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On Sunday’s episode of The Excerpt podcast: In 2002, Robert Roberson brought his very sick 2-year-old daughter Nikki to the emergency room. She died the next day. After doctors diagnosed SBS, or shaken baby syndrome, Roberson was arrested and later convicted. He now sits on death row in Texas, scheduled for execution on October 17th. The man largely responsible for putting him there is Brian Wharton, the former police detective who led the investigation and subsequent arrest of Roberson. Wharton, now an ordained minister in the United Methodist Church, says he made a mistake and Roberson is in fact innocent. Will it be enough to save his life? Brian Wharton joins The Excerpt to share what made him, after all these years, change his mind.

Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.

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Taylor Wilson:

Hello and welcome to the Excerpt. I'm Taylor Wilson. In 2002, Robert Roberson brought his very sick two-year-old daughter, Nikki, to the emergency room. She died the next day. After daughter's diagnosed SBS or shaken baby syndrome, Roberson was arrested and later convicted. He now sits on death row in Texas, scheduled for execution on October 17th. The man largely responsible for putting him there is Brian Wharton, the former police detective who led the investigation and subsequent arrest of Roberson. Wharton, now an ordained minister in the United Methodist Church, says he made a mistake and Roberson is in fact innocent. Will it be enough to save his life? Brian, thank you so much for joining me today on The Excerpt.

Brian Wharton:

I'm glad to be here.

Taylor Wilson:

So Brian, let's just start here. Would you tell us about Robert Roberson and kind of give us a snapshot of what happened 22 years ago as you understood it back then.

Brian Wharton:

Robert took his child to the hospital, because she was unresponsive when he found her in the morning. I sent an investigator to the hospital. After some time there, the investigator let me know that there was too much going on for him to kind of take it all in and so he asked for some help, and so I went. And then the two of us began to kind of... Opened our investigation. The ER itself around the child, around Nikki, was rather frantic. They were doing a number of medical procedures, life-saving procedures I guess. And then the father was there, Robert was there. The hospital folks had already noticed that there was something odd about him and mentioned that to us. And then our initial contact with him, that showed itself, he was not emotionless, but very just kind of flat. Nothing we said or nothing that was going on in the hospital seemed to garner what you would consider a normal reaction to the circumstances. He was very matter of fact in his answers to us, and this is the way it continued with him through the investigation.

Taylor Wilson:

Brian, why was Roberson convicted in your opinion? What was it that convinced the jury to convict him?

Brian Wharton:

Well, I think at the time, we all felt like we had good information, that we were presenting to the court a strong case for shaken baby syndrome. We had established that at the time the child became incapacitated, that Robert was the only adult in the room. The medical examiner's report, the report from the hospital in Dallas, all kind of came together and spelled out shaken baby syndrome. As we got closer to trial, there was nothing else that we felt like that we needed to run down. We had a diagnosis. He was the one there. He admits he was there. He talks about her falling out of bed that night and possibly hitting her head, but that they went back to bed and everything was fine, and then waking up later to find her non-responsive and taken her to the hospital. So he kind of puts himself there at the time that the alleged injury would have occurred and nobody else is present. That's the case that went to trial. We were very comfortable with that.

Now that said, there were some parts of what made it into the trial that made me uncomfortable, but this is after the fact. I'm not in the room when it occurs. I just come to understand that it happened. And part of that was the introduction of a sexual assault claim against Robert from the evening. While he was in the emergency room, there was a sexual assault nurse available, and she examined Nikki and indicated that she saw signs that were indicative of an assault. She was the only one that saw those. There was no further evidence to corroborate what she saw. It didn't show up in the medical examination. It didn't show up anywhere. But out of an abundance of caution, we had all the physical evidence examined for anything that was indicative of sexual activity, and nothing. There was no physical evidence of sexual activity, but that allegation was still made before the jury. And so that was for me, in the years following, a part of what was unsettling to me. To me that tainted the jury process. And then right before this thing goes to jury for conviction, they withdraw the charge. So it wasn't a convicted offense.

Taylor Wilson:

Brian, as we've mentioned, a core issue that you take with Roberson's conviction centers on shaken baby syndrome.

Brian Wharton:

Yes.

Taylor Wilson:

What makes you so certain that Nikki did not die of SBS?

Brian Wharton:

Well, I'm not a biomedical engineer. I am not a physician. From what I glean from the writing and what I'm able to read, it just didn't happen that way. It doesn't feel like it happened that way. There's no evidence that it happened that way. What I understand about shaken baby syndrome, and particularly in her case, is if she was shaken significantly enough to create the internal brain injuries that were seen, there would've had to have been also neck injuries, and there were no neck injuries. The additional medical evidence that the pathologist missed as far as the pneumonia, she had substantial pneumonia in both lungs, and she was on Phenergan and another opioid, and opioid to help her with pre-existing conditions, both of which were respiratory suppressants and neither of which you're allowed to prescribe to children anymore. These things all contributed to what was going on in her body, but we'd took none of those other things into consideration.

There's no surety here anymore. There is no beyond a reasonable doubt here anymore. There is plenty of doubt that we got it wrong. I mean that Robert is a completely innocent man and we got it completely wrong, because we were looking for the wrong things. We fell into the trap of confirmation bias, that emotional charge in the hospital that here is a two-year-old little girl that is about to die, somebody did this to her, who did it, how did it happen? And the first thing you hear is abuse, shaken baby syndrome, and we just take it and run with it, and we find all the facts that we need to make it stand up.

Taylor Wilson:

Brian, I want to take us back to something you said at the beginning of the conversation. You said that Roberson really showed little emotion on the day of his daughter's death. You've since learned that he has autism. Can you just tell us how this impacted your thinking on the case?

Brian Wharton:

Well, I mean, it answers a lot of questions. The day that we met Robert, I mean, I remember distinctly those... The content of the conversations, I can't remember exactly, but I remember people commenting, he's not right, there's something wrong with him, he's not behaving in the right way. And we felt like that was maybe emblematic of some guilt feelings, that he's trying to hold everything close to the vest so that he doesn't give anything away. And I would assume, I couldn't be in the room because I was under the rule in the city of Texas, as a witness I couldn't be in the room. But my assumption is that that's the way the jury saw him. We're talking about his child dying and he is sitting there with an emotionless face, not responding to what's going on, as we would in the courtroom, and so what does the jury think of that?

Taylor Wilson:

So there have also been some new medical and forensic developments in the case, Brian. Would you give us a summary of this and why hasn't that been enough to overturn Roberson's conviction?

Brian Wharton:

This wonderful English doctor observed in some child injury cases that there was this triad of symptoms that if you saw them, they were significantly related to a baby being shaken and harmed, and that was put forward as a theory. And what happened was that theory immediately got way too much traction and took off as a matter of fact. And so anytime that triad of injuries showed up, diagnosis of shaken baby syndrome, and then the criminal fallout from that diagnosis. Since that time, the doctor who put forward that theory has said, no, y'all are misusing what I put forward is a theory. And then the additional scientific evaluation of that has just shown that not to be the case. Nikki was a child who was very sick from very early on. She had had temperature of 104 the day before. She was on these medications. She had pneumonia, she had sepsis, undiagnosed sepsis. So there was a lot of stuff going on with the child before she was brought to the hospital.

Taylor Wilson:

So then Brian, why haven't these latest kind of medical shifts in the thinking around shaken baby syndrome, why haven't they been enough to overturn the conviction?

Brian Wharton:

There's the million-dollar question. Justice isn't the conversation. If it was justice that everybody was interested in, I think this would be a settled matter. But the courts and the prosecutors are resistant to change, change as far as convictions. And so just trying to get new information in front of a court in a way that they have to evaluate it and give a fair reading of it, it's no simple matter.

Taylor Wilson:

Well, Brian, I want to hear a little bit more about your story. You went from Chief of Detectives to now being an ordained minister in the United Methodist Church, that seems like a dramatic career and lifestyle change. Was it Roberson's case, the catalyst for your personal transformation, or was it perhaps the other way around?

Brian Wharton:

Certainly it was part of it. I mean, since I was a kid on the playground, I hated bullies and I hated the way people got treated by others. So that's always been part of me, and it has been in my vocational choices. I was raised in a military family and so that's where I started, because that's what I knew. I didn't know anything else. But it's always been about taking care of those who can't defend themselves. So from the military, I went into police work. As my faith was also growing at the same time, my faith journey was progressing, I came to start wrestling with what is justice? For me, it was a moving away from structural, procedural enforcement as giving the appearance of justice into a life that actually seeks justice.

Taylor Wilson:

And Brian, getting back to Robert's case, you actually met with him earlier this year. I'd imagine that was such a powerful experience. What can you tell us about that meeting?

Brian Wharton:

He's in a prison, not 12 miles from here. And so yeah, I had the opportunity to begin to meet with him. I've visited him a couple of times now, and I hope to go visit him next week again. The first time was tough. Knowing what I now know, believing what I now believe, and looking at someone behind Plexiglas that I am in part responsible for putting there and knowing what he's facing. But what I found was a very kind and gracious man who spoke forgiving words to me, which were helpful to me, surprising to me. But sadly, if we're not successful here, as much as his forgiveness means, it doesn't help me, it'll hurt.

Taylor Wilson:

Brian, you say it doesn't help you, can you talk through your feelings a little bit on this? Is guilt the right word, the feelings you've been going through over the last couple of decades?

Brian Wharton:

Well, so yeah, certainly that's part of it. But the further we went without any kind of relief, I just thought, oh my gosh, I'm going to be part of a process that is going to put an innocent man to death. So it's guilt, it's shame. There's anger here, because I can't, for the life of me, understand how we are at the place that we're at right now. There has to, at some places in the system, a real deliberate indifference. After conviction, Robert and men like him, and women like him, are no longer people that we see as human beings. They have no value. So we don't think of them in the right way, so we certainly can't speak of them in the right way and we won't judge them in the right way.

So there's that anger in me that, again, I've been part of this. I'm still hopeful that relief will come, but I don't think any of this has ever going away. I've been a part of advocating for Robert since Gretchen came and found me, his attorney came and found me. Regardless of what happens in Robert's case, I will continue to, in some way, be engaged in this ongoing problem in the state of Texas. It's time, it's beyond time for us to abolish the death penalty.

Taylor Wilson:

Brian, have you received any pushback from the law enforcement community for your stance here? And what are your former police department colleagues saying?

Brian Wharton:

I've not heard from any of them. I don't know. The few emails that I have gotten as a result of all this have been rather supportive of people in similar circumstances. I've got an email from a police officer in Oregon, I think it was, who's kind of in the middle of a similar situation, trying to figure out how he can help. There are good people in the system that honestly want to do the right things, but you become too many of us in the community around. I was saying this to my church this last week, we go home every night and we sit in front of the TV, and we just assume that the world around us is working the way that it should be working. We have trust and faith in the systems, which for the most part is okay, it's true. But occasionally, alarm bells will go off around us, and that's the moment for all of us to sit up and pay attention, and listen and learn, and then make the adjustments. Let's not fear change. Let's not fear correcting our mistakes. And that's where we are right now. We have a system that just absolutely refuses, abhors the idea of admitting a mistake and then fixing a mistake.

Taylor Wilson:

Robert is set to be executed on October 17th. What's your message to listeners who may want to support your efforts to spare his life? What can they do to help?

Brian Wharton:

The energy that's needed and needs to come now to the Board of the Pardons and Parole and to the governor's office or the clemency will be considered. Speak your mind, speak your heart. Let them know. You can go to the Innocence project page. Don't take my word for anything. Go to the Innocence project page and read the documents there. Find out what's going on. And then if your heart feels led, speak, your government needs to hear from you.

Taylor Wilson:

Brian, do you have any final thoughts that you want to leave our listeners and our viewers with after this conversation?

Brian Wharton:

I would just say that I was wrong. I didn't see Robert. I did not hear Robert. And as a consequence, he's in the place he's in now. He was probably then, but I just wouldn't let myself hear it and see it, but I can tell you now, he is a good man. He is a kind man. He is a gracious man. And he did not do what the state of Texas and I have accused him of.

Taylor Wilson:

Thank you so much for taking the time to talk with us today, Brian, and good luck going forward.

Brian Wharton:

Thank you.

Taylor Wilson:

Thanks for watching. I'm Taylor Wilson. I'll see you next time.