3 - A Date to Die

Summary

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Dateline NBC: “The Last Appeal” – Episode 3: "A Date to Die"

Original Air Date: October 10, 2025
Host: Lester Holt
Theme: An in-depth look at Robert Roberson’s fight for exoneration from Texas’ death row, the unraveling of shaken baby syndrome science, a detective’s change of heart, and a last-minute battle to delay execution.

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Episode Overview

This riveting installment of Dateline’s “The Last Appeal” tells the story of Robert Roberson, a Texas man sentenced to death for the death of his two-year-old daughter, Nikki, in 2002. The episode traces years of legal battles, new scientific revelations that undermine the basis of Roberson’s conviction, the involvement of a repentant detective, an eleventh-hour rescue from execution, and mounting public and legislative scrutiny of the case.

The episode’s core reflects on themes of justice, the consequences of discredited forensic science, the personal reckoning of those involved in the prosecution, and the harrowing uncertainty faced by someone with an execution date looming over him.

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Key Discussion Points and Insights

1. The Detective's Change of Heart (00:50–07:30)

• Gretchen Swinn’s Investigation:
  Gretchen Swinn, Roberson’s attorney, meticulously reviews the case, seeking out former detectives and experts, with a focus on Brian Wharton, the lead investigator.

  “She wasn't just reviewing files anymore. She was knocking on doors…” – Lester Holt [01:01]

• Brian Wharton’s Reflection:
  Now a Methodist minister, Wharton is deeply troubled by the case. He candidly admits to Swinn that the core evidence for the conviction—allegations of sexual assault and shaken baby syndrome—were unsubstantiated.

  “It was never corroborated. It was just an allegation, but it got before the jury. You know, those are bullets that don't go back into the gun.” – Brian Wharton [04:59]

• Autism Diagnosis as a Turning Point:
  Gretchen tells Brian that Roberson had undiagnosed autism, which changes Wharton’s understanding of Roberson’s behavior and responses during the investigation.

  "From the moment we met him in the hospital ... he's a little different, he's a little off. And that answers quite a few questions for us about his demeanor..." – Brian Wharton [06:28]

• Regret and New Allegiance:
  Realizing the prosecution had not adequately considered Nikki’s significant medical history or the evolving science, Wharton agrees to testify for Roberson.

  "We didn't hear Robert. Robert told us his story and we chose to disbelieve him.... We never asked enough questions." – Brian Wharton [06:48]

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2. The Missing CAT Scans and Changing Medical Science (07:30–14:00)

• Key Evidence Rediscovered:
  In court, Gretchen raises the issue of missing CAT scans of Nikki’s head—a potentially game-changing piece of evidence absent from the original trial. By chance, the new district clerk locates them in a courthouse basement after being missing for 15 years.

  "She turned a key, opened the door and saw them gathering dust. The missing evidence was there..." – Lester Holt [11:11]

• Scans Contradict Prosecutors:
  The scans, when analyzed, reveal only a single minor injury rather than multiple blows; they call into question the original forensic conclusions.

  “The scans contradicted the medical examiner's conclusion that Nikki had suffered multiple blows.” – Lester Holt [12:26]

  “No, there's clearly one impact site… No skull fractures, not even a hairline fracture, and a tiny bit of subdural bleeding.” – Radiologist’s analysis relayed by Narrator/Reporter [12:48]

• Complications of Medical Intervention:
  Gretchen argues that some injuries may have resulted from doctors’ efforts to save Nikki, not from abuse.

  “The medical examiner told Robert's jury this was an impact site. It's not an impact site.” – Narrator/Reporter [13:24]

• Stalemate and Setback:
  Despite new evidence and Brian Wharton's reversal, the judge rules against Robert, allowing the execution to proceed.

  “The judge disagreed and ordered Robert's execution to proceed.” – Lester Holt [16:04]

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3. Personal Reckonings and Pursuit of Mercy (14:00–22:00)

• Gretchen’s Advocacy and Brian’s Apology:
  Swinn fights tirelessly through appeals, while Wharton makes visiting Roberson and seeking forgiveness his personal mission.

  “He has asked me for his forgiveness. I forgave him... There's no anger in him.” – Brian Wharton [21:25]

• Support Grows:
  National media attention and cross-party support from state lawmakers coalesce. Legislators even visit and pray with Roberson on death row.

  “Now in an unexpected place, the state Capitol, 86 Texas lawmakers ... ask for mercy.” – Lester Holt [22:46]

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4. Legislative Showdown and the Race Against Time (22:00–32:00)

• Emergency Legislative Hearing:
  Republican Jeff Leach and Democrat Joe Moody lead a hearing into why Roberson’s conviction stands despite the so-called “junk science law” allowing for review of cases resting on discredited science.

  “There are just way too many questions, way too many concerns for us to stay silent on this.” – Rep. Leach [23:42]

• Testimonies and Confrontations:
  Swinn, Wharton, medical experts, and the district attorney testify, with the DA struggling to answer questions about trial specifics.

  “With all due respect ... for you to have more personal knowledge of the trial record and of these facts.” – Brian Wharton, confronting DA Allison Mitchell [25:57]

• Historic Subpoena:
  Lawmakers subpoena Roberson to testify at the Capitol after his execution date, triggering legal challenges to keep him alive until then.

  “To honor the subpoena, Robert would have to stay alive. It triggered a historic legal showdown…” – Lester Holt [27:39]

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5. The Final Countdown – Stay of Execution and Ongoing Ordeal (28:00–32:26)

• Scenes in the Death House:
  As Roberson says his goodbyes, Brian Wharton prepares to be a witness at the execution as an act of solidarity and support.

  "He's asked me to be present and I owe that to him ... to make sure he knows that he's not alone." – Brian Wharton [29:13]

• Legal Turmoil:
  After frantic last-minute court maneuvers—including an emergency plea to the U.S. Supreme Court (with Justice Sotomayor writing a passionate dissent)—the Texas Supreme Court delivers a temporary stay just two hours before execution.

  "Few cases more urgently call for such a remedy than one where the accused has made a serious showing of actual innocence..." – Justice Sonia Sotomayor, dissenting [30:14]

• No Resolution, Only Delay:
  The stay is short-lived. After another legal battle, Roberson is given another execution date, and uncertainty persists.

  “He was given his third execution date, October 16, 2025. It left his supporters asking, why had others convicted of shaken baby syndrome been exonerated ... when Texas was trying to kill Robert?” – Lester Holt [31:48]

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Notable Quotes & Memorable Moments

• Brian Wharton’s Regret:
  “We didn't hear Robert. Robert told us his story and we chose to disbelieve him. We never really listened to Robert and we never asked enough questions based on his story.” [06:48]

• On Irreversible Allegations:
  "It was never corroborated. It was just an allegation, but it got before the jury. You know, those are bullets that don't go back into the gun. You can't take that back once the jury has heard that." – Brian Wharton [04:59]

• Autism Revelation:
  "From the moment we met him in the hospital ... he's a little different, he's a little off. And that answers quite a few questions for us..." – Brian Wharton [06:28]

• Lawmakers' Push for Action:
  “There are just way too many questions, way too many concerns for us to stay silent on this.” – Jeff Leach [23:42]

• Ultimate Solidarity:
  “I love you, Robert. It doesn't matter what the state says and what happens in the next few hours. I love you now, and I will for as long as I endure.” – Brian Wharton, to Roberson on execution night [29:32]

• Supreme Court Dissent:
  “Few cases more urgently call for such a remedy than one where the accused has made a serious showing of actual innocence, as Roberson has here.” – Justice Sonia Sotomayor [30:14]

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Key Timestamps for Important Segments

• Start of Brian Wharton’s Reflections: 01:52
• Discussion of Evidence and Prosecutorial Flaws: 03:34–06:04
• Autism and Shaken Baby Science Revelations: 06:17–07:00
• Discovery of Missing CAT Scans: 10:41–11:52
• Court’s Response to New Evidence: 13:51–16:16
• Robert’s Interview Before Execution: 19:06–21:25
• Legislative Hearing and Testimonies: 23:28–26:46
• Subpoena That Stops Execution: 27:23–27:39
• Hours Before the Execution and Temporary Supreme Court Stay: 29:13–31:48

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Conclusion

"A Date to Die" is a compelling, emotional narrative that interrogates the strength and vulnerability of the criminal justice system, especially where science, human error, and the ultimate penalty intersect. The episode closes with Roberson’s fate still undecided, leaving lingering questions about justice, mercy, and what it means when the system refuses to admit mistake—echoing powerfully for listeners far beyond Texas.

Transcript

[Lester Holt]

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[Lester Holt]

Find where I stored that document. Gretchen Swinn has spent thousands of hours poring over Robert Roberson's case.

[Narrator/Reporter]

All right, I'm gonna send this to somebody now.

[Lester Holt]

Now it was 2018, and Grenchen was gearing up for a critical court hearing. Roberts one shot to convince a judge that he deserved a new trial. She wasn't just reviewing files anymore. She was knocking on doors, fighting the people who helped convict Robert to see what they knew. To Gretchen Robert, one of them mattered more than the rest. Brian Wharton, former chief of detectives in Palestine.

[Narrator/Reporter]

I wanted to talk to him because I felt his testimony at trial for the state was very buttoned up. He didn't speculate. He was just reporting on what he observed.

[Lester Holt]

Brian was no longer with the Palestine Police Department. He traded in his badge for a Bible. You retired from policing?

[Brian Wharton]

Yes.

[Lester Holt]

And decided to become a Methodist minister.

[Brian Wharton]

I am, yes. United Methodist, Yes. The fact that I was a police officer to begin with was because I thought that was justice for me. But the longer I did it, I could see that it was part of what justice is. And in my life, it's in scripture, in the life and teaching of Jesus the Christ.

[Lester Holt]

Questions about justice had been nagging at Bryan for years. Then one day, the one case he couldn't shake showed up again unannounced on his doorstep.

[Narrator/Reporter]

You know, it was a long shot. And you know, in Texas, a lot of people have guns. People would think. And we knock on the door and.

[Brian Wharton]

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

[Narrator/Reporter]

And he dropped his head.

[Brian Wharton]

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

[Narrator/Reporter]

Why was he waiting for someone to Come.

[Lester Holt]

I'm Lester Holt, and this is the Last Appeal, a podcast from Dateline. Episode three, A Date to Die. It had been more than a decade since Brian Wharton helped put Robert in prison. His law enforcement career was a distant memory. But he could never shake the memory of what happened to Robert. So he invited Gretchen in. They talked for hours.

[Narrator/Reporter]

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

[Lester Holt]

Brian opened up about what had been haunting him. That sexual assault allegation made against Robert.

[Brian Wharton]

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

[Lester Holt]

The nurse who declined to speak with us told Brian she believed Nikki was a victim of sexual assault. So he sent evidence from Robert's home out for testing.

[Brian Wharton]

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

[Lester Holt]

Both the pediatric specialists who examined Nikki and the medical examiner who conducted the autopsy found no evidence either. Yet prosecutors charged Robert with sexual assault anyway. On direct Testimony at Robert's 2003 trial, the nurse said that she was a certified SANE nurse, a sexual assault nurse examiner. But when asked about that on cross examination, she said, I am not actually certified.

[Narrator/Reporter]

Turns out she wasn't really a certified sane nurse. No one had suggested this child had been sexually abused. This nurse just took this upon herself.

[Lester Holt]

In the trial transcripts, the words sexual assault appear more than 80 times. But before closing arguments, prosecutors dropped the charge. Too late. Brian said the damage was done.

[Brian Wharton]

It was never corroborated. It was just an allegation, but it got before the jury. You know, those are bullets that don't go back into the gun. You can't take that back once the jury has heard that.

[Lester Holt]

Gretchen told Brian that since Robert's conviction, the certainty of shaken baby science had collapsed. How did the new evidence regarding shaken baby syndrome affect your overall feeling toward the case?

[Brian Wharton]

For me, it just feels like if you remove shaken baby from the conversation, the whole thing falls apart. I mean, that was the basis of prosecution talking about shaken baby syndrome. Then you've got to make a whole different case.

[Lester Holt]

Gretchen told Brian about Nikki's medical history, that she'd seen doctors more than 40 times in her short life and was terribly ill the week she died. Nikki was a very ill child. Did you have a chance to look into her medical history before arresting Robert?

[Brian Wharton]

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

[Lester Holt]

Each new detail Gretchen shared with Brian, from Nikki's medical history to the outdated science, chipped away at what Brian believed he knew about the case. But it's what she told him next that forever changed the way he thought about Robert Roberson.

[Narrator/Reporter]

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

[Brian Wharton]

From the moment we met him in the hospital, you know, we all kind of clued in that he's a little different, he's a little off. And that answers quite a few questions for us about his demeanor and the way he processes information, the way he speaks.

[Lester Holt]

Brian began to see the case through a different lens. He now believed he'd made a grave mistake.

[Brian Wharton]

We didn't hear Robert. Robert told us his story and we chose to disbelieve him. We never really listened to Robert and we never asked enough questions based on his story.

[Lester Holt]

Gretchen believed Brian's support could be a turning point. She asked if he would testify at the upcoming hearing. Brian said yes. The lead detective who oversaw the investigation was willing to testify for the man he helped put on death row. Robert's case was gaining strength, but there was still one piece of critical evidence Gretchen couldn't find. CAT scans of Nikki's head taken soon after she arrived at the hospital. Gretchen was convinced they could be crucial, possibly holding the answer to what really happened to Nikki. They'd been missing for 15 years. They were about to show up when she least expected it. Netcredit is here to say yes because you're more than a credit score. Apply in minutes and get a decision as soon as the same day. Loans offered by NetCredit or lending partner banks and serviced by Netcredit Applications subject to review and approval.

[Narrator/Reporter]

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[Lester Holt]

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[Narrator/Reporter]

There was no crime. There was this tragic death of a chronically ill child. The doctors missed the fact she had a severe, life threatening pneumonia and then prescribed medications that could only have pushed her further over the edge by suppressing her ability to breathe.

[Lester Holt]

Prosecutors disagreed with Gretchen, saying the debate over shaken baby science was irrelevant. They said they'd always argued Nikki was a victim of blunt force trauma.

[Narrator/Reporter]

Well, that was surprising because throughout the transcript there are, you know, well over 200 references to shaking and shaking baby terminology. They had a shaken baby expert.

[Lester Holt]

Just a few hours into that first day of the 2018 hearing, Gretchen told the judge about the missing CAT scans of Nikki's head. Critical evidence, missing for 15 years, evidence never presented at Robert's trial.

[Narrator/Reporter]

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

[Lester Holt]

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

[Narrator/Reporter]

It turns out that the very newly elected district clerk had been in the courtroom and thought to herself, I wonder if that evidence might be locked up in the courthouse basement.

[Lester Holt]

The clerk went to check. She walked down to the basement and a locked closet. She turned a key, opened the door and saw them gathering dust. The missing evidence was there, including those long lost CAT scans of Nikki's head taken shortly after she arrived at the hospital. Evidence that had been missing for 15 years. That court clerk is still there. We found her in the hallway of the Palestine courthouse. Where did you find it? The skins? Well, if you saw that room, they're.

[Narrator/Reporter]

Built in shelves, so built in shelves have backings and they slid down the.

[Lester Holt]

Back all the way behind the other stuff behind a shelf. The discovery brought the hearing to a halt.

[Narrator/Reporter]

She brought them to the judge. I get called to the judge's chambers not knowing any of this, and this bombshell drops and we all agree we need to stop and this is meaningful evidence. See what it in fact is.

[Lester Holt]

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

[Narrator/Reporter]

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

[Lester Holt]

She had to find a radiologist to analyze them and write a Report. The scans revealed extraordinary information. A snapshot of Nikki's head just after she got to the hospital. According to the radiologist, the scans contradicted the medical examiner's conclusion that Nikki had suffered multiple blows.

[Narrator/Reporter]

We asked, are there. Is there evidence of multiple impact sites? No, there's clearly one impact site. What was present when Nikki was brought to the hospital is evidence of a single soft tissue bump on the back of her head. No skull fractures, not even a hairline fracture, and a tiny bit of subdural bleeding.

[Lester Holt]

Gretchen says the scans prove injuries the medical examiner saw on Nikki's head during the autopsy were really the result of doctors trying to keep Nikki alive.

[Narrator/Reporter]

After she's been through extensive medical intervention. She looks very different. And one very obvious example is they had surgically affixed a pressure monitor to her skull to try to lower the pressure inside her head, and then that was removed. But the medical examiner told Robert's jury this was an impact site. It's not an impact site.

[Lester Holt]

Gretchen learned that Dr. Jill Urban, the medical examiner, never looked at those scans. We tried to reach Dr. Urban, but we never heard back. Gretchen thought the scans were game changing evidence. She was eager to get in front of a judge again, but there were several delays. Then, as Robert lingered on death row, Covid hit. It was 20, 21 by the time his case was finally back in front of the judge, Gretchen was ready. She immediately focused on the newly found scans, saying her experts concluded they proved that Nikki did not suffer blunt force trauma. And Gretchen called former detective Brian Wharton to the stand for the first time publicly. He said he'd been wrong.

[Narrator/Reporter]

And what he admitted that there were so many things he did not know that he never considered her medical history, didn't look into any of that, didn't know anything about her medications.

[Brian Wharton]

We were chasing an abuse case. We had no notion that any prior medical history was playing into what we were seeing right then and right there. It would have taken some further investigation in the family or some kind of indication from the medical professionals that she had a medical history.

[Narrator/Reporter]

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

[Lester Holt]

The district attorney's office called the medical examiner, who stood by the finding of blunt force trauma, and a forensic pathologist agreed. Sitting in the courtroom listening to Gretchen and the prosecutors was Nikki's brother, Matthew bowman. He was just four years old when she died.

[Brian Wharton]

This has been my whole life. I feel like I had a person just. Just ripped from me.

[Lester Holt]

He said he didn't buy Gretchen's theory about Nikki being sick. Every baby gets sick.

[Narrator/Reporter]

Every child.

[Brian Wharton]

My daughter has had pneumonia. Her brain never swollen against her skull. It just doesn't line up. We were supposed to have new evidence and nothing was brought.

[Lester Holt]

Gretchen thought the evidence she presented spoke for itself. It was clear Robert deserved a new trial. The judge disagreed and ordered Robert's execution to proceed.

[Narrator/Reporter]

There's no legitimate way I can compare what I'm feeling to what Robert must be feeling. But it does feel a bit like I'm trapped in this nightmare where the system just keeps refusing to admit to the mistakes. There's just this ostrich approach. We will not see it. We will not acknowledge it. Denied, deny, denied.

[Lester Holt]

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

[Narrator/Reporter]

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

[Lester Holt]

Gretchen filed more appeals. They were all denied. Robert was given his second date to die. Brian Wharton couldn't believe a judge had not stepped in. Now the former detective, who'd been consumed by the question of justice, made Robert's case a personal mission. He wanted to look Robert in the eye and ask for forgiveness. And he vowed to do everything he could to help Gretchen.

[Brian Wharton]

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

[Lester Holt]

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

[Brian Wharton]

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

[Lester Holt]

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[Lester Holt]

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[Brian Wharton]

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[Lester Holt]

You don't need to use warm water. Additionally, Tide pods let you confidently fight tough stains with new coldzyme technology. Just remember, if it's gotta be clean, it's gotta be Tide. This is recorded. It's September 2024. Robert Roberson has 23 days to live. I'm on my way to speak with him. I flew in overnight from New York to Houston, now making the 90 minute drive to the prison in Livingston, Texas. We spoke the way all conversations happen on death row through plexiglass on a phone. Robert. How you doing, Mr. Hope? I'm good. Good. You all set? Yes, sir. Okay. What do you want people to know about what you're going through right now? But I'm going through pain because like to believe our justice system will do the right thing. And I would like the public to know that I'm innocent. I'm not guilty of this. Are you afraid?

[Brian Wharton]

No, sir.

[Lester Holt]

No fear.

[Brian Wharton]

No fear. Because I know where I'm going.

[Lester Holt]

I'm going to heaven to be with Jesus. Do you focus on your execution? Are you counting down the days? No, I'm not focusing on that. But other people were focused on it. One of them was Brian Wharton, who had recently traveled to death row to visit Robert. So all these years later, Detective Wharton has come back in your life?

[Brian Wharton]

Yes, sir.

[Lester Holt]

He's now fighting to save your life. He's fighting to save my life? Yes, sir. He now believes in you. Yes, sir. And he believes that the prosecution got this case wrong? Yes, sir. Does that shock you? It shocks me, but then it don't and stuff, you know. And he even comes visits me up here and stuff, you know. Can you share with me what you told Robert when you visited him for the first time on death row?

[Brian Wharton]

I can't remember exactly the words I said to him, but I apologized. I told him I was sorry that I had anything to do with putting him there. We failed you. The system continues to fail you.

[Lester Holt]

He asked me for his forgiveness. I forgave him and stuff, you know. You forgave him? Yes, sir.

[Brian Wharton]

I was a little bit taken aback by it that it came so freely and so easily, his forgiveness. Robert is a very gentle spirit. He is very sincere. There's no anger in him.

[Lester Holt]

Why aren't you bitter? Bitterness only hurts.

[Brian Wharton]

Hurts me if I don't forgive. It hurts me holding bitterness.

[Lester Holt]

The week after I met him, we aired a story about his case. This is NBC Nightly News with Lester Holt. For the first time, Robert's story would be national news. Robert Roberson has spent more than two decades on Texas's death row, convicted of fatally shaking his two year old daughter Nikki in 2002. Awareness was growing. Now in an unexpected place, the state Capitol, 86 Texas lawmakers, Democrats and even pro death penalty Republicans joined together to ask for mercy from the governor or the Board of Pardons and Paroles. Some of the lawmakers went to visit Robert on death row in the weeks before his scheduled death and prayed with him.

[Narrator/Reporter]

And it was just a very moving experience. We leave here with more hope that he will hope hopefully get the new fair trial that he deserves.

[Lester Holt]

Pressure was building in Austin. Inside the state Capitol, two Texas lawmakers decided to act. Jeff Leach, a Republican, and Joe Moody, a Democrat. Members of the Texas House Criminal Jurisprudence Committee led an emergency hearing. It focused on that so called junk science law which enabled people to request a new day in court and if their conviction had been based on outdated or discredited science, that was the law that won Robert a stay years earlier. The legislators wanted to understand why the junk science law hadn't won Robert a new trial. I spoke with Representatives Moody and Leach.

[Brian Wharton]

The new science evidence matters. He needs to be afforded that relief. He needs to be afforded that opportunity. My support of the death penalty is.

[Lester Holt]

Contingent upon knowing beyond a shadow of.

[Brian Wharton]

A doubt that that inmate is in fact guil with Robert Roberson's case.

[Lester Holt]

There are just way too many questions, way too many concerns for us to stay silent on this. On October 16, 2024, with Robert about 30 hours away from death, Representative Moody called the hearing to order.

[Brian Wharton]

The time is now 10:15am The House committee on Criminal Jurisprudence will come to order. The clerk will call the roll.

[Lester Holt]

They called eight people to testify, including one of Gretchen's experts. Do you believe it is right that a jury was able to make a decision without knowing any of the details? I don't think it's right, no. I mean, because there are so many natural causes there that could have caused her death. Brian Worden testified to this time.

[Brian Wharton]

The chair calls Brian Warden. What would you like to say to any constitutional officers of the state of Texas? Based on what I know, what I believe, I think we should just apologize to Robert and send him home. Now is the moment. There is literally a life hanging in the balance.

[Lester Holt]

The committee also heard from Anderson County District Attorney Allison Mitchell. She wasn't the prosecutor at Robert's trial, but she'd overseen his case for the past decade.

[Brian Wharton]

I have you registered as Allison Mitchell, representing the Anderson County Criminal District Attorney's Office.

[Lester Holt]

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

[Brian Wharton]

Dr. Downs.

[Narrator/Reporter]

James Downs testified that through his looking.

[Brian Wharton]

At the tissue in Nikki, he disagreed and said there was no pneumonia.

[Lester Holt]

Mitchell wasn't backing down. But when she was asked about what happened at Robert's trial, she didn't seem to have a full command of the facts. I do not know.

[Narrator/Reporter]

I'd had to refer back to the records.

[Brian Wharton]

I apologize. Do you know who gave permission for her to be removed from life support?

[Narrator/Reporter]

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

[Brian Wharton]

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

[Lester Holt]

Very basic facts.

[Brian Wharton]

Were you satisfied that a murder had been committed?

[Lester Holt]

Yes.

[Brian Wharton]

What was that based on the totality.

[Lester Holt]

Of the evidence at the original trial.

[Narrator/Reporter]

Post writs that have been filed in.

[Brian Wharton]

The hearings that have been held. Just to be clear, you're referencing evidence that no less than 30 times in this hearing you have said that you. You have no knowledge of at the moment.

[Lester Holt]

Is that correct?

[Brian Wharton]

I'm sorry, sir, what was the question? I'll move on.

[Lester Holt]

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

[Narrator/Reporter]

I often get very impassioned about my point of view, and that can hurt me as an advocate and part of what I have struggled. Struggled with in this case. So what on earth more could I have done? And that will trouble me.

[Lester Holt]

Time is running out for a Texas man we have been reporting on in this broadcast who is scheduled to be executed tomorrow night in a case that has sparked wide outrage. Less than an hour after Gretchen's testimony, as the committee was about to adjourn, a stunning turn of events.

[Brian Wharton]

Mr. Chairman. Yes, Representative Harrison. I would like at this time to make a motion. I'd recognize you for that motion. Thank you. I move as follows. Robert Robertson to provide all relevant testimony and information concerning the committee's inquiry.

[Lester Holt]

In an unprecedented and deliberate maneuver, the lawmakers subpoenaed Robert to appear at the State Capitol to testify the date set for after his execution. Meaning to honor the subpoena, Robert would have to stay alive. It triggered a historic legal showdown with Robert's life on the line. The next morning, on October 17, 2024, Robert woke up in his cell at the Polanski unit.

[Brian Wharton]

Today, Robert Robertson, set to be executed.

[Lester Holt]

His property packed, his life now Measured in minutes, the death warrant gave Texas a six hour window to execute Roberts no earlier than 6pm, no later than midnight. The lawmakers who subpoenaed him the night before raced to court asking for a stay. If he was dead, he couldn't come to the Capitol. Robert was driven 50 miles to the death chamber in Huntsville. Outside, protesters began to gather.

[Brian Wharton]

When I say death row, you'll say, hell knows.

[Lester Holt]

Inside, the machinery of death lurched forward. Robert was issued a clean uniform. He started to say his final goodbyes. Texas allows a condemned person to invite five people to witness their death. One of the people on Robert's list was Brian Wharton. I spoke with Brian by zoom hours before he headed to the prison.

[Brian Wharton]

He's asked me to be present and I owe that to him. He has asked me to be there and so I will to be with him, to make sure he knows that he's not alone.

[Lester Holt]

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

[Brian Wharton]

I love you, Robert. It doesn't matter what the state says and what happens in the next few hours. I love you now, and I will for as long as I endure.

[Lester Holt]

Soon after we spoke, Brian arrived at Huntsville and was led inside. His phone confiscated. No updates, no news. He and a handful of Robert's supporters were taken to a waiting room. They prayed together. Brian remembers it was cold and quiet.

[Brian Wharton]

And you're watching the clock because you know if we get to midnight and nothing has happened, then they have to start all over again and it's just miserable. I can't imagine what it feels like to be in Robert's shoes.

[Lester Holt]

Meanwhile, Gretchen Swinn, Robert's lawyer, was throwing anything she could at the courts. She filed an emergency plea with the US Supreme Court. It was denied. Justice Sonia Sotomayor dissented, writing. Few cases more urgently call for such a remedy than one where the accused has made a serious showing of action. Actual innocence, as Roberson has here. Shortly after 4:30pm A jolt of hope. Just as I was about to go on the air. There is breaking news from Texas right now, where a civil court judge has temporarily halted tonight's scheduled execution of Robert Roberson. It didn't last long. Texas Attorney General Ken Paxton struck back. Paxton rushed to the Court of Criminal Appeals. Texas wanted to kill Robert before his death warrant expired. At midnight, the court vacated the stay. The execution was back on. The lawmakers who had subpoenaed Robert fired back, this time to the Texas Supreme Court, arguing they needed Robert alive. To hear from him. Inside the death house, Robert was given his last meal. The chaplain prayed with him. Then, just after 10pm with less than two hours before a needle would be placed in his arm. We start tonight with breakthroughs. This has been an incredible turn of events. And now it is the Texas Supreme.

[Brian Wharton]

Court that is blocking the execution, at.

[Lester Holt]

Least for now, of Robert Robertson. Robert was saved, but only temporarily. One year later, he was given his third execution date, October 16, 2025. It left his supporters asking, why had others convicted of shaken baby syndrome been exonerated even in Texas, when Texas was trying to kill Robert? Next time on the Last Appeal. How could it be that you were exonerated in the state of Texas and Robert Roberson is now facing death? That's what we're all asking Lester.

[Narrator/Reporter]

The whole world is watching.

[Lester Holt]

Have you thought about last words, what you'll say? Well, that's a good one there. The Last Appeal is a production of Dateline and NBC News. It is written and produced by Dan Slappian, Liz Brown Kurloff and Lynn Keller. Our field producers are Nick McElroy and Rachel Young. Our associate producer is Sam Springer. It's edited by Colin Dow and Greg Smith, Deb Brown and David Varga. From NBC News, audio sound mixing by Rob Byers, Joe Plourd, Rick Kwan with help from Rich Cutler. Head of audio production is Bryson Barnes, Paul Ryan is executive producer and Liz Kolb is senior executive producer of Dateline. Did you know 39% of teen drivers admit to texting while driving. Even scarier, those who text are more likely to speed and run red lights. Shockingly, 94% know it's dangerous, but do it anyway. As a parent, you can't always be in the car, but you can stay connected to their safety with Greenlight Infinity's driving reports. Monitor their driving habits, see if they're using their phone, speeding and more. These reports provide real data for meaningful conversations about safety. Plus, with weekly updates, you can track their progress over time. Help keep your teen safe. Sign up for Greenlight Infinity at greenlight. Com Podcast.