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Speaker 1: In November of two thousand and one, Zavion Johnson was

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Speaker 1: bathing his four month old daughter Nadia in preparation for

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Speaker 1: a visit with family, when, according to Zavion, she slipped

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Speaker 1: out of his hands and hit her head on the top.

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Speaker 1: At first, she appeared to be fine, and so Zavion,

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Speaker 1: his girlfriend, Raquel, and Nadia made their way to great

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Speaker 1: grandmother's house, but by the time the young family of

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Speaker 1: three arrived, Nadia was breathing irregularly, so they called nine

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Speaker 1: one to one and Xavian began CPR. Nadia was rushed

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Speaker 1: to the hospital, where a CT scan revealed a slight

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Speaker 1: skull fracture in addition to brain bleeding and swelling, as

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Speaker 1: well as bleeding behind her eyes. These are the findings

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Speaker 1: that are typically associated with shaking baby syndrome. A day later,

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Speaker 1: she was taken off life support and passed away. Although

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Speaker 1: Zavion denied ever shaking or abusing Nadia and tried to

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Speaker 1: explain that she had slipped out of his hands in

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Speaker 1: the shower and hit her head, the established medical opinion

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Speaker 1: at that time was clear. Three expert witness has testified

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Speaker 1: at Zavion's trial that Nadia symptoms could mean only one

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Speaker 1: thing that absent any other major injuries, Xavion must have

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Speaker 1: violently shaken Nadia. The defense presented their own expert with

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Speaker 1: theories that were considered outside the mainstream. Plus there's no

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Speaker 1: way that just one expert could possibly have refuted the

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Speaker 1: state's panel of three. But this is wrongful conviction. Welcome

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Speaker 1: back to wrongful conviction, where today our show involves one

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Speaker 1: of the worst tragedies any parent can ever experience, the

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Speaker 1: death of their child, And the only thing that could

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Speaker 1: make matters worse is that tragedy is so often compounded

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Speaker 1: by our criminal legal system with a wrongful conviction by

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Speaker 1: way of you guessed it's shaken baby syndrome or SBS prosecution,

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Speaker 1: in which a medical professional will jump to the conclusion

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Speaker 1: that a set of medical findings could have only one

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Speaker 1: cause abuse, usually at the hand of the most recent caregiver.

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Speaker 1: And today we're speaking with another survivor victim of this

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Speaker 1: faulty diagnosis, Zavian Johnson. Javion. We're very honored.

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Speaker 2: To have you here with us today.

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Speaker 1: Thank you, You're very welcome, and with him, the supervising

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Speaker 1: attorney at the Northern California Innocence Project Paige kaneb Paige,

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Speaker 1: Welcome to the show.

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Speaker 3: Thanks for having me.

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Speaker 1: Now, we've covered SPS at lant on Raful Conviction Junk Science,

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Speaker 1: in which our host Josh Dubin spoke with the executive

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Speaker 1: director of the Center for Integrity and Forensic Science is

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Speaker 1: Kate Judson, and we're going to have that episode linked

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Speaker 1: in the bio and Kate is going to be joining

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Speaker 1: us again later to discuss how the faulty SPS diagnosis

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Speaker 1: related to ZAVS prosecution and wrongful conviction. But at the

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Speaker 1: time of your wrongful conviction, the scrutiny of SBS was

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Speaker 1: just beginning. It had really gone unchecked, starting way back

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Speaker 1: in nineteen seventy one when a British neurosurgeon named doctor

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Speaker 1: Norman Guthkell, which was looking for an explanation for a

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Speaker 1: pattern that he had seen and some injured and even

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Speaker 1: deceased children.

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Speaker 3: Brain swelling, subdural hemorrhaging and retinal hemorrhaging intended to be

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Speaker 3: the three main medical findings that doctors were trained that

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Speaker 3: when they saw these things that meant it was child abuse,

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Speaker 3: shaken baby syndrome, abuse of heteromay.

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Speaker 1: Right the findings again in Layman's terms, brain swelling, brain bleeding,

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Speaker 1: and bleeding behind the eyes. Now, guth Keltrin he hypothesized

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Speaker 1: that this pattern could have been caused by a common

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Speaker 1: scolding method at the time in Britain, which was shaking

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Speaker 1: an infant or unruly child, and he cautioned parents against

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Speaker 1: the practice. But what we now know is that they're

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Speaker 1: eighty one and counting. That's eighty one and counting medical

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Speaker 1: conditions that can lead to these findings in addition to

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Speaker 1: a traumatic event. They also believed that they could pinpoint

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Speaker 1: the time of the occurrence, when in fact, if a

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Speaker 1: traumatic event was the cause, we now know that the

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Speaker 1: trigger of those findings could have happened begun at any

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Speaker 1: time up to seventy two hours before the symptoms really

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Speaker 1: came to light. So sadly, as we've seen, the most

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Speaker 1: recent caretaker in this case, a parent comes under suspicion.

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Speaker 1: But before all of that, Zapp, let's hear about you

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Speaker 1: and your life. Where did you grow up and how

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Speaker 1: would you describe yourself as a kid? How was your childhood?

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Speaker 4: I grew up in Sacramento, California. We was a pretty

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Speaker 4: well mannered kid. I am the oldest of seven.

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Speaker 1: As the oldest, I'm guessing you probably must have helped

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Speaker 1: out a lot.

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Speaker 4: Yeah, it's just a role you fall into and I

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Speaker 4: would babysit, I would, you know, Cook just played a

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Speaker 4: big brother slash father role by being responsible.

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Speaker 1: And you were still pretty young when you actually became

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Speaker 1: a father. How did you meet Nadia's mother?

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Speaker 4: Getting up to high school, that's where I met the

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Speaker 4: young lady, and we were together from the age of

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Speaker 4: sixteen to pretty much when the incident happened at eighteen.

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Speaker 1: And that young woman's name was Raquel, but you called

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Speaker 1: her Rocky. So in January of two thousand and one

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Speaker 1: you found out that she was pregnant. Now did you too,

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Speaker 1: You have your own place? Did you get place? And

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Speaker 1: did you feel like you were really ready to be

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Speaker 1: a dad at that point?

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Speaker 2: So young?

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Speaker 4: Yeah, worked for the State of California for cal TRANPS.

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Speaker 4: I had a pretty good head on my shoulders. Our

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Speaker 4: parents pretty much lived within walking distance from each other.

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Speaker 4: We kind of just split time at her dad's house

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Speaker 4: and at my mom's home until we kind of figured

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Speaker 4: it out. You know.

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Speaker 1: So Na he was born that July, right, So what

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Speaker 1: was that they like? For you and Rocky.

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Speaker 2: Oh man.

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Speaker 4: I remember she just woke up in the middle of

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Speaker 4: the night. I was like, I think I peed on myself.

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Speaker 4: So I went in there and told my mom. I'm like,

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Speaker 4: Rocky said, she peed on herself. And then my mom

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Speaker 4: was like, oh, no, boy, she didn't pee on herself.

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Speaker 4: And so we made it to the hospital in nineteen

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Speaker 4: full hours of labor. All I remember seeing was eyes.

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Speaker 4: She had the most biggest eyes. For the longest time,

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Speaker 4: I haven't had a chance to like really reflect on

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Speaker 4: this because of the simple fact that for seventeen years plus,

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Speaker 4: I talk about my wrong full confixtion, I talk about

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Speaker 4: my wrong fully fixtion.

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Speaker 2: I talk about everything.

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Speaker 4: That wasn't me, you know, so I kind of I'm

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Speaker 4: not gonna say I forgot about, you know, all this,

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Speaker 4: but to remember it is good. So you know, I

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Speaker 4: appreciative of this interview. Yeah, twenty six hours, nineteen actual

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Speaker 4: hours of labor. That's how long I waited for, you know,

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Speaker 4: my gift.

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Speaker 1: And as many people testified at the trial, you were

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Speaker 1: in every way a fantastic, loving dad. But that unfortunately

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Speaker 1: brings us to the faithful day of November twenty fourth,

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Speaker 1: two thousand and one when Nadia was just four months old.

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Speaker 1: Now this would have been just a day or two

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Speaker 1: after Thanksgiving, the day that the.

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Speaker 2: Accident took place.

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Speaker 4: I showered with my daughter and plasten her back into

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Speaker 4: the little bathtub that was inside of you know, the

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Speaker 4: big shower. She basically kicked off of my chest and

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Speaker 4: slipped out of my hands and as a result, so

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Speaker 4: if she hit her head, I picked her up, looked

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Speaker 4: there wasn't like any obvious swilling or anything like that,

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Speaker 4: So I just pretty much thought to myself, close call.

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Speaker 4: Grandmother gets there and before we can get to our house,

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Speaker 4: her breathing and stuff really changed. So we get to

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Speaker 4: our grandmother's house and that's when nine one one is

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Speaker 4: called and I try to perform CPR.

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Speaker 1: So page the EMTs showed up. It's around three twenty pm.

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Speaker 3: They document that Nadia looks well cared for. There's no

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Speaker 3: bruises or marks anywhere on her body. They also try

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Speaker 3: and perform CPR and rush her to the hospital, and

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Speaker 3: the EMT's note as they're heading towards the hospital that

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Speaker 3: like a thumbprint type mark is appearing on one side

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Speaker 3: of her forehead, like a red mark.

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Speaker 1: And from what I understand That thumb sized mark was

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Speaker 1: later attributed to the work of the EMTs.

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Speaker 3: The intubation process doesn't help stabilizing the head. You sort

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Speaker 3: of have two fingers on one side in your thumb

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Speaker 3: on the other side of the forehead to keep the

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Speaker 3: head still. And later they end up documenting that there

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Speaker 3: are bruises kind of on both sides of the forehead

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Speaker 3: develop exactly where they would have been stabilizing her forehead.

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Speaker 1: And that's just an example of what an innocent injury

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Speaker 1: can add to the rush to judgment by hospital staff

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Speaker 1: to rule an instance to be a case of child

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Speaker 1: abuse upon a patient's arrival. And so when Nadia arrived

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Speaker 1: at you see Davis Medical Center, these are the kinds

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Speaker 1: of things being noted. And at this point she still

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Speaker 1: had not been revived.

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Speaker 3: She is placed on life support at the hospital, but

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Speaker 3: they don't really ever revive her. You know, at the

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Speaker 3: hospital they do see tea scans and they see a

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Speaker 3: skull fracture and the thin layer of blood and one

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Speaker 3: of the tissue layers that wrap around the brain, the

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Speaker 3: one closest to the skull. She had retinal hemorrhages, tiny

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Speaker 3: bits of bleeding in the back of her eyes, and

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Speaker 3: she had brain swelling.

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Speaker 1: And there it is the tryaud of findings that had

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Speaker 1: been hypothesized to be caused by shaking and or abusive

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Speaker 1: head trauma, a hypothesis that became accepted wisdom of the

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Speaker 1: medical establishment without ever being tested. I mean, how would

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Speaker 1: one test it without actually shaking and or abusing children

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Speaker 1: and risking the potentially fatal results that doctor Gothkelch had feared.

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Speaker 1: So this hypothesis was never tested, and yet it was

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Speaker 1: and is taught at medical schools and even in law

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Speaker 1: schools all over the world, including to the folks that

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Speaker 1: you see Davis back in two thousand and one.

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Speaker 3: And they have, you know, a child abuse team who

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Speaker 3: has been trained to believe that when they see retinal hemorrhages,

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Speaker 3: subdural hemorrhages, brain swelling, you know, with or without other injuries,

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Speaker 3: that that means it's shaken baby syndrome. And there's nothing

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Speaker 3: else really ever even contemplated. And so you can see

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Speaker 3: it from when Nadia's first brought in. Child abuse is

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Speaker 3: all over the medical records.

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Speaker 1: So Zav you must have been out of your mind

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Speaker 1: with worry. Meanwhile, this child abuse team and you see

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Speaker 1: Davis was setting a course for you your arrest. Had

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Speaker 1: you ever even heard of shaking baby syndrome or SBS?

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Speaker 4: No, never heard of it, never understood, never knew what

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Speaker 4: it was.

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Speaker 2: It wasn't any shaken and so it just was a

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Speaker 2: ball of confusion.

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Speaker 1: When did it dawn on you that you were beginning

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Speaker 1: to come under suspicion?

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Speaker 4: When I started to see police is coming there, and

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Speaker 4: I still, you know, I still kind of didn't know

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Speaker 4: or fully understand what was going on and wanted to.

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Speaker 2: Talk to a legal representation.

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Speaker 3: First, And just to be clear, because Zavid told all

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Speaker 3: his family about the fall. One of his aunts actually

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Speaker 3: told one of the nurses, so they did know about

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Speaker 3: the fall, even if not, you know, directly from Zev.

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Speaker 4: Then when did the doctors say too, I don't want

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Speaker 4: to paraphrase it, but it still wouldn't it mattered, or

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Speaker 4: it was still going to be too late or.

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Speaker 2: Something like that.

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Speaker 3: Well, yeah, they thought it was inconsistent with a fall,

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Speaker 3: so it yeah, it didn't matter. So after a couple

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Speaker 3: of days on life support, the physicians say that they

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Speaker 3: declare that she's brain dead and has to be removed

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Speaker 3: from life support.

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Speaker 1: All those years ago, I'm sure it still hurts to

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Speaker 1: even think about it, but at the time it must

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Speaker 1: have been absolutely devastating. And now you and Raquel to

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Speaker 1: very young parents, had to begin to plan a funeral

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Speaker 1: for your little girl. That's just not supposed to happen,

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Speaker 1: But it did happen a week later, on December fourth,

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Speaker 1: two thousand and one, and that day found a way

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Speaker 1: to get even worse.

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Speaker 2: Oh man.

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Speaker 4: Yeah, I remember being inside of the church, and you know,

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Speaker 4: there's all of our family there and you know, whoever else,

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Speaker 4: and then I just start seeing people that don't look

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Speaker 4: like me in the church, and I'm just like, well,

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Speaker 4: what's going on. I'm not really paying attention to it.

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Speaker 4: And then I think when we go outside during the burial,

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Speaker 4: I start seeing kind of like the same people. So,

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Speaker 4: you know, I remembers taking pictures, making plans to meet

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Speaker 4: back up at I think at my mom's house or

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Speaker 4: her dad's house. We set our you know, see, later,

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Speaker 4: gave her a kiss, I got in the car with

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Speaker 4: a friend of mine, and she got in the car

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Speaker 4: with I think either my mom or her parents. And

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Speaker 4: before we can even get I don't know how far,

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Speaker 4: pretty much was pulled over by undercover cars.

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Speaker 2: And six guns was drawn at me.

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Speaker 4: I get exited out the vehicles, placed on the hood

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Speaker 4: of the car in handcuffs, saying I'm being arrested for

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Speaker 4: murder and I was just like murder of who huh.

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Speaker 1: This episode is underwritten by global law firm Greenberg Trawig.

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Speaker 1: Through its pro bono program, Greenberg Trowerg leverages it's more

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Speaker 1: than twenty six hundred lawyers across forty four offices to

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Speaker 1: serve the greater good of our communities and provide equal

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Speaker 1: access to justice for all. In the field of criminal justice,

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Speaker 1: Greenbrook Trowerg attorneys have Exonerated and Freedom and at Philadelphia

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Speaker 1: represent numerous individuals previously sentenced to life for crimes committed

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Speaker 1: as juveniles and resentencing hearings, and received the American Bar

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Speaker 1: Association's twenty twenty one Exceptional Service Award for Death Penalty

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Speaker 1: Representation for their work on five death penalty cases. GT

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Speaker 1: is reimagining what big law can be because of a

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Speaker 1: more just world. Only happens by design.

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Speaker 5: My name is Kate Judson. I'm the executive director of

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Speaker 5: the Center for Integrity and Forensic Sciences, and I am

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Speaker 5: familiar with Xavian Johnson's case and shaken baby cases in general.

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Speaker 5: In the case of Xavian Johnson, on one hand, we

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Speaker 5: have Zevian retelling his account that Nadia had taken a

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Speaker 5: fall of three or four feet and hit her head

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Speaker 5: on the bathtub. But back in two thousand and one,

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Speaker 5: the medical establishment had not yet accepted the idea that

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Speaker 5: a short fall, even coupled with an impact on a

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Speaker 5: hard surface, could cause the tryad of findings associated with

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Speaker 5: shaken baby syndrome in abusive head trauma. Now at the

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Speaker 5: time of trial, the state's experts testimony aligned with this

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Speaker 5: incorrect assumption. A forensic pathologist who performed Nadia's autopsy testified

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Speaker 5: that he found bleeding behind her eyes, which was associated

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Speaker 5: with what he called a rotational head injury. He was

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Speaker 5: unequivocal in saying that the injuries could not have been

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Speaker 5: the result of a fall. Doctor Claudia Greco, a neuropathologist,

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Speaker 5: testified that she found a brain injury that was what

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Speaker 5: she called the most convincing evidence that the baby died

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Speaker 5: from shaking and not from a fall of four feet.

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Speaker 5: And doctor Kevin Colter was the pediatrician at the University

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Speaker 5: of California, Davis Medical Center, who treated Nadia in the hospital.

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Speaker 5: He testified that physicians only see the constellation of injuries

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Speaker 5: that Nadia had with shaking, with falls from what he

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Speaker 5: called great heights of ten feet or higher, motor vehicle

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Speaker 5: accidents or similar events where there is what he called

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Speaker 5: a really significant, high velocity impact. These physicians were totally

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Speaker 5: under estimating the danger that shortfalls can represent. The defense

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Speaker 5: witness doctor Richard Robertson, referring to what was then very

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Speaker 5: recent biomechanical research, he testified to what we know now

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Speaker 5: that the injuries in Nadia were consistent with a short

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Speaker 5: fall onto a hard surface. However, one of the state's witnesses,

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Speaker 5: doctor Greco, attacked that research, claiming it was unreliable, even

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Speaker 5: though it later became part of the basis of our

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Speaker 5: current understanding of shake and baby syndrome, and studies have

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Speaker 5: shown that falls, even from short distances far exceed the

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Speaker 5: thresholds for injury then even the most vigorous shaking. Yet,

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Speaker 5: it appears that Devian's trial came down to a contest

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Speaker 5: of experts. However misinformed the state's experts were at the time,

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Speaker 5: the contest was outweighed in the states favor three to one.

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Speaker 3: You know, I think one of the things that really

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Speaker 3: makes them so compelling, besides that they're doctors and they're experts,

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Speaker 3: is they don't have any reason to lie about this,

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Speaker 3: you know, and they believed what they were saying.

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Speaker 1: I know, you'd think that nearly the entire medical community,

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Speaker 1: including these three expert witnesses, would have recognized much sooner

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Speaker 1: that this SBS diagnosis requires a huge leap in logic

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Speaker 1: that ignores all the other potential causes, which, like I

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Speaker 1: said before, we now know there's at least eighty one others,

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Speaker 1: and the whole thing seems antithetical to the scientific method.

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Speaker 1: I mean, do you have any theories at all as

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Speaker 1: to why these otherwise learned and probably well intentioned people

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Speaker 1: we're testifying this way in case after case.

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Speaker 3: Medical school doesn't focus on what is the evidence for

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Speaker 3: various propositions right. They're not spending their time looking back

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Speaker 3: at like was the scientific method followed or how well

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Speaker 3: did this work out? They spend their time being trained

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Speaker 3: to recognize various things right and diagnose based on them.

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Speaker 3: And pediatric deaths is a tiny part of what most

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Speaker 3: doc's practice, and so they may just remember that they

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Speaker 3: were trained. When you see these things, its abuse and

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Speaker 3: only abuse, you know. The American Academy of Pediatrics put

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Speaker 3: out a two thousand and one policy statement. They called

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Speaker 3: it a Technical Report on Shaking Baby Syndrome, and it

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Speaker 3: literally says, this constellation of injuries does not happen with shortballs.

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Speaker 3: And the National Association of Medical Examiners had the same thing,

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Speaker 3: and the DOJ published guide saying the same thing.

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Speaker 1: But Zavion's lawyer had his own expert, right, doctor Richard Robertson,

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Speaker 1: And this guy raised doctor John Plunkett study to say

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Speaker 1: the opposite.

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Speaker 4: My trial attorney, I don't got no grievance with them, man.

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Speaker 4: I believe he tried his artists, you know.

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Speaker 1: Yeah, he not only presented your own expert testifying to

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Speaker 1: the current understanding of SBS, but in addition, there were

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Speaker 1: also over a dozen character witnesses.

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Speaker 4: Man, it was so many people. I don't remember everyone,

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Speaker 4: but the main people who should have been up there

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Speaker 4: was there. You know, the mother of the child, my mom,

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Speaker 4: you know, I guess the people who who knew our character.

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Speaker 1: And zav also.

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Speaker 3: Took the stand, right, Zav's child attorney, he remembered zav

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Speaker 3: testifying and that it was super powerful and the jury

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Speaker 3: was really moved. We have this letter from one of

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Speaker 3: the jurors talking about how Zev seemed like a really

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Speaker 3: good young man, seemed like a very loving father. It

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Speaker 3: seemed horribly out of character for him to have done

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Speaker 3: anything to harm his daughter. But the medical experts said

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Speaker 3: the only possibility was abuse, and so they felt like

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Speaker 3: they had no choice but to convict.

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Speaker 1: So you were given two concurrent life sentences, one for

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Speaker 1: child abuse and one for child abuse resulting in death,

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Speaker 1: which results in a sentence of twenty five to life.

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Speaker 4: I do recall like when I got sentence. I remember

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Speaker 4: hearing everyone gas eighteen years old. I had to go

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Speaker 4: and start a double life sentence with you know, just

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Speaker 4: me not being able to agree, me not being able

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Speaker 4: to you know, just fully process you know, the loss

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Speaker 4: of my child. It just was, it had to be

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Speaker 4: bottled up. I had to, you know, like I said,

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Speaker 4: go into survival mode inside of prison.

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Speaker 2: So fast forward to me being nineteen.

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Speaker 4: Now I'm sentenced to life and I go start my

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Speaker 4: time off at a level four high.

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Speaker 2: Desert State Penitentiary.

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Speaker 4: I didn't know how I would survive, didn't know how

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Speaker 4: I would manage. But I walked with something someone and

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Speaker 4: I know who it is. There was a lot of

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Speaker 4: things that I seen in front of me, a lot

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Speaker 4: of things that I seen behind me, a lot of

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Speaker 4: things that I seen on the side of me. For

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Speaker 4: seventeen years, thankfully, nothing agreed tous happened to me. But yeah,

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Speaker 4: just surviving, I had to pick up fast. It's like

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Speaker 4: I did as being the older SIP. I spoke less

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Speaker 4: and I looked more, and I listened more. For surely

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Speaker 4: there's PTSD. For surely there's counselor needed. For surely I

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Speaker 4: am not whole, but I'm not broken either, So you

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Speaker 4: know there is hope.

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Speaker 1: And while grinding through, I understand you spent a lot

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Speaker 1: of time in the law library.

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Speaker 2: Yeah, it turned into what we call on the inside,

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Speaker 2: a legal bigle.

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Speaker 1: And in two thousand and four you filed an appeal

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Speaker 1: with the Third District California Court of Appeals, which unfortunately

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Speaker 1: upheld the conviction. And then you continued to file appeals

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Speaker 1: for pretty much the next ten long years until the

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Speaker 1: Northern California Innocence Project got involved.

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Speaker 3: So he'd written to us before his appeal was denied

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Speaker 3: and then again afterwards he's you know, filing his own

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Speaker 3: habeas petitions.

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Speaker 2: You know what, a lot of help from my mom.

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Speaker 4: She made sure I met deadlines, like she made sure

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Speaker 4: I got helped with copies.

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Speaker 3: Of Yeah, so his mom would print out like abstracts

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Speaker 3: of medical articles and then Zev would attach those to

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Speaker 3: habeas petitions, and the court just kept denying him, saying,

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Speaker 3: you know, you don't have an expert saying how this

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Speaker 3: applies to your case, And he also kept writing to us.

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Speaker 3: And then around twenty fourteen, I had been working on

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Speaker 3: a shaken baby syndrome case, a different one, and had

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Speaker 3: been learning all about the science or lack thereof, and

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Speaker 3: I decided to go meet Zav and it was hard

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Speaker 3: to walk away from him.

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Speaker 4: She had to help me. But yeah, no, like it's

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Speaker 4: just it's a testament to who I am. It's a

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Speaker 4: testament to the father that I was, to the son

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Speaker 4: that I was, to the cousin that I was, to

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Speaker 4: the big brother that I was. So you know, I

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Speaker 4: just appreciate her seeing that. And you know, not too

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Speaker 4: much has changed. I'm still Karen. I still love kids,

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Speaker 4: I still you know, have a zest for life, you know,

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Speaker 4: and I'm hoping to, you know, be it in that

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Speaker 4: row again.

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Speaker 1: Well, it looks like you have that chance now, But

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Speaker 1: how did that come about? What was the strategy that

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Speaker 1: brought him home?

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Speaker 3: From our perspective, the beautiful things about Zav's case was

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Speaker 3: he had always been so consistent, right, he had just

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Speaker 3: always said she fell in the shower. I never did

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Speaker 3: anything to intentionally or deliberately harm her in some kind

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Speaker 3: of way. And all of the lay witness evidence was

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Speaker 3: that he was this great, gentle, loving person and caretaker

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Speaker 3: and father, and so we knew this really turned on

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Speaker 3: the medical So this was all about getting new or

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Speaker 3: the same original medical experts. So one of the first

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Speaker 3: people I approached was doctor Riber, who had done the autopsy,

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Speaker 3: and I asked him if he would be willing to

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Speaker 3: take another look. I knew a lot of the science

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Speaker 3: around pediatric head injuries had evolved and changed, and especially

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Speaker 3: when it comes to shortfalls, and eventually he agreed to

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Speaker 3: do that, which was amazing. I also got another independent

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Speaker 3: forensic pathologist who'd never looked at the case, doctor Judy Melinik.

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Speaker 3: Asked her to do just a clean, independent review based

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Speaker 3: on what we now know. We got a skull fracture

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Speaker 3: expert doctor Roger Hout, who had been doing all sorts

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Speaker 3: of experiments with pig skulls. Actually, so doctor Ribert in

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Speaker 3: a lot of ways was really the key piece, especially

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Speaker 3: in terms of the District Attorney's office view of the case.

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Speaker 3: He eventually wrote a declaration that explained why he'd felt

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Speaker 3: like he had to say this was shaken baby syndrome

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Speaker 3: in two thousand and one, in two thousand and two,

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Speaker 3: and why now he would say that it's consistent with

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Speaker 3: a shortfall, and more so than shaking, because you know,

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Speaker 3: as it turns out, the forces from human shaking aren't

438
00:23:54,400 --> 00:23:57,200
Speaker 3: nearly what we thought they were, and the forces from

439
00:23:57,240 --> 00:24:00,800
Speaker 3: falls are much greater. And so he wrote this beautiful

440
00:24:00,920 --> 00:24:06,400
Speaker 3: declaration that explained this whole trajectory and what has changed

441
00:24:06,440 --> 00:24:09,399
Speaker 3: and why it has changed. The way he teaches, the

442
00:24:09,440 --> 00:24:12,680
Speaker 3: way he practices, the way he does his autopsies, and

443
00:24:12,760 --> 00:24:16,320
Speaker 3: the way he would have mannered and given an opinion

444
00:24:16,480 --> 00:24:17,240
Speaker 3: on this case.

445
00:24:17,680 --> 00:24:21,560
Speaker 1: And now i'd like to quote doctor Riber's very powerful statement,

446
00:24:21,680 --> 00:24:24,159
Speaker 1: and just for context, there are only three ways that

447
00:24:24,240 --> 00:24:28,200
Speaker 1: an autopsy can be categorized natural causes, homicide, or undetermined.

448
00:24:28,480 --> 00:24:31,480
Speaker 1: So this is what doctor Ribers said, quote. While the

449
00:24:31,560 --> 00:24:34,840
Speaker 1: consensus view at the time of the autopsy, which I shared,

450
00:24:35,000 --> 00:24:37,840
Speaker 1: led to a conclusion that the manner of death was homicide,

451
00:24:38,440 --> 00:24:41,960
Speaker 1: the current reassessment has led me to conclude that accidental

452
00:24:41,960 --> 00:24:46,320
Speaker 1: injury cannot be excluded, and therefore the manner of death

453
00:24:46,800 --> 00:24:49,159
Speaker 1: should be considered as undetermined.

454
00:24:49,600 --> 00:24:50,320
Speaker 2: End quote.

455
00:24:50,560 --> 00:24:53,320
Speaker 1: Wow, I mean, it takes guts to admit when you

456
00:24:53,320 --> 00:24:55,800
Speaker 1: were wrong, especially when the stakes are so high, and

457
00:24:55,800 --> 00:24:58,639
Speaker 1: we've seen so many other experts that did the opposite right,

458
00:24:58,680 --> 00:25:00,879
Speaker 1: they just really dug in their heel on other cases.

459
00:25:00,960 --> 00:25:03,960
Speaker 1: So I mean, better late than never, I guess you

460
00:25:03,960 --> 00:25:05,320
Speaker 1: could say. And I commend him.

461
00:25:05,160 --> 00:25:08,080
Speaker 3: For that, honestly. I mean, I think for doctor Riber

462
00:25:08,200 --> 00:25:10,920
Speaker 3: this was one of the hardest experiences of his life.

463
00:25:11,000 --> 00:25:13,520
Speaker 3: I totally believe he believed what he was saying at

464
00:25:13,560 --> 00:25:15,399
Speaker 3: the time, and the fact that he was willing to

465
00:25:15,480 --> 00:25:18,760
Speaker 3: admit on paper that he was wrong is huge and

466
00:25:18,840 --> 00:25:23,680
Speaker 3: fairly unusual. I think really speaks to his character and bravery,

467
00:25:23,760 --> 00:25:27,440
Speaker 3: and that it wasn't something he was trying to deliberately

468
00:25:27,480 --> 00:25:29,840
Speaker 3: send an innocent person to prison or something like that,

469
00:25:30,359 --> 00:25:33,479
Speaker 3: and our other experts basically all said the same. Doctor

470
00:25:33,600 --> 00:25:37,200
Speaker 3: Greco the neuropathologist. She wasn't willing to do a full

471
00:25:37,280 --> 00:25:39,600
Speaker 3: review of the case because she was retired. But what

472
00:25:39,680 --> 00:25:41,359
Speaker 3: she did agree to do is just look at her

473
00:25:41,359 --> 00:25:45,479
Speaker 3: own testimony and say what she would say differently today.

474
00:25:45,640 --> 00:25:48,439
Speaker 3: Doctor Greco said, you know, look, there's new studies that

475
00:25:48,480 --> 00:25:51,000
Speaker 3: have come out. We now know these findings appear in

476
00:25:51,080 --> 00:25:53,800
Speaker 3: other things, and I wouldn't say that this proves that

477
00:25:53,840 --> 00:25:57,159
Speaker 3: the child has been shaken. And so we had four

478
00:25:57,440 --> 00:26:01,439
Speaker 3: expert reports, including two from their real experts, and we

479
00:26:01,560 --> 00:26:03,879
Speaker 3: presented all of that to the court and to the

480
00:26:03,880 --> 00:26:05,800
Speaker 3: District Attorney's office.

481
00:26:05,440 --> 00:26:07,879
Speaker 1: And that was in April of twenty seventeen. You at

482
00:26:07,880 --> 00:26:10,320
Speaker 1: the Northern California Innisis Project, long with the law firm

483
00:26:10,600 --> 00:26:13,639
Speaker 1: of Kecker, Van Nest and Peters, FILEDUS habeas and the

484
00:26:13,680 --> 00:26:17,160
Speaker 1: District Attorney actually did the right thing, which we don't

485
00:26:17,160 --> 00:26:21,000
Speaker 1: see that often unfortunately, and they agreed that the petition

486
00:26:21,080 --> 00:26:24,280
Speaker 1: for relief should be granted. And so on December eighth,

487
00:26:24,359 --> 00:26:29,639
Speaker 1: twenty seventeen, Sacramento Superior Court Judge James Arguayas vacated Xavion's conviction,

488
00:26:30,119 --> 00:26:32,280
Speaker 1: and even though the DA had joined the defense in

489
00:26:32,280 --> 00:26:36,440
Speaker 1: granting relief, that didn't mean this was over. They had

490
00:26:36,480 --> 00:26:38,920
Speaker 1: forty days to decide whether or not to retry or

491
00:26:38,960 --> 00:26:40,840
Speaker 1: drop the charges. So al those zav you were in

492
00:26:40,880 --> 00:26:44,840
Speaker 1: this limbo for forty long days. You were finally on

493
00:26:44,920 --> 00:26:48,240
Speaker 1: the outside for the first time in over fifteen years.

494
00:26:48,359 --> 00:26:51,679
Speaker 4: I just remember just saying good luck, and then I

495
00:26:51,760 --> 00:26:53,440
Speaker 4: remember getting out of my paper suit.

496
00:26:54,000 --> 00:26:55,119
Speaker 2: I remember getting.

497
00:26:54,960 --> 00:26:58,680
Speaker 4: Dressed, you know, doing all that, and then I talked

498
00:26:58,680 --> 00:27:01,399
Speaker 4: about it before I came home. But I wanted Popeye's

499
00:27:01,480 --> 00:27:05,280
Speaker 4: chicken and strawberry soda. You know, I went without fried

500
00:27:05,359 --> 00:27:07,679
Speaker 4: chicken for so long, and there all they do is

501
00:27:07,720 --> 00:27:10,399
Speaker 4: bake it. All they do is bake it in a

502
00:27:10,440 --> 00:27:13,440
Speaker 4: hot bath too. So yeah, it was pretty cool.

503
00:27:13,880 --> 00:27:18,240
Speaker 1: And then on January eighteenth, twenty eighteen, the chargers were dismissed.

504
00:27:18,480 --> 00:27:22,040
Speaker 1: There would be no retrial, and you were a long last,

505
00:27:22,119 --> 00:27:25,560
Speaker 1: a truly free man. Must have been one of the

506
00:27:25,600 --> 00:27:26,879
Speaker 1: best days of your life.

507
00:27:27,640 --> 00:27:30,000
Speaker 4: It was it was I got the call, I think

508
00:27:30,119 --> 00:27:33,560
Speaker 4: the night before, shout out to coach k that's kry Tillery,

509
00:27:33,600 --> 00:27:36,320
Speaker 4: who works for Kecker, Vaness and Peters.

510
00:27:36,680 --> 00:27:39,000
Speaker 2: I had an awesome team and now they even awesome

511
00:27:39,119 --> 00:27:39,760
Speaker 2: family too.

512
00:27:39,960 --> 00:27:43,959
Speaker 4: My team understood how much I did not want to

513
00:27:44,040 --> 00:27:47,399
Speaker 4: stay in my hometown and Sacramento just because you know,

514
00:27:47,480 --> 00:27:48,640
Speaker 4: my PTSD, you.

515
00:27:48,600 --> 00:27:51,240
Speaker 2: Know, paranoia, you know, living out here.

516
00:27:51,160 --> 00:27:53,960
Speaker 4: It just didn't sit well with me. And I was

517
00:27:54,000 --> 00:27:56,480
Speaker 4: fortunate enough to live in the Bay Area with one

518
00:27:56,480 --> 00:27:57,639
Speaker 4: of my legal.

519
00:27:57,520 --> 00:27:59,680
Speaker 2: Team members for about four years.

520
00:28:00,000 --> 00:28:02,119
Speaker 1: Wow, talk about walking the walk. Not only did your

521
00:28:02,200 --> 00:28:04,479
Speaker 1: legal team free you, they took you in to make

522
00:28:04,520 --> 00:28:06,840
Speaker 1: sure that you got back on your feet. So what

523
00:28:06,920 --> 00:28:09,240
Speaker 1: did that look like in the short and even medium

524
00:28:09,320 --> 00:28:10,000
Speaker 1: or long term.

525
00:28:10,400 --> 00:28:13,320
Speaker 4: I had a few different jobs out there. I was

526
00:28:13,359 --> 00:28:16,880
Speaker 4: a janitor, discwasher, and ultimately I set it up.

527
00:28:16,880 --> 00:28:18,120
Speaker 2: Want to be in a delivery driver.

528
00:28:18,440 --> 00:28:21,440
Speaker 4: And you know, during that time also I got connected

529
00:28:21,520 --> 00:28:25,960
Speaker 4: with another organization, the Exonerated Nation, that helped me with

530
00:28:26,000 --> 00:28:29,440
Speaker 4: my speakings, which in turn was counseling, which in turn,

531
00:28:29,600 --> 00:28:31,520
Speaker 4: you know, like I say, it just helped me not

532
00:28:31,640 --> 00:28:34,240
Speaker 4: so much live inside of my head. I guess I

533
00:28:34,280 --> 00:28:37,480
Speaker 4: was able to, you know, travel thanks to NCIP, and

534
00:28:37,600 --> 00:28:40,200
Speaker 4: I've done, you know, numerous speakers here and there.

535
00:28:40,480 --> 00:28:42,960
Speaker 1: I understand you were involved with other exiguneries and lobby

536
00:28:43,000 --> 00:28:46,080
Speaker 1: in California to provide more resources to exiguneries, and in

537
00:28:46,080 --> 00:28:48,360
Speaker 1: your case, I know it took some time way longer

538
00:28:48,400 --> 00:28:51,480
Speaker 1: than it should have, but eventually you were awarded compensation

539
00:28:51,600 --> 00:28:54,600
Speaker 1: for the state of California in May of twenty twenty two.

540
00:28:55,120 --> 00:28:55,479
Speaker 2: Yeah.

541
00:28:55,800 --> 00:28:58,160
Speaker 4: You know, I would give every single dollar back to

542
00:28:58,200 --> 00:29:01,400
Speaker 4: see my daughter be twenty two this, but it does

543
00:29:01,600 --> 00:29:03,720
Speaker 4: make choices and for surely a little bit easier.

544
00:29:03,920 --> 00:29:06,480
Speaker 1: Well, we're very glad that you're willing to tell this

545
00:29:07,760 --> 00:29:10,320
Speaker 1: very painful story and just to let people know what

546
00:29:10,480 --> 00:29:13,400
Speaker 1: kind of injustice can happen in our system. People need

547
00:29:13,440 --> 00:29:15,400
Speaker 1: to hear it. They need to hear it, and they

548
00:29:15,480 --> 00:29:19,200
Speaker 1: need to get angry and active about it.

549
00:29:19,720 --> 00:29:20,520
Speaker 2: Yeah.

550
00:29:20,560 --> 00:29:22,400
Speaker 4: And you know, like I say all the time, you know,

551
00:29:22,480 --> 00:29:28,240
Speaker 4: this could have been anybody's situation. Male, female, didn't matter

552
00:29:28,240 --> 00:29:32,200
Speaker 4: to age, really didn't really matter the race because of

553
00:29:32,200 --> 00:29:35,120
Speaker 4: the simple effact I'm a parent doing parent duties.

554
00:29:35,280 --> 00:29:38,120
Speaker 1: It's really scary, and I want people to feel scared.

555
00:29:38,160 --> 00:29:41,000
Speaker 1: None of us want to believe that there's awful tragedies

556
00:29:41,040 --> 00:29:44,560
Speaker 1: can happen, but they can and they do. We have

557
00:29:44,600 --> 00:29:46,719
Speaker 1: the science now, and I hope we're getting this across

558
00:29:46,720 --> 00:29:49,840
Speaker 1: to our audience. Now, is there anything that you'd like

559
00:29:50,120 --> 00:29:51,800
Speaker 1: our wonderful audience to do.

560
00:29:52,240 --> 00:29:54,880
Speaker 4: For surely, just support a cause that matters to you,

561
00:29:54,920 --> 00:29:59,680
Speaker 4: support this if it matters to you. Also, just educate yourself.

562
00:30:00,120 --> 00:30:04,120
Speaker 4: Educate yourself and know that one life matters, one life matters.

563
00:30:04,160 --> 00:30:05,960
Speaker 4: So yeah, just try to donate if you can to

564
00:30:06,440 --> 00:30:10,560
Speaker 4: know on the California instance project or organization similar to it,

565
00:30:10,640 --> 00:30:11,600
Speaker 4: to help save a life.

566
00:30:11,920 --> 00:30:16,400
Speaker 1: That's the Northern California Innocence Project. They do amazing work, folks.

567
00:30:16,480 --> 00:30:18,719
Speaker 1: This is the living proof of it, and we'll have

568
00:30:18,920 --> 00:30:21,240
Speaker 1: a link to them in our bios. You can donate,

569
00:30:21,560 --> 00:30:24,680
Speaker 1: get involved, learn more about other exner reaves they've helped.

570
00:30:25,120 --> 00:30:27,480
Speaker 1: And now we come to the final segment of our show.

571
00:30:27,560 --> 00:30:31,080
Speaker 1: Everyone knows it's called closing Arguments, And first of all,

572
00:30:31,600 --> 00:30:34,640
Speaker 1: thank you Zav, Thank you Paige for coming on the

573
00:30:34,640 --> 00:30:39,560
Speaker 1: show and sharing this powerful, moving and important story. And

574
00:30:39,640 --> 00:30:43,240
Speaker 1: now I'm going to turn my microphone off, kick back

575
00:30:43,240 --> 00:30:45,800
Speaker 1: in my chair with my headphones on and my eyes closed,

576
00:30:45,840 --> 00:30:48,640
Speaker 1: and just listen to anything else you want to share

577
00:30:48,640 --> 00:30:50,800
Speaker 1: with us. So, Paige, why don't you start us off,

578
00:30:51,160 --> 00:30:52,840
Speaker 1: and then we'll let Zav have the last word.

579
00:30:53,400 --> 00:30:57,240
Speaker 3: I think it's really important that we all be willing

580
00:30:57,280 --> 00:31:01,280
Speaker 3: to admit what we don't know, what we're wrong about,

581
00:31:01,480 --> 00:31:04,680
Speaker 3: or what we thought we knew that we didn't, and

582
00:31:06,280 --> 00:31:10,000
Speaker 3: look back at the things we think are true and

583
00:31:10,120 --> 00:31:14,680
Speaker 3: have evidence for, and actually track what is the evidence.

584
00:31:14,960 --> 00:31:20,400
Speaker 3: And I don't think anybody was doing anything wrong in

585
00:31:20,440 --> 00:31:22,840
Speaker 3: the first place. But when it switched from the idea

586
00:31:22,880 --> 00:31:25,640
Speaker 3: that shaking could cause these things to the idea that

587
00:31:25,680 --> 00:31:30,120
Speaker 3: you can diagnose shaking, you can infer violence and violent

588
00:31:30,280 --> 00:31:34,880
Speaker 3: intentional trauma from findings that we now know happen without

589
00:31:35,040 --> 00:31:38,320
Speaker 3: intentional trauma, I think it's time for us to really

590
00:31:38,360 --> 00:31:43,200
Speaker 3: reckon with that and look back at all of the

591
00:31:43,240 --> 00:31:45,800
Speaker 3: cases that have gone wrong. We need to fix that

592
00:31:45,960 --> 00:31:50,000
Speaker 3: in some kind of way. And there's you know, there's

593
00:31:50,040 --> 00:31:52,480
Speaker 3: people in prison still, there's people on death row. There's

594
00:31:52,520 --> 00:31:55,840
Speaker 3: also people continuing to get accused, and there are also,

595
00:31:55,880 --> 00:31:57,520
Speaker 3: I want to be totally clear, of course, there are

596
00:31:57,600 --> 00:32:00,479
Speaker 3: children getting abused, and we also need to protect those children.

597
00:32:00,520 --> 00:32:05,000
Speaker 3: But that doesn't excuse breaking up families where abuse isn't happening,

598
00:32:05,160 --> 00:32:08,120
Speaker 3: or sending people to prison where there isn't actually any

599
00:32:08,160 --> 00:32:11,200
Speaker 3: reliable evidence of abuse, and in fact, there is very

600
00:32:11,240 --> 00:32:14,520
Speaker 3: reliable evidence that the child was sick or had an accident.

601
00:32:15,200 --> 00:32:18,320
Speaker 3: And you know, instead of I think maybe worrying about

602
00:32:18,520 --> 00:32:21,640
Speaker 3: what's going to happen. If we admit we're wrong, we

603
00:32:21,720 --> 00:32:26,200
Speaker 3: can focus on all the lives we can help. If

604
00:32:26,240 --> 00:32:28,840
Speaker 3: we can just admit that we were all trained wrong,

605
00:32:29,000 --> 00:32:31,720
Speaker 3: we all believed something that's turned out to not be true.

606
00:32:31,880 --> 00:32:33,760
Speaker 3: If we can just flip that lens a little bit

607
00:32:33,800 --> 00:32:35,840
Speaker 3: to make sure that people can be as brave as

608
00:32:35,880 --> 00:32:39,240
Speaker 3: doctor Riber and can look back and say I wouldn't

609
00:32:39,240 --> 00:32:42,480
Speaker 3: say the same thing today. Even just that would be huge.

610
00:32:43,360 --> 00:32:46,440
Speaker 4: I would just like to say thank you for this opportunity,

611
00:32:46,480 --> 00:32:50,000
Speaker 4: and I would just chill anyone and everyone in the

612
00:32:50,080 --> 00:32:54,400
Speaker 4: situation or fighting for this cause to just beat a lighthouse,

613
00:32:54,560 --> 00:32:58,959
Speaker 4: remain that positive light and keep shining and keep shining

614
00:32:59,000 --> 00:33:01,920
Speaker 4: no matter what, no matter what the storm is, no

615
00:33:01,960 --> 00:33:05,400
Speaker 4: matter what you're up against, keep shigning and be at lighthouse.

616
00:33:05,560 --> 00:33:10,440
Speaker 4: Thank you again for this opportunity.

617
00:33:14,200 --> 00:33:17,360
Speaker 1: Thank you for listening to Wrongful Conviction Special thanks to

618
00:33:17,440 --> 00:33:21,440
Speaker 1: our amazing production team Connor hall, Any Chelsea, Jeff Clyburn,

619
00:33:21,480 --> 00:33:25,080
Speaker 1: and Kevin Mortis, with research by Lyla Robinson. The music

620
00:33:25,080 --> 00:33:28,040
Speaker 1: in this production was supplied by three time OSCAR nominated

621
00:33:28,080 --> 00:33:31,320
Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram

622
00:33:31,320 --> 00:33:35,240
Speaker 1: at Wrongful Conviction on Facebook at Wrongful Conviction podcast and

623
00:33:35,320 --> 00:33:39,000
Speaker 1: on Twitter at wrong Conviction, as well as at Lava

624
00:33:39,080 --> 00:33:42,520
Speaker 1: for Good. On all three platforms, you can also follow

625
00:33:42,560 --> 00:33:46,080
Speaker 1: on TikTok and Instagram at It's Jason Flamm. That's It's

626
00:33:46,280 --> 00:33:49,800
Speaker 1: Jason Flamm. Wrongful Conviction is a production of Lava for

627
00:33:49,840 --> 00:34:00,400
Speaker 1: Good Podcasts and association with Signal Company Number one