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#348 Jason Flom with Zavion Johnson · Wrongful Conviction

0:03
Speaker 1: In November of two thousand and one, Zavion Johnson was
0:06
Speaker 1: bathing his four month old daughter Nadia in preparation for
0:09
Speaker 1: a visit with family, when, according to Zavion, she slipped
0:12
Speaker 1: out of his hands and hit her head on the top.
0:14
Speaker 1: At first, she appeared to be fine, and so Zavion,
0:17
Speaker 1: his girlfriend, Raquel, and Nadia made their way to great
0:20
Speaker 1: grandmother's house, but by the time the young family of
0:24
Speaker 1: three arrived, Nadia was breathing irregularly, so they called nine
0:27
Speaker 1: one to one and Xavian began CPR. Nadia was rushed
0:31
Speaker 1: to the hospital, where a CT scan revealed a slight
0:34
Speaker 1: skull fracture in addition to brain bleeding and swelling, as
0:37
Speaker 1: well as bleeding behind her eyes. These are the findings
0:41
Speaker 1: that are typically associated with shaking baby syndrome. A day later,
0:44
Speaker 1: she was taken off life support and passed away. Although
0:48
Speaker 1: Zavion denied ever shaking or abusing Nadia and tried to
0:52
Speaker 1: explain that she had slipped out of his hands in
0:54
Speaker 1: the shower and hit her head, the established medical opinion
0:56
Speaker 1: at that time was clear. Three expert witness has testified
1:00
Speaker 1: at Zavion's trial that Nadia symptoms could mean only one
1:03
Speaker 1: thing that absent any other major injuries, Xavion must have
1:08
Speaker 1: violently shaken Nadia. The defense presented their own expert with
1:12
Speaker 1: theories that were considered outside the mainstream. Plus there's no
1:16
Speaker 1: way that just one expert could possibly have refuted the
1:19
Speaker 1: state's panel of three. But this is wrongful conviction. Welcome
1:37
Speaker 1: back to wrongful conviction, where today our show involves one
1:40
Speaker 1: of the worst tragedies any parent can ever experience, the
1:44
Speaker 1: death of their child, And the only thing that could
1:47
Speaker 1: make matters worse is that tragedy is so often compounded
1:51
Speaker 1: by our criminal legal system with a wrongful conviction by
1:54
Speaker 1: way of you guessed it's shaken baby syndrome or SBS prosecution,
1:58
Speaker 1: in which a medical professional will jump to the conclusion
2:02
Speaker 1: that a set of medical findings could have only one
2:05
Speaker 1: cause abuse, usually at the hand of the most recent caregiver.
2:09
Speaker 1: And today we're speaking with another survivor victim of this
2:13
Speaker 1: faulty diagnosis, Zavian Johnson. Javion. We're very honored.
2:18
Speaker 2: To have you here with us today.
2:19
Speaker 1: Thank you, You're very welcome, and with him, the supervising
2:22
Speaker 1: attorney at the Northern California Innocence Project Paige kaneb Paige,
2:27
Speaker 1: Welcome to the show.
2:28
Speaker 3: Thanks for having me.
2:29
Speaker 1: Now, we've covered SPS at lant on Raful Conviction Junk Science,
2:33
Speaker 1: in which our host Josh Dubin spoke with the executive
2:35
Speaker 1: director of the Center for Integrity and Forensic Science is
2:37
Speaker 1: Kate Judson, and we're going to have that episode linked
2:40
Speaker 1: in the bio and Kate is going to be joining
2:42
Speaker 1: us again later to discuss how the faulty SPS diagnosis
2:46
Speaker 1: related to ZAVS prosecution and wrongful conviction. But at the
2:49
Speaker 1: time of your wrongful conviction, the scrutiny of SBS was
2:52
Speaker 1: just beginning. It had really gone unchecked, starting way back
2:55
Speaker 1: in nineteen seventy one when a British neurosurgeon named doctor
2:59
Speaker 1: Norman Guthkell, which was looking for an explanation for a
3:02
Speaker 1: pattern that he had seen and some injured and even
3:04
Speaker 1: deceased children.
3:05
Speaker 3: Brain swelling, subdural hemorrhaging and retinal hemorrhaging intended to be
3:09
Speaker 3: the three main medical findings that doctors were trained that
3:12
Speaker 3: when they saw these things that meant it was child abuse,
3:15
Speaker 3: shaken baby syndrome, abuse of heteromay.
3:17
Speaker 1: Right the findings again in Layman's terms, brain swelling, brain bleeding,
3:22
Speaker 1: and bleeding behind the eyes. Now, guth Keltrin he hypothesized
3:26
Speaker 1: that this pattern could have been caused by a common
3:28
Speaker 1: scolding method at the time in Britain, which was shaking
3:32
Speaker 1: an infant or unruly child, and he cautioned parents against
3:36
Speaker 1: the practice. But what we now know is that they're
3:38
Speaker 1: eighty one and counting. That's eighty one and counting medical
3:43
Speaker 1: conditions that can lead to these findings in addition to
3:45
Speaker 1: a traumatic event. They also believed that they could pinpoint
3:48
Speaker 1: the time of the occurrence, when in fact, if a
3:51
Speaker 1: traumatic event was the cause, we now know that the
3:53
Speaker 1: trigger of those findings could have happened begun at any
3:58
Speaker 1: time up to seventy two hours before the symptoms really
4:03
Speaker 1: came to light. So sadly, as we've seen, the most
4:07
Speaker 1: recent caretaker in this case, a parent comes under suspicion.
4:10
Speaker 1: But before all of that, Zapp, let's hear about you
4:12
Speaker 1: and your life. Where did you grow up and how
4:14
Speaker 1: would you describe yourself as a kid? How was your childhood?
4:18
Speaker 4: I grew up in Sacramento, California. We was a pretty
4:21
Speaker 4: well mannered kid. I am the oldest of seven.
4:24
Speaker 1: As the oldest, I'm guessing you probably must have helped
4:27
Speaker 1: out a lot.
4:28
Speaker 4: Yeah, it's just a role you fall into and I
4:31
Speaker 4: would babysit, I would, you know, Cook just played a
4:34
Speaker 4: big brother slash father role by being responsible.
4:37
Speaker 1: And you were still pretty young when you actually became
4:40
Speaker 1: a father. How did you meet Nadia's mother?
4:42
Speaker 4: Getting up to high school, that's where I met the
4:45
Speaker 4: young lady, and we were together from the age of
4:48
Speaker 4: sixteen to pretty much when the incident happened at eighteen.
4:51
Speaker 1: And that young woman's name was Raquel, but you called
4:54
Speaker 1: her Rocky. So in January of two thousand and one
4:57
Speaker 1: you found out that she was pregnant. Now did you too,
5:00
Speaker 1: You have your own place? Did you get place? And
5:01
Speaker 1: did you feel like you were really ready to be
5:03
Speaker 1: a dad at that point?
5:04
Speaker 2: So young?
5:05
Speaker 4: Yeah, worked for the State of California for cal TRANPS.
5:08
Speaker 4: I had a pretty good head on my shoulders. Our
5:10
Speaker 4: parents pretty much lived within walking distance from each other.
5:14
Speaker 4: We kind of just split time at her dad's house
5:17
Speaker 4: and at my mom's home until we kind of figured
5:20
Speaker 4: it out. You know.
5:21
Speaker 1: So Na he was born that July, right, So what
5:24
Speaker 1: was that they like? For you and Rocky.
5:26
Speaker 2: Oh man.
5:27
Speaker 4: I remember she just woke up in the middle of
5:30
Speaker 4: the night. I was like, I think I peed on myself.
5:32
Speaker 4: So I went in there and told my mom. I'm like,
5:34
Speaker 4: Rocky said, she peed on herself. And then my mom
5:36
Speaker 4: was like, oh, no, boy, she didn't pee on herself.
5:38
Speaker 4: And so we made it to the hospital in nineteen
5:41
Speaker 4: full hours of labor. All I remember seeing was eyes.
5:47
Speaker 4: She had the most biggest eyes. For the longest time,
5:51
Speaker 4: I haven't had a chance to like really reflect on
5:56
Speaker 4: this because of the simple fact that for seventeen years plus,
6:01
Speaker 4: I talk about my wrong full confixtion, I talk about
6:04
Speaker 4: my wrong fully fixtion.
6:05
Speaker 2: I talk about everything.
6:08
Speaker 4: That wasn't me, you know, so I kind of I'm
6:13
Speaker 4: not gonna say I forgot about, you know, all this,
6:16
Speaker 4: but to remember it is good. So you know, I
6:20
Speaker 4: appreciative of this interview. Yeah, twenty six hours, nineteen actual
6:25
Speaker 4: hours of labor. That's how long I waited for, you know,
6:29
Speaker 4: my gift.
6:30
Speaker 1: And as many people testified at the trial, you were
6:33
Speaker 1: in every way a fantastic, loving dad. But that unfortunately
6:37
Speaker 1: brings us to the faithful day of November twenty fourth,
6:39
Speaker 1: two thousand and one when Nadia was just four months old.
6:42
Speaker 1: Now this would have been just a day or two
6:44
Speaker 1: after Thanksgiving, the day that the.
6:46
Speaker 2: Accident took place.
6:48
Speaker 4: I showered with my daughter and plasten her back into
6:52
Speaker 4: the little bathtub that was inside of you know, the
6:55
Speaker 4: big shower. She basically kicked off of my chest and
6:57
Speaker 4: slipped out of my hands and as a result, so
7:00
Speaker 4: if she hit her head, I picked her up, looked
7:02
Speaker 4: there wasn't like any obvious swilling or anything like that,
7:05
Speaker 4: So I just pretty much thought to myself, close call.
7:09
Speaker 4: Grandmother gets there and before we can get to our house,
7:13
Speaker 4: her breathing and stuff really changed. So we get to
7:15
Speaker 4: our grandmother's house and that's when nine one one is
7:19
Speaker 4: called and I try to perform CPR.
7:22
Speaker 1: So page the EMTs showed up. It's around three twenty pm.
7:26
Speaker 3: They document that Nadia looks well cared for. There's no
7:30
Speaker 3: bruises or marks anywhere on her body. They also try
7:35
Speaker 3: and perform CPR and rush her to the hospital, and
7:40
Speaker 3: the EMT's note as they're heading towards the hospital that
7:43
Speaker 3: like a thumbprint type mark is appearing on one side
7:47
Speaker 3: of her forehead, like a red mark.
7:49
Speaker 1: And from what I understand That thumb sized mark was
7:52
Speaker 1: later attributed to the work of the EMTs.
7:54
Speaker 3: The intubation process doesn't help stabilizing the head. You sort
7:58
Speaker 3: of have two fingers on one side in your thumb
8:00
Speaker 3: on the other side of the forehead to keep the
8:02
Speaker 3: head still. And later they end up documenting that there
8:05
Speaker 3: are bruises kind of on both sides of the forehead
8:08
Speaker 3: develop exactly where they would have been stabilizing her forehead.
8:11
Speaker 1: And that's just an example of what an innocent injury
8:14
Speaker 1: can add to the rush to judgment by hospital staff
8:17
Speaker 1: to rule an instance to be a case of child
8:19
Speaker 1: abuse upon a patient's arrival. And so when Nadia arrived
8:22
Speaker 1: at you see Davis Medical Center, these are the kinds
8:25
Speaker 1: of things being noted. And at this point she still
8:28
Speaker 1: had not been revived.
8:29
Speaker 3: She is placed on life support at the hospital, but
8:32
Speaker 3: they don't really ever revive her. You know, at the
8:35
Speaker 3: hospital they do see tea scans and they see a
8:37
Speaker 3: skull fracture and the thin layer of blood and one
8:40
Speaker 3: of the tissue layers that wrap around the brain, the
8:42
Speaker 3: one closest to the skull. She had retinal hemorrhages, tiny
8:45
Speaker 3: bits of bleeding in the back of her eyes, and
8:48
Speaker 3: she had brain swelling.
8:49
Speaker 1: And there it is the tryaud of findings that had
8:52
Speaker 1: been hypothesized to be caused by shaking and or abusive
8:55
Speaker 1: head trauma, a hypothesis that became accepted wisdom of the
8:59
Speaker 1: medical establishment without ever being tested. I mean, how would
9:03
Speaker 1: one test it without actually shaking and or abusing children
9:08
Speaker 1: and risking the potentially fatal results that doctor Gothkelch had feared.
9:12
Speaker 1: So this hypothesis was never tested, and yet it was
9:17
Speaker 1: and is taught at medical schools and even in law
9:20
Speaker 1: schools all over the world, including to the folks that
9:23
Speaker 1: you see Davis back in two thousand and one.
9:25
Speaker 3: And they have, you know, a child abuse team who
9:29
Speaker 3: has been trained to believe that when they see retinal hemorrhages,
9:33
Speaker 3: subdural hemorrhages, brain swelling, you know, with or without other injuries,
9:38
Speaker 3: that that means it's shaken baby syndrome. And there's nothing
9:43
Speaker 3: else really ever even contemplated. And so you can see
9:47
Speaker 3: it from when Nadia's first brought in. Child abuse is
9:50
Speaker 3: all over the medical records.
9:52
Speaker 1: So Zav you must have been out of your mind
9:55
Speaker 1: with worry. Meanwhile, this child abuse team and you see
9:58
Speaker 1: Davis was setting a course for you your arrest. Had
10:01
Speaker 1: you ever even heard of shaking baby syndrome or SBS?
10:05
Speaker 4: No, never heard of it, never understood, never knew what
10:09
Speaker 4: it was.
10:10
Speaker 2: It wasn't any shaken and so it just was a
10:12
Speaker 2: ball of confusion.
10:13
Speaker 1: When did it dawn on you that you were beginning
10:16
Speaker 1: to come under suspicion?
10:18
Speaker 4: When I started to see police is coming there, and
10:21
Speaker 4: I still, you know, I still kind of didn't know
10:22
Speaker 4: or fully understand what was going on and wanted to.
10:25
Speaker 2: Talk to a legal representation.
10:27
Speaker 3: First, And just to be clear, because Zavid told all
10:31
Speaker 3: his family about the fall. One of his aunts actually
10:34
Speaker 3: told one of the nurses, so they did know about
10:38
Speaker 3: the fall, even if not, you know, directly from Zev.
10:42
Speaker 4: Then when did the doctors say too, I don't want
10:44
Speaker 4: to paraphrase it, but it still wouldn't it mattered, or
10:47
Speaker 4: it was still going to be too late or.
10:48
Speaker 2: Something like that.
10:49
Speaker 3: Well, yeah, they thought it was inconsistent with a fall,
10:52
Speaker 3: so it yeah, it didn't matter. So after a couple
10:55
Speaker 3: of days on life support, the physicians say that they
10:59
Speaker 3: declare that she's brain dead and has to be removed
11:02
Speaker 3: from life support.
11:04
Speaker 1: All those years ago, I'm sure it still hurts to
11:06
Speaker 1: even think about it, but at the time it must
11:09
Speaker 1: have been absolutely devastating. And now you and Raquel to
11:14
Speaker 1: very young parents, had to begin to plan a funeral
11:18
Speaker 1: for your little girl. That's just not supposed to happen,
11:20
Speaker 1: But it did happen a week later, on December fourth,
11:23
Speaker 1: two thousand and one, and that day found a way
11:26
Speaker 1: to get even worse.
11:27
Speaker 2: Oh man.
11:28
Speaker 4: Yeah, I remember being inside of the church, and you know,
11:32
Speaker 4: there's all of our family there and you know, whoever else,
11:35
Speaker 4: and then I just start seeing people that don't look
11:39
Speaker 4: like me in the church, and I'm just like, well,
11:41
Speaker 4: what's going on. I'm not really paying attention to it.
11:44
Speaker 4: And then I think when we go outside during the burial,
11:48
Speaker 4: I start seeing kind of like the same people. So,
11:51
Speaker 4: you know, I remembers taking pictures, making plans to meet
11:54
Speaker 4: back up at I think at my mom's house or
11:56
Speaker 4: her dad's house. We set our you know, see, later,
12:00
Speaker 4: gave her a kiss, I got in the car with
12:03
Speaker 4: a friend of mine, and she got in the car
12:06
Speaker 4: with I think either my mom or her parents. And
12:10
Speaker 4: before we can even get I don't know how far,
12:13
Speaker 4: pretty much was pulled over by undercover cars.
12:17
Speaker 2: And six guns was drawn at me.
12:19
Speaker 4: I get exited out the vehicles, placed on the hood
12:23
Speaker 4: of the car in handcuffs, saying I'm being arrested for
12:26
Speaker 4: murder and I was just like murder of who huh.
12:40
Speaker 1: This episode is underwritten by global law firm Greenberg Trawig.
12:44
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13:01
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13:05
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13:28
Speaker 5: My name is Kate Judson. I'm the executive director of
13:31
Speaker 5: the Center for Integrity and Forensic Sciences, and I am
13:35
Speaker 5: familiar with Xavian Johnson's case and shaken baby cases in general.
13:40
Speaker 5: In the case of Xavian Johnson, on one hand, we
13:43
Speaker 5: have Zevian retelling his account that Nadia had taken a
13:46
Speaker 5: fall of three or four feet and hit her head
13:48
Speaker 5: on the bathtub. But back in two thousand and one,
13:51
Speaker 5: the medical establishment had not yet accepted the idea that
13:55
Speaker 5: a short fall, even coupled with an impact on a
13:57
Speaker 5: hard surface, could cause the tryad of findings associated with
14:01
Speaker 5: shaken baby syndrome in abusive head trauma. Now at the
14:04
Speaker 5: time of trial, the state's experts testimony aligned with this
14:07
Speaker 5: incorrect assumption. A forensic pathologist who performed Nadia's autopsy testified
14:12
Speaker 5: that he found bleeding behind her eyes, which was associated
14:15
Speaker 5: with what he called a rotational head injury. He was
14:17
Speaker 5: unequivocal in saying that the injuries could not have been
14:20
Speaker 5: the result of a fall. Doctor Claudia Greco, a neuropathologist,
14:24
Speaker 5: testified that she found a brain injury that was what
14:26
Speaker 5: she called the most convincing evidence that the baby died
14:29
Speaker 5: from shaking and not from a fall of four feet.
14:32
Speaker 5: And doctor Kevin Colter was the pediatrician at the University
14:35
Speaker 5: of California, Davis Medical Center, who treated Nadia in the hospital.
14:40
Speaker 5: He testified that physicians only see the constellation of injuries
14:44
Speaker 5: that Nadia had with shaking, with falls from what he
14:47
Speaker 5: called great heights of ten feet or higher, motor vehicle
14:50
Speaker 5: accidents or similar events where there is what he called
14:54
Speaker 5: a really significant, high velocity impact. These physicians were totally
14:59
Speaker 5: under estimating the danger that shortfalls can represent. The defense
15:03
Speaker 5: witness doctor Richard Robertson, referring to what was then very
15:07
Speaker 5: recent biomechanical research, he testified to what we know now
15:11
Speaker 5: that the injuries in Nadia were consistent with a short
15:13
Speaker 5: fall onto a hard surface. However, one of the state's witnesses,
15:17
Speaker 5: doctor Greco, attacked that research, claiming it was unreliable, even
15:20
Speaker 5: though it later became part of the basis of our
15:23
Speaker 5: current understanding of shake and baby syndrome, and studies have
15:26
Speaker 5: shown that falls, even from short distances far exceed the
15:30
Speaker 5: thresholds for injury then even the most vigorous shaking. Yet,
15:34
Speaker 5: it appears that Devian's trial came down to a contest
15:38
Speaker 5: of experts. However misinformed the state's experts were at the time,
15:41
Speaker 5: the contest was outweighed in the states favor three to one.
15:45
Speaker 3: You know, I think one of the things that really
15:48
Speaker 3: makes them so compelling, besides that they're doctors and they're experts,
15:53
Speaker 3: is they don't have any reason to lie about this,
15:56
Speaker 3: you know, and they believed what they were saying.
15:58
Speaker 1: I know, you'd think that nearly the entire medical community,
16:03
Speaker 1: including these three expert witnesses, would have recognized much sooner
16:09
Speaker 1: that this SBS diagnosis requires a huge leap in logic
16:15
Speaker 1: that ignores all the other potential causes, which, like I
16:19
Speaker 1: said before, we now know there's at least eighty one others,
16:22
Speaker 1: and the whole thing seems antithetical to the scientific method.
16:26
Speaker 1: I mean, do you have any theories at all as
16:29
Speaker 1: to why these otherwise learned and probably well intentioned people
16:34
Speaker 1: we're testifying this way in case after case.
16:38
Speaker 3: Medical school doesn't focus on what is the evidence for
16:42
Speaker 3: various propositions right. They're not spending their time looking back
16:46
Speaker 3: at like was the scientific method followed or how well
16:48
Speaker 3: did this work out? They spend their time being trained
16:51
Speaker 3: to recognize various things right and diagnose based on them.
16:55
Speaker 3: And pediatric deaths is a tiny part of what most
16:59
Speaker 3: doc's practice, and so they may just remember that they
17:03
Speaker 3: were trained. When you see these things, its abuse and
17:06
Speaker 3: only abuse, you know. The American Academy of Pediatrics put
17:09
Speaker 3: out a two thousand and one policy statement. They called
17:12
Speaker 3: it a Technical Report on Shaking Baby Syndrome, and it
17:14
Speaker 3: literally says, this constellation of injuries does not happen with shortballs.
17:19
Speaker 3: And the National Association of Medical Examiners had the same thing,
17:23
Speaker 3: and the DOJ published guide saying the same thing.
17:26
Speaker 1: But Zavion's lawyer had his own expert, right, doctor Richard Robertson,
17:30
Speaker 1: And this guy raised doctor John Plunkett study to say
17:33
Speaker 1: the opposite.
17:34
Speaker 4: My trial attorney, I don't got no grievance with them, man.
17:37
Speaker 4: I believe he tried his artists, you know.
17:40
Speaker 1: Yeah, he not only presented your own expert testifying to
17:43
Speaker 1: the current understanding of SBS, but in addition, there were
17:46
Speaker 1: also over a dozen character witnesses.
17:49
Speaker 4: Man, it was so many people. I don't remember everyone,
17:53
Speaker 4: but the main people who should have been up there
17:57
Speaker 4: was there. You know, the mother of the child, my mom,
18:00
Speaker 4: you know, I guess the people who who knew our character.
18:04
Speaker 1: And zav also.
18:05
Speaker 3: Took the stand, right, Zav's child attorney, he remembered zav
18:10
Speaker 3: testifying and that it was super powerful and the jury
18:14
Speaker 3: was really moved. We have this letter from one of
18:16
Speaker 3: the jurors talking about how Zev seemed like a really
18:20
Speaker 3: good young man, seemed like a very loving father. It
18:23
Speaker 3: seemed horribly out of character for him to have done
18:26
Speaker 3: anything to harm his daughter. But the medical experts said
18:31
Speaker 3: the only possibility was abuse, and so they felt like
18:34
Speaker 3: they had no choice but to convict.
18:37
Speaker 1: So you were given two concurrent life sentences, one for
18:41
Speaker 1: child abuse and one for child abuse resulting in death,
18:44
Speaker 1: which results in a sentence of twenty five to life.
18:47
Speaker 4: I do recall like when I got sentence. I remember
18:50
Speaker 4: hearing everyone gas eighteen years old. I had to go
18:54
Speaker 4: and start a double life sentence with you know, just
18:58
Speaker 4: me not being able to agree, me not being able
19:01
Speaker 4: to you know, just fully process you know, the loss
19:06
Speaker 4: of my child. It just was, it had to be
19:09
Speaker 4: bottled up. I had to, you know, like I said,
19:11
Speaker 4: go into survival mode inside of prison.
19:26
Speaker 2: So fast forward to me being nineteen.
19:28
Speaker 4: Now I'm sentenced to life and I go start my
19:32
Speaker 4: time off at a level four high.
19:34
Speaker 2: Desert State Penitentiary.
19:36
Speaker 4: I didn't know how I would survive, didn't know how
19:39
Speaker 4: I would manage. But I walked with something someone and
19:45
Speaker 4: I know who it is. There was a lot of
19:47
Speaker 4: things that I seen in front of me, a lot
19:50
Speaker 4: of things that I seen behind me, a lot of
19:52
Speaker 4: things that I seen on the side of me. For
19:55
Speaker 4: seventeen years, thankfully, nothing agreed tous happened to me. But yeah,
20:02
Speaker 4: just surviving, I had to pick up fast. It's like
20:05
Speaker 4: I did as being the older SIP. I spoke less
20:08
Speaker 4: and I looked more, and I listened more. For surely
20:11
Speaker 4: there's PTSD. For surely there's counselor needed. For surely I
20:16
Speaker 4: am not whole, but I'm not broken either, So you
20:20
Speaker 4: know there is hope.
20:22
Speaker 1: And while grinding through, I understand you spent a lot
20:25
Speaker 1: of time in the law library.
20:27
Speaker 2: Yeah, it turned into what we call on the inside,
20:30
Speaker 2: a legal bigle.
20:31
Speaker 1: And in two thousand and four you filed an appeal
20:33
Speaker 1: with the Third District California Court of Appeals, which unfortunately
20:36
Speaker 1: upheld the conviction. And then you continued to file appeals
20:39
Speaker 1: for pretty much the next ten long years until the
20:42
Speaker 1: Northern California Innocence Project got involved.
20:45
Speaker 3: So he'd written to us before his appeal was denied
20:48
Speaker 3: and then again afterwards he's you know, filing his own
20:52
Speaker 3: habeas petitions.
20:53
Speaker 2: You know what, a lot of help from my mom.
20:55
Speaker 4: She made sure I met deadlines, like she made sure
20:58
Speaker 4: I got helped with copies.
20:59
Speaker 3: Of Yeah, so his mom would print out like abstracts
21:02
Speaker 3: of medical articles and then Zev would attach those to
21:06
Speaker 3: habeas petitions, and the court just kept denying him, saying,
21:10
Speaker 3: you know, you don't have an expert saying how this
21:12
Speaker 3: applies to your case, And he also kept writing to us.
21:16
Speaker 3: And then around twenty fourteen, I had been working on
21:20
Speaker 3: a shaken baby syndrome case, a different one, and had
21:22
Speaker 3: been learning all about the science or lack thereof, and
21:26
Speaker 3: I decided to go meet Zav and it was hard
21:30
Speaker 3: to walk away from him.
21:31
Speaker 4: She had to help me. But yeah, no, like it's
21:35
Speaker 4: just it's a testament to who I am. It's a
21:37
Speaker 4: testament to the father that I was, to the son
21:40
Speaker 4: that I was, to the cousin that I was, to
21:43
Speaker 4: the big brother that I was. So you know, I
21:46
Speaker 4: just appreciate her seeing that. And you know, not too
21:50
Speaker 4: much has changed. I'm still Karen. I still love kids,
21:55
Speaker 4: I still you know, have a zest for life, you know,
21:58
Speaker 4: and I'm hoping to, you know, be it in that
22:02
Speaker 4: row again.
22:02
Speaker 1: Well, it looks like you have that chance now, But
22:05
Speaker 1: how did that come about? What was the strategy that
22:08
Speaker 1: brought him home?
22:09
Speaker 3: From our perspective, the beautiful things about Zav's case was
22:12
Speaker 3: he had always been so consistent, right, he had just
22:16
Speaker 3: always said she fell in the shower. I never did
22:19
Speaker 3: anything to intentionally or deliberately harm her in some kind
22:24
Speaker 3: of way. And all of the lay witness evidence was
22:28
Speaker 3: that he was this great, gentle, loving person and caretaker
22:33
Speaker 3: and father, and so we knew this really turned on
22:36
Speaker 3: the medical So this was all about getting new or
22:41
Speaker 3: the same original medical experts. So one of the first
22:44
Speaker 3: people I approached was doctor Riber, who had done the autopsy,
22:47
Speaker 3: and I asked him if he would be willing to
22:50
Speaker 3: take another look. I knew a lot of the science
22:53
Speaker 3: around pediatric head injuries had evolved and changed, and especially
22:58
Speaker 3: when it comes to shortfalls, and eventually he agreed to
23:02
Speaker 3: do that, which was amazing. I also got another independent
23:07
Speaker 3: forensic pathologist who'd never looked at the case, doctor Judy Melinik.
23:10
Speaker 3: Asked her to do just a clean, independent review based
23:15
Speaker 3: on what we now know. We got a skull fracture
23:17
Speaker 3: expert doctor Roger Hout, who had been doing all sorts
23:21
Speaker 3: of experiments with pig skulls. Actually, so doctor Ribert in
23:25
Speaker 3: a lot of ways was really the key piece, especially
23:29
Speaker 3: in terms of the District Attorney's office view of the case.
23:33
Speaker 3: He eventually wrote a declaration that explained why he'd felt
23:38
Speaker 3: like he had to say this was shaken baby syndrome
23:41
Speaker 3: in two thousand and one, in two thousand and two,
23:43
Speaker 3: and why now he would say that it's consistent with
23:47
Speaker 3: a shortfall, and more so than shaking, because you know,
23:51
Speaker 3: as it turns out, the forces from human shaking aren't
23:54
Speaker 3: nearly what we thought they were, and the forces from
23:57
Speaker 3: falls are much greater. And so he wrote this beautiful
24:00
Speaker 3: declaration that explained this whole trajectory and what has changed
24:06
Speaker 3: and why it has changed. The way he teaches, the
24:09
Speaker 3: way he practices, the way he does his autopsies, and
24:12
Speaker 3: the way he would have mannered and given an opinion
24:16
Speaker 3: on this case.
24:17
Speaker 1: And now i'd like to quote doctor Riber's very powerful statement,
24:21
Speaker 1: and just for context, there are only three ways that
24:24
Speaker 1: an autopsy can be categorized natural causes, homicide, or undetermined.
24:28
Speaker 1: So this is what doctor Ribers said, quote. While the
24:31
Speaker 1: consensus view at the time of the autopsy, which I shared,
24:35
Speaker 1: led to a conclusion that the manner of death was homicide,
24:38
Speaker 1: the current reassessment has led me to conclude that accidental
24:41
Speaker 1: injury cannot be excluded, and therefore the manner of death
24:46
Speaker 1: should be considered as undetermined.
24:49
Speaker 2: End quote.
24:50
Speaker 1: Wow, I mean, it takes guts to admit when you
24:53
Speaker 1: were wrong, especially when the stakes are so high, and
24:55
Speaker 1: we've seen so many other experts that did the opposite right,
24:58
Speaker 1: they just really dug in their heel on other cases.
25:00
Speaker 1: So I mean, better late than never, I guess you
25:03
Speaker 1: could say. And I commend him.
25:05
Speaker 3: For that, honestly. I mean, I think for doctor Riber
25:08
Speaker 3: this was one of the hardest experiences of his life.
25:11
Speaker 3: I totally believe he believed what he was saying at
25:13
Speaker 3: the time, and the fact that he was willing to
25:15
Speaker 3: admit on paper that he was wrong is huge and
25:18
Speaker 3: fairly unusual. I think really speaks to his character and bravery,
25:23
Speaker 3: and that it wasn't something he was trying to deliberately
25:27
Speaker 3: send an innocent person to prison or something like that,
25:30
Speaker 3: and our other experts basically all said the same. Doctor
25:33
Speaker 3: Greco the neuropathologist. She wasn't willing to do a full
25:37
Speaker 3: review of the case because she was retired. But what
25:39
Speaker 3: she did agree to do is just look at her
25:41
Speaker 3: own testimony and say what she would say differently today.
25:45
Speaker 3: Doctor Greco said, you know, look, there's new studies that
25:48
Speaker 3: have come out. We now know these findings appear in
25:51
Speaker 3: other things, and I wouldn't say that this proves that
25:53
Speaker 3: the child has been shaken. And so we had four
25:57
Speaker 3: expert reports, including two from their real experts, and we
26:01
Speaker 3: presented all of that to the court and to the
26:03
Speaker 3: District Attorney's office.
26:05
Speaker 1: And that was in April of twenty seventeen. You at
26:07
Speaker 1: the Northern California Innisis Project, long with the law firm
26:10
Speaker 1: of Kecker, Van Nest and Peters, FILEDUS habeas and the
26:13
Speaker 1: District Attorney actually did the right thing, which we don't
26:17
Speaker 1: see that often unfortunately, and they agreed that the petition
26:21
Speaker 1: for relief should be granted. And so on December eighth,
26:24
Speaker 1: twenty seventeen, Sacramento Superior Court Judge James Arguayas vacated Xavion's conviction,
26:30
Speaker 1: and even though the DA had joined the defense in
26:32
Speaker 1: granting relief, that didn't mean this was over. They had
26:36
Speaker 1: forty days to decide whether or not to retry or
26:38
Speaker 1: drop the charges. So al those zav you were in
26:40
Speaker 1: this limbo for forty long days. You were finally on
26:44
Speaker 1: the outside for the first time in over fifteen years.
26:48
Speaker 4: I just remember just saying good luck, and then I
26:51
Speaker 4: remember getting out of my paper suit.
26:54
Speaker 2: I remember getting.
26:54
Speaker 4: Dressed, you know, doing all that, and then I talked
26:58
Speaker 4: about it before I came home. But I wanted Popeye's
27:01
Speaker 4: chicken and strawberry soda. You know, I went without fried
27:05
Speaker 4: chicken for so long, and there all they do is
27:07
Speaker 4: bake it. All they do is bake it in a
27:10
Speaker 4: hot bath too. So yeah, it was pretty cool.
27:13
Speaker 1: And then on January eighteenth, twenty eighteen, the chargers were dismissed.
27:18
Speaker 1: There would be no retrial, and you were a long last,
27:22
Speaker 1: a truly free man. Must have been one of the
27:25
Speaker 1: best days of your life.
27:27
Speaker 4: It was it was I got the call, I think
27:30
Speaker 4: the night before, shout out to coach k that's kry Tillery,
27:33
Speaker 4: who works for Kecker, Vaness and Peters.
27:36
Speaker 2: I had an awesome team and now they even awesome
27:39
Speaker 2: family too.
27:39
Speaker 4: My team understood how much I did not want to
27:44
Speaker 4: stay in my hometown and Sacramento just because you know,
27:47
Speaker 4: my PTSD, you.
27:48
Speaker 2: Know, paranoia, you know, living out here.
27:51
Speaker 4: It just didn't sit well with me. And I was
27:54
Speaker 4: fortunate enough to live in the Bay Area with one
27:56
Speaker 4: of my legal.
27:57
Speaker 2: Team members for about four years.
28:00
Speaker 1: Wow, talk about walking the walk. Not only did your
28:02
Speaker 1: legal team free you, they took you in to make
28:04
Speaker 1: sure that you got back on your feet. So what
28:06
Speaker 1: did that look like in the short and even medium
28:09
Speaker 1: or long term.
28:10
Speaker 4: I had a few different jobs out there. I was
28:13
Speaker 4: a janitor, discwasher, and ultimately I set it up.
28:16
Speaker 2: Want to be in a delivery driver.
28:18
Speaker 4: And you know, during that time also I got connected
28:21
Speaker 4: with another organization, the Exonerated Nation, that helped me with
28:26
Speaker 4: my speakings, which in turn was counseling, which in turn,
28:29
Speaker 4: you know, like I say, it just helped me not
28:31
Speaker 4: so much live inside of my head. I guess I
28:34
Speaker 4: was able to, you know, travel thanks to NCIP, and
28:37
Speaker 4: I've done, you know, numerous speakers here and there.
28:40
Speaker 1: I understand you were involved with other exiguneries and lobby
28:43
Speaker 1: in California to provide more resources to exiguneries, and in
28:46
Speaker 1: your case, I know it took some time way longer
28:48
Speaker 1: than it should have, but eventually you were awarded compensation
28:51
Speaker 1: for the state of California in May of twenty twenty two.
28:55
Speaker 2: Yeah.
28:55
Speaker 4: You know, I would give every single dollar back to
28:58
Speaker 4: see my daughter be twenty two this, but it does
29:01
Speaker 4: make choices and for surely a little bit easier.
29:03
Speaker 1: Well, we're very glad that you're willing to tell this
29:07
Speaker 1: very painful story and just to let people know what
29:10
Speaker 1: kind of injustice can happen in our system. People need
29:13
Speaker 1: to hear it. They need to hear it, and they
29:15
Speaker 1: need to get angry and active about it.
29:19
Speaker 2: Yeah.
29:20
Speaker 4: And you know, like I say all the time, you know,
29:22
Speaker 4: this could have been anybody's situation. Male, female, didn't matter
29:28
Speaker 4: to age, really didn't really matter the race because of
29:32
Speaker 4: the simple effact I'm a parent doing parent duties.
29:35
Speaker 1: It's really scary, and I want people to feel scared.
29:38
Speaker 1: None of us want to believe that there's awful tragedies
29:41
Speaker 1: can happen, but they can and they do. We have
29:44
Speaker 1: the science now, and I hope we're getting this across
29:46
Speaker 1: to our audience. Now, is there anything that you'd like
29:50
Speaker 1: our wonderful audience to do.
29:52
Speaker 4: For surely, just support a cause that matters to you,
29:54
Speaker 4: support this if it matters to you. Also, just educate yourself.
30:00
Speaker 4: Educate yourself and know that one life matters, one life matters.
30:04
Speaker 4: So yeah, just try to donate if you can to
30:06
Speaker 4: know on the California instance project or organization similar to it,
30:10
Speaker 4: to help save a life.
30:11
Speaker 1: That's the Northern California Innocence Project. They do amazing work, folks.
30:16
Speaker 1: This is the living proof of it, and we'll have
30:18
Speaker 1: a link to them in our bios. You can donate,
30:21
Speaker 1: get involved, learn more about other exner reaves they've helped.
30:25
Speaker 1: And now we come to the final segment of our show.
30:27
Speaker 1: Everyone knows it's called closing Arguments, And first of all,
30:31
Speaker 1: thank you Zav, Thank you Paige for coming on the
30:34
Speaker 1: show and sharing this powerful, moving and important story. And
30:39
Speaker 1: now I'm going to turn my microphone off, kick back
30:43
Speaker 1: in my chair with my headphones on and my eyes closed,
30:45
Speaker 1: and just listen to anything else you want to share
30:48
Speaker 1: with us. So, Paige, why don't you start us off,
30:51
Speaker 1: and then we'll let Zav have the last word.
30:53
Speaker 3: I think it's really important that we all be willing
30:57
Speaker 3: to admit what we don't know, what we're wrong about,
31:01
Speaker 3: or what we thought we knew that we didn't, and
31:06
Speaker 3: look back at the things we think are true and
31:10
Speaker 3: have evidence for, and actually track what is the evidence.
31:14
Speaker 3: And I don't think anybody was doing anything wrong in
31:20
Speaker 3: the first place. But when it switched from the idea
31:22
Speaker 3: that shaking could cause these things to the idea that
31:25
Speaker 3: you can diagnose shaking, you can infer violence and violent
31:30
Speaker 3: intentional trauma from findings that we now know happen without
31:35
Speaker 3: intentional trauma, I think it's time for us to really
31:38
Speaker 3: reckon with that and look back at all of the
31:43
Speaker 3: cases that have gone wrong. We need to fix that
31:45
Speaker 3: in some kind of way. And there's you know, there's
31:50
Speaker 3: people in prison still, there's people on death row. There's
31:52
Speaker 3: also people continuing to get accused, and there are also,
31:55
Speaker 3: I want to be totally clear, of course, there are
31:57
Speaker 3: children getting abused, and we also need to protect those children.
32:00
Speaker 3: But that doesn't excuse breaking up families where abuse isn't happening,
32:05
Speaker 3: or sending people to prison where there isn't actually any
32:08
Speaker 3: reliable evidence of abuse, and in fact, there is very
32:11
Speaker 3: reliable evidence that the child was sick or had an accident.
32:15
Speaker 3: And you know, instead of I think maybe worrying about
32:18
Speaker 3: what's going to happen. If we admit we're wrong, we
32:21
Speaker 3: can focus on all the lives we can help. If
32:26
Speaker 3: we can just admit that we were all trained wrong,
32:29
Speaker 3: we all believed something that's turned out to not be true.
32:31
Speaker 3: If we can just flip that lens a little bit
32:33
Speaker 3: to make sure that people can be as brave as
32:35
Speaker 3: doctor Riber and can look back and say I wouldn't
32:39
Speaker 3: say the same thing today. Even just that would be huge.
32:43
Speaker 4: I would just like to say thank you for this opportunity,
32:46
Speaker 4: and I would just chill anyone and everyone in the
32:50
Speaker 4: situation or fighting for this cause to just beat a lighthouse,
32:54
Speaker 4: remain that positive light and keep shining and keep shining
32:59
Speaker 4: no matter what, no matter what the storm is, no
33:01
Speaker 4: matter what you're up against, keep shigning and be at lighthouse.
33:05
Speaker 4: Thank you again for this opportunity.
33:14
Speaker 1: Thank you for listening to Wrongful Conviction Special thanks to
33:17
Speaker 1: our amazing production team Connor hall, Any Chelsea, Jeff Clyburn,
33:21
Speaker 1: and Kevin Mortis, with research by Lyla Robinson. The music
33:25
Speaker 1: in this production was supplied by three time OSCAR nominated
33:28
Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram
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Speaker 1: at Wrongful Conviction on Facebook at Wrongful Conviction podcast and
33:35
Speaker 1: on Twitter at wrong Conviction, as well as at Lava
33:39
Speaker 1: for Good. On all three platforms, you can also follow
33:42
Speaker 1: on TikTok and Instagram at It's Jason Flamm. That's It's
33:46
Speaker 1: Jason Flamm. Wrongful Conviction is a production of Lava for
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Speaker 1: Good Podcasts and association with Signal Company Number one