Speaker 1: In November of two thousand and one, Zavion Johnson was
Speaker 1: bathing his four month old daughter Nadia in preparation for
Speaker 1: a visit with family, when, according to Zavion, she slipped
Speaker 1: out of his hands and hit her head on the top.
Speaker 1: At first, she appeared to be fine, and so Zavion,
Speaker 1: his girlfriend, Raquel, and Nadia made their way to great
Speaker 1: grandmother's house, but by the time the young family of
Speaker 1: three arrived, Nadia was breathing irregularly, so they called nine
Speaker 1: one to one and Xavian began CPR. Nadia was rushed
Speaker 1: to the hospital, where a CT scan revealed a slight
Speaker 1: skull fracture in addition to brain bleeding and swelling, as
Speaker 1: well as bleeding behind her eyes. These are the findings
Speaker 1: that are typically associated with shaking baby syndrome. A day later,
Speaker 1: she was taken off life support and passed away. Although
Speaker 1: Zavion denied ever shaking or abusing Nadia and tried to
Speaker 1: explain that she had slipped out of his hands in
Speaker 1: the shower and hit her head, the established medical opinion
Speaker 1: at that time was clear. Three expert witness has testified
Speaker 1: at Zavion's trial that Nadia symptoms could mean only one
Speaker 1: thing that absent any other major injuries, Xavion must have
Speaker 1: violently shaken Nadia. The defense presented their own expert with
Speaker 1: theories that were considered outside the mainstream. Plus there's no
Speaker 1: way that just one expert could possibly have refuted the
Speaker 1: state's panel of three. But this is wrongful conviction. Welcome
Speaker 1: back to wrongful conviction, where today our show involves one
Speaker 1: of the worst tragedies any parent can ever experience, the
Speaker 1: death of their child, And the only thing that could
Speaker 1: make matters worse is that tragedy is so often compounded
Speaker 1: by our criminal legal system with a wrongful conviction by
Speaker 1: way of you guessed it's shaken baby syndrome or SBS prosecution,
Speaker 1: in which a medical professional will jump to the conclusion
Speaker 1: that a set of medical findings could have only one
Speaker 1: cause abuse, usually at the hand of the most recent caregiver.
Speaker 1: And today we're speaking with another survivor victim of this
Speaker 1: faulty diagnosis, Zavian Johnson. Javion. We're very honored.
Speaker 2: To have you here with us today.
Speaker 1: Thank you, You're very welcome, and with him, the supervising
Speaker 1: attorney at the Northern California Innocence Project Paige kaneb Paige,
Speaker 1: Welcome to the show.
Speaker 3: Thanks for having me.
Speaker 1: Now, we've covered SPS at lant on Raful Conviction Junk Science,
Speaker 1: in which our host Josh Dubin spoke with the executive
Speaker 1: director of the Center for Integrity and Forensic Science is
Speaker 1: Kate Judson, and we're going to have that episode linked
Speaker 1: in the bio and Kate is going to be joining
Speaker 1: us again later to discuss how the faulty SPS diagnosis
Speaker 1: related to ZAVS prosecution and wrongful conviction. But at the
Speaker 1: time of your wrongful conviction, the scrutiny of SBS was
Speaker 1: just beginning. It had really gone unchecked, starting way back
Speaker 1: in nineteen seventy one when a British neurosurgeon named doctor
Speaker 1: Norman Guthkell, which was looking for an explanation for a
Speaker 1: pattern that he had seen and some injured and even
Speaker 1: deceased children.
Speaker 3: Brain swelling, subdural hemorrhaging and retinal hemorrhaging intended to be
Speaker 3: the three main medical findings that doctors were trained that
Speaker 3: when they saw these things that meant it was child abuse,
Speaker 3: shaken baby syndrome, abuse of heteromay.
Speaker 1: Right the findings again in Layman's terms, brain swelling, brain bleeding,
Speaker 1: and bleeding behind the eyes. Now, guth Keltrin he hypothesized
Speaker 1: that this pattern could have been caused by a common
Speaker 1: scolding method at the time in Britain, which was shaking
Speaker 1: an infant or unruly child, and he cautioned parents against
Speaker 1: the practice. But what we now know is that they're
Speaker 1: eighty one and counting. That's eighty one and counting medical
Speaker 1: conditions that can lead to these findings in addition to
Speaker 1: a traumatic event. They also believed that they could pinpoint
Speaker 1: the time of the occurrence, when in fact, if a
Speaker 1: traumatic event was the cause, we now know that the
Speaker 1: trigger of those findings could have happened begun at any
Speaker 1: time up to seventy two hours before the symptoms really
Speaker 1: came to light. So sadly, as we've seen, the most
Speaker 1: recent caretaker in this case, a parent comes under suspicion.
Speaker 1: But before all of that, Zapp, let's hear about you
Speaker 1: and your life. Where did you grow up and how
Speaker 1: would you describe yourself as a kid? How was your childhood?
Speaker 4: I grew up in Sacramento, California. We was a pretty
Speaker 4: well mannered kid. I am the oldest of seven.
Speaker 1: As the oldest, I'm guessing you probably must have helped
Speaker 1: out a lot.
Speaker 4: Yeah, it's just a role you fall into and I
Speaker 4: would babysit, I would, you know, Cook just played a
Speaker 4: big brother slash father role by being responsible.
Speaker 1: And you were still pretty young when you actually became
Speaker 1: a father. How did you meet Nadia's mother?
Speaker 4: Getting up to high school, that's where I met the
Speaker 4: young lady, and we were together from the age of
Speaker 4: sixteen to pretty much when the incident happened at eighteen.
Speaker 1: And that young woman's name was Raquel, but you called
Speaker 1: her Rocky. So in January of two thousand and one
Speaker 1: you found out that she was pregnant. Now did you too,
Speaker 1: You have your own place? Did you get place? And
Speaker 1: did you feel like you were really ready to be
Speaker 1: a dad at that point?
Speaker 2: So young?
Speaker 4: Yeah, worked for the State of California for cal TRANPS.
Speaker 4: I had a pretty good head on my shoulders. Our
Speaker 4: parents pretty much lived within walking distance from each other.
Speaker 4: We kind of just split time at her dad's house
Speaker 4: and at my mom's home until we kind of figured
Speaker 4: it out. You know.
Speaker 1: So Na he was born that July, right, So what
Speaker 1: was that they like? For you and Rocky.
Speaker 2: Oh man.
Speaker 4: I remember she just woke up in the middle of
Speaker 4: the night. I was like, I think I peed on myself.
Speaker 4: So I went in there and told my mom. I'm like,
Speaker 4: Rocky said, she peed on herself. And then my mom
Speaker 4: was like, oh, no, boy, she didn't pee on herself.
Speaker 4: And so we made it to the hospital in nineteen
Speaker 4: full hours of labor. All I remember seeing was eyes.
Speaker 4: She had the most biggest eyes. For the longest time,
Speaker 4: I haven't had a chance to like really reflect on
Speaker 4: this because of the simple fact that for seventeen years plus,
Speaker 4: I talk about my wrong full confixtion, I talk about
Speaker 4: my wrong fully fixtion.
Speaker 2: I talk about everything.
Speaker 4: That wasn't me, you know, so I kind of I'm
Speaker 4: not gonna say I forgot about, you know, all this,
Speaker 4: but to remember it is good. So you know, I
Speaker 4: appreciative of this interview. Yeah, twenty six hours, nineteen actual
Speaker 4: hours of labor. That's how long I waited for, you know,
Speaker 4: my gift.
Speaker 1: And as many people testified at the trial, you were
Speaker 1: in every way a fantastic, loving dad. But that unfortunately
Speaker 1: brings us to the faithful day of November twenty fourth,
Speaker 1: two thousand and one when Nadia was just four months old.
Speaker 1: Now this would have been just a day or two
Speaker 1: after Thanksgiving, the day that the.
Speaker 2: Accident took place.
Speaker 4: I showered with my daughter and plasten her back into
Speaker 4: the little bathtub that was inside of you know, the
Speaker 4: big shower. She basically kicked off of my chest and
Speaker 4: slipped out of my hands and as a result, so
Speaker 4: if she hit her head, I picked her up, looked
Speaker 4: there wasn't like any obvious swilling or anything like that,
Speaker 4: So I just pretty much thought to myself, close call.
Speaker 4: Grandmother gets there and before we can get to our house,
Speaker 4: her breathing and stuff really changed. So we get to
Speaker 4: our grandmother's house and that's when nine one one is
Speaker 4: called and I try to perform CPR.
Speaker 1: So page the EMTs showed up. It's around three twenty pm.
Speaker 3: They document that Nadia looks well cared for. There's no
Speaker 3: bruises or marks anywhere on her body. They also try
Speaker 3: and perform CPR and rush her to the hospital, and
Speaker 3: the EMT's note as they're heading towards the hospital that
Speaker 3: like a thumbprint type mark is appearing on one side
Speaker 3: of her forehead, like a red mark.
Speaker 1: And from what I understand That thumb sized mark was
Speaker 1: later attributed to the work of the EMTs.
Speaker 3: The intubation process doesn't help stabilizing the head. You sort
Speaker 3: of have two fingers on one side in your thumb
Speaker 3: on the other side of the forehead to keep the
Speaker 3: head still. And later they end up documenting that there
Speaker 3: are bruises kind of on both sides of the forehead
Speaker 3: develop exactly where they would have been stabilizing her forehead.
Speaker 1: And that's just an example of what an innocent injury
Speaker 1: can add to the rush to judgment by hospital staff
Speaker 1: to rule an instance to be a case of child
Speaker 1: abuse upon a patient's arrival. And so when Nadia arrived
Speaker 1: at you see Davis Medical Center, these are the kinds
Speaker 1: of things being noted. And at this point she still
Speaker 1: had not been revived.
Speaker 3: She is placed on life support at the hospital, but
Speaker 3: they don't really ever revive her. You know, at the
Speaker 3: hospital they do see tea scans and they see a
Speaker 3: skull fracture and the thin layer of blood and one
Speaker 3: of the tissue layers that wrap around the brain, the
Speaker 3: one closest to the skull. She had retinal hemorrhages, tiny
Speaker 3: bits of bleeding in the back of her eyes, and
Speaker 3: she had brain swelling.
Speaker 1: And there it is the tryaud of findings that had
Speaker 1: been hypothesized to be caused by shaking and or abusive
Speaker 1: head trauma, a hypothesis that became accepted wisdom of the
Speaker 1: medical establishment without ever being tested. I mean, how would
Speaker 1: one test it without actually shaking and or abusing children
Speaker 1: and risking the potentially fatal results that doctor Gothkelch had feared.
Speaker 1: So this hypothesis was never tested, and yet it was
Speaker 1: and is taught at medical schools and even in law
Speaker 1: schools all over the world, including to the folks that
Speaker 1: you see Davis back in two thousand and one.
Speaker 3: And they have, you know, a child abuse team who
Speaker 3: has been trained to believe that when they see retinal hemorrhages,
Speaker 3: subdural hemorrhages, brain swelling, you know, with or without other injuries,
Speaker 3: that that means it's shaken baby syndrome. And there's nothing
Speaker 3: else really ever even contemplated. And so you can see
Speaker 3: it from when Nadia's first brought in. Child abuse is
Speaker 3: all over the medical records.
Speaker 1: So Zav you must have been out of your mind
Speaker 1: with worry. Meanwhile, this child abuse team and you see
Speaker 1: Davis was setting a course for you your arrest. Had
Speaker 1: you ever even heard of shaking baby syndrome or SBS?
Speaker 4: No, never heard of it, never understood, never knew what
Speaker 4: it was.
Speaker 2: It wasn't any shaken and so it just was a
Speaker 2: ball of confusion.
Speaker 1: When did it dawn on you that you were beginning
Speaker 1: to come under suspicion?
Speaker 4: When I started to see police is coming there, and
Speaker 4: I still, you know, I still kind of didn't know
Speaker 4: or fully understand what was going on and wanted to.
Speaker 2: Talk to a legal representation.
Speaker 3: First, And just to be clear, because Zavid told all
Speaker 3: his family about the fall. One of his aunts actually
Speaker 3: told one of the nurses, so they did know about
Speaker 3: the fall, even if not, you know, directly from Zev.
Speaker 4: Then when did the doctors say too, I don't want
Speaker 4: to paraphrase it, but it still wouldn't it mattered, or
Speaker 4: it was still going to be too late or.
Speaker 2: Something like that.
Speaker 3: Well, yeah, they thought it was inconsistent with a fall,
Speaker 3: so it yeah, it didn't matter. So after a couple
Speaker 3: of days on life support, the physicians say that they
Speaker 3: declare that she's brain dead and has to be removed
Speaker 3: from life support.
Speaker 1: All those years ago, I'm sure it still hurts to
Speaker 1: even think about it, but at the time it must
Speaker 1: have been absolutely devastating. And now you and Raquel to
Speaker 1: very young parents, had to begin to plan a funeral
Speaker 1: for your little girl. That's just not supposed to happen,
Speaker 1: But it did happen a week later, on December fourth,
Speaker 1: two thousand and one, and that day found a way
Speaker 1: to get even worse.
Speaker 2: Oh man.
Speaker 4: Yeah, I remember being inside of the church, and you know,
Speaker 4: there's all of our family there and you know, whoever else,
Speaker 4: and then I just start seeing people that don't look
Speaker 4: like me in the church, and I'm just like, well,
Speaker 4: what's going on. I'm not really paying attention to it.
Speaker 4: And then I think when we go outside during the burial,
Speaker 4: I start seeing kind of like the same people. So,
Speaker 4: you know, I remembers taking pictures, making plans to meet
Speaker 4: back up at I think at my mom's house or
Speaker 4: her dad's house. We set our you know, see, later,
Speaker 4: gave her a kiss, I got in the car with
Speaker 4: a friend of mine, and she got in the car
Speaker 4: with I think either my mom or her parents. And
Speaker 4: before we can even get I don't know how far,
Speaker 4: pretty much was pulled over by undercover cars.
Speaker 2: And six guns was drawn at me.
Speaker 4: I get exited out the vehicles, placed on the hood
Speaker 4: of the car in handcuffs, saying I'm being arrested for
Speaker 4: murder and I was just like murder of who huh.
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Speaker 5: My name is Kate Judson. I'm the executive director of
Speaker 5: the Center for Integrity and Forensic Sciences, and I am
Speaker 5: familiar with Xavian Johnson's case and shaken baby cases in general.
Speaker 5: In the case of Xavian Johnson, on one hand, we
Speaker 5: have Zevian retelling his account that Nadia had taken a
Speaker 5: fall of three or four feet and hit her head
Speaker 5: on the bathtub. But back in two thousand and one,
Speaker 5: the medical establishment had not yet accepted the idea that
Speaker 5: a short fall, even coupled with an impact on a
Speaker 5: hard surface, could cause the tryad of findings associated with
Speaker 5: shaken baby syndrome in abusive head trauma. Now at the
Speaker 5: time of trial, the state's experts testimony aligned with this
Speaker 5: incorrect assumption. A forensic pathologist who performed Nadia's autopsy testified
Speaker 5: that he found bleeding behind her eyes, which was associated
Speaker 5: with what he called a rotational head injury. He was
Speaker 5: unequivocal in saying that the injuries could not have been
Speaker 5: the result of a fall. Doctor Claudia Greco, a neuropathologist,
Speaker 5: testified that she found a brain injury that was what
Speaker 5: she called the most convincing evidence that the baby died
Speaker 5: from shaking and not from a fall of four feet.
Speaker 5: And doctor Kevin Colter was the pediatrician at the University
Speaker 5: of California, Davis Medical Center, who treated Nadia in the hospital.
Speaker 5: He testified that physicians only see the constellation of injuries
Speaker 5: that Nadia had with shaking, with falls from what he
Speaker 5: called great heights of ten feet or higher, motor vehicle
Speaker 5: accidents or similar events where there is what he called
Speaker 5: a really significant, high velocity impact. These physicians were totally
Speaker 5: under estimating the danger that shortfalls can represent. The defense
Speaker 5: witness doctor Richard Robertson, referring to what was then very
Speaker 5: recent biomechanical research, he testified to what we know now
Speaker 5: that the injuries in Nadia were consistent with a short
Speaker 5: fall onto a hard surface. However, one of the state's witnesses,
Speaker 5: doctor Greco, attacked that research, claiming it was unreliable, even
Speaker 5: though it later became part of the basis of our
Speaker 5: current understanding of shake and baby syndrome, and studies have
Speaker 5: shown that falls, even from short distances far exceed the
Speaker 5: thresholds for injury then even the most vigorous shaking. Yet,
Speaker 5: it appears that Devian's trial came down to a contest
Speaker 5: of experts. However misinformed the state's experts were at the time,
Speaker 5: the contest was outweighed in the states favor three to one.
Speaker 3: You know, I think one of the things that really
Speaker 3: makes them so compelling, besides that they're doctors and they're experts,
Speaker 3: is they don't have any reason to lie about this,
Speaker 3: you know, and they believed what they were saying.
Speaker 1: I know, you'd think that nearly the entire medical community,
Speaker 1: including these three expert witnesses, would have recognized much sooner
Speaker 1: that this SBS diagnosis requires a huge leap in logic
Speaker 1: that ignores all the other potential causes, which, like I
Speaker 1: said before, we now know there's at least eighty one others,
Speaker 1: and the whole thing seems antithetical to the scientific method.
Speaker 1: I mean, do you have any theories at all as
Speaker 1: to why these otherwise learned and probably well intentioned people
Speaker 1: we're testifying this way in case after case.
Speaker 3: Medical school doesn't focus on what is the evidence for
Speaker 3: various propositions right. They're not spending their time looking back
Speaker 3: at like was the scientific method followed or how well
Speaker 3: did this work out? They spend their time being trained
Speaker 3: to recognize various things right and diagnose based on them.
Speaker 3: And pediatric deaths is a tiny part of what most
Speaker 3: doc's practice, and so they may just remember that they
Speaker 3: were trained. When you see these things, its abuse and
Speaker 3: only abuse, you know. The American Academy of Pediatrics put
Speaker 3: out a two thousand and one policy statement. They called
Speaker 3: it a Technical Report on Shaking Baby Syndrome, and it
Speaker 3: literally says, this constellation of injuries does not happen with shortballs.
Speaker 3: And the National Association of Medical Examiners had the same thing,
Speaker 3: and the DOJ published guide saying the same thing.
Speaker 1: But Zavion's lawyer had his own expert, right, doctor Richard Robertson,
Speaker 1: And this guy raised doctor John Plunkett study to say
Speaker 1: the opposite.
Speaker 4: My trial attorney, I don't got no grievance with them, man.
Speaker 4: I believe he tried his artists, you know.
Speaker 1: Yeah, he not only presented your own expert testifying to
Speaker 1: the current understanding of SBS, but in addition, there were
Speaker 1: also over a dozen character witnesses.
Speaker 4: Man, it was so many people. I don't remember everyone,
Speaker 4: but the main people who should have been up there
Speaker 4: was there. You know, the mother of the child, my mom,
Speaker 4: you know, I guess the people who who knew our character.
Speaker 1: And zav also.
Speaker 3: Took the stand, right, Zav's child attorney, he remembered zav
Speaker 3: testifying and that it was super powerful and the jury
Speaker 3: was really moved. We have this letter from one of
Speaker 3: the jurors talking about how Zev seemed like a really
Speaker 3: good young man, seemed like a very loving father. It
Speaker 3: seemed horribly out of character for him to have done
Speaker 3: anything to harm his daughter. But the medical experts said
Speaker 3: the only possibility was abuse, and so they felt like
Speaker 3: they had no choice but to convict.
Speaker 1: So you were given two concurrent life sentences, one for
Speaker 1: child abuse and one for child abuse resulting in death,
Speaker 1: which results in a sentence of twenty five to life.
Speaker 4: I do recall like when I got sentence. I remember
Speaker 4: hearing everyone gas eighteen years old. I had to go
Speaker 4: and start a double life sentence with you know, just
Speaker 4: me not being able to agree, me not being able
Speaker 4: to you know, just fully process you know, the loss
Speaker 4: of my child. It just was, it had to be
Speaker 4: bottled up. I had to, you know, like I said,
Speaker 4: go into survival mode inside of prison.
Speaker 2: So fast forward to me being nineteen.
Speaker 4: Now I'm sentenced to life and I go start my
Speaker 4: time off at a level four high.
Speaker 2: Desert State Penitentiary.
Speaker 4: I didn't know how I would survive, didn't know how
Speaker 4: I would manage. But I walked with something someone and
Speaker 4: I know who it is. There was a lot of
Speaker 4: things that I seen in front of me, a lot
Speaker 4: of things that I seen behind me, a lot of
Speaker 4: things that I seen on the side of me. For
Speaker 4: seventeen years, thankfully, nothing agreed tous happened to me. But yeah,
Speaker 4: just surviving, I had to pick up fast. It's like
Speaker 4: I did as being the older SIP. I spoke less
Speaker 4: and I looked more, and I listened more. For surely
Speaker 4: there's PTSD. For surely there's counselor needed. For surely I
Speaker 4: am not whole, but I'm not broken either, So you
Speaker 4: know there is hope.
Speaker 1: And while grinding through, I understand you spent a lot
Speaker 1: of time in the law library.
Speaker 2: Yeah, it turned into what we call on the inside,
Speaker 2: a legal bigle.
Speaker 1: And in two thousand and four you filed an appeal
Speaker 1: with the Third District California Court of Appeals, which unfortunately
Speaker 1: upheld the conviction. And then you continued to file appeals
Speaker 1: for pretty much the next ten long years until the
Speaker 1: Northern California Innocence Project got involved.
Speaker 3: So he'd written to us before his appeal was denied
Speaker 3: and then again afterwards he's you know, filing his own
Speaker 3: habeas petitions.
Speaker 2: You know what, a lot of help from my mom.
Speaker 4: She made sure I met deadlines, like she made sure
Speaker 4: I got helped with copies.
Speaker 3: Of Yeah, so his mom would print out like abstracts
Speaker 3: of medical articles and then Zev would attach those to
Speaker 3: habeas petitions, and the court just kept denying him, saying,
Speaker 3: you know, you don't have an expert saying how this
Speaker 3: applies to your case, And he also kept writing to us.
Speaker 3: And then around twenty fourteen, I had been working on
Speaker 3: a shaken baby syndrome case, a different one, and had
Speaker 3: been learning all about the science or lack thereof, and
Speaker 3: I decided to go meet Zav and it was hard
Speaker 3: to walk away from him.
Speaker 4: She had to help me. But yeah, no, like it's
Speaker 4: just it's a testament to who I am. It's a
Speaker 4: testament to the father that I was, to the son
Speaker 4: that I was, to the cousin that I was, to
Speaker 4: the big brother that I was. So you know, I
Speaker 4: just appreciate her seeing that. And you know, not too
Speaker 4: much has changed. I'm still Karen. I still love kids,
Speaker 4: I still you know, have a zest for life, you know,
Speaker 4: and I'm hoping to, you know, be it in that
Speaker 4: row again.
Speaker 1: Well, it looks like you have that chance now, But
Speaker 1: how did that come about? What was the strategy that
Speaker 1: brought him home?
Speaker 3: From our perspective, the beautiful things about Zav's case was
Speaker 3: he had always been so consistent, right, he had just
Speaker 3: always said she fell in the shower. I never did
Speaker 3: anything to intentionally or deliberately harm her in some kind
Speaker 3: of way. And all of the lay witness evidence was
Speaker 3: that he was this great, gentle, loving person and caretaker
Speaker 3: and father, and so we knew this really turned on
Speaker 3: the medical So this was all about getting new or
Speaker 3: the same original medical experts. So one of the first
Speaker 3: people I approached was doctor Riber, who had done the autopsy,
Speaker 3: and I asked him if he would be willing to
Speaker 3: take another look. I knew a lot of the science
Speaker 3: around pediatric head injuries had evolved and changed, and especially
Speaker 3: when it comes to shortfalls, and eventually he agreed to
Speaker 3: do that, which was amazing. I also got another independent
Speaker 3: forensic pathologist who'd never looked at the case, doctor Judy Melinik.
Speaker 3: Asked her to do just a clean, independent review based
Speaker 3: on what we now know. We got a skull fracture
Speaker 3: expert doctor Roger Hout, who had been doing all sorts
Speaker 3: of experiments with pig skulls. Actually, so doctor Ribert in
Speaker 3: a lot of ways was really the key piece, especially
Speaker 3: in terms of the District Attorney's office view of the case.
Speaker 3: He eventually wrote a declaration that explained why he'd felt
Speaker 3: like he had to say this was shaken baby syndrome
Speaker 3: in two thousand and one, in two thousand and two,
Speaker 3: and why now he would say that it's consistent with
Speaker 3: a shortfall, and more so than shaking, because you know,
Speaker 3: as it turns out, the forces from human shaking aren't
Speaker 3: nearly what we thought they were, and the forces from
Speaker 3: falls are much greater. And so he wrote this beautiful
Speaker 3: declaration that explained this whole trajectory and what has changed
Speaker 3: and why it has changed. The way he teaches, the
Speaker 3: way he practices, the way he does his autopsies, and
Speaker 3: the way he would have mannered and given an opinion
Speaker 3: on this case.
Speaker 1: And now i'd like to quote doctor Riber's very powerful statement,
Speaker 1: and just for context, there are only three ways that
Speaker 1: an autopsy can be categorized natural causes, homicide, or undetermined.
Speaker 1: So this is what doctor Ribers said, quote. While the
Speaker 1: consensus view at the time of the autopsy, which I shared,
Speaker 1: led to a conclusion that the manner of death was homicide,
Speaker 1: the current reassessment has led me to conclude that accidental
Speaker 1: injury cannot be excluded, and therefore the manner of death
Speaker 1: should be considered as undetermined.
Speaker 2: End quote.
Speaker 1: Wow, I mean, it takes guts to admit when you
Speaker 1: were wrong, especially when the stakes are so high, and
Speaker 1: we've seen so many other experts that did the opposite right,
Speaker 1: they just really dug in their heel on other cases.
Speaker 1: So I mean, better late than never, I guess you
Speaker 1: could say. And I commend him.
Speaker 3: For that, honestly. I mean, I think for doctor Riber
Speaker 3: this was one of the hardest experiences of his life.
Speaker 3: I totally believe he believed what he was saying at
Speaker 3: the time, and the fact that he was willing to
Speaker 3: admit on paper that he was wrong is huge and
Speaker 3: fairly unusual. I think really speaks to his character and bravery,
Speaker 3: and that it wasn't something he was trying to deliberately
Speaker 3: send an innocent person to prison or something like that,
Speaker 3: and our other experts basically all said the same. Doctor
Speaker 3: Greco the neuropathologist. She wasn't willing to do a full
Speaker 3: review of the case because she was retired. But what
Speaker 3: she did agree to do is just look at her
Speaker 3: own testimony and say what she would say differently today.
Speaker 3: Doctor Greco said, you know, look, there's new studies that
Speaker 3: have come out. We now know these findings appear in
Speaker 3: other things, and I wouldn't say that this proves that
Speaker 3: the child has been shaken. And so we had four
Speaker 3: expert reports, including two from their real experts, and we
Speaker 3: presented all of that to the court and to the
Speaker 3: District Attorney's office.
Speaker 1: And that was in April of twenty seventeen. You at
Speaker 1: the Northern California Innisis Project, long with the law firm
Speaker 1: of Kecker, Van Nest and Peters, FILEDUS habeas and the
Speaker 1: District Attorney actually did the right thing, which we don't
Speaker 1: see that often unfortunately, and they agreed that the petition
Speaker 1: for relief should be granted. And so on December eighth,
Speaker 1: twenty seventeen, Sacramento Superior Court Judge James Arguayas vacated Xavion's conviction,
Speaker 1: and even though the DA had joined the defense in
Speaker 1: granting relief, that didn't mean this was over. They had
Speaker 1: forty days to decide whether or not to retry or
Speaker 1: drop the charges. So al those zav you were in
Speaker 1: this limbo for forty long days. You were finally on
Speaker 1: the outside for the first time in over fifteen years.
Speaker 4: I just remember just saying good luck, and then I
Speaker 4: remember getting out of my paper suit.
Speaker 2: I remember getting.
Speaker 4: Dressed, you know, doing all that, and then I talked
Speaker 4: about it before I came home. But I wanted Popeye's
Speaker 4: chicken and strawberry soda. You know, I went without fried
Speaker 4: chicken for so long, and there all they do is
Speaker 4: bake it. All they do is bake it in a
Speaker 4: hot bath too. So yeah, it was pretty cool.
Speaker 1: And then on January eighteenth, twenty eighteen, the chargers were dismissed.
Speaker 1: There would be no retrial, and you were a long last,
Speaker 1: a truly free man. Must have been one of the
Speaker 1: best days of your life.
Speaker 4: It was it was I got the call, I think
Speaker 4: the night before, shout out to coach k that's kry Tillery,
Speaker 4: who works for Kecker, Vaness and Peters.
Speaker 2: I had an awesome team and now they even awesome
Speaker 2: family too.
Speaker 4: My team understood how much I did not want to
Speaker 4: stay in my hometown and Sacramento just because you know,
Speaker 4: my PTSD, you.
Speaker 2: Know, paranoia, you know, living out here.
Speaker 4: It just didn't sit well with me. And I was
Speaker 4: fortunate enough to live in the Bay Area with one
Speaker 4: of my legal.
Speaker 2: Team members for about four years.
Speaker 1: Wow, talk about walking the walk. Not only did your
Speaker 1: legal team free you, they took you in to make
Speaker 1: sure that you got back on your feet. So what
Speaker 1: did that look like in the short and even medium
Speaker 1: or long term.
Speaker 4: I had a few different jobs out there. I was
Speaker 4: a janitor, discwasher, and ultimately I set it up.
Speaker 2: Want to be in a delivery driver.
Speaker 4: And you know, during that time also I got connected
Speaker 4: with another organization, the Exonerated Nation, that helped me with
Speaker 4: my speakings, which in turn was counseling, which in turn,
Speaker 4: you know, like I say, it just helped me not
Speaker 4: so much live inside of my head. I guess I
Speaker 4: was able to, you know, travel thanks to NCIP, and
Speaker 4: I've done, you know, numerous speakers here and there.
Speaker 1: I understand you were involved with other exiguneries and lobby
Speaker 1: in California to provide more resources to exiguneries, and in
Speaker 1: your case, I know it took some time way longer
Speaker 1: than it should have, but eventually you were awarded compensation
Speaker 1: for the state of California in May of twenty twenty two.
Speaker 2: Yeah.
Speaker 4: You know, I would give every single dollar back to
Speaker 4: see my daughter be twenty two this, but it does
Speaker 4: make choices and for surely a little bit easier.
Speaker 1: Well, we're very glad that you're willing to tell this
Speaker 1: very painful story and just to let people know what
Speaker 1: kind of injustice can happen in our system. People need
Speaker 1: to hear it. They need to hear it, and they
Speaker 1: need to get angry and active about it.
Speaker 2: Yeah.
Speaker 4: And you know, like I say all the time, you know,
Speaker 4: this could have been anybody's situation. Male, female, didn't matter
Speaker 4: to age, really didn't really matter the race because of
Speaker 4: the simple effact I'm a parent doing parent duties.
Speaker 1: It's really scary, and I want people to feel scared.
Speaker 1: None of us want to believe that there's awful tragedies
Speaker 1: can happen, but they can and they do. We have
Speaker 1: the science now, and I hope we're getting this across
Speaker 1: to our audience. Now, is there anything that you'd like
Speaker 1: our wonderful audience to do.
Speaker 4: For surely, just support a cause that matters to you,
Speaker 4: support this if it matters to you. Also, just educate yourself.
Speaker 4: Educate yourself and know that one life matters, one life matters.
Speaker 4: So yeah, just try to donate if you can to
Speaker 4: know on the California instance project or organization similar to it,
Speaker 4: to help save a life.
Speaker 1: That's the Northern California Innocence Project. They do amazing work, folks.
Speaker 1: This is the living proof of it, and we'll have
Speaker 1: a link to them in our bios. You can donate,
Speaker 1: get involved, learn more about other exner reaves they've helped.
Speaker 1: And now we come to the final segment of our show.
Speaker 1: Everyone knows it's called closing Arguments, And first of all,
Speaker 1: thank you Zav, Thank you Paige for coming on the
Speaker 1: show and sharing this powerful, moving and important story. And
Speaker 1: now I'm going to turn my microphone off, kick back
Speaker 1: in my chair with my headphones on and my eyes closed,
Speaker 1: and just listen to anything else you want to share
Speaker 1: with us. So, Paige, why don't you start us off,
Speaker 1: and then we'll let Zav have the last word.
Speaker 3: I think it's really important that we all be willing
Speaker 3: to admit what we don't know, what we're wrong about,
Speaker 3: or what we thought we knew that we didn't, and
Speaker 3: look back at the things we think are true and
Speaker 3: have evidence for, and actually track what is the evidence.
Speaker 3: And I don't think anybody was doing anything wrong in
Speaker 3: the first place. But when it switched from the idea
Speaker 3: that shaking could cause these things to the idea that
Speaker 3: you can diagnose shaking, you can infer violence and violent
Speaker 3: intentional trauma from findings that we now know happen without
Speaker 3: intentional trauma, I think it's time for us to really
Speaker 3: reckon with that and look back at all of the
Speaker 3: cases that have gone wrong. We need to fix that
Speaker 3: in some kind of way. And there's you know, there's
Speaker 3: people in prison still, there's people on death row. There's
Speaker 3: also people continuing to get accused, and there are also,
Speaker 3: I want to be totally clear, of course, there are
Speaker 3: children getting abused, and we also need to protect those children.
Speaker 3: But that doesn't excuse breaking up families where abuse isn't happening,
Speaker 3: or sending people to prison where there isn't actually any
Speaker 3: reliable evidence of abuse, and in fact, there is very
Speaker 3: reliable evidence that the child was sick or had an accident.
Speaker 3: And you know, instead of I think maybe worrying about
Speaker 3: what's going to happen. If we admit we're wrong, we
Speaker 3: can focus on all the lives we can help. If
Speaker 3: we can just admit that we were all trained wrong,
Speaker 3: we all believed something that's turned out to not be true.
Speaker 3: If we can just flip that lens a little bit
Speaker 3: to make sure that people can be as brave as
Speaker 3: doctor Riber and can look back and say I wouldn't
Speaker 3: say the same thing today. Even just that would be huge.
Speaker 4: I would just like to say thank you for this opportunity,
Speaker 4: and I would just chill anyone and everyone in the
Speaker 4: situation or fighting for this cause to just beat a lighthouse,
Speaker 4: remain that positive light and keep shining and keep shining
Speaker 4: no matter what, no matter what the storm is, no
Speaker 4: matter what you're up against, keep shigning and be at lighthouse.
Speaker 4: Thank you again for this opportunity.
Speaker 1: Thank you for listening to Wrongful Conviction Special thanks to
Speaker 1: our amazing production team Connor hall, Any Chelsea, Jeff Clyburn,
Speaker 1: and Kevin Mortis, with research by Lyla Robinson. The music
Speaker 1: in this production was supplied by three time OSCAR nominated
Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram
Speaker 1: at Wrongful Conviction on Facebook at Wrongful Conviction podcast and
Speaker 1: on Twitter at wrong Conviction, as well as at Lava
Speaker 1: for Good. On all three platforms, you can also follow
Speaker 1: on TikTok and Instagram at It's Jason Flamm. That's It's
Speaker 1: Jason Flamm. Wrongful Conviction is a production of Lava for
Speaker 1: Good Podcasts and association with Signal Company Number one