Latest / Wrongful Conviction / #566 Maggie Freleng with Josh Burns

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#566 Maggie Freleng with Josh Burns · Wrongful Conviction

0:05
Speaker 1: On March fifteenth, twenty fourteen, Josh Burns was at home
0:09
Speaker 1: in Brighton, Michigan, with his newborn daughter, Naomi. His wife,
0:13
Speaker 1: Brenda was out getting her first haircut after becoming a mom.
0:18
Speaker 2: I got Naomi up from her nap and I'm feeding
0:20
Speaker 2: her a bottle and Brenda had called my cell phone
0:24
Speaker 2: and there was a coffee table in front of us.
0:26
Speaker 2: When I went to put the phone down, I felt
0:29
Speaker 2: Naomi sliding forward off my knee, like about to do
0:32
Speaker 2: a header into the coffee table. So I like reached
0:36
Speaker 2: out my hand and kind of had to catch her
0:38
Speaker 2: by her face and like propped her back up. She
0:41
Speaker 2: had like a little scratch on her cheek because I
0:43
Speaker 2: had to grab her. So then Brenda gets home and
0:46
Speaker 2: I'm like, I almost dropped Naomi. So she looks Naomi over.
0:51
Speaker 2: I mean, she's a nurse, and Naomi was normal, she
0:54
Speaker 2: didn't even really cry from the event.
0:57
Speaker 1: But over the following days, Naomi was pale, lethargic, and nauseous,
1:03
Speaker 1: making several trips back and forth to the emergency room. Ultimately,
1:08
Speaker 1: when at home, she went limp, struggled to breathe, and
1:11
Speaker 1: Josh he called nine to one one.
1:13
Speaker 2: They were using an infant CPR breathing bag on Naomi,
1:18
Speaker 2: and we had to stop at a fire station and
1:21
Speaker 2: pick up a fire paramedic to assist the paramedic in
1:25
Speaker 2: the back. And they were doing like ninety miles an
1:27
Speaker 2: hour down the freeway and wow, I still have nionmares
1:31
Speaker 2: about it. And we got to the pediatric er and
1:35
Speaker 2: they had been looking into all these different things, and
1:38
Speaker 2: then they came and they did a bedside eye exam
1:41
Speaker 2: of Naomi and they found retinal hemorrhages in the backs
1:44
Speaker 2: of her eyes. Next thing we knew, there's a child
1:47
Speaker 2: abuse pediatrician in the room. And when the CPS worker
1:51
Speaker 2: came and interviewed us, he told us he said, well,
1:54
Speaker 2: the child abuse pediatrician says that this is shaken baby syndrome,
1:58
Speaker 2: and we're like what. From this point on, they started
2:03
Speaker 2: treating us both like criminals. I'm Josh Burns. I was
2:09
Speaker 2: wrongfully convicted, spent a year incarcerated, and it took just
2:13
Speaker 2: over ten years to be exonerated and declared innocent.
2:18
Speaker 1: From Love of for Good. This is wrongful conviction with
2:21
Speaker 1: Maggie Freeling today, Josh Burns.
2:38
Speaker 2: I grew up in Colorado on the front range of
2:40
Speaker 2: the Rockies Colorado Springs. Have an older brother and a
2:44
Speaker 2: younger sister. So I'm that typical crazy middle kid. I
2:47
Speaker 2: had a great family upbringing. My parents are still married
2:51
Speaker 2: almost for fifty four years now.
2:54
Speaker 1: So you said you were kind of the crazy middle child.
2:57
Speaker 2: What does that mean? So? I was always a joke
3:00
Speaker 2: in a prankster, still kind of am. For instance, in school,
3:04
Speaker 2: I had a Spanish teacher. He had just arrived from
3:07
Speaker 2: Peru and he spoke English. But I arrived to the
3:11
Speaker 2: class late, and my last name is Burns. So he said,
3:14
Speaker 2: what's your name? And I said, I'm Sideburns and he
3:17
Speaker 2: said Side and he wrote my name down and everyone
3:20
Speaker 2: in the class knew I was Josh. And about two
3:23
Speaker 2: months later, my parents showed up for parent teacher conferences
3:25
Speaker 2: and he said, we need to talk about your son's
3:27
Speaker 2: side and they said who you know?
3:29
Speaker 1: Oh that went on for a minute.
3:31
Speaker 2: Wow yeah yeah. So and my dad, my dad and
3:34
Speaker 2: mom came home and my dad was trying to like
3:36
Speaker 2: get serious with me and tell me how I was
3:38
Speaker 2: disrespecting my elders, but he just started cracking up laughing, goes,
3:42
Speaker 2: I don't know where you come up with this stuff,
3:44
Speaker 2: you know. So the joke was out and he made
3:48
Speaker 2: me stand up in front of the class on Monday.
3:51
Speaker 1: Perhaps being called out helped Josh focus on his aspirations
3:54
Speaker 1: besides class clown.
3:56
Speaker 2: I just had a fascination from the age of five
4:00
Speaker 2: with airplanes and flying, and just was one of those
4:03
Speaker 2: kids who always knew that I wanted to be a pilot. Wow,
4:07
Speaker 2: and that dream came true. I went to flight school,
4:10
Speaker 2: built up my flight hours doing crazy things like flying
4:13
Speaker 2: skydivers and Grand Canyon tour flights from Las Vegas, all
4:17
Speaker 2: those will fly for food jobs, basically to build your
4:20
Speaker 2: time so you can get on with an airline. And
4:22
Speaker 2: then got on with the airlines and spent over twenty
4:27
Speaker 2: five years as an airline pilot. I'm still in the
4:29
Speaker 2: industry now. I trained pilots for a major airline here
4:33
Speaker 2: in Texas.
4:34
Speaker 1: But before living in Texas, Josh and his wife Brenda
4:37
Speaker 1: met in the early two thousands serving in a ministry
4:41
Speaker 1: for young adults with substance abuse issues and eating disorders.
4:45
Speaker 1: They fell in love, got married, and settled down in Michigan. Eventually,
4:49
Speaker 1: Brenda became pregnant with their daughter, Naomi.
4:52
Speaker 2: I remember her taking the test and we were just
4:56
Speaker 2: so excited, and then we went in for that ultrasound.
5:00
Speaker 2: Remember in the ultrasound, she did like a summersault, She
5:03
Speaker 2: like did a full She looked like an astronaut in
5:06
Speaker 2: zero gravity. So everything was trucking along just fine. And
5:11
Speaker 2: then Brenda was about a week overdue and we went
5:14
Speaker 2: in to visit the doctor and he said, I can
5:17
Speaker 2: do some things here to speed things along, and Brenda said,
5:21
Speaker 2: let's do it, because I feel like I'm going to
5:23
Speaker 2: explode and this kid's on my bladder and I have
5:26
Speaker 2: to pee every two minutes, you know. So about six
5:30
Speaker 2: hours after he did his procedure, Brenda's water broke and
5:34
Speaker 2: we were on our way to the hospital in a
5:36
Speaker 2: snowstorm in Michigan. So yeah, we drove to the hospital
5:41
Speaker 2: and they got her right into the room, but she
5:44
Speaker 2: pushed for hours and hours and Naomi's head became stuck
5:49
Speaker 2: and it was scary because the doctor said, hey, we
5:54
Speaker 2: can try what's called a vacuum extraction. We can put
5:57
Speaker 2: this device on her head and try to get her
5:59
Speaker 2: head dislodge and moving through. So they tried that about
6:04
Speaker 2: three times that it failed, and then they said, okay,
6:07
Speaker 2: we need to move into an emergency sea section.
6:09
Speaker 1: At this point, we should mention that one of the
6:12
Speaker 1: risks of a vacuum assisted delivery is intracrinial hemorrhage and
6:16
Speaker 1: subgalio hematoma, which are among the so called triad of
6:20
Speaker 1: findings associated with the debunk hypothesis known as shaken baby syndrome.
6:25
Speaker 1: And they attempted the vacuum assisted birth three times before
6:30
Speaker 1: moving onto a sasarean section in which she was pulled
6:33
Speaker 1: in the opposite direction. But finally Naomi was born January seventh,
6:38
Speaker 1: twenty fourteen.
6:40
Speaker 2: Finally Naomi was out and we heard her cry and
6:44
Speaker 2: we just started pauling, you know. I was like, there
6:47
Speaker 2: she is, there she is. And they cleaned Naomi up
6:50
Speaker 2: and handed her to me, and I was able to
6:52
Speaker 2: put her face to face with mommy, and it was
6:54
Speaker 2: just it was amazing. So I was home for the
6:57
Speaker 2: first two months on family leave, so I was able
6:59
Speaker 2: to just be home and be present and make that
7:03
Speaker 2: bond with her and see her smile for the first time,
7:07
Speaker 2: like all those milestones, and it was an incredible time.
7:10
Speaker 2: Naomi was struggling though my wife was trying to breastfeed,
7:14
Speaker 2: and she was sleepy and lethargic. She wouldn't latch to
7:17
Speaker 2: my wife's breast well, and my wife ended up having
7:20
Speaker 2: to pump breast milk and then we would defeed her
7:22
Speaker 2: breast milk through the bottle whatever we could. But Naomi
7:25
Speaker 2: actually lost some weight since birth, and we kept going
7:29
Speaker 2: back to the pediatrician and they were like, yeah, this
7:31
Speaker 2: can happen with these kind of deliveries.
7:33
Speaker 1: In all likelihood, Naomi's issues began during her delivery and
7:37
Speaker 1: came to a head about nine or ten weeks later
7:40
Speaker 1: in the lead up to her baptism, right around when
7:43
Speaker 1: Josh's paternity leave wrapped up.
7:46
Speaker 2: I had just gone back and finished my first four
7:49
Speaker 2: day trip back at the airline, so it was like
7:51
Speaker 2: Brenda's first four days alone with Naomi without me from
7:54
Speaker 2: being on family leave. So she's like, I'm going to
7:56
Speaker 2: the salon. I need a haircut before the baptism. And
7:59
Speaker 2: it was like you go. She said, all right, when
8:01
Speaker 2: Naomi wakes up, feed her this bottle. So I got
8:04
Speaker 2: Naomi up from her nap and I'm feeding her a
8:07
Speaker 2: bottle and Brenda had called my cell phone for something,
8:10
Speaker 2: and when I went to put the phone down, I
8:13
Speaker 2: felt like Naomi sliding forward off my knee, and there
8:16
Speaker 2: was a coffee table in front of us, so I
8:18
Speaker 2: like reached out my hand and she was like heading
8:21
Speaker 2: towards the coffee table, like about to do a header.
8:24
Speaker 2: So I had to catch her by her face and
8:27
Speaker 2: propped her back up. She had the little scratch on
8:29
Speaker 2: her cheek because I had to grab her. So then
8:32
Speaker 2: Brenda gets home and I'm like, I almost dropped Naomi.
8:35
Speaker 2: So she looks Naomi over. She's a nurse, and Naomi
8:39
Speaker 2: was normal. She didn't even really cry from the event.
8:43
Speaker 1: This event or non event, is what Josh had to
8:47
Speaker 1: think back to when Child Protective Services eventually came asking
8:51
Speaker 1: him what he'd done to her, of course, assuming with
8:54
Speaker 1: support from the medical community, that Naomi had been abused.
8:57
Speaker 1: But we're getting ahead of ourselves.
9:00
Speaker 2: Naomi's baptism, we got her dressed and ready to go,
9:04
Speaker 2: and we get to church and she's in her car
9:06
Speaker 2: seat carrier, and all of a sudden, we looked over
9:09
Speaker 2: and she was like pale, and she projectile vomited, and
9:13
Speaker 2: we're like, oh my gosh, Like we get her cleaned up,
9:16
Speaker 2: and we noticed that she like quickly regained her color.
9:20
Speaker 2: And we were like, do we need to cancel the baptism?
9:23
Speaker 2: But we were like maybe something disagreed with her or
9:25
Speaker 2: but she seemed okay after that, so we had the baptism,
9:30
Speaker 2: and then when we fed her again, she projectile vomited again.
9:33
Speaker 2: So now we're like, okay, we got a problem here.
9:36
Speaker 2: So Brenda called the on call pediatrician and told them
9:39
Speaker 2: what was going on, and they said, you could feed
9:42
Speaker 2: her a few more times and see what happens, or
9:45
Speaker 2: you can take her to the pediatric ar. And we're
9:47
Speaker 2: like first time parents, We're like, we're taking her in.
9:49
Speaker 2: So we took her into the er, talked to the doctor,
9:52
Speaker 2: told him even about like how I almost dropped her
9:55
Speaker 2: the day before. He said, this sounds like a stomach
9:58
Speaker 2: bug or a virus. Ransom tests and said, I don't
10:02
Speaker 2: see anything of concern, but we can't test for everything.
10:05
Speaker 2: This could just be a stomach bug. Send us home,
10:08
Speaker 2: and said, just feed her again and see what happens.
10:11
Speaker 2: So she just starts projectile vomiting again. We're in and
10:15
Speaker 2: out of the pediatric ar three times, in her pediatrician's
10:18
Speaker 2: office once and they just keep telling us that it's
10:21
Speaker 2: a stomach bug. And then finally day three of this,
10:25
Speaker 2: Naomi goes limp and her eyes roll back in her
10:28
Speaker 2: head and her breathing becomes labored. So I call nine
10:32
Speaker 2: one one and the ambulance comes and they could see
10:36
Speaker 2: like that Naomi needed immediate care. We get in the
10:40
Speaker 2: ambulance and there's this partition where Brenda can look back.
10:45
Speaker 2: We're locking eyes and I'm trying to give her this
10:49
Speaker 2: look like it's okay. But you know how it is
10:52
Speaker 2: when you know your partner, your spouse. It's like she
10:56
Speaker 2: knew they were using an infant CPR breathing bag on Naomi.
11:03
Speaker 2: We had to stop at a fire station and pick
11:05
Speaker 2: up a fire paramedic to assist the paramedic in the back,
11:09
Speaker 2: and they were doing like ninety miles an hour down
11:12
Speaker 2: the freeway, and.
11:13
Speaker 3: I just I still have nightmares about it.
11:32
Speaker 2: As a dad, I just felt completely helpless. I cried
11:37
Speaker 2: out to God and I just said, please work through
11:40
Speaker 2: these paramedics' hands and just give everyone wisdom to help Naomi.
11:46
Speaker 2: We got to the pediatric er and they quickly moved
11:50
Speaker 2: Naomi up to the pediatric ICU. They had to intubate
11:53
Speaker 2: her with a breathing tube and We told them all
11:56
Speaker 2: the history and they just said, once again, gosh, this
11:59
Speaker 2: sounds like virus of some sort.
12:02
Speaker 1: And their instincts could have been right. In addition to shortfalls,
12:06
Speaker 1: there are over eighty medical issues that can cause the
12:09
Speaker 1: cluster of findings formally associated with the now defunct hypothesis
12:13
Speaker 1: known as shaken baby syndrome. To recap previous coverage, in England,
12:18
Speaker 1: nineteen seventy one, doctor Norman Guthkelch, a pediatric neurosurgeon, was
12:23
Speaker 1: seeing deceased infants and toddlers that presented with unexplainable brain
12:27
Speaker 1: swelling and bleeding, as well as retinal bleeding, opining that
12:31
Speaker 1: perhaps folks were shaking their children to break a crying
12:35
Speaker 1: spell or tantrum and accidentally causing these potentially fatal findings.
12:41
Speaker 1: But unable to test this hypothesis, and seemingly out of
12:45
Speaker 1: an abundance of caution, newly educated doctors were taught the
12:49
Speaker 1: hypothesis as a theory until proven otherwise, which led to
12:53
Speaker 1: the diagnosis of abuse, followed by criminal charges for parents
12:58
Speaker 1: like Brenda and Josh.
13:00
Speaker 2: They had been looking into all these different things. They
13:03
Speaker 2: had done MRIs. They did two spinal taps on Naomi
13:07
Speaker 2: cat scans, and then they came and they did a
13:10
Speaker 2: bedside eye exam of Naomi and they found retinal hemorrhages
13:14
Speaker 2: in the backs of her eyes. And that's when everything changed,
13:17
Speaker 2: all of a sudden, The main I see you doctor
13:20
Speaker 2: comes into the room and he says, retinal hemorrhages are
13:23
Speaker 2: typically a sign of child abuse and we have to
13:25
Speaker 2: consult with the child abuse pediatrician in the child protection
13:29
Speaker 2: team and get them involved. Next thing we knew, there's
13:32
Speaker 2: a child abuse pediatrician in the room and she looks
13:36
Speaker 2: at Naomi. She doesn't really treat Naomi, she just looks
13:40
Speaker 2: her over bedside, and then she turns to my wife
13:42
Speaker 2: and I and says, I need to interview you both
13:45
Speaker 2: but separately. And we're like sure, we were completely naive.
13:50
Speaker 2: We're like, yes, let's get this cleared up, let's talk
13:53
Speaker 2: through this and explain it to her. But after the interview,
13:56
Speaker 2: we realized, like that she's calling Child Protective Services law enforce.
14:00
Speaker 2: The child abuse pediatrician diedn't even tell us. When the
14:03
Speaker 2: CPS worker came and interviewed us, he told us he
14:06
Speaker 2: said the child abuse pediatrician says that this is shaken
14:10
Speaker 2: baby syndrome, and we're like what, We're just floored we're
14:15
Speaker 2: being accused of child abuse. From this point on, they
14:19
Speaker 2: started treating us both like criminals. They said, you guys
14:23
Speaker 2: can't stay the night in the hospital anymore. You can't
14:25
Speaker 2: be alone with your daughter in the room. You have
14:28
Speaker 2: to have like witnesses in the room with you. All
14:30
Speaker 2: these things. They called it a safety plan, and we
14:33
Speaker 2: just said, okay, whatever we have to do. But we
14:35
Speaker 2: started looking into retinal hemorrhages and we realized that infants
14:40
Speaker 2: from traumatic births like vacuum extraction attempts and see sections
14:45
Speaker 2: have retinal hemorrhages. So we bring this up to the
14:48
Speaker 2: child abuse pediatrician and she's just dismissing everything. Nope, this
14:52
Speaker 2: is all it can be. Nope, this is all it
14:54
Speaker 2: can be. And then she tells us, she goes, hey,
14:57
Speaker 2: the MRI that your daughter had here in the hospit
15:00
Speaker 2: was misread. She also has subdurohematomas, and we said they
15:04
Speaker 2: did that MRI to see if it was safe to
15:07
Speaker 2: do spinal taps on Naomi. So we're like, wait a minute,
15:10
Speaker 2: you tell us read that. Yeah, yeah, I said, you're
15:14
Speaker 2: telling me they misread an MRI and then did two
15:17
Speaker 2: spinal taps on my daughter off a misread MRI and
15:20
Speaker 2: she says she admitted it. She goes, yeah, the doctors
15:24
Speaker 2: involved in that, I told them to call risk management.
15:27
Speaker 2: They're the attorneys for the hospital. So we knew at
15:30
Speaker 2: this point, like we need an attorney. We're in a
15:33
Speaker 2: fight for our lives. It was just a nightmare.
15:37
Speaker 1: Thankfully, this story is not the nightmare we're used to
15:41
Speaker 1: in SBS cases. On April first, twenty fourteen, Naomi was
15:46
Speaker 1: deemed recovered and was released from the hospital. Three days later,
15:50
Speaker 1: the director of the hospital's Child Protective Team, doctor Bethany Moore,
15:54
Speaker 1: finalized her report that Naomi was the victim of abusive
15:58
Speaker 1: head trauma and that Josh was responsible.
16:02
Speaker 2: A CPS worker and three police showed up unannounced, and
16:06
Speaker 2: the CPS worker said, I have a signed order from
16:10
Speaker 2: a judge to remove Naomi from your care. And we
16:14
Speaker 2: said where is she going? And he said, none of
16:16
Speaker 2: your business. I said, why can't she stay here? Why
16:21
Speaker 2: can't she stay with family or friends? You and your
16:23
Speaker 2: wife are considered a danger to your daughter, and anyone
16:27
Speaker 2: who supports you is considered a danger to your daughter.
16:31
Speaker 2: She's going into foster care, I said, with who, and
16:34
Speaker 2: he goes you have a court hearing in the morning.
16:36
Speaker 2: You'll get more information there, and I'm just again, it
16:39
Speaker 2: took me back to those same feelings. In the ambulance,
16:42
Speaker 2: I was like, I'm trying to keep my family safe.
16:45
Speaker 2: So I loaded up Naomi in her car seat, and
16:48
Speaker 2: my wife and I were just bawling, and again I prayed.
16:52
Speaker 2: I said keep her safe, God, shine light in this darkness.
16:57
Speaker 2: And then this was really difficult because literally, the government
17:01
Speaker 2: is taking my child away and I have no idea
17:04
Speaker 2: where she's going. So there's this raw party you write
17:08
Speaker 2: that is like, how dare you do this to us?
17:10
Speaker 2: We didn't do anything. You feel like you want to
17:13
Speaker 2: fight for your family, but CPS, from what I've experienced
17:17
Speaker 2: with them, they hope that you'll lose it in these
17:21
Speaker 2: situations as a dad because they just use it as
17:23
Speaker 2: ammunition against you, and I knew, like I have to
17:26
Speaker 2: keep it together. We ended up in the family court
17:30
Speaker 2: situation and they allowed Brenda three one hour visits a
17:33
Speaker 2: week with Naomi and I wasn't allowed to see her
17:36
Speaker 2: at all.
17:36
Speaker 1: Naomi spent the next seven months in foster care. Well
17:40
Speaker 1: the state took Brenda and Josh to civil court for
17:43
Speaker 1: jurisdiction over Naomi.
17:45
Speaker 2: Brenda was in my corner, but it was really difficult
17:50
Speaker 2: for her. Like the prosecutors literally came up to Brenda
17:53
Speaker 2: in the hallway and said, divorce Josh and testify against
17:57
Speaker 2: him and we'll give you the baby. And they're like,
17:59
Speaker 2: use Naomi as a pomp. We didn't realize that in
18:03
Speaker 2: the moment, but literally what they were planning to do.
18:06
Speaker 2: If Brenda did that, if Brenda just decided, well, I
18:10
Speaker 2: don't know, I'm just gonna do whatever I got to
18:11
Speaker 2: do to get Naomi home, now, they would have charged
18:13
Speaker 2: her with failure to protect and said you lived in
18:16
Speaker 2: the same house as your husband and now you admitted
18:20
Speaker 2: that he abused her. That would have been game set match.
18:23
Speaker 2: We would have never seen Naomi again. My wife just
18:25
Speaker 2: she looked at the prosecutor and said, testify against him
18:28
Speaker 2: for what.
18:29
Speaker 1: Soon the jury in the civil trial negated any leverage
18:33
Speaker 1: the state had by awarding the jurisdiction over Naomi to Brenda, and.
18:38
Speaker 2: In the day she got her back. I had to
18:40
Speaker 2: move out of the family home because I was still
18:42
Speaker 2: facing the criminal trial.
18:43
Speaker 1: Why are they so determined to get this child away
18:46
Speaker 1: from her mother and family.
18:49
Speaker 2: Yeah, I have my own opinions about that, and I've
18:51
Speaker 2: looked at these issues and I've talked to so many
18:54
Speaker 2: parents over the last twelve years, and honestly, I think
18:59
Speaker 2: if you follow the money, that's what it's about. When
19:03
Speaker 2: you put a child into foster care, that state gets
19:07
Speaker 2: more federal funding. The child abuse pediatrician who accused me
19:11
Speaker 2: of shaking baby syndrome at the time had a federal
19:15
Speaker 2: grant from the US Department of Justice to diagnose abusive
19:20
Speaker 2: head trauma, which is the new term for shaking baby syndrome.
19:24
Speaker 2: She's the state expert. She was on the payroll for CPS.
19:29
Speaker 2: She had grants through CPS. People hear that and they
19:32
Speaker 2: probably think this guy's a conspiracy theorist, but I'm sorry.
19:35
Speaker 2: I have the documents to prove it. I couldn't tell
19:38
Speaker 2: you what their in game strategy is when they do
19:41
Speaker 2: this to families, but I just know it's happening and
19:44
Speaker 2: there are thousands of parents and caregivers who are going
19:47
Speaker 2: through this. It's interesting because the detective and CPS asked
20:06
Speaker 2: if I would take a polygraph test, and I said, absolutely,
20:09
Speaker 2: sign me up, I have nothing to hide, and then
20:11
Speaker 2: once we retained an attorney, we never heard back from
20:14
Speaker 2: him on doing it. So my attorney was like, let's
20:17
Speaker 2: do a polygraph, and he called, like this guy in Michigan,
20:21
Speaker 2: he's the best heated polygraphs for the Michigan State Police.
20:24
Speaker 2: And he gave me two polygraphs. I passed him, which
20:27
Speaker 2: was no surprise. I had nothing to hide, but as
20:30
Speaker 2: you know, those aren't amissible his evidence in court. So
20:34
Speaker 2: but my attorney just wanted to give that to all
20:36
Speaker 2: these people, like, hey, you asked him to do it,
20:38
Speaker 2: here you go, right, But none of that mattered.
20:42
Speaker 1: It also didn't seem to matter that by January twenty fifteen,
20:46
Speaker 1: shaken baby syndrome had been under heavy scrutiny for over
20:49
Speaker 1: a decade, including a biomechanical study that concluded that shaking
20:54
Speaker 1: alone does not generate sufficient force to cause subdural hematomas,
20:59
Speaker 1: and a necessary force would also cause a spinal injury.
21:03
Speaker 1: But similar research and peer reviewed studies were blocked from
21:07
Speaker 1: this trial, which made it more of a battle between
21:10
Speaker 1: experts from the state who were certain that the retinal
21:13
Speaker 1: hemorrhages meant child abuse, and the defense, who said that
21:16
Speaker 1: the presence of old and new injuries, illness, and blood
21:20
Speaker 1: clotting issues made the retinal hemorrhages an unreliable marker for
21:25
Speaker 1: child abuse.
21:26
Speaker 2: To fight these cases, it requires attacking junk science with
21:32
Speaker 2: real science, and guess what real science puts jurors to sleep,
21:37
Speaker 2: and the emotional argument wins the day in these cases.
21:41
Speaker 2: It's tragic, but something happened to this child, and that
21:44
Speaker 2: just grabs everyone, and you're, yeah, it's tough.
21:47
Speaker 1: So despite the defense questioning the state's expert, doctor Moore
21:51
Speaker 1: about an email between her and a prestigious optimologist pointing
21:55
Speaker 1: to the blood clotting issue as problematic for her conclusion,
21:58
Speaker 1: Josh was convicted of second degree child abuse.
22:02
Speaker 2: I was facing ten years in prison, and it had
22:06
Speaker 2: been covered in the local Detroit news and there were
22:10
Speaker 2: over one hundred people outside the courtroom with signs protesting
22:14
Speaker 2: for me. There was an outcry. I had airline pilot
22:17
Speaker 2: brothers show up in uniform in the courtroom and the
22:21
Speaker 2: judge she had to give me a sentence because the
22:24
Speaker 2: jury found me guilty, and she took what was called
22:29
Speaker 2: a downward departure and gave me the lightest sentence possible
22:32
Speaker 2: which was one year in county jail with three years probation.
22:36
Speaker 1: Again, this is not our typical nightmare, but even one
22:41
Speaker 1: day in prison wrongfully convicted is unacceptable.
22:45
Speaker 2: While I was in jail, I was still facing a
22:48
Speaker 2: parental rights trial because CPS was still full speed ahead
22:53
Speaker 2: trying to terminate my parental rights. So I'm in jail
22:57
Speaker 2: and I'm having to have these conversations with Brenda, like, hey,
23:00
Speaker 2: they might terminate my print all rights. If that happens,
23:03
Speaker 2: you just need to let me go and move on
23:05
Speaker 2: with your life, because I'm not going to ask you
23:06
Speaker 2: to like, you know, painful phone conversations, you know. But
23:12
Speaker 2: it was interesting while I was in jail. We were
23:15
Speaker 2: on the Doctor Phil show. He really advocated for us,
23:19
Speaker 2: and he brought on a bunch of experts, and my
23:22
Speaker 2: wife was in studio. I was on a satellite uplink
23:25
Speaker 2: in my orange jumpsuit. Wow jail, And that was interesting,
23:30
Speaker 2: especially in jail, because everyone in the jail saw it.
23:33
Speaker 2: And I would be like walking down the hallway and
23:37
Speaker 2: an inmate would be like, hey, man, you shouldn't be here, bro,
23:40
Speaker 2: you got reilroaded. You're going home any day. They all
23:44
Speaker 2: knew who I was, and they're like high fiving me,
23:47
Speaker 2: and this just this cut dude. He's like sleeved in
23:51
Speaker 2: tats and just totally cut. His name was Corey, and
23:54
Speaker 2: he comes up to me and he goes, hey, man,
23:56
Speaker 2: I I'm here because I screwed up. He said, I
23:59
Speaker 2: have somes and I like have stolen for it and everything.
24:03
Speaker 2: But he goes, man, I watched you on that show
24:06
Speaker 2: and he said, if anybody so as much just look
24:09
Speaker 2: see you wrong, I'm going to rip them apart. I'm
24:11
Speaker 2: just like, whoa buddy, Uh, thank you. But it was
24:14
Speaker 2: just like even deputies and guards were coming up to
24:17
Speaker 2: me privately and like saying, hey man, you shouldn't be here,
24:21
Speaker 2: Like what, how did all this happen?
24:22
Speaker 1: Did you recognize that you had a lot of support
24:25
Speaker 1: that a lot of people didn't have.
24:27
Speaker 2: Was that somethinger aware of? Absolutely? Like I could see
24:30
Speaker 2: I was facing that parental rights trial. First off, the
24:34
Speaker 2: prosecutor backed off. They were supposed to represent CPS as
24:39
Speaker 2: the attorneys, and when the Doctor Phil's show came out,
24:42
Speaker 2: they backed off and said we're not touching this. And
24:44
Speaker 2: CPS had to hire outside council for my parental rights trial.
24:48
Speaker 2: And then the judge was in the same posture, like
24:51
Speaker 2: she defended me then and upheld my parental rights. So
24:55
Speaker 2: I knew when I got out we were going to
24:57
Speaker 2: be putting what's called a family reunification plan.
25:00
Speaker 1: Meanwhile, the Michigan Innocence Clinic picked up his appellate case
25:03
Speaker 1: in September twenty fifteen, arguing that the States case was
25:07
Speaker 1: based on junk science and that Josh deserved a new trial.
25:12
Speaker 1: But since Josh's defense put on experts who argued this
25:15
Speaker 1: at trial, it was decided that he had received a
25:18
Speaker 1: fair trial, so the motion was denied. By then, his
25:21
Speaker 1: jail time was up.
25:22
Speaker 2: I get released from jail and I still can't come home.
25:26
Speaker 2: It's like I gotta go stay with friends. But I
25:29
Speaker 2: was still super excited because the next morning I was
25:33
Speaker 2: going to get to see Naomi and I hadn't seen
25:35
Speaker 2: her for almost two years. Seeing her and holding her
25:39
Speaker 2: again for the first time, it was just like, oh my,
25:42
Speaker 2: it was amazing.
25:43
Speaker 1: Just was she walking? Did she run into your are?
25:47
Speaker 2: She was too, so she was two years old. I
25:50
Speaker 2: lost all that time with her. And they had a
25:54
Speaker 2: social worker who helped work with me on this, and
25:57
Speaker 2: like she said, you have to guard your expectations. She
26:01
Speaker 2: doesn't know you anymore, like she sees pictures of you.
26:05
Speaker 2: So it took a little bit of time, Like she
26:06
Speaker 2: would let me hold her and everything, but I could
26:08
Speaker 2: see her like looking at me, like what's your deal?
26:10
Speaker 2: Where have you been? But man, I just soaked it
26:13
Speaker 2: up and took what I could get and it didn't
26:14
Speaker 2: take long. And my wife was just incredible during this process.
26:19
Speaker 2: She just knew and believed in me and stuck by
26:22
Speaker 2: my side.
26:23
Speaker 1: That's amazing. She just sounds like an amazing woman.
26:26
Speaker 2: Yeah, this has traumatized her. I got out of jail
26:30
Speaker 2: and like we were planning to have another child. She's
26:33
Speaker 2: I'm terrified to have another kid. We can't have any
26:36
Speaker 2: more kids because of how CPS and the police came
26:39
Speaker 2: and took Naomi. If FedEx shows up or Amazon and
26:42
Speaker 2: they pound on the door, it triggers us. It's like
26:46
Speaker 2: we're still on guard. We're in family counseling right now.
26:49
Speaker 2: My daughter's twelve, but she doesn't know this story yet.
26:53
Speaker 2: Naomi has autism, she's high functioning. But we're following the
26:58
Speaker 2: counselor's lead on when and how we tell her this story.
27:02
Speaker 2: You know, so she's an amazing kid. Again, she's twelve,
27:06
Speaker 2: and she loves cats, she loves the color pink. She's
27:10
Speaker 2: just a girly girl. You should see her room, Maggie.
27:13
Speaker 2: It's incredible. If she met you today, she would say, Hi, Maggie,
27:17
Speaker 2: do you have any pets? And what's your favorite color?
27:20
Speaker 2: And she would want to know everything about you. She's
27:23
Speaker 2: very verbal, very vocal, and she's just again, the best
27:26
Speaker 2: thing that's ever happened to me. And it's amazing because
27:29
Speaker 2: my brother, Robert Robertson is also autistic.
27:32
Speaker 1: Since his release, Josh has become active in the fight
27:36
Speaker 1: against SBS prosecutions, including in the case of Robert Robertson
27:41
Speaker 1: in Texas, who we've covered here.
27:44
Speaker 2: I see him twice a month down on death Row,
27:48
Speaker 2: and when I talk to Robert, it's like we have
27:51
Speaker 2: this connection, Like I was immediately able to communicate with
27:56
Speaker 2: him because him and Naomi communicate almost the same way.
28:00
Speaker 2: Robert is also very verbal. But Robert he knows everyone's
28:04
Speaker 2: birthdays and he has the dates memorized. What's your birthday,
28:07
Speaker 2: what's your favorite food, your favorite color? It's oh my gosh.
28:11
Speaker 2: We just hit it off right away, you know, Naomi.
28:15
Speaker 2: She knows that Robert is autistic, and every time she says,
28:19
Speaker 2: please tell Robert that I said hi, and I'm praying
28:22
Speaker 2: for him. And she knows that Dad's fighting for Robert.
28:26
Speaker 2: She doesn't know all the details, but Naomi made these
28:29
Speaker 2: bracelets for everybody. When we did a rally for Robert.
28:33
Speaker 2: She came up to me one day and said, Dad,
28:36
Speaker 2: I know you're trying to help Robert, and she knows
28:40
Speaker 2: about Nicki, his daughter, and she said, Dad, I want
28:43
Speaker 2: to help too. I just hugged her and it was like,
28:46
Speaker 2: what do you want to do? And she said, I
28:47
Speaker 2: want to know what Nicki and Robert's favorite colors are,
28:51
Speaker 2: and I want to make bracelets for everybody. And I
28:54
Speaker 2: had the bag of like fifty bracelets she had made
28:58
Speaker 2: this rally. There was undreds of people there. I didn't
29:01
Speaker 2: have enough, but I still wear mine. I show it
29:03
Speaker 2: to Robert and I'm like, Lord, Willing, will give you
29:06
Speaker 2: one of these to wear someday.
29:08
Speaker 3: And you know.
29:10
Speaker 1: Josh joined Robert's fight in twenty twenty four. Soon after
29:13
Speaker 1: an unprecedented maneuver that saved Robert's life, he was scheduled
29:17
Speaker 1: for execution that October. All remedies had been exhausted when
29:22
Speaker 1: a bipartisan panel from the Texas Legislature subpoena Robert to
29:26
Speaker 1: appear before them after his execution was to take place,
29:30
Speaker 1: which then forced a stay of the execution while it
29:33
Speaker 1: was decided whether or not they could even do that.
29:36
Speaker 1: The Texas Supreme Court ultimately said that this maneuver would
29:40
Speaker 1: not work a second time. Meanwhile, over thousands of miles
29:44
Speaker 1: to the northeast, the Michigan Attorney General Conviction Integrity Unit
29:48
Speaker 1: had joined Josh's team in a motion to vacate his conviction.
29:53
Speaker 2: In November of twenty twenty four, when I was exonerated,
29:56
Speaker 2: Robert had just been given his second stay of it execution,
30:01
Speaker 2: and I read an article in the Dallas Morning News
30:05
Speaker 2: a state representative names Lacey Hull, and she had been
30:08
Speaker 2: advocating for Robert. I called her office and I said, Hey,
30:12
Speaker 2: I was just exonerated this week, and I'm hearing about
30:15
Speaker 2: this guy. I'm here if I can help. I didn't
30:18
Speaker 2: realize what I was saying, because a month later, Robert
30:21
Speaker 2: was subpoenaed to testify before the Texas Legislature's Jurisprudence Committee.
30:27
Speaker 2: He's subpoena to be there, and the Attorney General blocked
30:29
Speaker 2: him from testifying. So I got a call two days
30:33
Speaker 2: prior to the hearing asking can you come down and
30:36
Speaker 2: testify as an exonery for Robert? And it was like,
30:41
Speaker 2: holy shit, I've never done this, but okay, here we go. Yeah,
30:44
Speaker 2: of course, yes, I'll come. But I was completely terrified.
30:48
Speaker 2: I jumped on an airplane and made the quick twenty
30:51
Speaker 2: five minute flight down, hubered over to the Capitol in
30:53
Speaker 2: a suit and tie and read the pre planned statement
30:56
Speaker 2: that I had thrown together, and then I sat there
30:59
Speaker 2: and was questioned by all these politicians for the next hour.
31:02
Speaker 2: I didn't realize like that I was going to answer questions,
31:05
Speaker 2: but that was the first time exonerated that I was
31:08
Speaker 2: able to use my voice for good.
31:11
Speaker 1: How'd that feel?
31:12
Speaker 2: It felt really good. It felt really good to share
31:15
Speaker 2: my story and how it lines up with what Robert
31:19
Speaker 2: has gone through, what he's accused of, and being able
31:22
Speaker 2: to just say, hey, I'm here to tell you that
31:25
Speaker 2: this man deserves a new trial. All the evidence needs
31:29
Speaker 2: to be seen, you know. One of the politicians said, so,
31:32
Speaker 2: you're not asking us to unlock the cell and let
31:35
Speaker 2: this man out right now. Huge part of me wanted
31:37
Speaker 2: to say yes, but I know, we all know, like
31:42
Speaker 2: the best thing that can happen for Robert and for everyone,
31:45
Speaker 2: for the entire cause, is for Robert to get a
31:48
Speaker 2: new trial, for all the evidence to be seen, and
31:50
Speaker 2: for him to be declared innocent.
31:52
Speaker 1: And there's another Texas man named Andrew Rourke whose case
31:57
Speaker 1: is also significant. He too had been convicted under an
32:00
Speaker 1: SBS prosecution in a case where the child did not die.
32:05
Speaker 1: He did thirteen years of a thirty five year sentence,
32:08
Speaker 1: and it took him twenty seven years to be exonerated.
32:13
Speaker 1: Andrew was kind enough to speak with us my case.
32:17
Speaker 4: For a long time, a Laurier would tell me, I'm
32:19
Speaker 4: not sure if we can get there. He kept going
32:21
Speaker 4: back and forth. Luckily I was in Dallas County where
32:24
Speaker 4: they actually started the integrity unit, and it seemed like
32:27
Speaker 4: for a long time nobody wanted to really pull the
32:29
Speaker 4: trigger on it. But I finally got exonerated and I
32:33
Speaker 4: got found actual innocent.
32:35
Speaker 1: His exoneration comes from the re examination of the state's
32:39
Speaker 1: expert testimony that was based in what we now know
32:42
Speaker 1: to be an untested hypothesis being treated as scientific theorem.
32:47
Speaker 1: The state's expert had to recant her testimony, and she
32:50
Speaker 1: is also one of the main expert witnesses in Robert
32:54
Speaker 1: Robertson's case.
32:55
Speaker 4: What I tell people is, had the child died in
32:58
Speaker 4: my case, I'd be right next to him on death row.
33:03
Speaker 4: It's unbelievable. Hell easy it is to get in that
33:07
Speaker 4: kind of trouble when you can't explain what happened to
33:09
Speaker 4: your kid.
33:11
Speaker 1: Yeah, Robert was granted his third stay of execution in
33:15
Speaker 1: October twenty twenty five, and his case was remanded to
33:18
Speaker 1: the trial court to consider the new scientific evidence in
33:22
Speaker 1: his case under Texas's junk science law.
33:25
Speaker 2: You know one thing too, Maggie. The Texas Criminal Court
33:29
Speaker 2: of Appeals in their ruling when Robert got his stay,
33:33
Speaker 2: it says that what happens in Robert's case from here
33:36
Speaker 2: on out will be considered solely on ex parte Rourke.
33:42
Speaker 2: So the Rourke decision, Andrew Rourke's case is what allowed
33:47
Speaker 2: Robert to get his stay of execution. Wow, and so
33:50
Speaker 2: it's incredible like Andrew's case paved the way for our
33:55
Speaker 2: other brother.
33:56
Speaker 1: Tell me how you met Andrew.
33:59
Speaker 2: So we officially met at the Seattle Innocence Network conference.
34:04
Speaker 2: We were first year of ZONERIES because Andrew and I
34:07
Speaker 2: were dexonerated three days apart in November of twenty twenty four,
34:12
Speaker 2: and it just so happens that we live within an
34:15
Speaker 2: hour of each other here in Texas. So I had
34:18
Speaker 2: reached out to Andrew before that time, like I knew
34:23
Speaker 2: who he was. I follow all these cases and didn't
34:27
Speaker 2: hear anything back. But then shortly before the conference I
34:31
Speaker 2: heard from him. He said, are you going to be there?
34:33
Speaker 2: I said, I'm going to be there? All right? We
34:34
Speaker 2: got to meet.
34:35
Speaker 4: If it wasn't for my wife pushing me to go
34:38
Speaker 4: to Seattle and get involved in this stuff, I would
34:41
Speaker 4: have never known how many people are affected by all
34:43
Speaker 4: this that have been wrongfully convicted.
34:46
Speaker 2: I ended up sitting at the table with him and
34:47
Speaker 2: his wife Kelly at all the events, and we just
34:51
Speaker 2: hung out and we shared our stories and just obviously
34:55
Speaker 2: there was just this immediate connection with him, because you're
34:59
Speaker 2: talking to like a brother who just gets it.
35:03
Speaker 4: We all have a connection by going through absolute hell
35:08
Speaker 4: with all this, and in our cases children being involved.
35:13
Speaker 4: It's always looked at as I guess more evil.
35:17
Speaker 1: It's very emotional.
35:18
Speaker 2: It's like it triggers people, the.
35:20
Speaker 4: Way people look at you and just judge you right
35:24
Speaker 4: away for just hearing what you're accused of or convicted
35:28
Speaker 4: of or whatever.
35:29
Speaker 2: So many similar experiences, and.
35:32
Speaker 4: Then we got a request to do an interview. We
35:34
Speaker 4: met Dan Schleppi in there, and he's the one that
35:38
Speaker 4: kind of got us in a group. I guess at
35:40
Speaker 4: that time he was going to do a podcast with
35:41
Speaker 4: Lester Holt about Robert Robertson. And that's when I got
35:46
Speaker 4: the idea, like, I'm comfortable in this setting, and I
35:48
Speaker 4: really like this setting, and I love Josh.
35:51
Speaker 1: It seems that after their experience with the great Dan
35:54
Speaker 1: Sleppion and Lester Holt, Josh and Andrew decided to make
35:58
Speaker 1: their own podcast.
36:00
Speaker 2: Unshaken Truth is the name of this podcast, and we're
36:04
Speaker 2: going to focus on Robert's case the issues surrounding shaken
36:09
Speaker 2: baby syndrome, and our first guest will be author John Grisham.
36:14
Speaker 2: He's currently writing a book about Robert. And we're going
36:18
Speaker 2: to talk to subject matter experts, attorneys, advocacy groups, other exonarees,
36:24
Speaker 2: some lawmakers here in Texas who want to make changes,
36:28
Speaker 2: just to bring awareness to everyone that what happened to
36:32
Speaker 2: Andrew and I and Robert can happen to anyone.
36:35
Speaker 1: We'll be linking to your podcast in the episode description,
36:38
Speaker 1: as well as ways people can stay tuned to Robert's case.
36:41
Speaker 1: And with that, I'm going to leave the mic open
36:44
Speaker 1: for anything else y'all want to tell our audience.
36:47
Speaker 2: Before all this happened, I felt like if somebody was
36:50
Speaker 2: in court and they were before a jury, they probably
36:53
Speaker 2: deserve what they had come into them. I'm ashamed that
36:57
Speaker 2: it took this happening to me and my friend and brother,
37:01
Speaker 2: Andrew Rourke, my brother Robert Robertson. It's like lifted the
37:07
Speaker 2: scales off my eyes. I feel like I bought into
37:11
Speaker 2: a narrative that doesn't hold water. I'm ashamed that this
37:17
Speaker 2: is what it took to soften my heart and to
37:20
Speaker 2: see the truth of life's not that simple. Things aren't
37:24
Speaker 2: that simple. It's changed my view on the death penalty.
37:28
Speaker 2: Robert's an innocent man, and we're going to fight for him.
37:32
Speaker 2: One of the things that has become a battle cry
37:35
Speaker 2: for me. When my feet hit the floor in the morning,
37:38
Speaker 2: I say, for those who can't, I am fighting, Andrew
37:42
Speaker 2: is fighting. We are fighting for those who can't. When
37:45
Speaker 2: I was a convicted felon, I felt like I didn't
37:47
Speaker 2: have a voice. But the University of Michigan Innocence Clinic
37:51
Speaker 2: was my voice. They fought for me when I couldn't.
37:55
Speaker 2: So if you're out there and you feel like you
37:57
Speaker 2: don't have a voice, we hear you, and we are
38:00
Speaker 2: here to fight for you, and we will not stop
38:04
Speaker 2: fighting for you. For Robert, for all these people who
38:07
Speaker 2: are waiting for justice.
38:15
Speaker 1: Thank you for listening to Wrongful Conviction with Maggie Freeling.
38:18
Speaker 1: I'd like to thank our production team, Connor Hall and
38:21
Speaker 1: Kathleen Fink, as well as executive producers Jason Flamm, Jeff Kempler,
38:25
Speaker 1: Kevin Burtis, and Jeff Clyburn. The music in this production
38:29
Speaker 1: was supplied by three time OSCAR nominated composer Jay Ralph.
38:33
Speaker 1: Be sure to follow us across all social media platforms
38:36
Speaker 1: at Lava for Good and at Wrongful Conviction. You can
38:39
Speaker 1: also follow me on all platforms at Maggie Freeling. Wrongful
38:43
Speaker 1: Conviction with Maggie Freeling is a production of Lava for
38:46
Speaker 1: Good podcast in association with the Signal Company Number One.
38:50
Speaker 2: We've worked hard to ensure that all facts reported in
38:53
Speaker 2: this show are accurate. The views and opinions expressed by
38:56
Speaker 2: the individuals featured in this show are their own and
38:58
Speaker 2: do not necessarily reflect those of Love of Her Good