Last year, a committee of state lawmakers in Texas issued a subpoena for a man on death row to testify four days after he was scheduled to be executed. Today, what happened next in Robert Roberson's case. Say hello on Twitter, Facebook, Instagram and TikTok. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts. Sign up for Criminal Plus to get behind-the-scenes bonus episodes of Criminal, ad-free listening of all of our shows, special merch deals, and more. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop. Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices
Chapter 1: What is the case of Robert Roberson about?
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.
Kayla Guo is a reporter for the Texas Tribune. She's talking about the case of a man on death row named Robert Roberson. Robert Roberson was born in Mineola, Texas in 1966. In his 20s, he spent time in prison for burglary and passing bad checks. By his mid-30s, he was living in a small town between Houston and Dallas and had a job delivering newspapers.
In the early 2000s, he learned that he had a daughter. Her name was Nikki, and he got custody of her just after she turned two. Her mother had lost custody soon after Nikki was born. Nikki had been sick for a lot of her life. By the time she was two, she'd been to the doctor more than 45 times. She had breathing problems and kept getting infections that were resistant to antibiotics.
In January of 2002, a couple of months after Nikki had started living with Robert, he took her to the emergency room. She'd been coughing and vomiting for days. A doctor prescribed a drug called Phenergan to help with her nausea. Nikki was sent home, but her temperature started going up. At the pediatrician's office the next day, her temperature was 104.5.
Her condition had only gotten worse, and she had been, again, sick for some time now.
She was prescribed more Phenergan, but this time it was in a cough syrup with codeine. At the same time, Robert's girlfriend was in the hospital, and so Nikki stayed with her maternal grandparents. Robert picked Nikki up the next night. Robert says when they got home, he made Nikki a snack, and they watched a movie together until they were falling asleep.
Robert put Nikki to bed in his bed so she wouldn't be sleeping alone. Robert says that around 5 a.m., he woke up because he heard a strange cry and saw that Nikki had fallen out of the bed. He says he talked to her for two hours to make sure she was okay, and then they went back to sleep. He says that when his alarm went off around 9 a.m.,
He couldn't wake her up, even when he grabbed her face and shook it, and her lips were turning blue. So he rushed her to the emergency room at that point. At the hospital, doctors performed CPR and intubated Nikki. Hospital staff noticed a bump on the back of her head and performed a CAT scan, which showed blood between her brain and her skull.
The scan also showed brain swelling, but no fractures. Nikki was transferred to the Children's Medical Center in Dallas. Soon after she got there, she was given more scans. And she was also examined by a child abuse expert.
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Chapter 2: How did the medical diagnosis affect Robert Roberson's trial?
The child abuse expert at the hospital signed a statement that day, stating that in Nikki's case there had been, quote, some flinging or shaking component, which resulted in bleeding between the brain and the skull, along with diffuse brain injury. Robert was arrested before the autopsy was performed and charged with capital murder. And what did he say when he was told that this was...
shaken baby syndrome and he was going to be charged with her murder.
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.
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.
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...
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.
The medical examiner who performed the autopsy had concluded that Nikki's death was a homicide. and testified that, quote, when a child is shaken hard enough, the brain is actually moving back and forth within the skull, impacting the skull itself. The child abuse expert at the hospital in Dallas testified that, quote, it is not something that ever happens accidentally.
It is not something you see in normal children who are cared for by reasonable adults. And what did Robert Robertson and his defense attorney say had happened?
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.
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Chapter 3: What role did the Junk Science Law play in Robert's case?
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.
In 2012, the neurosurgeon who had originally proposed the idea of shaken baby syndrome wrote that it was a hypothesis. not proven medical or scientific facts. By 2015, at least 16 people around the country who had been convicted using the shaken baby syndrome diagnosis had been exonerated. One judge called it more an article of faith than a proposition of science.
Robert Robertson's execution was scheduled for June 21, 2016. He got a new lawyer who filed an appeal for him based on the junk science law.
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
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.
Robert Robertson's execution, which was scheduled five days later, was put on hold. his lawyers tried to get access to Nikki's medical records and asked experts to look at them and explain what they thought had happened. Robert's lawyers were especially interested in finding scans of Nikki's head that had been made immediately after she arrived at the emergency room.
The jury in Robert Roberson's trial hadn't seen these scans, and neither had the medical examiner who performed Nikki's autopsy. Initially, no one could find them, But then, in 2018, a new employee at the court found a box in a courthouse basement which included the scans.
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.
Experts pointed to the fact that Nikki had been a very sick child, and that she had had breathing problems before her death. They also pointed out that she had been prescribed medications that are no longer prescribed to children, including high doses of Phenergan, which later had a black box warning against prescribing it to children who are under two or have a history of respiratory issues.
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Chapter 4: How has the perception of shaken baby syndrome changed?
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...
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
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.
The state responded, saying that the evidence they'd presented at the trial that Robert had shaken Nikki was still convincing. Prosecutors called the medical examiner who had performed the autopsy to testify, and she said that she did not see any evidence that Nikki had chronic pneumonia or that her injuries could have resulted from a short fall from the bed.
She said that blunt force trauma and not an infection stopped her breathing. The judge wrote... While the applicant has shown that there is new scientific evidence not available at the time of his trial, he has failed to show by a preponderance of evidence that had this new evidence been presented at trial, he would not have been convicted.
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.
So what options were left for Robert Robertson?
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.
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.
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Chapter 5: What new evidence was discovered in Robert Roberson's case?
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...
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.
So all of this is going on in the days leading up to his execution, this gigantic public campaign, and his lawyers behind the scenes doing everything they can to try to convince someone to stop this execution.
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.
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.
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.
One day before Robert's scheduled execution, the Texas House Criminal Jurisprudence Committee met for a hearing.
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.
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.
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Chapter 6: What was the outcome of the new evidentiary hearing?
But then, less than an hour and a half before the execution was scheduled, a district court judge issued a temporary restraining order validating the subpoena and blocking the execution. Then, at the Attorney General's request, the Texas Court of Criminal Appeals vacated the restraining order. The execution was back on. So the legislators on the committee asked the state Supreme Court to step in.
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.
So all the preparations were moving forward for this execution.
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.
Around 9.45 p.m., the Texas Supreme Court sent out its opinion.
I see it first on X because they tweet out their opinions or announcements like that.
The tweet read, The Supreme Court of Texas has granted a Texas House of Representatives emergency motion, in part, an issue to stay, effectively halting the execution of Robert Robertson. It included a link to the judge's opinions.
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?
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.
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