A Date To Die

Summary

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Podcast Summary: "The Last Appeal" – Episode 3: "A Date To Die"

Host: Lester Holt (NBC News)
Air Date: October 8, 2025

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Episode Overview

In this gripping episode of "The Last Appeal," Lester Holt travels to Texas, delving into the urgent case of Robert Roberson, a father slated for execution on October 16th for the 2002 death of his two-year-old daughter, Nikki. The episode meticulously examines doubts cast over the original conviction, explores revelations from a leading detective who now regrets his role, and exposes critical evidence that never made it to the jury. Through exclusive interviews–including with Roberson himself and the detective who once helped convict him–the episode stirs haunting questions about justice, truth, and the fate of a potentially innocent man.

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Key Discussion Points & Insights

1. Gretchen Swin’s Investigation (01:00–03:25)

• Background: Gretchen Swin, Roberson’s attorney, has dedicated years to overturning his conviction. In 2018, she targeted key trial participants, especially Brian Wharton, the lead detective.
• Key Insight: Swin discovers Wharton has been unsettled by the case for years, foreshadowing a pivotal shift.

2. Detective Brian Wharton’s Doubts & Transformation (01:43–04:58)

• Career Change: Wharton, once lead detective, has since become a Methodist minister, driven by deeper questions about justice.
• Wharton’s Haunt: He admits being continuously troubled by Roberson’s case, particularly the sexual assault allegation.
• Evidence Lacking: Sexual assault allegations against Roberson were never corroborated by DNA, pediatric specialists, or autopsy findings, yet were emphasized at trial (referred to >80 times). The charge was dropped late, but the damage remained.
  • Quote: "Those are bullets that don’t go back into the gun." – Brian Wharton (04:58)

3. Collapsing ‘Shaken Baby Syndrome’ Science (05:09–05:39)

• Legal Shift: Swin tells Wharton that post-conviction, “shaken baby syndrome” science has been largely discredited.
• Wharton’s Realization: He acknowledges prosecutorial reliance on this theory was foundational, and without it, "the whole thing falls apart."

4. Nikki’s Medical History & Robert’s Autism (05:39–06:40)

• Unexamined Evidence: Nikki was extremely ill, visiting doctors often. Wharton confesses they did not seek her medical history before charging Roberson.
• Roberson’s Autism: Wharton learns that Robert is autistic. This sheds new light on Roberson’s demeanor (“a little different, he’s a little off”), which had seemed suspicious but is now understood differently.
  • Quote: "We didn't hear Robert… we never really listened to Robert, and we never asked enough questions based on his story." – Brian Wharton (06:47)

5. Missing CAT Scans Unearthed (07:50–14:00)

• Critical Discovery: During the 2018 hearing, Gretchen informs the judge of missing CAT scans—objective medical evidence never seen at trial.
• Found in Courthouse: A new court clerk discovers them behind a shelf (12:19–12:32).
  • Quote: "Where were the scans, the most objective medical evidence of her condition? Where are they?" – Gretchen Swin (11:16)
• Revelations: Newly analyzed, the scans contradict the prosecution’s “multiple impact” theory; they show only a single bump, no fractures, and minimal bleeding. Injuries noted by the medical examiner were likely due to life-saving medical efforts, not abuse.

6. New Hearing & Evidence Dispute (15:17–16:39)

• 2018–2021 Hearings: Swin argues the conviction was a tragic medical error compounded by faulty science. Wharton testifies for Roberson, admitting oversight.
  • Quote: "We were chasing an abuse case… we had no notion that any prior medical history was playing into what we were seeing." – Brian Wharton (15:27)
• Prosecutorial Pushback: Prosecutors and the medical examiner stand by their original findings. Nikki’s brother, balancing hope and pain, doubts the defense’s new theory.

7. Appeal Denied; Advocacy Grows (16:39–17:55)

• Judge’s Refusal: Despite evidence and Wharton’s reversal, the judge rejects a new trial—ordering Robert’s execution to proceed.
• Wharton’s Mission: The former detective becomes personally invested, seeking forgiveness and pledging support.
  • Quote: "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 (17:55)

8. Political & Legal Showdown – Temporary Stay (21:00–33:00)

• Spreading Awareness: National news coverage and intervention from bipartisan Texas lawmakers (Jeff Leach, Joe Moody) amplify scrutiny.
• Junk Science Law: Lawmakers probe why Roberson isn’t entitled to relief via Texas’ “junk science law.”
  • Quote: "With Robert Roberson's case, there are just way too many questions, way too many concerns for us to stay silent on this." – Rep. Jeff Leach (24:49)
• Historic Hearing: With Roberson hours from death, a state committee subpoenas him to testify, effectively requiring his life be spared.
• Final Hours: After a cascade of last-minute legal maneuvers—including a temporary stay, reversals, and an emergency Texas Supreme Court intervention—Roberson’s execution is halted at the eleventh hour.

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Notable Quotes & Memorable Moments

• Detective 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.”
  — Brian Wharton (06:47)

• Robert’s Faith & Forgiveness:
  “I'm not guilty of this… No fear. Because I know where I'm going. I'm going to heaven to be with Jesus.”
  — Robert Roberson (21:12-21:18)

  “He asked me for his forgiveness. I forgave him… Bitterness only hurts. If I don't forgive, it hurts me holding bitterness.”
  — Robert Roberson (22:23-22:50)

• Political Courage:
  “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 just way too many questions, way too many concerns for us to stay silent on this.”
  — Rep. Jeff Leach (24:32-24:49)

• Despair at Judicial Refusal:
  “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. Denied. Denied.”
  — Gretchen Swin (16:52)

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Important Segment Timestamps

• Detective Wharton’s Change of Heart: 01:51–06:47
• Examination of Evidence & ‘Junk Science’: 09:48–11:01
• Discovery of Missing CAT Scans: 11:16–14:26
• Wharton’s Public Recantation: 15:17–16:39
• Roberson’s Interview on Death Row: 21:10–22:50
• Lawmakers’ Emergency Hearing: 24:32–27:44
• Final Legal Battle to Save Roberson: 28:10–32:53

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Episode Tone

The episode is sober, personal, and urgent. The tone is empathetic yet unflinching, balancing meticulous legal detail with poignant human moments—ranging from Wharton’s confession of error, to Roberson’s quiet faith and forgiveness, to the emotional intensity of activists and lawmakers fighting for a life on the brink.

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Conclusion

“A Date To Die” lays bare the cracks in the justice system, raises profound doubts about the integrity of Robert Roberson’s conviction, and brings listeners into the heart-stopping hours before a scheduled execution. Through confessions, lost evidence, and political battles, the episode asks the listener: What does justice truly demand when a man’s life hangs in the balance, and the evidence just won’t add up?

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Transcript

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[Lester Holt]

Gretchen Swin has spent thousands of hours pouring over Robert Roberson's case.

[Narrator/Announcer]

All right, I'm going to 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, one of them mattered more than the rest. Brian Wharton, former chief of detectives in Palestine.

[Narrator/Announcer]

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/Announcer]

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 there's this man.

[Brian Wharton]

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

[Narrator/Announcer]

And he dropped his head, and I.

[Brian Wharton]

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

[Narrator/Announcer]

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 3 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/Announcer]

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/Announcer]

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/Announcer]

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.

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[Lester Holt]

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.

[Narrator/Announcer]

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/Announcer]

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/Announcer]

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/Announcer]

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?

[Narrator/Announcer]

Well, if you saw that room, they're built in shelves. So built in shelves have backings and they slid down the back all the way behind other.

[Lester Holt]

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

[Narrator/Announcer]

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/Announcer]

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/Announcer]

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 and were really the result of doctors trying to keep Nikki alive.

[Narrator/Announcer]

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/Announcer]

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/Announcer]

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 ripped from me.

[Lester Holt]

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

[Brian Wharton]

Every child. 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/Announcer]

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. Denied. Denied.

[Lester Holt]

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

[Narrator/Announcer]

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.

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[Lester Holt]

Thought he had a good thing going, a good job and two lovers. That is, until this triangle got complicated and somebody had to go. I'm Josh Mankiewicz and this is Deadly Engage. All new podcast from Dateline. It's a story that's sure to keep you guessing as lovers turn on each other in a desperate bid to avoid prison. All episodes are available now.

[Brian Wharton]

To listen ad free, subscribe to Dateline.

[Lester Holt]

Premium on Apple Podcasts, Spotify or Dateline premium.com 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. 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 would do the right thing.

[Brian Wharton]

And I would like the public to.

[Lester Holt]

Know that I'm innocent. I'm not guilty of this. Are you afraid?

[Brian Wharton]

No, sir.

[Lester Holt]

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

[Brian Wharton]

Yes, sir.

[Lester Holt]

He now believes in you.

[Brian Wharton]

Yes, sir.

[Lester Holt]

And he believes that the prosecution got this case wrong?

[Brian Wharton]

Yes, sir.

[Lester Holt]

Does that shock you? It shocks me, but then it don't and stuff, you know. And he even comes visits me up.

[Brian Wharton]

Here and stuff, you know.

[Lester Holt]

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

[Lester Holt]

The week after I met him last year, 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 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/Announcer]

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

[Lester Holt]

Just way too many questions, way too.

[Brian Wharton]

Many concerns for us to stay silent on this.

[Lester Holt]

On October 16, 2020, 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 Wharton testified, too.

[Brian Wharton]

At 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, but 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.

[Narrator/Announcer]

Dr. Daniels. James Downs testified that through his looking 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.

[Narrator/Announcer]

I do not know. I'd 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?

[Narrator/Announcer]

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/Announcer]

Yes.

[Brian Wharton]

What was that based on?

[Narrator/Announcer]

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. You have no knowledge of at the moment. Is that correct?

[Narrator/Announcer]

I'm sorry, sir, what was the question?

[Brian Wharton]

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/Announcer]

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. 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 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. When I say death flow, y' all say dildo.

[Narrator/Announcer]

Death row, hell no.

[Brian Wharton]

Death row, hell no.

[Lester Holt]

Inside, the machinery of death lurch 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 Worden. 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 breakthrough news.

[Brian Wharton]

This has been an incredible turn of events.

[Lester Holt]

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. Once again, the clock on his life is running out. And as he counts down the days to his third execution date, his supporters are asking, why have others convicted of shaken baby syndrome been exonerated even in Texas when Robert is about to be killed? Next time on the Last Appeal. How could it be that you were exonerated in the state of Texas, Texas, and Robert Roberson is now facing death? That's what we're all asking, Lester. The whole world is 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 Yang with production help from Sam Springer. It's edited by Colin Dow, Greg Smith, Deb Brown and David Varga. From NBC News, audio sound mixing by Rob Byers, Joe Plourd and Rich Cutler. Head of audio production is Bryson Barnes. Paul Ryan is executive producer and Liz Cole is senior executive producer of Datelock Time. And Doug Limu and I always tell you to customize your car insurance and save hundreds with Liberty Mutual. But now we want you to feel it. Cue the emu music. Limu. Save yourself money today.

[Narrator/Announcer]

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[Lester Holt]

We say that may have been too much feeling. Only pay for what you [e-mail] Liberty.

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[Lester Holt]

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