Kayla Guo
Appearances
Criminal
The Stay
More often than not, does not, you know, allow for that and usually affirms the state's case and is sort of prosecutorially minded. But in this case, they agreed. Mielis gave it a second look and instructed the trial court to do that.
Criminal
The Stay
And what they produced for a evidentiary hearing in 2021 was just reams and reams of evidence and experts saying, one, the consensus around shaken baby diagnoses has changed. And two, the evidence in Nikki's case doesn't support a shaken baby diagnosis to begin with.
Criminal
The Stay
That, again, all contributed to her ultimate death and that it wasn't shaking. And they also point to a lot of problems, they say, in how Nikki was handled. They say that the doctor who performed the autopsy before she made her conclusion was already told that Robert had been arrested for homicide, which...
Criminal
The Stay
These days, I think experts would say would taint an autopsy provider's ultimate conclusions about what caused this person's death. They also point to other problems in his trial, such as one nurse testifying that she saw evidence of sexual abuse on Nikki, that another expert refuted during the trial, and that
Criminal
The Stay
The prosecutors didn't bring up any other evidence for, but still mentioned it in their closing statement. So they've raised all sorts of problems with the trial itself, and they've also tried to bring up all of this new evidence to offer an alternative explanation for Nikki's death. And they say it was natural and accidental.
Criminal
The Stay
The trial judge decided, let's move forward with his conviction, his execution. We think that the court handled it right the first time, the jury handled it right the first time, you know, cleared the way for Robert's execution to move forward at that point. And it really wasn't until last July that we had a new execution date and that it was set for October.
Criminal
The Stay
They ask the court to reconsider. They ask the court to look again more carefully at the evidence they've presented. They say they don't believe the evidence has been meaningfully engaged with by the courts, and they ask the courts to look again.
Criminal
The Stay
They get new experts to come in and to give their evaluation of Nikki's medical records and understanding of shaken baby diagnoses and what can cause an infant to die like she did. And they just asked the court to try again and to look again. And the court repeatedly says, no, we won't do it.
Criminal
The Stay
Not because, you know, we've looked at what you're saying and we don't think that warrants a different action from us. Not because we don't believe in the merits of your argument. But based on procedural grounds, you know, we just stand by what we decided beforehand.
Criminal
The Stay
And that left Robert with fairly few options. And going into the week leading up to his execution date, it seemed his only option was to receive clemency from the Board of Pardons and Paroles or for the governor to step in. The governor has the authority to issue a one-time 30-day reprieve.
Criminal
The Stay
But other than that, it didn't seem like he really had any options after all of his appeals were struck down by the court. At the same time, there's this public campaign brewing, urging somebody to do something at this point. He has advocates like John Grisham, who has spoken on his behalf.
Criminal
The Stay
Dr. Phil, the lead investigator in his case, has spoken to media and testified in public forums and has been very vocal about his belief that he got it wrong and this is an innocent person, he believes. Texas state lawmakers also weigh in, and they're urging the clemency board to grant him clemency and to recommend clemency. They're urging the governor to step in.
Criminal
The Stay
But at the end of the day, he's still sentenced to death. That is still the facts of the case, no matter how many people speak out on his behalf, and it would have required...
Criminal
The Stay
either somebody on the court's criminal court deciding, maybe we got this wrong, maybe let's do yet another look, or the district attorney saying, maybe there's some problems with how we prosecuted this case, or it would have required a select few people had to change their minds in order to actually make a difference in his case.
Criminal
The Stay
Yes. And also, in the week before his execution was set, the state's highest criminal court, the same court that has denied his appeals over and over again, overturned another Shaken Baby Syndrome conviction out of Dallas County. In that opinion, the court acknowledged that the scientific knowledge around Shaken Baby has evolved.
Criminal
The Stay
And, you know, believes that this conviction and this other person's case was wrong. And so his lawyers are pointing to that as, you know, like, you've acknowledged that the signs has changed. Why can't you acknowledge it also in Robert's case? And a large majority of the Texas House has signed a letter urging clemency at this point, which is really rare to get that number on paper.
Criminal
The Stay
86 lawmakers signed this letter urging clemency. It's rare to get that number on most things, much less, you know, something about the death penalty. But they were united in believing that something here had gone wrong and this was someone who deserved another look.
Criminal
The Stay
And at this hearing, they invited a bunch of different expert witnesses, people who study criminal justice in the state, medical experts, the prosecuting district attorney and Roberts' appeals attorney to come testify. They laid out all this evidence that a jury had never heard, that had not been presented to the jury at the time, again, because the science was different at the time.
Criminal
The Stay
Her condition had only gotten worse, and she had been, again, sick for some time now.
Criminal
The Stay
taking this discussion over is he innocent or is he guilty out of the courtroom and into sort of the public discourse, into the state capitol, which is not where death penalty cases are litigated, but this is where the lawmakers had taken it.
Criminal
The Stay
It was intense. He, I believe, was the first witness to come before the committee that morning. The hearing room was fairly packed at that point, and his testimony was emotional, it was personal, and he was reaching 20 years into his memory to tell lawmakers about how he believed he got it wrong and how he helped send what he now thinks is an innocent man to death row.
Criminal
The Stay
The hearing room was really tense. You know, I didn't even want to type for fear of, you know, making too much noise and sort of interrupting the moment.
Criminal
The Stay
But he said that in the years after, he had always had this nagging feeling that this wasn't a slam dunk, and if you're going to send someone to death, it better be a slam dunk. It better be, you know, completely clear, no doubts whatsoever.
Criminal
The Stay
I had not been prepared for this hearing to last so long. Again, going into the hearing, it had felt remarkable because it was the legislature making some really loud noise about this case that was not really within their jurisdiction. The statehouse doesn't get to say what happens in a criminal case. And so I'd gone in not thinking it would last this long. Don't think I had a laptop charger.
Criminal
The Stay
One of my coworkers had to bring me a granola bar at one point. So it was running on very little by the end of this hearing. It had mostly emptied. I was one of the few reporters who was still in there. I had already messaged my editor saying I was about to file the story I had written for the night and that the hearing was wrapping up.
Criminal
The Stay
Absolutely. I think there was... I mean, the lawmakers really got creative in issuing this, and it had never been pulled before, so no one could say what it meant or what it would do. The governor, the attorney general, they all saw it as a massive overreach by this committee to try to do this.
Criminal
The Stay
By the time we wrapped up all of our coverage and the story that I had written for that night and the other story I had written for the morning, I probably went to sleep around 1 a.m. and woke up not really knowing what to expect. And we wanted to be prepared for whatever may happen. So I actually spent the day of his execution writing up his obituary.
Criminal
The Stay
I mean, throughout the day, it was such a roller coaster. And when the clock struck 6 p.m., we knew that he could be executed at any moment. And, you know, it was never clear whether or not that would happen that night.
Criminal
The Stay
All the preparations are moving forward. Two Texas lawmakers went to where Texas executes its prisoners. They went to that prison and were ready to be there in the room watching if or when this execution moved forward. They had prepped Robert Robertson for it. There were people outside the prison, protesters. Everyone was set up, believing this could very well happen that night.
Criminal
The Stay
I see it first on X because they tweet out their opinions or announcements like that.
Criminal
The Stay
The Texas Supreme Court said they're doing another unprecedented thing, which was the Texas Supreme Court is issuing the stay of Roberts' execution to give it time to consider the separation of powers issue that the subpoena had caused. And so there was just this big sense of relief in that moment, but also this sense of, okay, what comes next? Did Robert Robertson start preparing to testify?
Criminal
The Stay
There were plans in place for him to go testify on that Monday. The committee wanted to have him come testify in person. And later on, his attorney said that the, you know, some high ranking officials at the criminal justice department had called her in.
Criminal
The Stay
said they were committed to doing everything they could to take him to the state capitol, which is about a two or three hour drive from death row.
Criminal
The Stay
He, according to his lawyer, ended up replying that he didn't know what his favorite color was because he had been in his death row all-white uniform for the past 20 years. But there was this flurry of activity to get organized and get the logistics straight so that he could be brought to the Capitol on Monday, four days later, to testify.
Criminal
The Stay
But over the weekend, at some point, the state attorney general's office intervened. They said he would only be allowed to testify over video. They cited video. quote unquote, public safety reasons. And this would be too big of a lift for the criminal justice department to carry out. So they essentially said it's either over video or nothing.
Criminal
The Stay
The committee and Robert's lawyers opposed that because they said, this is a man with autism, which has been part of his problem from the beginning, that there's a miscommunication that happens between what he says and how he emotes with the people with authority listening to him. And also, he hasn't had experience with technology.
Criminal
The Stay
And they said a virtual testimony would be totally ineffective and would be a detriment to him.
Criminal
The Stay
So what happens now? Your guess is as good as mine. What happens now, he is still sentenced to death. The district attorney has not requested a new execution date yet. I don't know why not. She hasn't responded to my request to know why. It's unclear what legal pathways and legal argument he can make for himself at this point.
Criminal
The Stay
One thing of note is that, you know, since his last appeal was denied by the state's highest criminal court, elections have taken place and replaced three of the judges on the bench. And so there's a new slate of judges who would be considering his appeals if his lawyers filed a new one. So it's unclear. Maybe they would have a different opinion. Somebody might have a different opinion.
Criminal
The Stay
But, I mean, unless the court decides grants a new appeal from him or the district attorney agrees to take a second look, at the end of the day, he's still sentenced to death and could be executed within a matter of months.
Criminal
The Stay
The doctors saw symptoms that, at that time, told them to diagnose shaken baby syndrome.
Criminal
The Stay
The medical consensus said that if a child presented with a triad of symptoms, that means unexplained bleeding in the brain, bleeding behind the retinas and brain swelling, doctors could and should make a diagnosis of shaken baby syndrome. And they could presume that somebody had violently shaken this baby and caused these injuries.
Criminal
The Stay
Nikki had been transported to Dallas without Robert knowing. And so I don't know exactly how he found out she had died, but she died when he was not with her and he was not in Dallas with her when she died.
Criminal
The Stay
He has maintained his innocence through all of this. One of the aspects impacting the investigation is he's a man with autism, and that wasn't a diagnosis that the doctors or investigators knew about at the time that he had at the time. But investigators have said they looked at his flat affect as evidence of his guilt.
Criminal
The Stay
The investigator, the lead investigator in his case, Brian Wharton, he said that Robert didn't seem too concerned in that moment, wasn't reacting how you might expect another parent to react in that situation when their child seems to be in grave danger. His emotional reaction to, I think, both Nikki's condition at the time and And his arrest later on, his expressive reaction was atypical.
Criminal
The Stay
And that was one of the things that I think investigators thought was evidence of his guilt at the time. At the trial, the state's case hinged on this shaken baby diagnosis, which again, presumes abuse on the part of the caretaker, in this case, Robert. They pointed to Nikki's autopsy report. They had a few medical experts come testify, one being the person who conducted the autopsy. And...
Criminal
The Stay
They describe Nikki as ill, and they describe blunt force trauma to her head, which is consistent with shaken baby syndrome. Shaking is not distinguishable from what you might normally think of as blunt force.
Criminal
The Stay
At trial, Robert had maintained his innocence, but his defense attorney at the time did not pursue the innocence claim. His defense attorney's defense was mainly that Robert hadn't meant to kill Nikki in allegedly shaking her. And so that was the entirety of his defense was that he didn't mean to ultimately kill her.
Criminal
The Stay
Again, Robert has said he was innocent of it and that there was no shaking involved to begin with, that Nikki was just deeply ill and this was the final collapse.
Criminal
The Stay
Yes. He had said immediately in the aftermath of it all that she had fallen off the bed, and he couldn't explain. He didn't have the medical expertise to explain her condition, and that was what he said had just happened, was he woke up to find her fallen from the bed, and that's what prompted him to bring her to the emergency room.
Criminal
The Stay
Right. In the medical community at the time, the consensus was if an infant shows up with these three symptoms, pretty much by default, automatically you assume abuse. And so I think that was a really strong driving factor in the course of the trial was this confidence boost.
Criminal
The Stay
Normally in just the news reporting business in general, you kind of have a sense of what at least are the options for what might happen. That was not the case for this story.
Criminal
The Stay
not just from these doctors who treated Nikki, but from the broader medical community, the broader medical guidance, instructed doctors to do this, said, if you see these three things, it's abuse. And that, I think, really informed how the prosecutor handled it, how his defense attorney handled it, and how a jury handled it as well.
Criminal
The Stay
Texas tends to go through with its executions once they're on the calendar, and so it seemed like that is how it would go. But never could I have guessed or imagined it would become the story that it did. Everything that happened was unprecedented, so there was no guidance or real ability to predict what might happen next.
Criminal
The Stay
It was a really widely heralded law. It was imitated across the country. Texas was seen as sort of a trailblazer. And lawmakers passed this law in an effort to acknowledge that science changes and the understanding of science and evidence evolves as scientific knowledge gets better. And the criminal justice system at this point wasn't equipped to acknowledge that.
Criminal
The Stay
Studies showed that many of those same symptoms could also be caused by shortfalls or Some naturally occurring medical conditions, accidental traumas, and research has also found that shaking a baby that violently would likely have broken their neck, which Nikki did not have a broken neck at the time. So the medical consensus around how to make these diagnoses has changed.
Criminal
The Stay
The medical guidance now also emphasizes that a doctor should consider all other possible factors leading to these symptoms that aren't abuse before they can conclude that it was abuse that did it. So it's a pretty fraught diagnosis. It's certainly a real condition.
Criminal
The Stay
It's just fraught on how and when doctors make that diagnosis and point to abuse versus a naturally occurring medical condition or some other accidental trauma.
Criminal
The Stay
Saying the science around shaken baby syndrome has changed. That's clear in his case. The court should give it a second look. The state's highest criminal court agreed and said, okay, this warrants a second look. They sent his case back down to the trial court to handle the new evidence claim. And that is notable because the state's highest criminal court