Part 1Part 1
Thursday morning, January 31st, 2002, Palestine, Texas, the emergency room at Palestine Regional Medical Center. A man comes through the door pushing a wheelchair. He's a big man, six foot three. The woman sitting in that wheelchair is already a patient in this hospital. She had surgery earlier that week. And in her lap is a little girl, two years old. She's limp, and she's blue.
A nurse named Kelly Gurganus sees them come in. The man tells her the little girl fell off the bed. And then he says something she will remember well enough to repeat word for word under oath. If I'd known that she'd fallen off the bed this far, I would have never let her sleep with me.
Now, here's the thing. The people in that room are working on the little girl. That's their job. But what they'll talk about later, what they'll tell the police, and what they'll tell a jury, isn't the little girl. It's him. He's calm. Calmer, one of the nurses would say, than she would have been. He doesn't seem as upset as the other parents they've seen come through those doors. He'd parked in a parking space when he could have pulled right up to the door.
Kelly Gurganus doesn't like any of it. She tells the director of nurses to call the police. That call is going to land on a police sergeant named Brian Wharton. He's been with the department 10 years. In a few days, he'll tell a reporter he can't remember ever having anything like this. Ever.
Everybody in that building that morning was sure what they were looking at. The nurses were sure. The doctors would be sure. Before long, the whole town would be sure. And Brian Wharton was as sure as anybody. Hold on to that word. Sure. Because to understand what they were looking at, and what they weren't, we have to go back a few days to a little girl who had been sick for a week.
Part 2Part 2
Hello, everyone, and welcome to Forgotten True Crime, the true crime podcast where we tell the stories of crimes that happened long ago. If you are a true crime fan, make sure you subscribe to the podcast. That way, when we have new episodes, you will be the first to know. Also, check us out on our YouTube and Facebook pages, Forgotten True Crime. Visit our blog, section29 .com, where we post many cool things we found for each episode. This episode, the death of Nikki Curtis, has some really interesting stuff for you to look at, including the newspaper clippings from 2002 and 2003, the court records and pieces of the trial testimony. Make sure you go there and check it out. The links to all of that are in the description below.
Parts of this story may contain opinions and speculations and should be taken as such. What I'm going to do today is tell you this story the way I've come to understand it. Built out of the newspaper record, the court testimony and the public documents that survive. Where I'm reading between the lines, I'll tell you I'm doing it. These stories depict violent crimes of all types and may be a trigger for some listeners. Listener discretion is advised. And I want to be straight with you about this one. It's about a two year old girl and it gets into the medical details of how she died. If that's not something you can sit with today, that's OK. Skip this one. It'll be here. This one's also a little different for us. It didn't happen long ago. It's 2002 and it isn't over. As of October 2026, when I'm recording this, it is still in front of a judge in Texas. And let me tell you, this story has everything. A little girl with a fever of one hundred and four and a half. A bed sitting on concrete blocks. A nurse who called the police. A death sentence. And a fight that has gone all the way to the Texas Capitol. All of this happened in Palestine, Texas in the winter of 2002. And most people who've heard of this case have only heard the ending. So let's start at the beginning.
Part 3The Week She Was Sick
Brian Wharton had been a police officer in Palestine, Texas, for about 10 years by the winter of 2002. He was a sergeant, and the way he'd tell it later, in 10 years on that department, he'd never seen a case like the one that was coming. But that's later. Right now, it's the last week of January, and Brian Wharton doesn't know Robert Roberson exists. So let me tell you about the place first.
Palestine is a county seat in east Texas, about 120 miles southeast of Dallas. In 2002, a little under 18 ,000 people lived inside the city limits, and about 55 ,000 in all of Anderson County. And the county was getting smaller, not bigger. Fewer people in 2001 than the census had counted the year before. It's the kind of place where, if a police sergeant tells the paper he's never seen anything like this, people believe him.
Robert Leslie Roberson III was 35 years old that winter. A big man, 6'3". He hadn't made it far in school. A state report written years later describes him as a special needs student who got speech therapy as a kid and left school after the ninth grade. And he had a daughter. Her name was Nikki.
Nikki Michelle Curtis, born October 20th, 1999. So that January, she was two years old, about three months past her second birthday. Nikki lived with her dad. Her grandparents on her mother's side, Larry and Verna Bowman, lived close by, and they were a big part of her life. Big enough that, according to the local paper, they had fought for custody of her. And there was a girlfriend. Her name was Teddie Cox.
Teddie had a daughter of her own, Rachel, who was 10. And there was a niece, Courtney, who was 11 and was around a lot. So this was a full house. Kids, a girlfriend, a two-year-old, and a man who, by his lawyer's account years later, worked paper routes to keep it going.
Now I want to tell you something about Nikki that happened long before any of this. And I'm just going to put it here and leave it. When Nikki was a baby, she had spells where she stopped breathing. Apnea, the doctors call it. Her pediatrician in Palestine wrote a letter about it in August of 2000, when Nikki was 10 months old. She wrote that Nikki was under her care for several apneic episodes, that the cause was undetermined, that Nikki was getting extensive testing, and that she was sleeping at home on an apnea monitor. A little machine that sounds an alarm if a baby stops breathing. The doctor also wrote that she thought it would be best for Nikki not to be moved around between a lot of different caretakers until they figured out what was causing it. That's all. I'm not going to tell you what it means. Just remember it.
Okay. The last week of January 2002. Sometime around the 22nd or the 23rd, Nikki got sick. The records disagree a little on exactly when it started. Five days before she saw a doctor or a full week. But either way, it was the kind of sick every parent knows. Throwing up, diarrhea, a cough that wouldn't quit, and it didn't get better.
On Monday, January 28th, she was taken to the emergency room at Palestine Regional. Her temperature was 103 .1. The ER doctor called it a viral illness. She went home with Phenergan suppositories for the nausea and Imodium for the diarrhea. That same Monday was a big day in that house for another reason. Teddie Cox was going into the hospital for surgery. So Robert took Nikki over to her grandparents, the Bowmans, to stay with them while Teddie was in the hospital.
On Tuesday, the 29th, Nikki was at the pediatrician's office. Her temperature this time was 104 and a half. 104 and a half in a two year old. The doctor wrote down fever and a possible virus or an upper respiratory infection that hadn't cleared up. And she went home with two new prescriptions. An antibiotic and a cough syrup. Phenergan with codeine.
So now, if you're keeping track, and I'd like you to keep track, that's two days, two doctors, two fevers over 103, and a little girl going home with more medicine each time. Nobody in this story is hiding any of that. It's just a sick kid in January with her family doing what you do with a sick kid. You take her to the doctor, you give her what the doctor says.
Then on Wednesday the 30th, things in that family start to come apart a little. Teddie is still in the hospital recovering from surgery. Nikki is still at her grandparents. And then Verna Bowman, Nikki's grandmother, gets sick herself. Sick enough that she can't keep watching a two year old. So she calls Robert and she asks him to come get his daughter. And that is how on the night of Wednesday, January 30th, 2002, Robert Roberson ended up alone with Nikki. That last part matters. So let me say it plainly. With Teddie in the hospital and Nikki's grandmother sick, there was nobody else. Teddie would testify later that he had never once before been asked to be Nikki's sole caretaker. This was the first time. And none of this, the fever, the medicine, the monitor, the grandmother getting sick, none of it was anywhere in front of Brian Wharton. He wouldn't get a call until Thursday morning. So let's go to Wednesday night.
Part 4The Night
Wednesday, January 30th, about 9 .30 at night, Robert Roberson pulls up at the Bowman's house to get his daughter, Teddie Cox wasn't there, she was still in the hospital, but she testified later about that night, about how Robert was when he found out he'd have to go pick Nikki up. She said he seemed mad. Hold that next to what you already know. His girlfriend is in the hospital, Nikki's grandmother is too sick to keep her. Nikki has had a fever of 104 the day before, and for the first time, this two year old is going home with just her dad.
Now, what happened in that house over the next 10 hours, there's exactly one witness to, and he's the man who ended up on trial for it. So I'm going to tell you his version, the way he gave it to the police, as close to his own words as the record lets me, and I'm going to keep reminding you that it's his version. Not because I think it's true, and not because I think it's false, because at this point in the story, that's all anybody had.
He takes Nikki home. Sometime after 11, she falls asleep, in his arms. He puts her to bed in his bed, and I need to describe that bed because you're going to hear about it again. It's a full size mattress and box springs. No frame. The whole thing is sitting up on gray masonry blocks, the concrete blocks you'd see holding up a porch. The police measured it. From the floor to the top of the mattress, 21 and a half inches. 21 and a half inches. Over carpet on a wood floor. Remember the number.
Around five in the morning, by his account, he hears her crying. He finds her on the floor at the foot of the bed, and he told the police he saw blood, blood around her lips, and, in his words, a bruise or something under her chin, and a spot on her face. He cleans her up. He gets a warm washcloth and wipes the blood off her mouth, and then he told police he kept her awake for about two hours, because that's what you do, right? Somebody bumps their head, you keep them awake, and he said she talked to him about the kids, about family.
Two years old, talking about the kids at five in the morning with her dad. Then they go back to sleep. And when the alarm goes off, he wakes up, and Nikki isn't moving. He told the police she was, in his words, a little blue.
Here's what he does next, and I want to go through it in order, because every one of these steps is going to be held up and looked at later. He calls Teddie at the hospital. She's still a patient there. And Teddie would say that when he called, he sounded pretty calm. He gets Nikki dressed before he takes her in. He drives to the hospital, Palestine Regional, the same hospital Teddie is in. And when he gets there, he doesn't pull up to the emergency entrance. He parks at a parking space. And then, as best I can tell, he goes and gets Teddie, because the next thing that happens is the scene you already heard. A man pushing a wheelchair through the ER doors, a woman just out of surgery sitting in it, and a limp blue little girl in her lap.
So that's his story. That's the night. Now let me show you what Brian Wharton would have been looking at a day later, because Robert Roberson didn't tell that story once. He told it at least three times to three different people, and they didn't come out the same.
Version one, to the police in the account that went into the sworn complaint, he heard her crying around five. He found her at the foot of the bed. He kept her awake for a couple of hours. Version two, to the nurse Kelly Gurganus in the emergency room. It was 5 30. And he said that after she fell, he tried to wake her up every hour.
Every hour. Not kept her up for two hours. Woke her up every hour. And that's where he said the line you heard at the top of this episode. If I'd known that she'd fallen off the bed this far, I would have never let her sleep with me. Version three, to Teddie that night, after she got out of the hospital. This time, Nikki had gone to bed, and he'd found her unconscious on the floor the next morning. He hadn't heard her crying at all. She had fallen off the bed and hit her head on the table.
The table. So five o'clock or 5 30. Kept her awake, or woke her up every hour, or never heard her at all. Hit her head on the floor or on a table. Now, if you're a detective, and you've been on the job 10 years, and you've got a two year old in critical condition, and one adult who was in the house, what do you do with that? You notice it. That's what you do. Any cop would.
There is another way to hear it. And I'm going to be fair to it, because his lawyers made this argument years later. A man woken up at five in the morning by his daughter crying, who was in a hospital with her a few hours later and terrified, may not tell the story the same way three times. And when he said table, they say, he meant the blocks the bed was sitting on. I'm going to come back to that, I promise. But I want you to understand that in February of 2002, nobody in Palestine was listening for the innocent version. They were listening to the man, and they didn't like how he sounded.
And that brings us back to Thursday morning, to the emergency room, to a nurse who didn't like what she was seeing, and to a phone call that was about to go to the police.
Part 5His Story Just Doesn't Match
Thursday morning, Palestine Regional. We're back in the emergency room, and this time we're going to stay a while. Nikki is in bad shape. She isn't breathing well on her own. They put a breathing tube in her, and at one point that morning, according to her records, the tube had to be pulled out and put back in because it hadn't gone in right the first time. That's all I'm going to say about that for now. They scan her head, and what the doctors see on that scan is swelling in her brain. Enough swelling that the ER doctor, a man named Thomas Konjoyan, would testify that it necessitated her transfer to the Children's Medical Center in Dallas for pediatric neurosurgical services. Palestine Regional couldn't take care of what was wrong with her. She had to go to Dallas.
Now, while the doctors are working on Nikki, the nurses are watching her father. I told you at the top of this episode that the people in that room noticed him. Let me tell you what they said about him later, under oath, because every one of these lines ends up in front of a jury.
Kelly Gurganus, the nurse who saw him come through the door. I felt like basically spitting in his face. Robbin Odem, the hospital's chief nursing officer, said he was probably somewhat more calm than I would be. And another ER nurse, Andrea Sims, said she concluded that what happened to Nikki was intentional, partly because, in her words, he didn't appear as upset as other parents that I've seen with injured children. She said she only noticed he was crying after the police arrived.
So, think about where we are. A man brings in his two-year-old, limp, blue. He says she fell off the bed, 21 and a half inches, and everybody watching him decides that he isn't acting the way a father should act. Calm, flat, too calm. Remember that. Not because I'm telling you they were wrong. Just remember what it was they were looking at.
The hospital calls the police, and the case lands on Sergeant Brian Wharton. Here's what Wharton would remember about Robert Roberson years later when he was asked about it under oath. He said everyone on the law enforcement team thought there was something wrong with him. He described him as odd, unemotional, detached, and he had a phrase for it that I keep coming back to. He said Roberson was there, but he wasn't there.
The police got a search warrant for the house, the house with the bed on the cinder blocks, and while the detectives were going through it, Robert Roberson went into the kitchen and made himself a sandwich. I'll let you sit with that one for a second. There are police officers going through his house looking for anything that explains what happened to his daughter, and he makes a sandwich.
Now, to be fair to him, and I'm going to try to be fair to everybody in this story, the local paper also reported that in his conversations with the police, Roberson expressed concern for the girl. He didn't come off as a man who didn't care. He came off as a man who wasn't acting the way people expected him to act. But the search didn't help him. According to the police, they found no evidence in that house supporting Roberson's story.
On Friday, February 1st, a phone call comes in to the Palestine Police from Dallas. It's from a doctor named Janet Squires. She's a pediatrician at Children's Medical Center, and she runs their program for children who may have been abused. And according to the paper, the message from the doctors at Children's was that Nikki's head injuries weren't consistent with a fall out of bed. That's the moment the case turns. A doctor from the Big Children's Hospital in Dallas is saying the story doesn't fit.
The police write it up. Two sworn affidavits go to a judge, one from an investigator named Joe Berreth and one from Dr. Squires. And on Friday, February 1st, 2002, Robert Roberson is arrested for capital murder. Capital murder. Wharton explained why to the paper.
State law provides that when the victim is less than six years old, capital murder charges can be filed. And I want you to notice the date on that, because I'm going to come back to it. He was arrested on Friday. The autopsy didn't happen until Saturday morning. The case against him was charged before the medical examiner ever looked at her.
That Friday evening at Children's Medical Center in Dallas, the doctors began the tests to see if Nikki had any brain function left. The decision to take her off life support was made with her grandparents, the Bowmans. And at four minutes after seven that night, Friday, February 1st, 2002, Nikki Curtis was pronounced dead. She was two years and three months old.
The next Tuesday, the story made the paper in Tyler. Palestine Man jailed in death of two-year-old daughter. The article said police called it one of the most brutal instances of child abuse seen in years. It said Roberson was being held on a $1 million bond. It said doctors at Children's had told the police the injuries were inconsistent with a fall out of bed. And it quoted Sergeant Brian Wharton, the first one you've already heard. I've been in the department 10 years, and I don't remember ever having anything like this, ever. And the second one is the one I want you to hold on to, because it's the sentence this whole case was built on.
His story just doesn't match the evidence. He told the reporter the doctors said the injuries came from severe shaking and from coming into contact with something. So that's where Palestine was, five days after Robert Roberson carried his daughter into that emergency room. A sergeant who'd never seen anything like it. A doctor in Dallas who said the fall didn't fit. A father who didn't act right. A story that the way they heard it changed every time he told it. Everybody was sure. And the next year, a jury was going to be sure too.
Part 6A Shaken Baby Case
Saturday morning, February 2nd, 2002, 730, the Southwestern Institute of Forensic Sciences in Dallas. Dr. Jill Urban, a medical examiner, performs the autopsy on Nikki Curtis. I'm not going to take you through all of it. I don't think we need to, and I don't think it would be right to. But you need to know what she concluded, because everything else stands on it. Cause of death, blunt force head injuries, manner of death, homicide.
Six other pathologists from her office signed off on that report, including the chief medical examiner, bleeding under the skull and around the brain, bleeding in the backs of her eyes, bruises on her face and her chin, a swollen spot on the back of her head, and there was no skull fracture.
That's the medical examiner, homicide. And now the case belongs to the district attorney of Anderson County, a man named Doug Lowe. Robert Roberson is indicted for capital murder that spring. And in June of 2002, Doug Lowe makes his announcement. He's going to seek the death penalty. He told the paper in Tyler that he'd taken months to make the decision and talked it over with other prosecutors. I feel it was the right decision to make, he said. It's a big financial task for the county, but there are some cases that just deserve to be heard.
And here's the headline the Tyler paper put over that story. I want you to hear it exactly the way it ran in June of 2002, eight months before the trial started. Death penalty sought in shaken baby case. That's what this was now. A shaken baby case. That's what the police said. That's what the doctors in Dallas said. And that's what the paper said. And nobody in Palestine, as far as I can find, was saying anything different.
The trial opens in February of 2003 in Palestine in front of Judge Bascom Bentley, seven women and five men on the jury, eight days of testimony. The state's case rests on the doctors. So let's start there. Dr. Janet Squires takes the stand, the pediatrician from Children's in Dallas, the one whose affidavit got Robert Roberson arrested. She told the jury that she'd examined Nikki, gone through her records and her scans and concluded that Nikki was a victim of what she called shaken baby syndrome. She explained it to them. Small children, big heads, weak necks. Shake a child hard enough, she said, and the head whips back and forth and the brain is damaged deep inside, sometimes with almost nothing to see on the outside. And the prosecutor asked her how much force it would take. It's a very violent, forceful act, she said. It is not something that ever happens accidentally. And later, when she was asked to describe the level of violence it takes, she said, you have to shake a child really hard and then you typically slam them against something. And she said this, it's an out of control, angry, violent adult.
Then Dr. Urban, the medical examiner, she told the jury the injuries were blunt force, but blunt force, she said, can mean more than one thing. Shaking also falls into this definition of blunt force. And Doug Lowe asked her, could she say how much of Nikki's death came from shaking and how much came from the impacts? No. There's no way to segregate it out? No. Just all those things put together killed Nikki? Yes.
Then came the people from his own house. Teddie Cox, his girlfriend, testified that she had once seen Robert when he was angry at Nikki, pick her up off the bed, shake her for a few seconds and throw her back down on the bed. She said it happened within about a month of Nikki's death. She said it upset her enough that she left for a little while with her daughter and that he apologized and talked her into coming back. She testified about his temper that she'd once heard him say, if you don't shut up, I'm going to beat your ass. She testified about a paddling that left bruises, and she told the jury about a conversation they'd had after he was arrested. She asked him whether he had killed Nikki, and she said his answer was that if he did, he didn't remember it, that he might have snapped.
Then Rachel, Teddie's daughter, 10 years old, Rachel testified that she had seen Robert pick Nikki up and shake her and spank her about 10 times. They gave her a teddy bear, and she showed the jury what she'd seen. And then Courtney, Teddie's niece, 11. She testified she had seen him shake Nikki by the arms to make her stop crying. She said he shook her hard. So by now, the jury has heard from the doctor who runs the abuse program at the Children's Hospital in Dallas, the medical examiner, the girlfriend, and two little girls. And Brian Wharton testified too about the man he'd met that week. Odd, blunted, not acting right.
Now, you might be thinking, okay, but what did the defense say? This is a death penalty case. What did his lawyers do with all of that? And this is the part of the trial that I had to read twice. His lead lawyer was a man named Steve Evans. And in his opening statement, he said this to the jury, every one of you related that you had heard the term shaken baby, that it was an act of basically a lack of control of emotion. And in his closing argument, yes, I came here in opening and presented to you that there is responsibility in this case. Yes, this is a shaken baby case. But no, this is not a murder case. And a little later, shaken baby syndrome is what applies.
His own lawyer stood up in front of the jury and agreed it was a shaken baby case. The strategy, as best I can tell, was this. Don't fight the doctors, concede what happened, and argue that he lost control, that he didn't mean to kill her. Try to save his life by getting the jury to something less than capital murder. And the prosecutor made sure the jury didn't miss it. In his closing, he told them, you heard defense counsel. You heard Mr. Evans say that this is a shaken baby case.
According to the lawyers who represent Robert Roberson today, his trial lawyers didn't call a single medical expert of their own during that part of the trial. Not one. On Tuesday, February 11, 2003, the jury went out. They deliberated most of the day, and at 3 .45 that afternoon, they came back. Guilty.
Capital murder. Robert Roberson's mother, Carolyn, had been in that courtroom every day of the trial. She told a reporter afterward that the year had been like a nightmare. She said her son was innocent and that Nikki's death was an accident. Her daddy did love her, and she loved him, she said. Her daddy loved her very much.
Then two more days for punishment. Would he get life in prison or death? A psychologist named Thomas Allen testified about the callousness, his word, that he said Roberson showed, and why that made him a risk to others. He talked to the jury about psychopaths. Antisocials and psychopaths both can step outside of that, and they don't feel that remorse. And according to the Marshall Project's reporting years later, he put Roberson in the same sentence as Hitler and Ted Bundy.
At the end of it, Nikki's grandparents, Larry and Verna Bowman, read a victim impact statement to Robert Roberson in the courtroom. Doug Lowe described it to the paper afterward. He said they told Roberson how deep a blow Nikki's death had been, that they had trusted Nikki to him because he was her father, and that if he didn't want her, he should have brought her back to them, and they would have taken care of her.
On Friday, February 14, 2003, after less than four hours, the jury came back again. Death. Robert Roberson became the fifth person from Anderson County on Texas Death Row. He was taken to the Polunsky Unit in Livingston. Doug Lowe told the paper, I'm still sad about the death of Nikki. It was a needless death. And that summer, when the Tyler paper ran a series on shaken baby cases, Lowe was blunter. He said Roberson threw her on the floor and just let her die. And he said, there's something fundamental about a person who would do that. They are just plain mean.
Steve Evans was in that same article, and he said it again. We agreed that it was a shaken baby case. This was a situation where this individual lost control. Now, here's where I'm going to step out of the story for a second, because there's something in that same newspaper article that I can't stop thinking about. This is me talking, not the record. In that same series, the paper covered another shaken baby case, one county over in Henderson County. And in that case, the defense put a neurosurgeon from Georgetown University on the stand. He told the jury that shaken baby syndrome, in his words, has not been proven. And the judge in that case was concerned enough to set aside the jury's sentence and ask the lawyers for briefs on the science. That was 2003, same year, the next county over, same newspaper. I'm not saying what that means yet. I'm just telling you it was there. Because in Palestine, in 2003, the case of Robert Roberson was closed. The police were sure, the doctors were sure, the medical examiner was sure, the jury was sure, his own lawyer agreed, and Brian Wharton went back to work. For the next 13 years, nothing about that changed.
Part 7The Basement
After the death sentence, the case did what death penalty cases do in Texas. It went into the appeals system and it went quiet. In June of 2007, the state's highest criminal court upheld the conviction. A short item in the paper. The doctors, it said, had testified there was no way her injuries could have been caused by a fall. In 2015, a federal appeals court turned him down too. And here's a detail from that story I want you to notice. Even then, in 2015, the paper reported Robert Roberson's own lawyers saying the child had likely been fatally shaken or dropped.
12 years after the trial, his own side still wasn't arguing about what happened to Nikki. And Brian Wharton? Brian Wharton had moved on. The case was closed. There was nothing for him to do. But something had changed in Texas in the meantime, and it's the reason the rest of this story exists. So let me explain it as simply as I can. In 2013, the Texas legislature passed a law. It says this more or less. If you were convicted based on science and the science has changed since your trial, you can go back to court. You don't have to prove you're innocent. You have to show that if the jury had heard the new science, more likely than not, they wouldn't have convicted you. People call it the junk science law. And two years later, the legislature made it broader. Now it covered not just a new test or a new technique, but a whole field changing its mind or an expert changing theirs.
In January of 2016, the state of Texas set a date to execute Robert Roberson, June 21st. And his lawyers, led by a woman named Gretchen Sween, filed under that junk science law. She argued that what the doctors told the jury about shaken baby syndrome in 2003 wasn't what medicine believed anymore.
On June 16th, 2016, five days before the execution date, the court of criminal appeals stopped it. They sent the case back to Anderson County for a hearing.
That hearing was set to begin on August 14th, 2018. And on the same day the hearing was supposed to start, somebody went down into the basement of the Anderson County courthouse and found Nikki's medical records, her medical records in the courthouse basement 16 years after she died.
I don't know who found them or how they got there or who knew they were there. Years later, one of the judges on Texas' highest criminal court put it in a single sentence. Coincidentally, the discovery of the records was on the same day as the evidentiary hearing was supposed to begin.
So what was in them? Remember the week I told you about at the start? Remember I asked you to keep track. A two-year-old who'd been sick for about a week, vomiting, diarrhea, a cough, an ER visit on Monday with a fever over 103, a pediatrician on Tuesday with a fever of 104 and a half, Phenergan suppositories, an antibiotic, a cough syrup with codeine. And now Roberson's lawyers had experts, a lot of them, and they looked at all of it.
Here's what they say, and I want to be careful to tell you this is what they say because it's an argument and the state has answers, and I'm going to give you those too. A lung pathologist, Dr. Francis Green, looked at the tissue from Nikki's lungs. The autopsy had noted inflammation there and he went further. His conclusion, in his words, Nikki Curtis died of a chronic viral interstitial pneumonia and its complications and not as the result of any trauma either inflicted or accidental pneumonia. He also said her death may have been hastened by a combination of drugs that suppress breathing.
And that brings us to the medicine. A toxicologist for the defense, Dr. Kennan Bora, looked at the drug levels in Nikki's blood at autopsy. Promethazine, that's the drug in Phenergan, was there at a level he called clear evidence that Nikki was given too much promethazine. And he pointed to another drug in her blood, an anti-seizure medication, that he said had no record of anyone giving her at all.
Now, I want to be precise here, codeine was prescribed to her, but codeine did not show up on the autopsy screen. Promethazine did. So when you hear people say she had codeine in her system, that's not what the autopsy says. The Innocence Project of Texas went further in a brief to the court. They wrote that Nikki died of undiagnosed pneumonia and the improper prescribing of respiratory stopping medication. That's their claim, and they don't name anyone, and neither will I.
Then there's the tube. Remember, that Thursday morning, the breathing tube had to be pulled and put back in. A forensic pathologist for the defense, Dr. Harry Bonnell, said that the tube going in wrong kept half of Nikki's lung from getting air. And there's something else I told you about at the very beginning, before any of this. When Nikki was a baby, she had spells where she stopped breathing. Apnea. Undetermined cause. She slept on a monitor. That letter from her pediatrician in 2000 is in the defense's filings now. A neuropathologist for the defense, Dr. Roland Auer put it this way. A two-year-old with viral pneumonia, with breathing arrest and fever, multiple visits to the doctor since she was seven days old, culminating, in his words, in a predictable cardiac arrest. What looked like bleeding from trauma, he said, was bleeding around a brain that had already been starved of oxygen, and it was misread.
And then there's the bed. 21 and a half inches. Remember the number. At the trial, the doctors told the jury a fall like that couldn't do this. The defense's experts say that's wrong. Dr. John Plunkett, a pathologist who studies head injuries in children, said a short fall can cause the injuries in this case. And he pointed out the jury had been told it was impossible. A biomechanical engineer, Professor Kenneth Monson, said short falls can produce forces close to or past the point where the brain is injured. He said no measurements were ever taken of that makeshift bed. And he said that shaking hard enough to injure a brain should hurt the neck. Nikki had no neck injury. A radiologist for the defense, Dr. Julie Mack, looked at the scans and said there was an impact to the right side of Nikki's head. One impact. There is no skull fracture. And in February of 2025, 10 pathologists working with the defense signed a joint statement saying the autopsy is not reliable and does not comport with the current standard of care in our field.
That's a lot. So let me be fair about the other side, because the state of Texas has never accepted any of it. First, the pneumonia argument. The autopsy took a blood culture to look for infection in her blood. It grew nothing. The medical examiner also wrote down no evidence of meningitis. If Nikki was dying of an infection that had spread through her body, the state says, that's not what the autopsy shows. Second, the autopsy tested certain spots for old blood, the kind you'd expect if there'd been an older injury bleeding again. Those tests were negative.
Third, the state brought in its own pathologist for the hearing, Dr. James Downs. He agreed with the medical examiner. Multiple blunt force injuries. Homicide. He said he found the same three impact sites she did and two more. And he said death from short falls is rare.
Fourth, two doctors who actually saw Nikki that week, the ER doctor and the pediatrician testified that a fall like the one Roberson described didn't fit what they saw. The ER doctor called it extremely implausible or unlikely. And fifth, a prosecutor in the DA's office summed up the state's view in 2022. Most of their scientific evidence is not new. Nothing. Not the pneumonia, not the injuries.
And one more thing that cuts against the defense, and I promised you I'd be straight. The defense's case has to explain bruises on her face and chin. The state's case has to explain a deadly head injury with no skull fracture and no neck injury. Neither side gets a clean answer.
Remember what Dr. Squires told the jury in 2003? It is not something that ever happens accidentally. Here in this hearing were a stack of doctors saying it could have been an illness and a medicine and a fall. And here was the state saying, no, it's still exactly what the jury heard.
Two stories now, same little girl, same autopsy, and no tiebreaker. The hearing ran on and off for more than three years. And while it was going on, a neuropsychologist sat down with Robert Roberson. And what she found had nothing to do with Nikki's lungs or her medicine or the bed. It had to do with his face.
Part 8What Wharton Didn't See
In 2018, while that hearing was getting started, Robert Roberson's lawyers brought in a neuropsychologist. Her name is Dr. Diane Mosnik. She tested him. She tested him for faking, too. She went through every other diagnosis she could think of and ruled them out. And then she gave him one.
Autism. Robert Roberson was diagnosed with autism spectrum disorder at 51 years old, sitting on death row 16 years after his daughter died.
Now, I want to explain what that means for this story as plainly as I can, because I'm not a doctor and I don't want to oversell it. One of the ways autism can show up in an adult is in the face and the voice and the body, in what doctors call affect. A person can be terrified, grieving, falling apart inside, and on the outside look flat, calm, detached, like they're not reacting the way you'd expect a person to react.
Dr. Mosnik said that in her testing, his social problem solving was about the level of an 11 year old, and she found a man who went to school with him. He testified at the hearing that Robert was different from the rest of them, bullied, often bruised, disheveled. He said Robert was, in his words, almost like Forrest Gump.
Nobody at the trial heard any of that, not the jury, not the prosecutors, not his own lawyers. The diagnosis didn't exist yet. So now I want to do something. I want to play back some of what you heard earlier in this episode. I'm not going to add anything to it. I just want you to hear it again, now that you know what you know.
He was calm, calmer, one nurse said, than she would have been. He didn't seem as upset as other parents she'd seen with injured children. When he called his girlfriend from the house that morning, she said he sounded pretty calm. He parked in a parking space. I felt like basically spitting in his face. While the police searched his house, he made a sandwich. He was there, but he wasn't there.
And the psychologist at the sentencing, the one who talked to the jury about callousness, about psychopaths. I'm not telling you what to do with that. I'm telling you that every one of those things was in front of the people who decided this case, and the one fact that might explain them wasn't.
And there's one more person I need to bring back now, the one I asked you to watch from the beginning, Brian Wharton. When Roberson's case went back into court, Wharton was called to testify about the investigation, about the man he'd met that week. That's where some of those lines you just heard come from. Odd, not normal. There, but not there. And in 2022, Brian Wharton did something no other officer connected to this case has done as far as I can find. He signed a sworn declaration breaking with the case he helped build. And in October of 2024, he wrote a statement, and I want to read you part of it.
The lack of emotion he displayed and the seeming lack of understanding about what was happening to him did not seem right. His demeanor did not seem normal, and that something seemed wrong with him is something that was discussed. Witnesses we interviewed at the hospital also mentioned how Mr. Roberson seemed odd. He was not behaving as expected either for a distraught parent or a suspect.
I learned only years later that he has since been diagnosed with autism spectrum disorder. And then I had doubts then, but today I am certain that nothing here supports a continued effort by the state to execute Mr. Roberson. He went further than that, too. Remember the jailhouse informant? There was a man in the county jail named Ryan Lodygowski, who claimed that Roberson had admitted to hurting Nikki.
Wharton, the lead detective, called him known to be unreliable and obviously problematic. And then on October 16, 2024, the day after a Texas House committee voted to subpoena Robert Roberson and the day before he was scheduled to be executed, Brian Wharton stood up in front of that committee at the Texas Capitol. This is what he said.
I'm ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice. 22 years earlier, a few days after he arrested Robert Roberson, he told the newspaper and Tyler his story just doesn't match the evidence.
Same man, same case, 22 years apart. He told the committee he believed Roberson was an innocent man and that the state was very close to killing him for something he didn't do. He said, I will forever be haunted by the role I played in helping the state put this innocent man on death row. He said, one cannot put the bullet back in the gun and expect a jury to be objective. And he said this, which I think is the most important thing anybody says in this whole story.
We constructed an appeals system because we understood that we get things wrong. It's all pointless if nobody admits we got it wrong and then don't make my mistake. Now, I have to be honest with you right here because this is where it would be easy to stop being honest.
Brian Wharton is one man. He's the lead detective and that counts for a lot. But he's not a doctor. He didn't do the autopsy. He doesn't get to decide what killed Nikki Curtis. And he is, as far as I can find, the only person from law enforcement in this case who has changed his mind. The prosecutors haven't. The medical examiner has stood by her finding a blunt force. The jury foreman, you'll hear from him in a minute, has not moved an inch.
Here's where I'll speculate and I'll mark it as that. I think what changed Brian Wharton wasn't the pneumonia or the medicine or the bed. I think it was the diagnosis. I think he went back to that week in his head, the calm, the sandwich, the man who was there but wasn't there and realized he had built a murder case partly on what a man's face looked like. That's my read. He can speak for himself and he has.
Remember the cold open. Everyone in that building was sure what they were looking at. The man who looked the hardest isn't sure anymore. And the state of Texas was set to execute Robert Roberson the next day.
Part 9The Reckoning
So let me tell you how the hearing ended. In February of 2022, the trial court in Anderson County made its findings. It recommended that Robert Roberson be denied relief on every claim. And in January of 2023, the Texas Court of Criminal Appeals agreed. It adopted those findings and turned him down. And it didn't write an opinion of its own explaining why. The Innocence Project of Texas would later call that rubber stamping. The basement records, the pneumonia, the medicine, the autism, none of it had moved the court. And then in October of 2024, something happened in a completely different case, in Dallas. A man named Andrew Roark had been convicted back in 2000 of injuring his girlfriend's baby, a shaken baby case. And one of the doctors who testified against him was Dr. Janet Squires, the same doctor from Nikki's case. On October 9th, 2024, the Court of Criminal Appeals threw out Roark's conviction under the same junk science law. They said the science of shaken baby cases had shifted enough that the testimony wouldn't look the same today. And a few weeks later, the Dallas County DA's office went further and declared Andrew Roark actually innocent. And here's something you need to know because it gets repeated wrong all the time. In the Roark case, Dr. Squires signed an affidavit stepping back from part of her own testimony. In Roberson's case, she didn't. The Anderson County DA told lawmakers that when they spoke to Dr. Squires about this case, she stood by her original diagnosis.
But Roark mattered because now the same court that turned Robert Roberson down had said the science behind cases like his had changed. And Robert Roberson was scheduled to be executed eight days later, October 17th, 2024. What happened that week is one of the strangest weeks I've ever read about in a death penalty case. So let me go through it. The month before, 84 Texas legislators from the House and the Senate had signed a letter asking for mercy. And the State Board of Pardons and Paroles voted six to nothing against it. No commutation, no delay. The governor didn't step in. The Court of Criminal Appeals turned down his request for a stay. So a committee of the Texas House tried something different. They voted unanimously to subpoena Robert Roberson to make him come to the Capitol and testify on October 21st, four days after the date the state was going to execute him. That same day, the day before the execution, is when Brian Wharton told that committee, don't make my mistake. And on October 17th, the day of the execution, the whole thing went to court. A judge in Austin backed the subpoena.
Hours before the execution, the Court of Criminal Appeals threw that out five to four. And then that night, the Supreme Court of Texas stepped in and stopped the execution. A month later, that same court ruled that lawmakers can't use a subpoena to stop an execution that's already scheduled. In their words, legislative investigatory power, even at its maximum, is insufficient to forestall a long scheduled execution. And they made a point of saying the case had nothing to do with Roberson's guilt or innocence.
Robert Roberson never did testify at the Capitol, but someone else did. And this is the part of that week I can't get past. On October 21st, 2024, a woman named Terre Compton testified in front of that committee. She'd been a juror in 2003 on Robert Roberson's jury. She had already signed a sworn declaration two years earlier listing what she said the jury was never told. In her words, we were not told that he had autism. We were not told that Nikki had any significant health problems. We were not shown any CAT scans of her head or chest. We were not told about pneumonia. We were not told about any prescriptions Nikki had been given soon before her death. And at the Capitol, she said this, I just finally came to the conclusion he was an innocent man. In good conscience, I could not live with myself thinking that I had a hand in putting an innocent man to death. Everything that was presented to us was all about shaken baby syndrome. That was what our decision was based on. If it had been told to us, I would have had a different opinion and I would have found him not guilty.
Two weeks later, the foreman of that same jury answered her. His name is Steven Cubstead and his statement went out through a state representative's office. Everything that is being put out by those defending Roberson is a lie including what is being said by the former juror. I didn't vote to convict Roberson due to shaken baby syndrome. I voted to convict him for the bruises on Nikki's face, her crushed skull. It has been 22 years since that case and I have no trouble sleeping at night knowing we convicted Robert Roberson. He is dangerous and justice must be carried out. Same jury, same courtroom, same evidence. Two people who sat in that box and they don't agree on what the verdict was even about. I'm not going to pick one for you. They were both there. I wasn't.
The attorney general's office didn't hold back either. In a press release that October, it accused the two lawmakers leading the fight of lies and it said they had created a constitutional crisis on behalf of a man who beat his two-year-old daughter to death. And the Anderson County DA told the committee she believes the science still stands. Shaken baby, which is now called abusive head trauma is widely recognized nationally and internationally as a viable medical diagnosis.
So 2025, the state asked for a new date and Robert Roberson got his third execution date, October 16th, 2025. 10 days before it, his lawyers filed something new and this goes back to a detail I planted all the way back in act two. Remember the decision to take Nikki off life support was made with her grandparents. Roberson's lawyers alleged that while Nikki was on life support, Judge Bascom Bentley, the same judge who would later preside over Roberson's trial, told the hospital to go to Nikki's grandparents instead of to Roberson about her care. They also alleged that the judge who approved that arrangement was the father of a prosecutor in the DA's office. Larry Bowman told NBC, according to the Marshall Project, that Judge Bentley had told the hospital we were the parents. The court of criminal appeals rejected that claim. Too late, it said. And even if it weren't, it didn't add up to a violation of his rights. Judge Bentley died in 2017. Whatever happened in that hospital, nobody can ask him now. There was something else in all those filings too that I want you to hear. Remember the medical examiner, Dr. Jill Urban? At the trial, she told the jury shaking fell within blunt force and there was no way to separate the two. At the hearing, years later, she was asked whether she thought shaking played a role in Nikki's death. Again, I don't know if it played any role in her death. And later, well, again, I don't know that there is a shaking component here. Roberson's side calls that a recantation. The state and some of the judges say she never changed her opinion at all. Here's the honest version. She stepped back from shaking, but she has stood by blunt force.
October 9th, 2025, a week before the third execution date, the court of criminal appeals stopped it. They sent the case back to the trial court for one thing and one thing only, to decide whether Roberson's junk science claim holds up in light of the Roark decision. The order says the trial court shall not entertain nor address any other claims. And when you read the judge's opinions that came with it, you find the same split you found in the jury box. One judge wrote that this isn't a shaken baby case at all, that it's a blunt force trauma case that shaking can't explain the swelling, the bleeding, the bruises. Another judge counted. That judge wrote that shaken baby syndrome was referenced over 130 times in the state's case at trial. One judge would have given him a new trial on the spot. Another would have turned him down on everything.
So that's where it went. Back to a courtroom in East Texas. The judge who has it now is Austin Reeve Jackson, a district judge from Smith County, brought in after the local judge stepped aside. In April of 2026, at a hearing in Palestine, he put it this way. Let's hash out how Roark does or doesn't change things. Both sides filed their briefs. The defense asked for a full in-person hearing with live witnesses. The state opposed what it called premature attempts at evidentiary development. And the defense kept filing new rulings from other states, New Jersey, Georgia, California, where courts have ruled against shaken baby evidence or thrown out convictions built on it.
And as of October, 2026, when I'm recording this, Judge Jackson hasn't ruled. There's no hearing scheduled and there's no execution date. According to the Texas House Committee's own report, if Robert Roberson is executed, he would be the first person in the United States executed on a shaken baby case. I looked and I couldn't find a documented case of anyone before him.
Robert Roberson has been on death row for more than 23 years and he is still waiting.
Part 10Closing Thoughts
Nikki Curtis died on February 1st, 2002. She was two years old. Her father was convicted of killing her and sentenced to death. And as of the day I'm recording this, more than 24 years later, a judge in East Texas is still deciding whether the science that put him there still holds up. That's the outcome. Now let me tell you what I think. I've held it back the whole episode and I told you at the top, I'd tell you when I'm giving you my opinion.
This is my opinion. I don't know what happened in that bedroom. Nobody does. There was one adult in that house and his story is the only one there is. But I don't think that's the question this case was ever really about. The question is whether the state of Texas proved it was a crime. And the more I read, the less sure I got. Because when you strip it down, here's what the jury had.
Doctors who told them with total confidence that this could not happen by accident. A defense lawyer who agreed with them. And a father who didn't act the way people thought a father should act. What one of those jurors says they never really got was the rest of it. A week of fevers. A little girl's lungs. The medicine. A breathing tube that went in wrong. A baby monitor from when she was 10 months old. Or a word for why her father's face looked the way it did.
I'm not telling you those things prove he didn't hurt her. I'm telling you that by her account, the people who decided this case never really got to weigh them. And the autism, nobody in that courtroom knew about at all. And I want to be fair because there are things that still bother me the other way and they should bother you too. There were bruises on her face and chin. Her blood culture grew nothing. Teddie Cox testified she saw him shake Nikki once and two little girls in that house said they'd seen it too. The jury foreman says he didn't vote on shaken baby syndrome at all. He voted on her injuries and he's never wavered. The medical examiner has never backed off blunt force.
I can't make those go away. I'm not going to pretend I can. So let me leave you with what I keep coming back to. What did that breathing tube do while it was in wrong? What was a two year old who'd been sick for a week with a fever of 104 and a half doing on a dose of medicine the defense's toxicologist says was too high? Can a fall from 21 and a half inches do what the doctors say it did? Or did they say it couldn't because in 2003 everybody said it couldn't? How did her medical records end up in a courthouse basement? And why were they found the same day the hearing was supposed to start? And if Robert Roberson had cried in that emergency room the way people expected him to cry would anybody have called the police at all?
I don't have those answers. The courts in Texas are still working on some of them. But I keep thinking about that word from the very beginning of this episode. Sure, the nurse was sure. The doctors were sure. The jury was sure. A sergeant who'd never seen anything like it in 10 years was sure.
And 22 years later that same man stood at the Capitol and said, I did not see Robert. Being sure is a feeling. It isn't evidence. Thank you all for listening to this week's episode. Just know you are unique. You are special and you are loved.