The Last Appeal - Ep. 3: A Date to Die

Summary

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Dateline Originals – The Last Appeal

Episode 3: A Date to Die

Release Date: January 15, 2026
Host/Narrator: Lester Holt
Key Voices: Gretchen Swinn (defense attorney), Brian Wharton (former detective), Robert Roberson, Matthew Bowman (victim's brother), Texas lawmakers

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Overview

This episode continues the harrowing story of Robert Roberson, a man on Texas's death row for the alleged shaking death of his two-year-old daughter, Nikki, in 2002. The episode focuses on the unraveling of the case against Roberson, new evidence and legal maneuvering, and the struggle for justice as his execution date looms. Through interviews with his former accuser-turned-advocate Brian Wharton, his attorney Gretchen Swinn, lawmakers, and Robert himself, Dateline explores the devastating impact of faulty science, missing evidence, and the obstacles to overturning a potentially wrongful conviction.

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Key Discussion Points & Insights

Gretchen Swinn's Dogged Defense (01:05–07:07)

• 2018 Critical Hearing Prep: Gretchen Swinn dedicated thousands of hours, going beyond paperwork to knock on doors—focusing on former chief of detectives, Brian Wharton.

• Wharton’s Transformation: Once chief of detectives involved in Robert's prosecution, now a Methodist minister, Wharton wrestles with doubts about the case.

• Swinn’s Motivation: Sought Wharton because his trial testimony had been "buttoned up," strictly factual, not speculative.

• Revelation of Doubt: Wharton admits the sexual assault allegation against Roberson always disturbed him, especially as there was no supporting forensic evidence.

  "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 (05:06)

• Shaken Baby Syndrome Discredited: Swinn explains the collapse of shaken baby science since the original trial. Wharton acknowledges:

  "If you remove shaken baby from the conversation, the whole thing falls apart."
  — Brian Wharton (05:32)

• Overlooked Medical History: Swinn reveals Nikki’s extensive illness, which was never considered in the initial investigation.

• Roberson’s Autism: Swinn informs Wharton about Robert's autism diagnosis; Wharton realizes their interview approach misjudged Roberson's behavior.

  "We didn't hear Robert. Robert told us his story, and we chose to disbelieve him."
  — Brian Wharton (06:55)

• Turning Point: Wharton agrees to testify in support of Roberson, a seismic shift in the case.

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The Missing CAT Scans and Crucial Evidence (09:34–14:14)

• 2018 Hearing: Swinn argues that Nikki’s death was misdiagnosed as abuse due to outdated science, asserting it was a tragic medical event.

  "There was no crime. There was this tragic death of a chronically ill child."
  — Gretchen Swinn (10:02)

• Search for Missing CAT Scans: Swinn’s persistence leads to discovery of long-lost CAT scans in a courthouse basement, missing for 15 years.

• A Game-Changing Discovery: Radiologist analysis of the scans contradicts prosecution’s story—showing only a single minor injury, with no skull fractures or major trauma.

  "What was present...is evidence of a single soft tissue bump...No skull fractures, not even a hairline fracture."
  — Gretchen Swinn (13:10)

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A Hearing, A Family Divided, and a Judge's Decision (15:04–16:39)

• Detective Testimony for the Defense: Wharton testifies that the original investigation ignored Nikki’s medical history.

  "We were chasing an abuse case. We had no notion that any prior medical history was playing into what we were seeing."
  — Brian Wharton (15:14)

• Lingering Doubts: Nikki’s brother, Matthew Bowman, expresses painful skepticism of the medical defense.

  "My daughter has had pneumonia. Her brain never swollen against her skull. It just doesn’t line up."
  — Matthew Bowman (16:15)

• Denied Justice: Despite compelling new evidence, the judge denies a new trial and allows execution to proceed.

  "It does feel a bit like I'm trapped in this nightmare where the system just keeps refusing to admit to the mistakes."
  — Gretchen Swinn (16:39)

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Final Appeals, Forgiveness, and a Fight for Life (17:08–22:59)

• Robert’s Second Execution Date: Swinn files more appeals—all are denied. Roberson receives his "second date to die."

• Wharton’s Remorse and Commitment: The former detective vows to do all he can for Roberson, seeking his forgiveness.

  “I owe Robert nothing less. My life in law enforcement, my life in general, has always been about truth and I hope, justice.”
  — Brian Wharton (17:43)

• Death Row Interview: Lester Holt visits Roberson, who maintains his innocence and shows no bitterness.

  "I'm going through pain because I'd like to believe our justice system would do the right thing... I'm innocent."
  — Robert Roberson (20:14) “No fear. Because I know where I'm going. I'm going to heaven to be with Jesus.”
  — Robert Roberson (20:42)

• Forgiveness:

  "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."
  — Brian Wharton (21:30) “He asked me for his forgiveness. I forgave him ... There’s no anger in him.”
  — Robert Roberson (21:48/22:01) “Bitterness only hurts. If I don’t forgive, it hurts me holding bitterness.”
  — Robert Roberson (22:05)

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Rising Political Pressure (22:59–24:10)

• Awareness Grows: National coverage leads to 86 Texas lawmakers—including Republicans—requesting mercy from the Governor and Board of Pardons.

• Bipartisan Emergency Hearing: Reps. Jeff Leach (R) and Joe Moody (D) convene a special hearing on the "junk science law" used to halt executions based on discredited evidence.

  "The new science evidence matters. He needs to be afforded that relief. There are just way too many questions."
  — Jeff Leach (24:05)

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The Capitol Showdown (24:20–27:46)

• Testimonies Heard: Experts, Wharton, prosecutors, and Swinn testify before the Texas Criminal Jurisprudence Committee.

• Prosecution’s Lapses: Anderson County District Attorney Allison Mitchell cannot answer basic questions about the original trial.

  "I would expect...for you, to have more personal knowledge of the trial record..."
  — Brian Wharton, to DA Mitchell (26:20)

• Gretchen Swinn’s Closing Plea:

  "Part of what I have struggled with in this case is what on earth more could I have done? And that will trouble me."
  — Gretchen Swinn (27:09)

• Lawmakers Intervene: The committee subpoenas Roberson to testify at the Capitol—after his scheduled execution—forcing a court to halt the execution if the subpoena is to be honored.

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The Final Hours (28:30–32:09)

• Race Against the Clock: Roberson is transferred to the execution chamber in Huntsville hours before death, with Brian Wharton among his chosen witnesses.

  "He's asked me to be present, and I owe that to you."
  — Brian Wharton (29:36) “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 (29:55)

• Last-Minute Legal Twists: Temporary stay granted, quickly vacated; lawmakers rush to the Texas Supreme Court.

• Temporary Reprieve: Less than two hours before midnight, the Texas Supreme Court blocks the execution—"at least for now."

• A Third Date: A year later, Roberson is again scheduled for execution, with his advocates asking why similar cases led to exonerations, but not his.

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Notable Quotes & Time Stamps

• On the case’s emotional toll and system’s refusal:

  "There’s just this ostrich approach. We will not see it. We will not acknowledge it. Denied. Deny."
  — Gretchen Swinn (16:39)

• On the impact and responsibility:

  “We never really listened to Robert, and we never asked enough questions based on his story.”
  — Brian Wharton (06:55)

• On shaken baby evidence:

  "If you remove shaken baby from the conversation, the whole thing falls apart."
  — Brian Wharton (05:32)

• On personal reckoning and forgiveness:

  “Bitterness only hurts. If I don't forgive, it hurts me holding bitterness.”
  — Robert Roberson (22:05)

• In the final hours:

  “There is literally a life hanging in the balance.”
  — Brian Wharton (24:52) "I love you, Robert...I love you now, and I will for as long as I endure."
  — Brian Wharton (29:55)

• On political intervention:

  “He needs to be afforded that opportunity...there are just way too many questions...”
  — Jeff Leach (24:05)

• On stunned legal developments:

  “In an unprecedented and deliberate maneuver, the lawmakers subpoenaed Robert to appear at the State Capitol...meaning to honor the subpoena, Robert would have to stay alive.”
  — Lester Holt (28:02)

• On the mounting public scrutiny:

  "The whole world is watching."
  — Gretchen Swinn (32:49)

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Key Timestamps

• 01:05 — Gretchen Swinn’s exhaustive investigation begins
• 02:54 — Gretchen meets Brian Wharton, and he agrees to talk
• 05:06 — Wharton reflects on uncorroborated sexual assault allegations
• 06:25 — Revelation: Robert’s autism and misunderstood behavior
• 07:07 — Wharton agrees to support Robert’s appeal
• 09:34 — Swinn’s 2018 hearing presentation
• 11:20–12:24 — Discovery of the missing CAT scans
• 13:10 — Radiologist’s report undermines prosecution theory
• 15:14 — Wharton publicly acknowledges case mistakes
• 16:39 — Judge denies new trial, execution proceeds
• 20:14 — Robert’s reflections in his death row interview with Lester Holt
• 21:30–22:01 — Emotional forgiveness exchanged between Robert and Wharton
• 22:59 — National political attention, lawmakers get involved
• 24:20 — Texas House committee emergency hearing
• 27:09 — Gretchen Swinn’s emotional testimony
• 28:02 — Legislative subpoena triggers historic showdown
• 29:36–30:07 — Wharton’s resolve and love for Robert
• 32:09 — Texas Supreme Court blocks the execution temporarily
• 32:51 — Lead-in to the next episode: “The whole world is watching.”

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Memorable Moments

• Gretchen Swinn finding lost CAT scans locked in a basement after 15 years—evidence that could exonerate Robert Roberson.
• Brian Wharton, the former detective whose investigation helped put Robert on death row, isn’t just doubting himself—he’s actively fighting for Robert’s life.
• Robert and Wharton’s powerful moment of forgiveness on death row, with both men in tears, embodying the human costs of wrongful convictions.
• The Texas legislature’s extraordinary decision to subpoena an awaiting-execution prisoner, a life hanging on a legal technicality.
• Repeated last-minute stays and collective action from both sides of the political aisle underscore a case that is testing the entire system, raising questions about justice, science, and redemption.

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Conclusion

Episode 3, "A Date to Die," plunges deep into the heartbreak, determination, and confounding obstacles in Robert Roberson’s struggle for justice. The voices of his attorney and his one-time accuser add depth and pain to a story where science, law enforcement, and politics collide—leaving a man’s life in the balance up to the very last minute. The episode ends on a cliffhanger, with Robert granted only a temporary reprieve, and the entire world now watching what Texas will do next.

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Transcript

[Narrator / Lester Holt]

Special Agent Will Trent, abc Tuesdays, you.

[Brian Wharton]

Run from the dark.

[Narrator / Lester Holt]

That's why it chases you. Get out of my house. The hit series Will Trent is back.

[Brian Wharton]

Will, this is a manhunt, not a.

[Narrator / Lester Holt]

Murder that needs to be solved. And the truth, this man killed my mother and left me to die. He's out.

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I think if we don't catch this guy, then he's gonna go off the.

[Narrator / Lester Holt]

Deep end of control.

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They won't even see you coming.

[Brian Wharton]

I have to end this, will tread.

[Narrator / Lester Holt]

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[Gretchen Swinn]

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

[Narrator / Lester Holt]

Now it was 2018, and Gretchen 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, one of them mattered more than the rest. Brian Wharton, former chief of detectives in Palestine.

[Gretchen Swinn]

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.

[Narrator / 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.

[Narrator / 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.

[Narrator / 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.

[Gretchen Swinn]

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

[Brian Wharton]

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

[Gretchen Swinn]

And he dropped his head.

[Brian Wharton]

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

[Gretchen Swinn]

Why was he waiting for someone to come?

[Narrator / 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.

[Gretchen Swinn]

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

[Narrator / 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.

[Narrator / 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.

[Narrator / 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.

[Gretchen Swinn]

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.

[Narrator / 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.

[Narrator / 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.

[Narrator / 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.

[Narrator / 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.

[Gretchen Swinn]

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.

[Narrator / 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.

[Narrator / 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. Martha listens to her favorite band all the time. In the car, gym, even sleeping. So when they finally went on tour, Martha bundled her flight and hotel on Expedia to see them live. She saved so much, she got her seat close enough to actually see and hear them. Zordop. You were made to scream from the front row. We were made to quietly save you more. Expedia made to Travel Savings vary and subject to availability. Flight inclusive packages are at all protected.

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[Narrator / Lester Holt]

On an August morning in 2018, inside the Palestine, Texas courthouse, Robert's lawyer, Gretchen Swinn stood before a judge to make her case that Robert deserved a new trial, that the evidence that convicted him had been discredited, that he was innocent. Gretchen said the doctors had simply gotten it wrong, mistaking illness for violence, all because of outdated shaken baby science.

[Gretchen Swinn]

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.

[Narrator / 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.

[Gretchen Swinn]

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.

[Narrator / 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.

[Gretchen Swinn]

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?

[Narrator / Lester Holt]

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

[Gretchen Swinn]

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.

[Narrator / 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 scans?

[Gretchen Swinn]

Well, if you saw that room, they're built in shelves.

[Narrator / Lester Holt]

So built in shelves have backings and.

[Gretchen Swinn]

They slid down the back all the way behind other.

[Narrator / Lester Holt]

Behind a shelf. The discovery brought the hearing to a halt.

[Gretchen Swinn]

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.

[Narrator / Lester Holt]

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

[Gretchen Swinn]

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

[Narrator / 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.

[Gretchen Swinn]

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.

[Narrator / 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.

[Gretchen Swinn]

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.

[Narrator / 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.

[Gretchen Swinn]

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.

[Gretchen Swinn]

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

[Narrator / 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 ripped from me.

[Narrator / Lester Holt]

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

[Gretchen Swinn]

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.

[Narrator / 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.

[Gretchen Swinn]

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.

[Commercial / Olivia from Ollie]

Denied.

[Narrator / Lester Holt]

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

[Gretchen Swinn]

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

[Narrator / 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.

[Narrator / 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.

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[Brian Wharton]

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

[Narrator / 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? Yes, sir. 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.

[Narrator / 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.

[Narrator / Lester Holt]

Why aren't you bitter? Bitterness only hurts. Hurts.

[Brian Wharton]

If I don't forgive, it hurts me holding bitterness.

[Narrator / 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.

[Commercial / Olivia from Ollie]

And it was just a very moving experience. We leave here with more hope that.

[Gretchen Swinn]

He will hopefully get the new fair.

[Commercial / Olivia from Ollie]

Trial that he deserves.

[Narrator / 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 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 contingent upon knowing beyond a shadow of a doubt that that inmate is in fact guilty. And with Robert Roberson's case, there are.

[Narrator / Lester Holt]

Just way too many questions, way too.

[Brian Wharton]

Many concerns for us to stay silent on this.

[Narrator / Lester Holt]

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.

[Narrator / 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.

[Commercial / Olivia from Ollie]

Decision without knowing any of the details.

[Narrator / Lester Holt]

I don't think it's right. No, I mean, because there are so many natural causes here that could have caused her death. Brian Wharton testified, too.

[Brian Wharton]

This time. The chair calls Brian Wharton. 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.

[Narrator / 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.

[Narrator / Lester Holt]

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

[Gretchen Swinn]

Dr. Downs. James Downs, testified that through his looking at the tissue in Nikki, he disagreed.

[Brian Wharton]

Said there was no pneumonia.

[Narrator / 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.

[Gretchen Swinn]

I had to refer back to the records. I apologize.

[Brian Wharton]

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

[Gretchen Swinn]

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. Very basic facts. Were you satisfied that a murder had been committed?

[Narrator / Lester Holt]

Yes.

[Brian Wharton]

What was that based on?

[Gretchen Swinn]

The totality of the evidence at the original trial, post writs that have been filed in the hearings that have been held.

[Brian Wharton]

Just to be clear, you're referencing evidence that no less than 30 times in this hearing you have said that you have no knowledge of at the moment. Is that correct? I'm sorry, sir, what was the question? I'll move on.

[Narrator / Lester Holt]

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

[Gretchen Swinn]

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 with in this case is what on earth more could I have done? And that will trouble me.

[Narrator / 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.

[Narrator / Lester Holt]

I'd recognize you for that motion.

[Brian Wharton]

Thank you. I move as follows. Robert Robertson to provide all relevant testimony and information concerning the committee's inquiry.

[Narrator / 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.

[Narrator / Lester Holt]

His property packed, his life now measured in minutes. The death warrant gave Texas a six hour window to execute Robert 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, y' all.

[Narrator / Lester Holt]

Say, hell no, death row.

[Gretchen Swinn]

Hell no, death row.

[Narrator / 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 you. 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.

[Narrator / 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.

[Narrator / 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.

[Narrator / 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 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 breakthrough news. This has just been an incredible turn of events. And now it is the Texas Supreme.

[Brian Wharton]

Court that is blocking the execution, at.

[Narrator / 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.

[Gretchen Swinn]

The whole world is watching.

[Narrator / Lester Holt]

Whole world watching. 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 Slepien, 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 Cole is senior executive producer of Dateline.

[Commercial / Olivia from Ollie]

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