic that would have further compounded Nicky's breathing challenges. Dr. Borah emphasized evidence that Nicky had a severe and infection, her double pneumonia,
00:30:41
Speaker
that developed into sepsis and then septic shock. He concluded that Nicky's prescription medications were far beyond any appropriate therapeutic dose and likely hastened her respiratory depression and death. The third new expert, Dr. Julie Mack, is a pediatric radiologist. She has concluded that CAT scans of Nicky's head taken upon her arrival in the Palestine hospital show that she had only a single minor impact site on her head. Dr. Mack based her opinion on CAT scans discovered in the courthouse basement in 2018 on the day of the original evidentiary hearing was supposed to begin. These scans were lost for 15 years, but as interpreted by the only type of expert qualified to read them, these scans corroborate Robert's 2002 report that Nikki had fallen out of bed in the night and possibly hit her head. The medical examiner testified in 2003 at trial that Nikki had sustained multiple impacts to her head.
00:31:42
Speaker
which, along with, quote, shaking, was the blunt force trauma that she concluded had killed Nikki. But the in incontrovertible radiological evidence shows only one impact site on Nikki's head. The medical imaging further shows that this one minor impact site is associated with a small subdural bleed and no corresponding fracture, entirely consistent with an accidental fall out of bed, and entirely inconsistent with the shaking and beating testimony of the medical examiner. As Dr. Mack has now explained, the shortfall with head impact might not have been fatal if experienced by a healthy child, but Nikki was profoundly ill. Dr. Mack has also now been able to review a series of text x-rays of Nikki, including ones that only produced that were only produced to Roberts Council in 2024. Dr. Mack has concluded that these checks x-rays
00:32:39
Speaker
corroborate Dr. Green's conclusion that Nikki had a fatal lung infection. At the time of Robert's trial, there was no medical expert considering the combination of pneumonia and dangerous medications in a short fall as explaining Nikki's condition and subsequent death. Because of the mistaken outdated SBS slash AHT medical consensus associated with this triad, none of the state's experts considered any non-inflicted causes.
00:33:09
Speaker
Back in 2002 to 2003, the standard of care allowed doctors to presume abuse whenever the triad was present, yet that is no longer the case. And new evidence proves that Nicky's condition, including intracranial bleeding and light bruises, resulted from a severe lung infection and a bleeding disorder triggered by that infection, which led to systemic failure known as sepsis. A year before Robert's trial,
00:33:35
Speaker
The American Academy of Pediatrics had published a position paper informing doctors that shaking or shaking with impact could be presumed based on the triad alone, thus permitting a default diagnosis toward abuse. That presumption is indefensible today and no longer represents the medical consensus. At the time of Robert's trial, whenever the triad was found,
00:33:58
Speaker
Unless there was an evidence of a massive trauma event, such as a high-speed auto accident or a fall from a multi-story building, the SBS hypothesis was seen as dispositive with or without evidence of impact, even with a child like Nikki, who had a serious medical issue.
Evolution of Shaken Baby Syndrome Understanding
00:34:14
Speaker
Okay, so that's the case, and that's the new evidence. Sarah, was that, um was that diagnosis, like how how widespread was that diagnosis?
00:34:25
Speaker
At the time in 2002, 2003, the American Academy of Pediatrics would have made it really widespread. Okay, so and that was a dispositive, that was a reason to say that. Yeah, up until 2005, that stayed the case. In 2005, people started rethinking it. And I have no idea um with regard to I doubt very seriously I would have thought about it at all in 2000, early 2000s. My thought is you've got two different doctors prescribing her medication in consecutive days. ah That child was not a victim of abuse. She certainly would not have been a victim of neglect.
00:35:13
Speaker
um Because um well now I mean you kids that Parents that are busy abusing their kids don't repeatedly take them to the doctor not in two days like that No, this guy's trying to get relief for his kid And I have a feeling that like he's probably having some based on some of the rest of the testimony here maybe he's having some issues communicating with them or is just a There are people that have to rely on doctors because they don't understand anything about parenting or medical situations. So they rely on doctors to assist them. Right, without having to fill in a whole lot of information. Yeah, absolutely. What they're talking about here, that is the consensus in 2002 or 2003, according to this document and the actual letter and statement for the American Academy of Pediatrics at the time.
00:36:07
Speaker
Now in 2005, questions are raised and we're not gonna hear about a lot of that until the PCAST a report that I mentioned that happens in 2016. But in 2008, the Wisconsin Court of Appeals takes a look at a case that involved Audrey A. Edmunds. They decided there that, this is just the Wisconsin Court of Appeals, that they were seeing evidence that in the Edmunds case, the shaken baby or shaken baby impact or whiplash impact syndrome was maybe overstated. And so that case ends up going through the process of becoming an appeal. You can actually, that one they they put on the ah the Wiki, it has two amazing sources with it talking about litigating these post-conviction challenges. And then it has the decision itself and everything that went into the decision, which
00:37:02
Speaker
They litigate that thing for a year. But I found this interesting. In 2012, Norman Guffcult, who's the pediatric neurosurgeon who, quote, discovered SBS or AHT. In 2012, he says in an interview and in an article he publishes that after 40 years of consideration, it's time to go back to the drawing board,
00:37:27
Speaker
Because these shaken baby prosecutions that are happening based solely on the triad of injuries are something I'm critical of. We need to make a more thorough assessment in these cases. And we're going to find the doctor's way of saying that he was wrong. Yes. He says that the in the large majority of cases, the child had another severe illness illness of some sort, which was missed.
00:37:50
Speaker
I mean, I feel like that was sort of, it it's not that he was wrong. It was just like, he thought that that would have been like a prerequisite consideration. Yeah. So he goes further in 2015 and 2016. He talks about this again. He basically says, look, I was giving them a path that I thought would help save children, not to put people on trial.
00:38:14
Speaker
Right, but instead it was taken as like the rule. Correct. Yeah, he said he opposed the idea of it being a syndrome. He just was trying to get people to recognize this series of events that showed up as these injuries as a potential where you can save that child, not as a syndrome and not as a crime.
00:38:35
Speaker
Well, right. And so I imagine, um so I've had a child, um I've been around children, it's actually going to be highly unlikely, I think, that a baby is going to have suffered from shaken baby syndrome. Like what is like sort of generally thought of as that at this point in time. And it's like never going to be that a three or four or five year old is going to have suffered from it. That's sort of where I come from on those. I mean, it's almost impossible to shake a four year old hard enough to get because it's the motion of the brain inside the head. And then the three, the triad occurring from it, right?
00:39:29
Speaker
Right. OK, and so like we're talking about tiny a tiny baby having this happen. And if the thought is like you're telling the baby to be quiet. It won't be quiet. You shake it to make it be quiet. And that like I mean, I'm sure it's probably happened.
00:39:46
Speaker
it usually doesn't result in death. And it certainly is not this widespread epidemic that we're now in 2024 looking at this man who has an execution date in less than a month for having done this to his severely ill two-year-old. Yes. That he had just taken repeatedly to the doctor to get help.
00:40:13
Speaker
Yeah. we have the So you know they have all the information. They have like this record of her condition, how bad it was, right? Because at one point, she's at the doctor with like 104 fever. Correct, yeah.
00:40:26
Speaker
And um she's been she has a high dose of this medicine that's no longer given to two-year-olds in her system, but it was done it's in her system because her father followed the medical instructions he received. So he didn't do anything wrong there. right I don't know about I'm just saying that you know doctors prescribed her this, which means he was in contact. We don't know what the other circumstances are as far as the contact he had had with medical professionals. We've got a dad who, like after his very sick daughter falls out of bed, he's like then laying with her and she becomes unresponsive.
00:41:12
Speaker
i find i think that i Feel like this man is gonna be okay because regardless how being a parent I know that his life ended the day his daughter died yeah It doesn't matter right. I feel like it was just You know another nail in the coffin that he's in this position now and unfortunately for the sense of justice that I once felt like I
00:41:43
Speaker
The threat of the death penalty might hold in proper utilization. Cases like this make me go, yeah, we can't have the death penalty because our system is still broken, right? Yeah. ah This case is awful. And it the junk sciences are always going to catch up with themselves. it This is the type of thing where at DNA makes me nervous because I'm like, what's going to come out about it, right? Yeah. Um, I do remember the whole retraction of the shaken baby syndrome yeah happening. I'm not sure. Like I don't know evidentially.
00:42:38
Speaker
like how that has otherwise been undone. I don't know how many like parents who were like falsely convicted of shaking baby syndrome, being a child to death ah have had their situation undone. Do you have any idea? I don't, I don't have stat statistics on it right in a second. No, I can tell you that like it, it, statistics are being gathered.
00:43:07
Speaker
right okay so and it is i mean so we're talking about the early 2000s where this is the shaken baby syndrome and then the head trauma act well what was it abusive head trauma a h c yeah okay um so that's happening then and that you know we've got this doctor who said okay these are this is the triad of symptoms and this can this could be indicating shaken baby syndrome as we know it and then all these convictions and crimes and things happen. And then the doctor's like, wait a minute. I said it could be that. Right? Yeah. ah They heard should, is. They heard a different verb. And it became
Impact on Legal Perspectives
00:43:56
Speaker
a whole thing. And it's always tragic when a child dies, right?
00:44:02
Speaker
it it gives everybody the sense of hopelessness and sadness and like everybody wants to get justice for a child, right? yeah It'd be really hard not to find people that work in, you know,
00:44:18
Speaker
ah prosecution or law enforcement or whatever that aren't trying to advocate for justice for a child in the event that a child has died and they were unable to help the child otherwise, right? And so, you know, you want to put people that hurt children away. It's a natural inclination. Yeah, it's really hard to compartmentalize like what is happening in in terms of crimes against children, it's very difficult to look at it from like the correct filter. Correct. And so to me, in the majority of cases, I would say only a very, very small percentage. Parents and caregivers are trying to do do the best they can for children.
00:45:08
Speaker
ah it's It's actually, I think, a relatively rare thing. a Because this wasn't a thing that I'm not really sure what the allegation was. It doesn't seem like it was ever presented that he got upset at her or... I have a really hard time sort of putting back together again how they're like, oh, he's rushing her to the doctor and they're giving her all this medicine and then he like takes her home and kills her. What are you talking about? Oh, okay. So I don't know how deep you want to go into this part of the case. Nikki's story. So Nikki is the little girl we're talking about here.
00:45:46
Speaker
It is ah difficult. and it's in So if you go reading about Robert Roberson, so it's Robert and then Roberson, R-O-B-E-R-S-O-N in this case, you will come across this document as the most recent filing. If you scroll 20 pages into this document, they talk about Nicky's medical history because it's an important part of this case. And I'll read it to you, not to sensationalize it so that you have an understanding.
00:46:18
Speaker
It's under factual background, item A, and it says, Robert's daughter Nikki was born to a drug-addicted homeless woman named Michelle Bowman, who had been supporting herself through prostitution. In the hospital, ah she was denied custody and CPS gave Nikki to her maternal grandparents, Verna and Larry Bowman. No father was identified at the time.
00:46:45
Speaker
Michelle had already had two boys taken away from her who were both born with special needs. Michelle's first child was Christopher. He had been born with fetal alcohol syndrome and a seizure disorder. He was so developmentally impaired that the Bowman's ended up giving him up to become a ward of the state. Michelle's second child, Matthew, also had fetal alcohol syndrome and a seizure disorder.
00:47:11
Speaker
Nikki's medical records show that she was sick throughout her short life. Her first reported infection occurred three days after her birth. She then had many unresolved infections that proved resistant to multiple strains of antibiotics. Her severe ear infections persisted even after she had tubes surgically implanted in both ears.
00:47:36
Speaker
and she suffered from unexplained breathing apnea starting before age one, which caused her to suddenly seethe breathing, her body to collapse, and her face to turn blue. Robert did not know the full scope of Nikki's medical history of chronic illness. For two years, the Bowman's, Nikki's maternal grandparents were the primary caregivers. Robert established paternity and sought custody. The Bowman's agreed,
00:48:04
Speaker
that he should be awarded custody, and the court agreed soon after Nicky's second birthday. On January 28, 2002, just two months after Robert obtained custody, he and his mother took 27-month-old Nicky, who had been vomiting, coughing, and having diarrhea for five days, to the local ER. The attending yeah ER doctor prescribed phrenogen in suppository form.
00:48:30
Speaker
this is Infernism now has an FDA black box warning against prescribing it to children around Nikki's age or with her condition. Later that night, Nikki's temperature shot up to 103 degrees. Robert took Nikki back to the doctor the next morning on the 29th, where Nikki's temperature was measured at 104 and a half degrees. The pediatrician sent them home and issued a second prescription for infernism, this time in cough syrup along with coatings.
00:48:57
Speaker
and opioid that the FDA now restricts for children under 18 due to the risk of inducing breathing difficulties or death. While Robert was went to fill the prescriptions, the Bowman's took Nikki to their house. They had agreed to keep her for two nights because Robert's live-in girlfriend Teddy was in the hospital.
00:49:19
Speaker
But the next night on January the 30th, the Bowman's called Robert and they asked him to pick up Nikki because Mrs. Bowman had also become ill. So around 9.30 PM, Robert drives out to the Bowman's house in the country and retrieves Nikki and brings her back to his house in Palestine where he got ready for bed. When they arrived on the night of January the 30th, Robert put Nikki to bed. Nikki's bed was a mattress and box springs on two layers of cinder blocks.
00:49:48
Speaker
This was Robert's solution to make things easier for his girlfriend, Teddy, who is due home from the hospital the next day after procedure. Per the moment's instructions, Nikki was used to sleeping in the same bed with them. So he got Nikki a snack and they fell asleep while watching a movie. In the early morning hours, a strange cry woke Robert up.
00:50:10
Speaker
He found Nikki on the floor at the foot of the bed. He did not witness her fall, but after checking to see if she's okay, he saw a small speck of blood on her mouth. He wiped it off with a washcloth. They both eventually fell back asleep. So this is the 30th into the 31st. So now, later that morning, January 31st, Robert woke up to find Nikki unconscious and blue.
00:50:33
Speaker
He tried to revive her, then brought her to the local yeah ER. This is the same yeah ah ER where Robert had taken Nicki three days earlier. She was again seen by the ER doctor who had prescribed the Phonogen suppositories. Medical staff observed that Nicki's eyes were fixed and dilated, which is a grave sign of brain death. They initiated a code blue, and she was intubated around 9.50 AM.
00:51:01
Speaker
The doctor managed to restart her heart, but no medical heroics could resuscitate her brain, which had been deprived of oxygen for too long. They felt the bump on the back of Nikki's head. There were no other signs of external significant external injury. They shaved her head and she was sent to radiology at 10, 10 a.m. A lung scan revealed that they had improperly intubated her. So the breathing tube had to be removed.
00:51:31
Speaker
and reinsert it. The breathing tube likely tore her frenulum, which is the thin membrane inside the mouth above the teeth. And regardless of this botched intubation, Nikki had already shown signs of extreme oxygen deprivation when their father woke up to his alarm that went off around 9 a.m. Her lips were blue, which is a sign of hypoxia or oxygen deprivation.
00:51:58
Speaker
It takes about 10 to 12 minutes for oxygen deprivation of the brain, for the brain to be shut down forever. So thereafter, blood is pumping from the heart to the skull, but it couldn't enter the brain because of what's going on, and it causes the blood to pool outside the brain under the fibrous covering.
00:52:24
Speaker
The next CAT scan revealed a small subdural bleed near the goose egg on the back of her head. And that image showed that her brain had been swollen and it had shifted to one side, but there were no other injuries, broken bones or skull fractures of any kind. So a nurse immediately alerted the police that she suspected abuse and various members of the hospital staff and Brian Wharton, the lead detective, then basically interrogated Robert and wanted him to explain Nikki's condition.
00:52:55
Speaker
He tried to explain it, reporting she'd been sick. He described what had happened in the night. with The strange cry and her apparent fall out of bed, which he didn't witness. Hospital staff at the time did not know that Robert was all says autistic.
00:53:09
Speaker
They were suspicious that he had a flat affect or didn't show emotion about his daughter's condition. Based on the CAT scan showing bleeding under the dura and brain swelling, the ER doctor then discounted the recent illness and insisted that Nikki's condition did not result from a fall out of the bed, which is sort of true. The abuse accusation is inflamed by a local nurse who held herself out as a sexual assault nurse examiner. It turns out,
00:53:39
Speaker
they find out later, she was not actually a SANE certified nurse, S-A-N-E. She summoned the police and took it upon herself that while Nikki was in the hospital room in a coma, this nurse performed a sexual assault exam on this comatose child. the She then told her colleagues and investigators that she saw signs of anal tears, which was an observation that is not corroborated anywhere else in the medical information. So the leap from anal tears to sexual abuse is never substantiated by any evidence. Was he charged with that? No, but it comes up. The ER doctor kind of squashes it a little bit because he'd been prescribing her suppositories, which would account for what had been happening.
00:54:32
Speaker
But at trial, this nurse doubled down on her false accusation, testified that diarrhea and suppositories would not cause what was going on there. ah She insinuated at the trial that Robert was, quote, a pedophile. Got news for you, lady. Your unconsensual sexual assault kit on a comatose child would make you somewhat of a pedophile. Yeah, a technical definition.
00:55:01
Speaker
she It then, in her testimony, explained to the jury that, quote, pedophiles like him, unquote, prefer anal penetration to vaginal penetration.
Procedural Errors & Public Involvement
00:55:12
Speaker
Okay. What I am answering with what I have said here is this is what gets the death penalty. Right. But my question was, Sarah,
00:55:26
Speaker
Everything about this case that I have heard, even even with ah the super nurse testifying and with her expertise in the type of penetration that pedophiles prefer, I would have to say that um this was a very sick child. Everything says she was a very sick child. And it's a leap.
00:55:56
Speaker
to to think that a sick child didn't die because they were sick, they were shaken to death. Does it make any sense to you? No, they're gonna kill this guy!
00:56:11
Speaker
Oh, no. i so Okay. I feel like the governor will not sign the warrant. I hope so. Because that's the fail safe, right? um this is clearly This is clearly a situation that needs to be addressed. i don't Like I said, I don't know what the procedural violation is. i have a feel So what I'm thinking is, I bet there's a timeframe and I bet they're outside the timeframe to have made the discovery of what you were saying, like the evidence. yeah I bet there's a time frame on it and they probably miss that somehow, but that's not his fault. right um they still have to be They still have to have proper jurisdiction to hear it. Otherwise, it's not proper for them to rule on it. However, the the you know fail safe is that Governor Abbott is who's going to stop this. At this point, we are less than a month out.
00:57:06
Speaker
The judicial process has been dismissed for lack of following the procedural requirements. I don't know what the what they didn't do. At this point, the governor would be informed that he has an execution date and it would be upon the governor or the governor's office or however they do it to stay the execution.
00:57:33
Speaker
because the judicial process has stopped at this point. Well, let me ask you this. If you look this up, like ah Robert Robertson's case, like almost every headline says something akin to what the Innocence Project said at the very beginning of this, which is, quote, you know, it's denied. It doesn't look denied to me. It was dismissed. so that They have absolutely no jurisdiction to consider it.
00:58:01
Speaker
Because there are certain requirements that have to be met in order for it to be properly before them They didn't need that for whatever whatever it was. It doesn't detail why I'm sure if you could find like the actual dismissal of it it might say why but it says for procedural because it failed to to follow procedural requirements or something like that. yeah So um this wouldn't be the first habeas. This is a subsequent habeas and there has to be a reason. Otherwise they call it an abuse of habeas. Gotcha. Yeah, that makes sense to me. Yeah.
00:58:40
Speaker
Okay, and so they didn't look at the merits of those 160 pages and say this is not worth saving this man's life over. They looked at like the history of the case and said this does not follow and this doesn't fall into like these procedural requirements like being a year after they found ah whatever they're bringing forth, being, you know, subsequent to asking permission, right being like whatever it is, it you didn't meet these guidelines and we therefore do not consider the merits of this, we are dismissing this. And that's something, you're right, it does say it was denied, right? yeah um Which is to me, very different.
00:59:27
Speaker
Um, that denied would mean they looked at it and on the merits of the case said, no, we're not going to do this. That's not what happened. They said, we can't do anything because this hasn't been put properly before us. And so at this point,
00:59:43
Speaker
um Governor Abbott, who is the governor of Texas, ah because ah and I'm saying this because of the timing, right? Yeah, I follow. They have less than a month. And so any other sort of procedure that's going to happen in the meantime, they don't have time for it, I don't think. um But the governor should take into consideration everything.
01:00:07
Speaker
and say, um yeah this you know I'm going to stay the execution and I'm going to commute the sentence or whatever his determination is. Let me ask you something. Having like looked through all this in Reddit, and i I know there's a lot here and I know we we can't dissect all of this. My gut feeling on this is like this is sort of one of those kind of junk science, forensically situations. Is that your gut? I think this is a miscommunication. I feel like somebody, the experts at this triad of symptoms could indicate um shaken baby syndrome.
01:00:50
Speaker
And that's a crime. And somebody said, oh, this triad of symptoms means that they they suffered from shaken baby syndrome and it's a crime. So it went from could to is, right? Yeah, that's what it feels like.
01:01:06
Speaker
And I feel like there's a lot of things that can be taken into consideration ah that could, I mean, I'm sure they are now, but like the fact that the little girl had a extensive history of medical issues, yeah um the fact that she had been in the very hospital that,
01:01:28
Speaker
She was brought in again. It seems like that would have been a clue. Now, it does seem like there was some confirmation bias happening with regard to like the emergency room nurse and all that kind of weird expert banter that may or may not have been put forth. And like I said earlier, people want justice for children who die. Yeah.
01:01:56
Speaker
And they go out on these weird, crazy limbs to get it. you know Part of this, I don't know how much the medical professionals would have known about, but the fact that she was born to her prostitute who was addicted to drugs, and then this guy being her father coming into the picture sort of... you know sort of not too long before she died, unfortunately. um You know, I don't know how much of that was known or used against him, right? But people can, this was in 2000, and you know, if somebody was trying to navigate with their moral compass, they might have found problems with the situation and wanted to punish him for some reason, right?
01:02:41
Speaker
um Another thing is it could genuinely be that they believed what they were saying. ah I just, I think that most of the time in a true case of abuse, you're not going to have this type of situation where um he had been taking her ah repeatedly to the doctor. The other thing is like nothing about pneumonia.
01:03:10
Speaker
looks like a head injury. I believe in this instance, this guy is probably innocent and there was no crime. Yeah, I don't think no, there was no crime. And the thing about it is worst case scenario here. Well, I mean, the actual worst case scenario is this guy gets executed. So at least do get rid of the death penalty. Can, you know, given clemency and dump this into a ah ah situation where the courts can deal with it as opposed to an execution.
Clemency Efforts & Call to Action
01:03:44
Speaker
um And I have a feeling it's going to be, there's going to be some probably pandemic related delay for getting this 160 page document together um to be presented, right? Yeah. um It should be compelling enough to get the governor's attention. Yeah.
01:04:07
Speaker
i the The Innocence Project agrees with you. So what they released this morning or last night, um it's just ah it's another follow-up to all of this where they have petitioned for clemency. So ah according to this news release, it says, today, 34 eminent scientists and doctors, a bipartisan group of 84 Texas legislators, eight advocates for parental rights, eight organizations that advocate for people with autism and their families,
01:04:34
Speaker
Faith leaders, innocence advocacy groups, former judges, 70 attorneys who have represented people wrongfully accused of child abuse, and the formerly detective, Ryan Wharton, among others, have filed letters in support of Robert Robertson's clemency petition to the Texas Board of Pardons and Paroles and to Governor Greg Abbott. In fact, they're asking people to call 361320 8100, which 361320 8100,
01:05:05
Speaker
will put you through to Governor Abbott's office, and you can ask him not to execute Robert Robertson. And they go on to basically describe everything that we just talked about. According to this, he would be the first person executed on the discredited shaken baby syndrome hypothesis, unless the courts are Governor Abbott intervenes, which you had mentioned. I don't know for sure that that is the um the case that he would be the first one, but it sounds like something that they've researched. since he They're saying the first since it's been debunked. okay so yeah um That I would totally believe. I think people should call. I think people should sign petitions in this instance. and I think that ah people should let Governor Abbott and that board know that um
01:05:58
Speaker
when you have a lead detective who's looked at it all and gone, God, there was no crime. And it sounds like you've got a very good basis of support, right? um Which is what I expect. This is part of our broken system that like redeems part of it, right? Because in a situation where ah there's not this like, Pretty straightforward contradiction, I guess. it's not a case This is a case that I would be very surprised if the governor didn't um at least review it carefully, because there is so much to it. like You just talked about all the experts and doctors and bipartisan committees of people who are saying like don't ah they're saying give him clemency, right? yeah At this point, so we're less than a month out, it's very concerning. This is more than likely an innocent man that's going to be put to death, right? That's what it that's what it kind of boils down to based on ah what's been presented. Because of um the dismissal of the habeas, it it is left to just the governor. I'm sure there's probably other proceed procedural things, right? This is one of the
01:07:16
Speaker
In my opinion, rarer cases in which there's some sort of disconnect happening because we have this stark contrast of what appears to be innocence with this looming death date. And that's weird, right? like Because when I read it, when I read the information about it, absorbing it with everything else I know, like I don't have any question that it is Highly unlikely that he killed I I don't think a crime happened. I think this poor little girl had Was very sick and she died, right? Yeah because her immune system couldn't cope with it and it it sounds like this guy was trying his hardest right to get her help and that just doesn't happen and abuse victim cases of two-year-olds and It
01:08:13
Speaker
it makes me wonder how we are this far. Like we're so close. And, you know, I don't know what was missing in the in between as far as like, why wasn't it so apparent like the first habeas or whatever, right? Well, had been twenty they put a lot of dates in here and that makes me a little wary. That's why I asked you the question I asked at the end. Like, do you think all this is accurate? But I,
01:08:40
Speaker
I genuinely believe it's because of some disorganization on part on the part of the original defense and the original prosecution where some of this evidence was difficult to put together. like they They mentioned finding in early 2024 some of the radiology information and the scans of Nikki. That's crazy to me. I don't know if those dates are in there to emphasize like the dire nature of all of this or if that's legit because I could see it going either way and I respect it either way. Right. and so If that were the case, it seems like it wouldn't be a procedural failure, but I don't know. I can't really tell from all of this. I'm with you. Yeah.
01:09:25
Speaker
And i you know a procedural failure is a procedural failure, and it they don't really have to elaborate what the failure is. But to me, it it would help to understand. um But it is really important to understand that the merits of the habeas ah the application behaviors, they never got to the merits of them. So they haven't said like, this is not a case where this man is and innocent. They've said, we can't decide that because it's not properly before us and they dismissed it. Well, I don't i don't have anything else on this one. I think people should participate in this. this is and I hate to do that, but this is the case that like if you if you call and sign things, this is the one to do it for. ah You can call Governor Abbott,
01:10:13
Speaker
at 3613208100. um I'll include a link at the top to show notes that have a lot of the Innocence Project information on this case. Do you have anything else on this one? No, um but I second what you say um as far as, you know, what obviously this isn't for him to walk free. This is for him to not be executed. And this is, I'm not sure I've ever even been part of a case like this.
01:10:44
Speaker
I have not, there i've since all that like retraction stuff happened, I have circled a case for a very long time that I wondered about, and like I can't make my mind up on it, but I i have looked at a case, I think it's from 2008 or 2009, and it's one of those cases that when I look at it, um for one reason or another, I always like sort of circle back around and go,
01:11:14
Speaker
I can't get involved in that right now. And in fact, if the guy had gotten the death penalty, I would have gotten involved way more. Well, that's what I mean. Like, I've never been involved in a case where it's like, oh, this guy's innocent, and he's got an execution date. I've never i've never had that happen. But my my inclination is this is going to show us all the system works. Special consideration was given to True Crime XS by labradicreations.com.
01:11:43
Speaker
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01:12:43
Speaker
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01:13:03
Speaker
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01:13:20
Speaker
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