Speaker 1: On March fifteenth, twenty fourteen, Josh Burns was at home
Speaker 1: in Brighton, Michigan, with his newborn daughter, Naomi. His wife,
Speaker 1: Brenda was out getting her first haircut after becoming a mom.
Speaker 2: I got Naomi up from her nap and I'm feeding
Speaker 2: her a bottle and Brenda had called my cell phone
Speaker 2: and there was a coffee table in front of us.
Speaker 2: When I went to put the phone down, I felt
Speaker 2: Naomi sliding forward off my knee, like about to do
Speaker 2: a header into the coffee table. So I like reached
Speaker 2: out my hand and kind of had to catch her
Speaker 2: by her face and like propped her back up. She
Speaker 2: had like a little scratch on her cheek because I
Speaker 2: had to grab her. So then Brenda gets home and
Speaker 2: I'm like, I almost dropped Naomi. So she looks Naomi over.
Speaker 2: I mean, she's a nurse, and Naomi was normal, she
Speaker 2: didn't even really cry from the event.
Speaker 1: But over the following days, Naomi was pale, lethargic, and nauseous,
Speaker 1: making several trips back and forth to the emergency room. Ultimately,
Speaker 1: when at home, she went limp, struggled to breathe, and
Speaker 1: Josh he called nine to one one.
Speaker 2: They were using an infant CPR breathing bag on Naomi,
Speaker 2: and we had to stop at a fire station and
Speaker 2: pick up a fire paramedic to assist the paramedic in
Speaker 2: the back. And they were doing like ninety miles an
Speaker 2: hour down the freeway and wow, I still have nionmares
Speaker 2: about it. And we got to the pediatric er and
Speaker 2: they had been looking into all these different things, and
Speaker 2: then they came and they did a bedside eye exam
Speaker 2: of Naomi and they found retinal hemorrhages in the backs
Speaker 2: of her eyes. Next thing we knew, there's a child
Speaker 2: abuse pediatrician in the room. And when the CPS worker
Speaker 2: came and interviewed us, he told us he said, well,
Speaker 2: the child abuse pediatrician says that this is shaken baby syndrome,
Speaker 2: and we're like what. From this point on, they started
Speaker 2: treating us both like criminals. I'm Josh Burns. I was
Speaker 2: wrongfully convicted, spent a year incarcerated, and it took just
Speaker 2: over ten years to be exonerated and declared innocent.
Speaker 1: From Love of for Good. This is wrongful conviction with
Speaker 1: Maggie Freeling today, Josh Burns.
Speaker 2: I grew up in Colorado on the front range of
Speaker 2: the Rockies Colorado Springs. Have an older brother and a
Speaker 2: younger sister. So I'm that typical crazy middle kid. I
Speaker 2: had a great family upbringing. My parents are still married
Speaker 2: almost for fifty four years now.
Speaker 1: So you said you were kind of the crazy middle child.
Speaker 2: What does that mean? So? I was always a joke
Speaker 2: in a prankster, still kind of am. For instance, in school,
Speaker 2: I had a Spanish teacher. He had just arrived from
Speaker 2: Peru and he spoke English. But I arrived to the
Speaker 2: class late, and my last name is Burns. So he said,
Speaker 2: what's your name? And I said, I'm Sideburns and he
Speaker 2: said Side and he wrote my name down and everyone
Speaker 2: in the class knew I was Josh. And about two
Speaker 2: months later, my parents showed up for parent teacher conferences
Speaker 2: and he said, we need to talk about your son's
Speaker 2: side and they said who you know?
Speaker 1: Oh that went on for a minute.
Speaker 2: Wow yeah yeah. So and my dad, my dad and
Speaker 2: mom came home and my dad was trying to like
Speaker 2: get serious with me and tell me how I was
Speaker 2: disrespecting my elders, but he just started cracking up laughing, goes,
Speaker 2: I don't know where you come up with this stuff,
Speaker 2: you know. So the joke was out and he made
Speaker 2: me stand up in front of the class on Monday.
Speaker 1: Perhaps being called out helped Josh focus on his aspirations
Speaker 1: besides class clown.
Speaker 2: I just had a fascination from the age of five
Speaker 2: with airplanes and flying, and just was one of those
Speaker 2: kids who always knew that I wanted to be a pilot. Wow,
Speaker 2: and that dream came true. I went to flight school,
Speaker 2: built up my flight hours doing crazy things like flying
Speaker 2: skydivers and Grand Canyon tour flights from Las Vegas, all
Speaker 2: those will fly for food jobs, basically to build your
Speaker 2: time so you can get on with an airline. And
Speaker 2: then got on with the airlines and spent over twenty
Speaker 2: five years as an airline pilot. I'm still in the
Speaker 2: industry now. I trained pilots for a major airline here
Speaker 2: in Texas.
Speaker 1: But before living in Texas, Josh and his wife Brenda
Speaker 1: met in the early two thousands serving in a ministry
Speaker 1: for young adults with substance abuse issues and eating disorders.
Speaker 1: They fell in love, got married, and settled down in Michigan. Eventually,
Speaker 1: Brenda became pregnant with their daughter, Naomi.
Speaker 2: I remember her taking the test and we were just
Speaker 2: so excited, and then we went in for that ultrasound.
Speaker 2: Remember in the ultrasound, she did like a summersault, She
Speaker 2: like did a full She looked like an astronaut in
Speaker 2: zero gravity. So everything was trucking along just fine. And
Speaker 2: then Brenda was about a week overdue and we went
Speaker 2: in to visit the doctor and he said, I can
Speaker 2: do some things here to speed things along, and Brenda said,
Speaker 2: let's do it, because I feel like I'm going to
Speaker 2: explode and this kid's on my bladder and I have
Speaker 2: to pee every two minutes, you know. So about six
Speaker 2: hours after he did his procedure, Brenda's water broke and
Speaker 2: we were on our way to the hospital in a
Speaker 2: snowstorm in Michigan. So yeah, we drove to the hospital
Speaker 2: and they got her right into the room, but she
Speaker 2: pushed for hours and hours and Naomi's head became stuck
Speaker 2: and it was scary because the doctor said, hey, we
Speaker 2: can try what's called a vacuum extraction. We can put
Speaker 2: this device on her head and try to get her
Speaker 2: head dislodge and moving through. So they tried that about
Speaker 2: three times that it failed, and then they said, okay,
Speaker 2: we need to move into an emergency sea section.
Speaker 1: At this point, we should mention that one of the
Speaker 1: risks of a vacuum assisted delivery is intracrinial hemorrhage and
Speaker 1: subgalio hematoma, which are among the so called triad of
Speaker 1: findings associated with the debunk hypothesis known as shaken baby syndrome.
Speaker 1: And they attempted the vacuum assisted birth three times before
Speaker 1: moving onto a sasarean section in which she was pulled
Speaker 1: in the opposite direction. But finally Naomi was born January seventh,
Speaker 1: twenty fourteen.
Speaker 2: Finally Naomi was out and we heard her cry and
Speaker 2: we just started pauling, you know. I was like, there
Speaker 2: she is, there she is. And they cleaned Naomi up
Speaker 2: and handed her to me, and I was able to
Speaker 2: put her face to face with mommy, and it was
Speaker 2: just it was amazing. So I was home for the
Speaker 2: first two months on family leave, so I was able
Speaker 2: to just be home and be present and make that
Speaker 2: bond with her and see her smile for the first time,
Speaker 2: like all those milestones, and it was an incredible time.
Speaker 2: Naomi was struggling though my wife was trying to breastfeed,
Speaker 2: and she was sleepy and lethargic. She wouldn't latch to
Speaker 2: my wife's breast well, and my wife ended up having
Speaker 2: to pump breast milk and then we would defeed her
Speaker 2: breast milk through the bottle whatever we could. But Naomi
Speaker 2: actually lost some weight since birth, and we kept going
Speaker 2: back to the pediatrician and they were like, yeah, this
Speaker 2: can happen with these kind of deliveries.
Speaker 1: In all likelihood, Naomi's issues began during her delivery and
Speaker 1: came to a head about nine or ten weeks later
Speaker 1: in the lead up to her baptism, right around when
Speaker 1: Josh's paternity leave wrapped up.
Speaker 2: I had just gone back and finished my first four
Speaker 2: day trip back at the airline, so it was like
Speaker 2: Brenda's first four days alone with Naomi without me from
Speaker 2: being on family leave. So she's like, I'm going to
Speaker 2: the salon. I need a haircut before the baptism. And
Speaker 2: it was like you go. She said, all right, when
Speaker 2: Naomi wakes up, feed her this bottle. So I got
Speaker 2: Naomi up from her nap and I'm feeding her a
Speaker 2: bottle and Brenda had called my cell phone for something,
Speaker 2: and when I went to put the phone down, I
Speaker 2: felt like Naomi sliding forward off my knee, and there
Speaker 2: was a coffee table in front of us, so I
Speaker 2: like reached out my hand and she was like heading
Speaker 2: towards the coffee table, like about to do a header.
Speaker 2: So I had to catch her by her face and
Speaker 2: propped her back up. She had the little scratch on
Speaker 2: her cheek because I had to grab her. So then
Speaker 2: Brenda gets home and I'm like, I almost dropped Naomi.
Speaker 2: So she looks Naomi over. She's a nurse, and Naomi
Speaker 2: was normal. She didn't even really cry from the event.
Speaker 1: This event or non event, is what Josh had to
Speaker 1: think back to when Child Protective Services eventually came asking
Speaker 1: him what he'd done to her, of course, assuming with
Speaker 1: support from the medical community, that Naomi had been abused.
Speaker 1: But we're getting ahead of ourselves.
Speaker 2: Naomi's baptism, we got her dressed and ready to go,
Speaker 2: and we get to church and she's in her car
Speaker 2: seat carrier, and all of a sudden, we looked over
Speaker 2: and she was like pale, and she projectile vomited, and
Speaker 2: we're like, oh my gosh, Like we get her cleaned up,
Speaker 2: and we noticed that she like quickly regained her color.
Speaker 2: And we were like, do we need to cancel the baptism?
Speaker 2: But we were like maybe something disagreed with her or
Speaker 2: but she seemed okay after that, so we had the baptism,
Speaker 2: and then when we fed her again, she projectile vomited again.
Speaker 2: So now we're like, okay, we got a problem here.
Speaker 2: So Brenda called the on call pediatrician and told them
Speaker 2: what was going on, and they said, you could feed
Speaker 2: her a few more times and see what happens, or
Speaker 2: you can take her to the pediatric ar. And we're
Speaker 2: like first time parents, We're like, we're taking her in.
Speaker 2: So we took her into the er, talked to the doctor,
Speaker 2: told him even about like how I almost dropped her
Speaker 2: the day before. He said, this sounds like a stomach
Speaker 2: bug or a virus. Ransom tests and said, I don't
Speaker 2: see anything of concern, but we can't test for everything.
Speaker 2: This could just be a stomach bug. Send us home,
Speaker 2: and said, just feed her again and see what happens.
Speaker 2: So she just starts projectile vomiting again. We're in and
Speaker 2: out of the pediatric ar three times, in her pediatrician's
Speaker 2: office once and they just keep telling us that it's
Speaker 2: a stomach bug. And then finally day three of this,
Speaker 2: Naomi goes limp and her eyes roll back in her
Speaker 2: head and her breathing becomes labored. So I call nine
Speaker 2: one one and the ambulance comes and they could see
Speaker 2: like that Naomi needed immediate care. We get in the
Speaker 2: ambulance and there's this partition where Brenda can look back.
Speaker 2: We're locking eyes and I'm trying to give her this
Speaker 2: look like it's okay. But you know how it is
Speaker 2: when you know your partner, your spouse. It's like she
Speaker 2: knew they were using an infant CPR breathing bag on Naomi.
Speaker 2: We had to stop at a fire station and pick
Speaker 2: up a fire paramedic to assist the paramedic in the back,
Speaker 2: and they were doing like ninety miles an hour down
Speaker 2: the freeway, and.
Speaker 3: I just I still have nightmares about it.
Speaker 2: As a dad, I just felt completely helpless. I cried
Speaker 2: out to God and I just said, please work through
Speaker 2: these paramedics' hands and just give everyone wisdom to help Naomi.
Speaker 2: We got to the pediatric er and they quickly moved
Speaker 2: Naomi up to the pediatric ICU. They had to intubate
Speaker 2: her with a breathing tube and We told them all
Speaker 2: the history and they just said, once again, gosh, this
Speaker 2: sounds like virus of some sort.
Speaker 1: And their instincts could have been right. In addition to shortfalls,
Speaker 1: there are over eighty medical issues that can cause the
Speaker 1: cluster of findings formally associated with the now defunct hypothesis
Speaker 1: known as shaken baby syndrome. To recap previous coverage, in England,
Speaker 1: nineteen seventy one, doctor Norman Guthkelch, a pediatric neurosurgeon, was
Speaker 1: seeing deceased infants and toddlers that presented with unexplainable brain
Speaker 1: swelling and bleeding, as well as retinal bleeding, opining that
Speaker 1: perhaps folks were shaking their children to break a crying
Speaker 1: spell or tantrum and accidentally causing these potentially fatal findings.
Speaker 1: But unable to test this hypothesis, and seemingly out of
Speaker 1: an abundance of caution, newly educated doctors were taught the
Speaker 1: hypothesis as a theory until proven otherwise, which led to
Speaker 1: the diagnosis of abuse, followed by criminal charges for parents
Speaker 1: like Brenda and Josh.
Speaker 2: They had been looking into all these different things. They
Speaker 2: had done MRIs. They did two spinal taps on Naomi
Speaker 2: cat scans, and then they came and they did a
Speaker 2: bedside eye exam of Naomi and they found retinal hemorrhages
Speaker 2: in the backs of her eyes. And that's when everything changed,
Speaker 2: all of a sudden, The main I see you doctor
Speaker 2: comes into the room and he says, retinal hemorrhages are
Speaker 2: typically a sign of child abuse and we have to
Speaker 2: consult with the child abuse pediatrician in the child protection
Speaker 2: team and get them involved. Next thing we knew, there's
Speaker 2: a child abuse pediatrician in the room and she looks
Speaker 2: at Naomi. She doesn't really treat Naomi, she just looks
Speaker 2: her over bedside, and then she turns to my wife
Speaker 2: and I and says, I need to interview you both
Speaker 2: but separately. And we're like sure, we were completely naive.
Speaker 2: We're like, yes, let's get this cleared up, let's talk
Speaker 2: through this and explain it to her. But after the interview,
Speaker 2: we realized, like that she's calling Child Protective Services law enforce.
Speaker 2: The child abuse pediatrician diedn't even tell us. When the
Speaker 2: CPS worker came and interviewed us, he told us he
Speaker 2: said the child abuse pediatrician says that this is shaken
Speaker 2: baby syndrome, and we're like what, We're just floored we're
Speaker 2: being accused of child abuse. From this point on, they
Speaker 2: started treating us both like criminals. They said, you guys
Speaker 2: can't stay the night in the hospital anymore. You can't
Speaker 2: be alone with your daughter in the room. You have
Speaker 2: to have like witnesses in the room with you. All
Speaker 2: these things. They called it a safety plan, and we
Speaker 2: just said, okay, whatever we have to do. But we
Speaker 2: started looking into retinal hemorrhages and we realized that infants
Speaker 2: from traumatic births like vacuum extraction attempts and see sections
Speaker 2: have retinal hemorrhages. So we bring this up to the
Speaker 2: child abuse pediatrician and she's just dismissing everything. Nope, this
Speaker 2: is all it can be. Nope, this is all it
Speaker 2: can be. And then she tells us, she goes, hey,
Speaker 2: the MRI that your daughter had here in the hospit
Speaker 2: was misread. She also has subdurohematomas, and we said they
Speaker 2: did that MRI to see if it was safe to
Speaker 2: do spinal taps on Naomi. So we're like, wait a minute,
Speaker 2: you tell us read that. Yeah, yeah, I said, you're
Speaker 2: telling me they misread an MRI and then did two
Speaker 2: spinal taps on my daughter off a misread MRI and
Speaker 2: she says she admitted it. She goes, yeah, the doctors
Speaker 2: involved in that, I told them to call risk management.
Speaker 2: They're the attorneys for the hospital. So we knew at
Speaker 2: this point, like we need an attorney. We're in a
Speaker 2: fight for our lives. It was just a nightmare.
Speaker 1: Thankfully, this story is not the nightmare we're used to
Speaker 1: in SBS cases. On April first, twenty fourteen, Naomi was
Speaker 1: deemed recovered and was released from the hospital. Three days later,
Speaker 1: the director of the hospital's Child Protective Team, doctor Bethany Moore,
Speaker 1: finalized her report that Naomi was the victim of abusive
Speaker 1: head trauma and that Josh was responsible.
Speaker 2: A CPS worker and three police showed up unannounced, and
Speaker 2: the CPS worker said, I have a signed order from
Speaker 2: a judge to remove Naomi from your care. And we
Speaker 2: said where is she going? And he said, none of
Speaker 2: your business. I said, why can't she stay here? Why
Speaker 2: can't she stay with family or friends? You and your
Speaker 2: wife are considered a danger to your daughter, and anyone
Speaker 2: who supports you is considered a danger to your daughter.
Speaker 2: She's going into foster care, I said, with who, and
Speaker 2: he goes you have a court hearing in the morning.
Speaker 2: You'll get more information there, and I'm just again, it
Speaker 2: took me back to those same feelings. In the ambulance,
Speaker 2: I was like, I'm trying to keep my family safe.
Speaker 2: So I loaded up Naomi in her car seat, and
Speaker 2: my wife and I were just bawling, and again I prayed.
Speaker 2: I said keep her safe, God, shine light in this darkness.
Speaker 2: And then this was really difficult because literally, the government
Speaker 2: is taking my child away and I have no idea
Speaker 2: where she's going. So there's this raw party you write
Speaker 2: that is like, how dare you do this to us?
Speaker 2: We didn't do anything. You feel like you want to
Speaker 2: fight for your family, but CPS, from what I've experienced
Speaker 2: with them, they hope that you'll lose it in these
Speaker 2: situations as a dad because they just use it as
Speaker 2: ammunition against you, and I knew, like I have to
Speaker 2: keep it together. We ended up in the family court
Speaker 2: situation and they allowed Brenda three one hour visits a
Speaker 2: week with Naomi and I wasn't allowed to see her
Speaker 2: at all.
Speaker 1: Naomi spent the next seven months in foster care. Well
Speaker 1: the state took Brenda and Josh to civil court for
Speaker 1: jurisdiction over Naomi.
Speaker 2: Brenda was in my corner, but it was really difficult
Speaker 2: for her. Like the prosecutors literally came up to Brenda
Speaker 2: in the hallway and said, divorce Josh and testify against
Speaker 2: him and we'll give you the baby. And they're like,
Speaker 2: use Naomi as a pomp. We didn't realize that in
Speaker 2: the moment, but literally what they were planning to do.
Speaker 2: If Brenda did that, if Brenda just decided, well, I
Speaker 2: don't know, I'm just gonna do whatever I got to
Speaker 2: do to get Naomi home, now, they would have charged
Speaker 2: her with failure to protect and said you lived in
Speaker 2: the same house as your husband and now you admitted
Speaker 2: that he abused her. That would have been game set match.
Speaker 2: We would have never seen Naomi again. My wife just
Speaker 2: she looked at the prosecutor and said, testify against him
Speaker 2: for what.
Speaker 1: Soon the jury in the civil trial negated any leverage
Speaker 1: the state had by awarding the jurisdiction over Naomi to Brenda, and.
Speaker 2: In the day she got her back. I had to
Speaker 2: move out of the family home because I was still
Speaker 2: facing the criminal trial.
Speaker 1: Why are they so determined to get this child away
Speaker 1: from her mother and family.
Speaker 2: Yeah, I have my own opinions about that, and I've
Speaker 2: looked at these issues and I've talked to so many
Speaker 2: parents over the last twelve years, and honestly, I think
Speaker 2: if you follow the money, that's what it's about. When
Speaker 2: you put a child into foster care, that state gets
Speaker 2: more federal funding. The child abuse pediatrician who accused me
Speaker 2: of shaking baby syndrome at the time had a federal
Speaker 2: grant from the US Department of Justice to diagnose abusive
Speaker 2: head trauma, which is the new term for shaking baby syndrome.
Speaker 2: She's the state expert. She was on the payroll for CPS.
Speaker 2: She had grants through CPS. People hear that and they
Speaker 2: probably think this guy's a conspiracy theorist, but I'm sorry.
Speaker 2: I have the documents to prove it. I couldn't tell
Speaker 2: you what their in game strategy is when they do
Speaker 2: this to families, but I just know it's happening and
Speaker 2: there are thousands of parents and caregivers who are going
Speaker 2: through this. It's interesting because the detective and CPS asked
Speaker 2: if I would take a polygraph test, and I said, absolutely,
Speaker 2: sign me up, I have nothing to hide, and then
Speaker 2: once we retained an attorney, we never heard back from
Speaker 2: him on doing it. So my attorney was like, let's
Speaker 2: do a polygraph, and he called, like this guy in Michigan,
Speaker 2: he's the best heated polygraphs for the Michigan State Police.
Speaker 2: And he gave me two polygraphs. I passed him, which
Speaker 2: was no surprise. I had nothing to hide, but as
Speaker 2: you know, those aren't amissible his evidence in court. So
Speaker 2: but my attorney just wanted to give that to all
Speaker 2: these people, like, hey, you asked him to do it,
Speaker 2: here you go, right, But none of that mattered.
Speaker 1: It also didn't seem to matter that by January twenty fifteen,
Speaker 1: shaken baby syndrome had been under heavy scrutiny for over
Speaker 1: a decade, including a biomechanical study that concluded that shaking
Speaker 1: alone does not generate sufficient force to cause subdural hematomas,
Speaker 1: and a necessary force would also cause a spinal injury.
Speaker 1: But similar research and peer reviewed studies were blocked from
Speaker 1: this trial, which made it more of a battle between
Speaker 1: experts from the state who were certain that the retinal
Speaker 1: hemorrhages meant child abuse, and the defense, who said that
Speaker 1: the presence of old and new injuries, illness, and blood
Speaker 1: clotting issues made the retinal hemorrhages an unreliable marker for
Speaker 1: child abuse.
Speaker 2: To fight these cases, it requires attacking junk science with
Speaker 2: real science, and guess what real science puts jurors to sleep,
Speaker 2: and the emotional argument wins the day in these cases.
Speaker 2: It's tragic, but something happened to this child, and that
Speaker 2: just grabs everyone, and you're, yeah, it's tough.
Speaker 1: So despite the defense questioning the state's expert, doctor Moore
Speaker 1: about an email between her and a prestigious optimologist pointing
Speaker 1: to the blood clotting issue as problematic for her conclusion,
Speaker 1: Josh was convicted of second degree child abuse.
Speaker 2: I was facing ten years in prison, and it had
Speaker 2: been covered in the local Detroit news and there were
Speaker 2: over one hundred people outside the courtroom with signs protesting
Speaker 2: for me. There was an outcry. I had airline pilot
Speaker 2: brothers show up in uniform in the courtroom and the
Speaker 2: judge she had to give me a sentence because the
Speaker 2: jury found me guilty, and she took what was called
Speaker 2: a downward departure and gave me the lightest sentence possible
Speaker 2: which was one year in county jail with three years probation.
Speaker 1: Again, this is not our typical nightmare, but even one
Speaker 1: day in prison wrongfully convicted is unacceptable.
Speaker 2: While I was in jail, I was still facing a
Speaker 2: parental rights trial because CPS was still full speed ahead
Speaker 2: trying to terminate my parental rights. So I'm in jail
Speaker 2: and I'm having to have these conversations with Brenda, like, hey,
Speaker 2: they might terminate my print all rights. If that happens,
Speaker 2: you just need to let me go and move on
Speaker 2: with your life, because I'm not going to ask you
Speaker 2: to like, you know, painful phone conversations, you know. But
Speaker 2: it was interesting while I was in jail. We were
Speaker 2: on the Doctor Phil show. He really advocated for us,
Speaker 2: and he brought on a bunch of experts, and my
Speaker 2: wife was in studio. I was on a satellite uplink
Speaker 2: in my orange jumpsuit. Wow jail, And that was interesting,
Speaker 2: especially in jail, because everyone in the jail saw it.
Speaker 2: And I would be like walking down the hallway and
Speaker 2: an inmate would be like, hey, man, you shouldn't be here, bro,
Speaker 2: you got reilroaded. You're going home any day. They all
Speaker 2: knew who I was, and they're like high fiving me,
Speaker 2: and this just this cut dude. He's like sleeved in
Speaker 2: tats and just totally cut. His name was Corey, and
Speaker 2: he comes up to me and he goes, hey, man,
Speaker 2: I I'm here because I screwed up. He said, I
Speaker 2: have somes and I like have stolen for it and everything.
Speaker 2: But he goes, man, I watched you on that show
Speaker 2: and he said, if anybody so as much just look
Speaker 2: see you wrong, I'm going to rip them apart. I'm
Speaker 2: just like, whoa buddy, Uh, thank you. But it was
Speaker 2: just like even deputies and guards were coming up to
Speaker 2: me privately and like saying, hey man, you shouldn't be here,
Speaker 2: Like what, how did all this happen?
Speaker 1: Did you recognize that you had a lot of support
Speaker 1: that a lot of people didn't have.
Speaker 2: Was that somethinger aware of? Absolutely? Like I could see
Speaker 2: I was facing that parental rights trial. First off, the
Speaker 2: prosecutor backed off. They were supposed to represent CPS as
Speaker 2: the attorneys, and when the Doctor Phil's show came out,
Speaker 2: they backed off and said we're not touching this. And
Speaker 2: CPS had to hire outside council for my parental rights trial.
Speaker 2: And then the judge was in the same posture, like
Speaker 2: she defended me then and upheld my parental rights. So
Speaker 2: I knew when I got out we were going to
Speaker 2: be putting what's called a family reunification plan.
Speaker 1: Meanwhile, the Michigan Innocence Clinic picked up his appellate case
Speaker 1: in September twenty fifteen, arguing that the States case was
Speaker 1: based on junk science and that Josh deserved a new trial.
Speaker 1: But since Josh's defense put on experts who argued this
Speaker 1: at trial, it was decided that he had received a
Speaker 1: fair trial, so the motion was denied. By then, his
Speaker 1: jail time was up.
Speaker 2: I get released from jail and I still can't come home.
Speaker 2: It's like I gotta go stay with friends. But I
Speaker 2: was still super excited because the next morning I was
Speaker 2: going to get to see Naomi and I hadn't seen
Speaker 2: her for almost two years. Seeing her and holding her
Speaker 2: again for the first time, it was just like, oh my,
Speaker 2: it was amazing.
Speaker 1: Just was she walking? Did she run into your are?
Speaker 2: She was too, so she was two years old. I
Speaker 2: lost all that time with her. And they had a
Speaker 2: social worker who helped work with me on this, and
Speaker 2: like she said, you have to guard your expectations. She
Speaker 2: doesn't know you anymore, like she sees pictures of you.
Speaker 2: So it took a little bit of time, Like she
Speaker 2: would let me hold her and everything, but I could
Speaker 2: see her like looking at me, like what's your deal?
Speaker 2: Where have you been? But man, I just soaked it
Speaker 2: up and took what I could get and it didn't
Speaker 2: take long. And my wife was just incredible during this process.
Speaker 2: She just knew and believed in me and stuck by
Speaker 2: my side.
Speaker 1: That's amazing. She just sounds like an amazing woman.
Speaker 2: Yeah, this has traumatized her. I got out of jail
Speaker 2: and like we were planning to have another child. She's
Speaker 2: I'm terrified to have another kid. We can't have any
Speaker 2: more kids because of how CPS and the police came
Speaker 2: and took Naomi. If FedEx shows up or Amazon and
Speaker 2: they pound on the door, it triggers us. It's like
Speaker 2: we're still on guard. We're in family counseling right now.
Speaker 2: My daughter's twelve, but she doesn't know this story yet.
Speaker 2: Naomi has autism, she's high functioning. But we're following the
Speaker 2: counselor's lead on when and how we tell her this story.
Speaker 2: You know, so she's an amazing kid. Again, she's twelve,
Speaker 2: and she loves cats, she loves the color pink. She's
Speaker 2: just a girly girl. You should see her room, Maggie.
Speaker 2: It's incredible. If she met you today, she would say, Hi, Maggie,
Speaker 2: do you have any pets? And what's your favorite color?
Speaker 2: And she would want to know everything about you. She's
Speaker 2: very verbal, very vocal, and she's just again, the best
Speaker 2: thing that's ever happened to me. And it's amazing because
Speaker 2: my brother, Robert Robertson is also autistic.
Speaker 1: Since his release, Josh has become active in the fight
Speaker 1: against SBS prosecutions, including in the case of Robert Robertson
Speaker 1: in Texas, who we've covered here.
Speaker 2: I see him twice a month down on death Row,
Speaker 2: and when I talk to Robert, it's like we have
Speaker 2: this connection, Like I was immediately able to communicate with
Speaker 2: him because him and Naomi communicate almost the same way.
Speaker 2: Robert is also very verbal. But Robert he knows everyone's
Speaker 2: birthdays and he has the dates memorized. What's your birthday,
Speaker 2: what's your favorite food, your favorite color? It's oh my gosh.
Speaker 2: We just hit it off right away, you know, Naomi.
Speaker 2: She knows that Robert is autistic, and every time she says,
Speaker 2: please tell Robert that I said hi, and I'm praying
Speaker 2: for him. And she knows that Dad's fighting for Robert.
Speaker 2: She doesn't know all the details, but Naomi made these
Speaker 2: bracelets for everybody. When we did a rally for Robert.
Speaker 2: She came up to me one day and said, Dad,
Speaker 2: I know you're trying to help Robert, and she knows
Speaker 2: about Nicki, his daughter, and she said, Dad, I want
Speaker 2: to help too. I just hugged her and it was like,
Speaker 2: what do you want to do? And she said, I
Speaker 2: want to know what Nicki and Robert's favorite colors are,
Speaker 2: and I want to make bracelets for everybody. And I
Speaker 2: had the bag of like fifty bracelets she had made
Speaker 2: this rally. There was undreds of people there. I didn't
Speaker 2: have enough, but I still wear mine. I show it
Speaker 2: to Robert and I'm like, Lord, Willing, will give you
Speaker 2: one of these to wear someday.
Speaker 3: And you know.
Speaker 1: Josh joined Robert's fight in twenty twenty four. Soon after
Speaker 1: an unprecedented maneuver that saved Robert's life, he was scheduled
Speaker 1: for execution that October. All remedies had been exhausted when
Speaker 1: a bipartisan panel from the Texas Legislature subpoena Robert to
Speaker 1: appear before them after his execution was to take place,
Speaker 1: which then forced a stay of the execution while it
Speaker 1: was decided whether or not they could even do that.
Speaker 1: The Texas Supreme Court ultimately said that this maneuver would
Speaker 1: not work a second time. Meanwhile, over thousands of miles
Speaker 1: to the northeast, the Michigan Attorney General Conviction Integrity Unit
Speaker 1: had joined Josh's team in a motion to vacate his conviction.
Speaker 2: In November of twenty twenty four, when I was exonerated,
Speaker 2: Robert had just been given his second stay of it execution,
Speaker 2: and I read an article in the Dallas Morning News
Speaker 2: a state representative names Lacey Hull, and she had been
Speaker 2: advocating for Robert. I called her office and I said, Hey,
Speaker 2: I was just exonerated this week, and I'm hearing about
Speaker 2: this guy. I'm here if I can help. I didn't
Speaker 2: realize what I was saying, because a month later, Robert
Speaker 2: was subpoenaed to testify before the Texas Legislature's Jurisprudence Committee.
Speaker 2: He's subpoena to be there, and the Attorney General blocked
Speaker 2: him from testifying. So I got a call two days
Speaker 2: prior to the hearing asking can you come down and
Speaker 2: testify as an exonery for Robert? And it was like,
Speaker 2: holy shit, I've never done this, but okay, here we go. Yeah,
Speaker 2: of course, yes, I'll come. But I was completely terrified.
Speaker 2: I jumped on an airplane and made the quick twenty
Speaker 2: five minute flight down, hubered over to the Capitol in
Speaker 2: a suit and tie and read the pre planned statement
Speaker 2: that I had thrown together, and then I sat there
Speaker 2: and was questioned by all these politicians for the next hour.
Speaker 2: I didn't realize like that I was going to answer questions,
Speaker 2: but that was the first time exonerated that I was
Speaker 2: able to use my voice for good.
Speaker 1: How'd that feel?
Speaker 2: It felt really good. It felt really good to share
Speaker 2: my story and how it lines up with what Robert
Speaker 2: has gone through, what he's accused of, and being able
Speaker 2: to just say, hey, I'm here to tell you that
Speaker 2: this man deserves a new trial. All the evidence needs
Speaker 2: to be seen, you know. One of the politicians said, so,
Speaker 2: you're not asking us to unlock the cell and let
Speaker 2: this man out right now. Huge part of me wanted
Speaker 2: to say yes, but I know, we all know, like
Speaker 2: the best thing that can happen for Robert and for everyone,
Speaker 2: for the entire cause, is for Robert to get a
Speaker 2: new trial, for all the evidence to be seen, and
Speaker 2: for him to be declared innocent.
Speaker 1: And there's another Texas man named Andrew Rourke whose case
Speaker 1: is also significant. He too had been convicted under an
Speaker 1: SBS prosecution in a case where the child did not die.
Speaker 1: He did thirteen years of a thirty five year sentence,
Speaker 1: and it took him twenty seven years to be exonerated.
Speaker 1: Andrew was kind enough to speak with us my case.
Speaker 4: For a long time, a Laurier would tell me, I'm
Speaker 4: not sure if we can get there. He kept going
Speaker 4: back and forth. Luckily I was in Dallas County where
Speaker 4: they actually started the integrity unit, and it seemed like
Speaker 4: for a long time nobody wanted to really pull the
Speaker 4: trigger on it. But I finally got exonerated and I
Speaker 4: got found actual innocent.
Speaker 1: His exoneration comes from the re examination of the state's
Speaker 1: expert testimony that was based in what we now know
Speaker 1: to be an untested hypothesis being treated as scientific theorem.
Speaker 1: The state's expert had to recant her testimony, and she
Speaker 1: is also one of the main expert witnesses in Robert
Speaker 1: Robertson's case.
Speaker 4: What I tell people is, had the child died in
Speaker 4: my case, I'd be right next to him on death row.
Speaker 4: It's unbelievable. Hell easy it is to get in that
Speaker 4: kind of trouble when you can't explain what happened to
Speaker 4: your kid.
Speaker 1: Yeah, Robert was granted his third stay of execution in
Speaker 1: October twenty twenty five, and his case was remanded to
Speaker 1: the trial court to consider the new scientific evidence in
Speaker 1: his case under Texas's junk science law.
Speaker 2: You know one thing too, Maggie. The Texas Criminal Court
Speaker 2: of Appeals in their ruling when Robert got his stay,
Speaker 2: it says that what happens in Robert's case from here
Speaker 2: on out will be considered solely on ex parte Rourke.
Speaker 2: So the Rourke decision, Andrew Rourke's case is what allowed
Speaker 2: Robert to get his stay of execution. Wow, and so
Speaker 2: it's incredible like Andrew's case paved the way for our
Speaker 2: other brother.
Speaker 1: Tell me how you met Andrew.
Speaker 2: So we officially met at the Seattle Innocence Network conference.
Speaker 2: We were first year of ZONERIES because Andrew and I
Speaker 2: were dexonerated three days apart in November of twenty twenty four,
Speaker 2: and it just so happens that we live within an
Speaker 2: hour of each other here in Texas. So I had
Speaker 2: reached out to Andrew before that time, like I knew
Speaker 2: who he was. I follow all these cases and didn't
Speaker 2: hear anything back. But then shortly before the conference I
Speaker 2: heard from him. He said, are you going to be there?
Speaker 2: I said, I'm going to be there? All right? We
Speaker 2: got to meet.
Speaker 4: If it wasn't for my wife pushing me to go
Speaker 4: to Seattle and get involved in this stuff, I would
Speaker 4: have never known how many people are affected by all
Speaker 4: this that have been wrongfully convicted.
Speaker 2: I ended up sitting at the table with him and
Speaker 2: his wife Kelly at all the events, and we just
Speaker 2: hung out and we shared our stories and just obviously
Speaker 2: there was just this immediate connection with him, because you're
Speaker 2: talking to like a brother who just gets it.
Speaker 4: We all have a connection by going through absolute hell
Speaker 4: with all this, and in our cases children being involved.
Speaker 4: It's always looked at as I guess more evil.
Speaker 1: It's very emotional.
Speaker 2: It's like it triggers people, the.
Speaker 4: Way people look at you and just judge you right
Speaker 4: away for just hearing what you're accused of or convicted
Speaker 4: of or whatever.
Speaker 2: So many similar experiences, and.
Speaker 4: Then we got a request to do an interview. We
Speaker 4: met Dan Schleppi in there, and he's the one that
Speaker 4: kind of got us in a group. I guess at
Speaker 4: that time he was going to do a podcast with
Speaker 4: Lester Holt about Robert Robertson. And that's when I got
Speaker 4: the idea, like, I'm comfortable in this setting, and I
Speaker 4: really like this setting, and I love Josh.
Speaker 1: It seems that after their experience with the great Dan
Speaker 1: Sleppion and Lester Holt, Josh and Andrew decided to make
Speaker 1: their own podcast.
Speaker 2: Unshaken Truth is the name of this podcast, and we're
Speaker 2: going to focus on Robert's case the issues surrounding shaken
Speaker 2: baby syndrome, and our first guest will be author John Grisham.
Speaker 2: He's currently writing a book about Robert. And we're going
Speaker 2: to talk to subject matter experts, attorneys, advocacy groups, other exonarees,
Speaker 2: some lawmakers here in Texas who want to make changes,
Speaker 2: just to bring awareness to everyone that what happened to
Speaker 2: Andrew and I and Robert can happen to anyone.
Speaker 1: We'll be linking to your podcast in the episode description,
Speaker 1: as well as ways people can stay tuned to Robert's case.
Speaker 1: And with that, I'm going to leave the mic open
Speaker 1: for anything else y'all want to tell our audience.
Speaker 2: Before all this happened, I felt like if somebody was
Speaker 2: in court and they were before a jury, they probably
Speaker 2: deserve what they had come into them. I'm ashamed that
Speaker 2: it took this happening to me and my friend and brother,
Speaker 2: Andrew Rourke, my brother Robert Robertson. It's like lifted the
Speaker 2: scales off my eyes. I feel like I bought into
Speaker 2: a narrative that doesn't hold water. I'm ashamed that this
Speaker 2: is what it took to soften my heart and to
Speaker 2: see the truth of life's not that simple. Things aren't
Speaker 2: that simple. It's changed my view on the death penalty.
Speaker 2: Robert's an innocent man, and we're going to fight for him.
Speaker 2: One of the things that has become a battle cry
Speaker 2: for me. When my feet hit the floor in the morning,
Speaker 2: I say, for those who can't, I am fighting, Andrew
Speaker 2: is fighting. We are fighting for those who can't. When
Speaker 2: I was a convicted felon, I felt like I didn't
Speaker 2: have a voice. But the University of Michigan Innocence Clinic
Speaker 2: was my voice. They fought for me when I couldn't.
Speaker 2: So if you're out there and you feel like you
Speaker 2: don't have a voice, we hear you, and we are
Speaker 2: here to fight for you, and we will not stop
Speaker 2: fighting for you. For Robert, for all these people who
Speaker 2: are waiting for justice.
Speaker 1: Thank you for listening to Wrongful Conviction with Maggie Freeling.
Speaker 1: I'd like to thank our production team, Connor Hall and
Speaker 1: Kathleen Fink, as well as executive producers Jason Flamm, Jeff Kempler,
Speaker 1: Kevin Burtis, and Jeff Clyburn. The music in this production
Speaker 1: was supplied by three time OSCAR nominated composer Jay Ralph.
Speaker 1: Be sure to follow us across all social media platforms
Speaker 1: at Lava for Good and at Wrongful Conviction. You can
Speaker 1: also follow me on all platforms at Maggie Freeling. Wrongful
Speaker 1: Conviction with Maggie Freeling is a production of Lava for
Speaker 1: Good podcast in association with the Signal Company Number One.
Speaker 2: We've worked hard to ensure that all facts reported in
Speaker 2: this show are accurate. The views and opinions expressed by
Speaker 2: the individuals featured in this show are their own and
Speaker 2: do not necessarily reflect those of Love of Her Good