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