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566: #566 Maggie Freleng with Josh Burns · Wrongful Conviction Podcasts

• 00:00:05 Speaker 1: On March fifteenth, twenty fourteen, Josh Burns was at home in Brighton, Michigan, with his newborn daughter, Naomi. His wife, Brenda was out getting her first haircut after becoming a mom. 00:00:18 Speaker 2: I got Naomi up from her nap and I'm feeding her a bottle and Brenda had called my cell phone and there was a coffee table in front of us. When I went to put the phone down, I felt Naomi sliding forward off my knee, like about to do a header into the coffee table. So I like reached out my hand and kind of had to catch her by her face and like propped her back up. She had like a little scratch on her cheek because I had to grab her. So then Brenda gets home and I'm like, I almost dropped Naomi. So she looks Naomi over. I mean, she's a nurse, and Naomi was normal, she didn't even really cry from the event. 00:00:57 Speaker 1: But over the following days, Naomi was pale, lethargic, and nauseous, making several trips back and forth to the emergency room. Ultimately, when at home, she went limp, struggled to breathe, and Josh he called nine to one one. 00:01:13 Speaker 2: They were using an infant CPR breathing bag on Naomi, and we had to stop at a fire station and pick up a fire paramedic to assist the paramedic in the back. And they were doing like ninety miles an hour down the freeway and wow, I still have nionmares about it. And we got to the pediatric er and they had been looking into all these different things, and then they came and they did a bedside eye exam of Naomi and they found retinal hemorrhages in the backs of her eyes. Next thing we knew, there's a child abuse pediatrician in the room. And when the CPS worker came and interviewed us, he told us he said, well, the child abuse pediatrician says that this is shaken baby syndrome, and we're like what. From this point on, they started treating us both like criminals. I'm Josh Burns. I was wrongfully convicted, spent a year incarcerated, and it took just over ten years to be exonerated and declared innocent. 00:02:18 Speaker 1: From Love of for Good. This is wrongful conviction with Maggie Freeling today, Josh Burns. 00:02:38 Speaker 2: I grew up in Colorado on the front range of the Rockies Colorado Springs. Have an older brother and a younger sister. So I'm that typical crazy middle kid. I had a great family upbringing. My parents are still married almost for fifty four years now. 00:02:54 Speaker 1: So you said you were kind of the crazy middle child. 00:02:57 Speaker 2: What does that mean? So? I was always a joke in a prankster, still kind of am. For instance, in school, I had a Spanish teacher. He had just arrived from Peru and he spoke English. But I arrived to the class late, and my last name is Burns. So he said, what's your name? And I said, I'm Sideburns and he said Side and he wrote my name down and everyone in the class knew I was Josh. And about two months later, my parents showed up for parent teacher conferences and he said, we need to talk about your son's side and they said who you know? 00:03:29 Speaker 1: Oh that went on for a minute. 00:03:31 Speaker 2: Wow yeah yeah. So and my dad, my dad and mom came home and my dad was trying to like get serious with me and tell me how I was disrespecting my elders, but he just started cracking up laughing, goes, I don't know where you come up with this stuff, you know. So the joke was out and he made me stand up in front of the class on Monday. 00:03:51 Speaker 1: Perhaps being called out helped Josh focus on his aspirations besides class clown. 00:03:56 Speaker 2: I just had a fascination from the age of five with airplanes and flying, and just was one of those kids who always knew that I wanted to be a pilot. Wow, and that dream came true. I went to flight school, built up my flight hours doing crazy things like flying skydivers and Grand Canyon tour flights from Las Vegas, all those will fly for food jobs, basically to build your time so you can get on with an airline. And then got on with the airlines and spent over twenty five years as an airline pilot. I'm still in the industry now. I trained pilots for a major airline here in Texas. 00:04:34 Speaker 1: But before living in Texas, Josh and his wife Brenda met in the early two thousands serving in a ministry for young adults with substance abuse issues and eating disorders. They fell in love, got married, and settled down in Michigan. Eventually, Brenda became pregnant with their daughter, Naomi. 00:04:52 Speaker 2: I remember her taking the test and we were just so excited, and then we went in for that ultrasound. Remember in the ultrasound, she did like a summersault, She like did a full She looked like an astronaut in zero gravity. So everything was trucking along just fine. And then Brenda was about a week overdue and we went in to visit the doctor and he said, I can do some things here to speed things along, and Brenda said, let's do it, because I feel like I'm going to explode and this kid's on my bladder and I have to pee every two minutes, you know. So about six hours after he did his procedure, Brenda's water broke and we were on our way to the hospital in a snowstorm in Michigan. So yeah, we drove to the hospital and they got her right into the room, but she pushed for hours and hours and Naomi's head became stuck and it was scary because the doctor said, hey, we can try what's called a vacuum extraction. We can put this device on her head and try to get her head dislodge and moving through. So they tried that about three times that it failed, and then they said, okay, we need to move into an emergency sea section. 00:06:09 Speaker 1: At this point, we should mention that one of the risks of a vacuum assisted delivery is intracrinial hemorrhage and subgalio hematoma, which are among the so called triad of findings associated with the debunk hypothesis known as shaken baby syndrome. And they attempted the vacuum assisted birth three times before moving onto a sasarean section in which she was pulled in the opposite direction. But finally Naomi was born January seventh, twenty fourteen. 00:06:40 Speaker 2: Finally Naomi was out and we heard her cry and we just started pauling, you know. I was like, there she is, there she is. And they cleaned Naomi up and handed her to me, and I was able to put her face to face with mommy, and it was just it was amazing. So I was home for the first two months on family leave, so I was able to just be home and be present and make that bond with her and see her smile for the first time, like all those milestones, and it was an incredible time. Naomi was struggling though my wife was trying to breastfeed, and she was sleepy and lethargic. She wouldn't latch to my wife's breast well, and my wife ended up having to pump breast milk and then we would defeed her breast milk through the bottle whatever we could. But Naomi actually lost some weight since birth, and we kept going back to the pediatrician and they were like, yeah, this can happen with these kind of deliveries. 00:07:33 Speaker 1: In all likelihood, Naomi's issues began during her delivery and came to a head about nine or ten weeks later in the lead up to her baptism, right around when Josh's paternity leave wrapped up. 00:07:46 Speaker 2: I had just gone back and finished my first four day trip back at the airline, so it was like Brenda's first four days alone with Naomi without me from being on family leave. So she's like, I'm going to the salon. I need a haircut before the baptism. And it was like you go. She said, all right, when Naomi wakes up, feed her this bottle. So I got Naomi up from her nap and I'm feeding her a bottle and Brenda had called my cell phone for something, and when I went to put the phone down, I felt like Naomi sliding forward off my knee, and there was a coffee table in front of us, so I like reached out my hand and she was like heading towards the coffee table, like about to do a header. So I had to catch her by her face and propped her back up. She had the little scratch on her cheek because I had to grab her. So then Brenda gets home and I'm like, I almost dropped Naomi. So she looks Naomi over. She's a nurse, and Naomi was normal. She didn't even really cry from the event. 00:08:43 Speaker 1: This event or non event, is what Josh had to think back to when Child Protective Services eventually came asking him what he'd done to her, of course, assuming with support from the medical community, that Naomi had been abused. But we're getting ahead of ourselves. 00:09:00 Speaker 2: Naomi's baptism, we got her dressed and ready to go, and we get to church and she's in her car seat carrier, and all of a sudden, we looked over and she was like pale, and she projectile vomited, and we're like, oh my gosh, Like we get her cleaned up, and we noticed that she like quickly regained her color. And we were like, do we need to cancel the baptism? But we were like maybe something disagreed with her or but she seemed okay after that, so we had the baptism, and then when we fed her again, she projectile vomited again. So now we're like, okay, we got a problem here. So Brenda called the on call pediatrician and told them what was going on, and they said, you could feed her a few more times and see what happens, or you can take her to the pediatric ar. And we're like first time parents, We're like, we're taking her in. So we took her into the er, talked to the doctor, told him even about like how I almost dropped her the day before. He said, this sounds like a stomach bug or a virus. Ransom tests and said, I don't see anything of concern, but we can't test for everything. This could just be a stomach bug. Send us home, and said, just feed her again and see what happens. So she just starts projectile vomiting again. We're in and out of the pediatric ar three times, in her pediatrician's office once and they just keep telling us that it's a stomach bug. And then finally day three of this, Naomi goes limp and her eyes roll back in her head and her breathing becomes labored. So I call nine one one and the ambulance comes and they could see like that Naomi needed immediate care. We get in the ambulance and there's this partition where Brenda can look back. We're locking eyes and I'm trying to give her this look like it's okay. But you know how it is when you know your partner, your spouse. It's like she knew they were using an infant CPR breathing bag on Naomi. We had to stop at a fire station and pick up a fire paramedic to assist the paramedic in the back, and they were doing like ninety miles an hour down the freeway, and. 00:11:13 Speaker 3: I just I still have nightmares about it. 00:11:32 Speaker 2: As a dad, I just felt completely helpless. I cried out to God and I just said, please work through these paramedics' hands and just give everyone wisdom to help Naomi. We got to the pediatric er and they quickly moved Naomi up to the pediatric ICU. They had to intubate her with a breathing tube and We told them all the history and they just said, once again, gosh, this sounds like virus of some sort. 00:12:02 Speaker 1: And their instincts could have been right. In addition to shortfalls, there are over eighty medical issues that can cause the cluster of findings formally associated with the now defunct hypothesis known as shaken baby syndrome. To recap previous coverage, in England, nineteen seventy one, doctor Norman Guthkelch, a pediatric neurosurgeon, was seeing deceased infants and toddlers that presented with unexplainable brain swelling and bleeding, as well as retinal bleeding, opining that perhaps folks were shaking their children to break a crying spell or tantrum and accidentally causing these potentially fatal findings. But unable to test this hypothesis, and seemingly out of an abundance of caution, newly educated doctors were taught the hypothesis as a theory until proven otherwise, which led to the diagnosis of abuse, followed by criminal charges for parents like Brenda and Josh. 00:13:00 Speaker 2: They had been looking into all these different things. They had done MRIs. They did two spinal taps on Naomi cat scans, and then they came and they did a bedside eye exam of Naomi and they found retinal hemorrhages in the backs of her eyes. And that's when everything changed, all of a sudden, The main I see you doctor comes into the room and he says, retinal hemorrhages are typically a sign of child abuse and we have to consult with the child abuse pediatrician in the child protection team and get them involved. Next thing we knew, there's a child abuse pediatrician in the room and she looks at Naomi. She doesn't really treat Naomi, she just looks her over bedside, and then she turns to my wife and I and says, I need to interview you both but separately. And we're like sure, we were completely naive. We're like, yes, let's get this cleared up, let's talk through this and explain it to her. But after the interview, we realized, like that she's calling Child Protective Services law enforce. The child abuse pediatrician diedn't even tell us. When the CPS worker came and interviewed us, he told us he said the child abuse pediatrician says that this is shaken baby syndrome, and we're like what, We're just floored we're being accused of child abuse. From this point on, they started treating us both like criminals. They said, you guys can't stay the night in the hospital anymore. You can't be alone with your daughter in the room. You have to have like witnesses in the room with you. All these things. They called it a safety plan, and we just said, okay, whatever we have to do. But we started looking into retinal hemorrhages and we realized that infants from traumatic births like vacuum extraction attempts and see sections have retinal hemorrhages. So we bring this up to the child abuse pediatrician and she's just dismissing everything. Nope, this is all it can be. Nope, this is all it can be. And then she tells us, she goes, hey, the MRI that your daughter had here in the hospit was misread. She also has subdurohematomas, and we said they did that MRI to see if it was safe to do spinal taps on Naomi. So we're like, wait a minute, you tell us read that. Yeah, yeah, I said, you're telling me they misread an MRI and then did two spinal taps on my daughter off a misread MRI and she says she admitted it. She goes, yeah, the doctors involved in that, I told them to call risk management. They're the attorneys for the hospital. So we knew at this point, like we need an attorney. We're in a fight for our lives. It was just a nightmare. 00:15:37 Speaker 1: Thankfully, this story is not the nightmare we're used to in SBS cases. On April first, twenty fourteen, Naomi was deemed recovered and was released from the hospital. Three days later, the director of the hospital's Child Protective Team, doctor Bethany Moore, finalized her report that Naomi was the victim of abusive head trauma and that Josh was responsible. 00:16:02 Speaker 2: A CPS worker and three police showed up unannounced, and the CPS worker said, I have a signed order from a judge to remove Naomi from your care. And we said where is she going? And he said, none of your business. I said, why can't she stay here? Why can't she stay with family or friends? You and your wife are considered a danger to your daughter, and anyone who supports you is considered a danger to your daughter. She's going into foster care, I said, with who, and he goes you have a court hearing in the morning. You'll get more information there, and I'm just again, it took me back to those same feelings. In the ambulance, I was like, I'm trying to keep my family safe. So I loaded up Naomi in her car seat, and my wife and I were just bawling, and again I prayed. I said keep her safe, God, shine light in this darkness. And then this was really difficult because literally, the government is taking my child away and I have no idea where she's going. So there's this raw party you write that is like, how dare you do this to us? We didn't do anything. You feel like you want to fight for your family, but CPS, from what I've experienced with them, they hope that you'll lose it in these situations as a dad because they just use it as ammunition against you, and I knew, like I have to keep it together. We ended up in the family court situation and they allowed Brenda three one hour visits a week with Naomi and I wasn't allowed to see her at all. 00:17:36 Speaker 1: Naomi spent the next seven months in foster care. Well the state took Brenda and Josh to civil court for jurisdiction over Naomi. 00:17:45 Speaker 2: Brenda was in my corner, but it was really difficult for her. Like the prosecutors literally came up to Brenda in the hallway and said, divorce Josh and testify against him and we'll give you the baby. And they're like, use Naomi as a pomp. We didn't realize that in the moment, but literally what they were planning to do. If Brenda did that, if Brenda just decided, well, I don't know, I'm just gonna do whatever I got to do to get Naomi home, now, they would have charged her with failure to protect and said you lived in the same house as your husband and now you admitted that he abused her. That would have been game set match. We would have never seen Naomi again. My wife just she looked at the prosecutor and said, testify against him for what. 00:18:29 Speaker 1: Soon the jury in the civil trial negated any leverage the state had by awarding the jurisdiction over Naomi to Brenda, and. 00:18:38 Speaker 2: In the day she got her back. I had to move out of the family home because I was still facing the criminal trial. 00:18:43 Speaker 1: Why are they so determined to get this child away from her mother and family. 00:18:49 Speaker 2: Yeah, I have my own opinions about that, and I've looked at these issues and I've talked to so many parents over the last twelve years, and honestly, I think if you follow the money, that's what it's about. When you put a child into foster care, that state gets more federal funding. The child abuse pediatrician who accused me of shaking baby syndrome at the time had a federal grant from the US Department of Justice to diagnose abusive head trauma, which is the new term for shaking baby syndrome. She's the state expert. She was on the payroll for CPS. She had grants through CPS. People hear that and they probably think this guy's a conspiracy theorist, but I'm sorry. I have the documents to prove it. I couldn't tell you what their in game strategy is when they do this to families, but I just know it's happening and there are thousands of parents and caregivers who are going through this. It's interesting because the detective and CPS asked if I would take a polygraph test, and I said, absolutely, sign me up, I have nothing to hide, and then once we retained an attorney, we never heard back from him on doing it. So my attorney was like, let's do a polygraph, and he called, like this guy in Michigan, he's the best heated polygraphs for the Michigan State Police. And he gave me two polygraphs. I passed him, which was no surprise. I had nothing to hide, but as you know, those aren't amissible his evidence in court. So but my attorney just wanted to give that to all these people, like, hey, you asked him to do it, here you go, right, But none of that mattered. 00:20:42 Speaker 1: It also didn't seem to matter that by January twenty fifteen, shaken baby syndrome had been under heavy scrutiny for over a decade, including a biomechanical study that concluded that shaking alone does not generate sufficient force to cause subdural hematomas, and a necessary force would also cause a spinal injury. But similar research and peer reviewed studies were blocked from this trial, which made it more of a battle between experts from the state who were certain that the retinal hemorrhages meant child abuse, and the defense, who said that the presence of old and new injuries, illness, and blood clotting issues made the retinal hemorrhages an unreliable marker for child abuse. 00:21:26 Speaker 2: To fight these cases, it requires attacking junk science with real science, and guess what real science puts jurors to sleep, and the emotional argument wins the day in these cases. It's tragic, but something happened to this child, and that just grabs everyone, and you're, yeah, it's tough. 00:21:47 Speaker 1: So despite the defense questioning the state's expert, doctor Moore about an email between her and a prestigious optimologist pointing to the blood clotting issue as problematic for her conclusion, Josh was convicted of second degree child abuse. 00:22:02 Speaker 2: I was facing ten years in prison, and it had been covered in the local Detroit news and there were over one hundred people outside the courtroom with signs protesting for me. There was an outcry. I had airline pilot brothers show up in uniform in the courtroom and the judge she had to give me a sentence because the jury found me guilty, and she took what was called a downward departure and gave me the lightest sentence possible which was one year in county jail with three years probation. 00:22:36 Speaker 1: Again, this is not our typical nightmare, but even one day in prison wrongfully convicted is unacceptable. 00:22:45 Speaker 2: While I was in jail, I was still facing a parental rights trial because CPS was still full speed ahead trying to terminate my parental rights. So I'm in jail and I'm having to have these conversations with Brenda, like, hey, they might terminate my print all rights. If that happens, you just need to let me go and move on with your life, because I'm not going to ask you to like, you know, painful phone conversations, you know. But it was interesting while I was in jail. We were on the Doctor Phil show. He really advocated for us, and he brought on a bunch of experts, and my wife was in studio. I was on a satellite uplink in my orange jumpsuit. Wow jail, And that was interesting, especially in jail, because everyone in the jail saw it. And I would be like walking down the hallway and an inmate would be like, hey, man, you shouldn't be here, bro, you got reilroaded. You're going home any day. They all knew who I was, and they're like high fiving me, and this just this cut dude. He's like sleeved in tats and just totally cut. His name was Corey, and he comes up to me and he goes, hey, man, I I'm here because I screwed up. He said, I have somes and I like have stolen for it and everything. But he goes, man, I watched you on that show and he said, if anybody so as much just look see you wrong, I'm going to rip them apart. I'm just like, whoa buddy, Uh, thank you. But it was just like even deputies and guards were coming up to me privately and like saying, hey man, you shouldn't be here, Like what, how did all this happen? 00:24:22 Speaker 1: Did you recognize that you had a lot of support that a lot of people didn't have. 00:24:27 Speaker 2: Was that somethinger aware of? Absolutely? Like I could see I was facing that parental rights trial. First off, the prosecutor backed off. They were supposed to represent CPS as the attorneys, and when the Doctor Phil's show came out, they backed off and said we're not touching this. And CPS had to hire outside council for my parental rights trial. And then the judge was in the same posture, like she defended me then and upheld my parental rights. So I knew when I got out we were going to be putting what's called a family reunification plan. 00:25:00 Speaker 1: Meanwhile, the Michigan Innocence Clinic picked up his appellate case in September twenty fifteen, arguing that the States case was based on junk science and that Josh deserved a new trial. But since Josh's defense put on experts who argued this at trial, it was decided that he had received a fair trial, so the motion was denied. By then, his jail time was up. 00:25:22 Speaker 2: I get released from jail and I still can't come home. It's like I gotta go stay with friends. But I was still super excited because the next morning I was going to get to see Naomi and I hadn't seen her for almost two years. Seeing her and holding her again for the first time, it was just like, oh my, it was amazing. 00:25:43 Speaker 1: Just was she walking? Did she run into your are? 00:25:47 Speaker 2: She was too, so she was two years old. I lost all that time with her. And they had a social worker who helped work with me on this, and like she said, you have to guard your expectations. She doesn't know you anymore, like she sees pictures of you. So it took a little bit of time, Like she would let me hold her and everything, but I could see her like looking at me, like what's your deal? Where have you been? But man, I just soaked it up and took what I could get and it didn't take long. And my wife was just incredible during this process. She just knew and believed in me and stuck by my side. 00:26:23 Speaker 1: That's amazing. She just sounds like an amazing woman. 00:26:26 Speaker 2: Yeah, this has traumatized her. I got out of jail and like we were planning to have another child. She's I'm terrified to have another kid. We can't have any more kids because of how CPS and the police came and took Naomi. If FedEx shows up or Amazon and they pound on the door, it triggers us. It's like we're still on guard. We're in family counseling right now. My daughter's twelve, but she doesn't know this story yet. Naomi has autism, she's high functioning. But we're following the counselor's lead on when and how we tell her this story. You know, so she's an amazing kid. Again, she's twelve, and she loves cats, she loves the color pink. She's just a girly girl. You should see her room, Maggie. It's incredible. If she met you today, she would say, Hi, Maggie, do you have any pets? And what's your favorite color? And she would want to know everything about you. She's very verbal, very vocal, and she's just again, the best thing that's ever happened to me. And it's amazing because my brother, Robert Robertson is also autistic. 00:27:32 Speaker 1: Since his release, Josh has become active in the fight against SBS prosecutions, including in the case of Robert Robertson in Texas, who we've covered here. 00:27:44 Speaker 2: I see him twice a month down on death Row, and when I talk to Robert, it's like we have this connection, Like I was immediately able to communicate with him because him and Naomi communicate almost the same way. Robert is also very verbal. But Robert he knows everyone's birthdays and he has the dates memorized. What's your birthday, what's your favorite food, your favorite color? It's oh my gosh. We just hit it off right away, you know, Naomi. She knows that Robert is autistic, and every time she says, please tell Robert that I said hi, and I'm praying for him. And she knows that Dad's fighting for Robert. She doesn't know all the details, but Naomi made these bracelets for everybody. When we did a rally for Robert. She came up to me one day and said, Dad, I know you're trying to help Robert, and she knows about Nicki, his daughter, and she said, Dad, I want to help too. I just hugged her and it was like, what do you want to do? And she said, I want to know what Nicki and Robert's favorite colors are, and I want to make bracelets for everybody. And I had the bag of like fifty bracelets she had made this rally. There was undreds of people there. I didn't have enough, but I still wear mine. I show it to Robert and I'm like, Lord, Willing, will give you one of these to wear someday. 00:29:08 Speaker 3: And you know. 00:29:10 Speaker 1: Josh joined Robert's fight in twenty twenty four. Soon after an unprecedented maneuver that saved Robert's life, he was scheduled for execution that October. All remedies had been exhausted when a bipartisan panel from the Texas Legislature subpoena Robert to appear before them after his execution was to take place, which then forced a stay of the execution while it was decided whether or not they could even do that. The Texas Supreme Court ultimately said that this maneuver would not work a second time. Meanwhile, over thousands of miles to the northeast, the Michigan Attorney General Conviction Integrity Unit had joined Josh's team in a motion to vacate his conviction. 00:29:53 Speaker 2: In November of twenty twenty four, when I was exonerated, Robert had just been given his second stay of it execution, and I read an article in the Dallas Morning News a state representative names Lacey Hull, and she had been advocating for Robert. I called her office and I said, Hey, I was just exonerated this week, and I'm hearing about this guy. I'm here if I can help. I didn't realize what I was saying, because a month later, Robert was subpoenaed to testify before the Texas Legislature's Jurisprudence Committee. He's subpoena to be there, and the Attorney General blocked him from testifying. So I got a call two days prior to the hearing asking can you come down and testify as an exonery for Robert? And it was like, holy shit, I've never done this, but okay, here we go. Yeah, of course, yes, I'll come. But I was completely terrified. I jumped on an airplane and made the quick twenty five minute flight down, hubered over to the Capitol in a suit and tie and read the pre planned statement that I had thrown together, and then I sat there and was questioned by all these politicians for the next hour. I didn't realize like that I was going to answer questions, but that was the first time exonerated that I was able to use my voice for good. 00:31:11 Speaker 1: How'd that feel? 00:31:12 Speaker 2: It felt really good. It felt really good to share my story and how it lines up with what Robert has gone through, what he's accused of, and being able to just say, hey, I'm here to tell you that this man deserves a new trial. All the evidence needs to be seen, you know. One of the politicians said, so, you're not asking us to unlock the cell and let this man out right now. Huge part of me wanted to say yes, but I know, we all know, like the best thing that can happen for Robert and for everyone, for the entire cause, is for Robert to get a new trial, for all the evidence to be seen, and for him to be declared innocent. 00:31:52 Speaker 1: And there's another Texas man named Andrew Rourke whose case is also significant. He too had been convicted under an SBS prosecution in a case where the child did not die. He did thirteen years of a thirty five year sentence, and it took him twenty seven years to be exonerated. Andrew was kind enough to speak with us my case. 00:32:17 Speaker 4: For a long time, a Laurier would tell me, I'm not sure if we can get there. He kept going back and forth. Luckily I was in Dallas County where they actually started the integrity unit, and it seemed like for a long time nobody wanted to really pull the trigger on it. But I finally got exonerated and I got found actual innocent. 00:32:35 Speaker 1: His exoneration comes from the re examination of the state's expert testimony that was based in what we now know to be an untested hypothesis being treated as scientific theorem. The state's expert had to recant her testimony, and she is also one of the main expert witnesses in Robert Robertson's case. 00:32:55 Speaker 4: What I tell people is, had the child died in my case, I'd be right next to him on death row. It's unbelievable. Hell easy it is to get in that kind of trouble when you can't explain what happened to your kid. 00:33:11 Speaker 1: Yeah, Robert was granted his third stay of execution in October twenty twenty five, and his case was remanded to the trial court to consider the new scientific evidence in his case under Texas's junk science law. 00:33:25 Speaker 2: You know one thing too, Maggie. The Texas Criminal Court of Appeals in their ruling when Robert got his stay, it says that what happens in Robert's case from here on out will be considered solely on ex parte Rourke. So the Rourke decision, Andrew Rourke's case is what allowed Robert to get his stay of execution. Wow, and so it's incredible like Andrew's case paved the way for our other brother. 00:33:56 Speaker 1: Tell me how you met Andrew. 00:33:59 Speaker 2: So we officially met at the Seattle Innocence Network conference. We were first year of ZONERIES because Andrew and I were dexonerated three days apart in November of twenty twenty four, and it just so happens that we live within an hour of each other here in Texas. So I had reached out to Andrew before that time, like I knew who he was. I follow all these cases and didn't hear anything back. But then shortly before the conference I heard from him. He said, are you going to be there? I said, I'm going to be there? All right? We got to meet. 00:34:35 Speaker 4: If it wasn't for my wife pushing me to go to Seattle and get involved in this stuff, I would have never known how many people are affected by all this that have been wrongfully convicted. 00:34:46 Speaker 2: I ended up sitting at the table with him and his wife Kelly at all the events, and we just hung out and we shared our stories and just obviously there was just this immediate connection with him, because you're talking to like a brother who just gets it. 00:35:03 Speaker 4: We all have a connection by going through absolute hell with all this, and in our cases children being involved. It's always looked at as I guess more evil. 00:35:17 Speaker 1: It's very emotional. 00:35:18 Speaker 2: It's like it triggers people, the. 00:35:20 Speaker 4: Way people look at you and just judge you right away for just hearing what you're accused of or convicted of or whatever. 00:35:29 Speaker 2: So many similar experiences, and. 00:35:32 Speaker 4: Then we got a request to do an interview. We met Dan Schleppi in there, and he's the one that kind of got us in a group. I guess at that time he was going to do a podcast with Lester Holt about Robert Robertson. And that's when I got the idea, like, I'm comfortable in this setting, and I really like this setting, and I love Josh. 00:35:51 Speaker 1: It seems that after their experience with the great Dan Sleppion and Lester Holt, Josh and Andrew decided to make their own podcast. 00:36:00 Speaker 2: Unshaken Truth is the name of this podcast, and we're going to focus on Robert's case the issues surrounding shaken baby syndrome, and our first guest will be author John Grisham. He's currently writing a book about Robert. And we're going to talk to subject matter experts, attorneys, advocacy groups, other exonarees, some lawmakers here in Texas who want to make changes, just to bring awareness to everyone that what happened to Andrew and I and Robert can happen to anyone. 00:36:35 Speaker 1: We'll be linking to your podcast in the episode description, as well as ways people can stay tuned to Robert's case. And with that, I'm going to leave the mic open for anything else y'all want to tell our audience. 00:36:47 Speaker 2: Before all this happened, I felt like if somebody was in court and they were before a jury, they probably deserve what they had come into them. I'm ashamed that it took this happening to me and my friend and brother, Andrew Rourke, my brother Robert Robertson. It's like lifted the scales off my eyes. I feel like I bought into a narrative that doesn't hold water. I'm ashamed that this is what it took to soften my heart and to see the truth of life's not that simple. Things aren't that simple. It's changed my view on the death penalty. Robert's an innocent man, and we're going to fight for him. One of the things that has become a battle cry for me. When my feet hit the floor in the morning, I say, for those who can't, I am fighting, Andrew is fighting. We are fighting for those who can't. When I was a convicted felon, I felt like I didn't have a voice. But the University of Michigan Innocence Clinic was my voice. They fought for me when I couldn't. So if you're out there and you feel like you don't have a voice, we hear you, and we are here to fight for you, and we will not stop fighting for you. For Robert, for all these people who are waiting for justice. 00:38:15 Speaker 1: Thank you for listening to Wrongful Conviction with Maggie Freeling. I'd like to thank our production team, Connor Hall and Kathleen Fink, as well as executive producers Jason Flamm, Jeff Kempler, Kevin Burtis, and Jeff Clyburn. The music in this production was supplied by three time OSCAR nominated composer Jay Ralph. Be sure to follow us across all social media platforms at Lava for Good and at Wrongful Conviction. You can also follow me on all platforms at Maggie Freeling. Wrongful Conviction with Maggie Freeling is a production of Lava for Good podcast in association with the Signal Company Number One. 00:38:50 Speaker 2: We've worked hard to ensure that all facts reported in this show are accurate. The views and opinions expressed by the individuals featured in this show are their own and do not necessarily reflect those of Love of Her Good