On January 17, 2018 a team of California exonerees joined Exonerated Nation and HSG client, California Attorneys for Criminal Justice, in Sacramento to advocate for free health care for those who have been released after wrongful incarceration.
Reported by Sacramento Bee DARRELL SMITH
February 23, 2018 09:03 AM | Updated February 24, 2018 09:53 AM
Zavion Johnson keeps a photo of his daughter Nadia, forever 4 months old, on his cell phone. It’s a daily reminder, if he ever needed one, of the child he lost as he begins his new life as a free man.
Few people in 2002 believed Johnson when he insisted his daughter’s death was a tragic accident: Neither the investigators who arrested him, nor the prosecutors who tried him. Neither the experts who testified on the witness stand, nor the 12 jurors who ultimately convicted Johnson of child homicide. Those jurors concluded that Nadia Johnson was violently shaken to death.
Johnson, then just 19, was in one juror’s words, “a good guy who lost it.”
For nearly 15 years, Johnson sat in prisons across California convicted of second-degree murder in the November 2001 death of his infant daughter. But he never stopped fighting to prove his innocence. Finally, in December, a Sacramento Superior Court judge threw out the sentence that committed Johnson to 25 years to life in state prison.
The case was closed for good in January when the Sacramento County District Attorney’s office declined to retry Johnson – a decision that came 15 years to the week that the Sacramento man was sent away.
Johnson is 34 years old now. How he won his freedom is an uncommon story of faith, determination and do-it-yourself shoe leather; the sheaths of appeals he filed over more than a decade behind bars; and the work of the Northern California Innocence Project.
Perhaps more improbable was the rare recanting of testimony by the medical experts whose words on the witness stand helped seal Johnson’s fate all those years ago and the planned review of similar cases by the Sacramento County District Attorney’s Office as a result.
Johnson, now staying with friends in Hayward, has been slowly finding his way back to a version of a normal life: a favorite meal of carryout Popeye’s chicken and a strawberry soda; a recent night at Oracle Arena for a Golden State Warriors game; a deepening bond with the legal team who helped win his release.
“They’re family. I nicknamed them ‘The Justice League,’” Johnson told The Bee last month in downtown Sacramento. He was accompanied by Khari Tillery, Johnson’s San Francisco-based lead counsel who worked with attorneys from the Northern California Innocence Project to exonerate Johnson.
But Johnson’s memories of his newborn daughter’s final hours and the emotional whipsaw that followed remain raw nearly half a life later.
“I went straight from that to the funeral to learning how to survive in prison,” Johnson said. “I still haven’t had time to grieve.”
Zavion Johnson and Racquel Wynn were new parents Thanksgiving 2001. Friends since their mid-teens, the two became a couple during their senior year of high school. Johnson was 18 years old, but still very much a kid, he says now.
“I was experiencing life – I was prepared for everything except for what was in front of me,” he said.
On July 7 of that year, weeks after graduation day, Wynn gave birth to a daughter, Nadia Dyvine Johnson.
“Everybody said she was my twin,” Johnson remembered. “The nose, the eyes – see the pictures and you’ll see.”
Wynn and Johnson, high school girlfriend and boyfriend in the spring, now were facing a new life as mother and father even as each still lived with their families.
Talking about that Thanksgiving weekend still cuts fresh nearly two decades on. Johnson, a man who keeps his thoughts and words close, said little in a recent interview about the events that led to his daughter’s death. But court records reconstructed the hours leading to the tragedy.
The young family, Zavion, Racquel and baby Nadia, spent the Friday night after Thanksgiving at his mother’s home.
It was a little after 9 a.m. Saturday when Wynn headed to work. Nadia was asleep on the bed, Wynn told Johnson before she left. Johnson was about to give their newborn a bath before the short drive to his great-grandmother’s house to visit relatives. He was standing, holding her in the bathtub, when it happened.
“I was getting ready to place her down into her tub and she kicked her feet onto my chest and she slipped out of my hands,” Johnson would later testify at trial.
Nadia dropped four feet before her head struck the back of the cast-iron bathtub.
The first inkling that something was awry came later that morning. Johnson’s younger sister checked in on the newborn and noticed that Nadia was starting to fall asleep as her father dressed her. The baby’s breathing was raspy and she seemed lifeless. Johnson’s mother also heard Nadia’s raspy breathing when she checked the child and spotted a red mark on her lip. When she asked her son about the mark, Johnson said his 1-year-old brother struck Nadia with a toy.
By early that Saturday afternoon, Nadia’s condition was beginning to deteriorate. Nadia wasn’t breathing normally and Johnson called 911. Emergency responders rushed to Nadia’s aid while an emergency dispatcher told Johnson to perform mouth-to-mouth resuscitation. Paramedics saw no outward signs of trauma, but found the four-month-old was not breathing and had no pulse. It was likely already too late when she was taken to a local hospital’s pediatric intensive care unit.
By then, more grave signs began to emerge. Nadia’s brain was ceasing to function. Bruises appeared on her head, neck and midsection. The latter drew intense scrutiny from Sacramento police.
They wanted to know what happened. How did Nadia become so badly hurt? Johnson told the detectives about the toy.
On Sunday, he told Wynn and their families about the fall in the tub.
On Monday, Nov. 26, 2001, Nadia Dyvine Johnson was taken off of life support. Johnson held her in his arms before the doctors asked to take her away.
“I didn’t want (them) to take her away,” Johnson said, according to court records. Then he collapsed. He came to on a stretcher.
Eight days later on Dec. 4, the day Nadia was laid to rest, Sacramento County prosecutors filed Case no. 01FO9500 charging Johnson with second-degree murder and assault on a child resulting in death.
The case of People v. Zavion Johnson had begun.
“It was horrible, scary. I was shaking, sad,” Johnson said. “Whatever emotion you can have, I had it. I felt it. I still feel it. It’s not something that goes away.”
Johnson would not only have to mourn the loss of his daughter. Or live with the guilt that he might have been able to save her had he only known that something was wrong. Or even to reconcile the grief of his family, especially that of Nadia’s mother.
Instead, he would have to explain why he didn’t mention the infant’s fall to his own mother, who was at home at the time, until the day after the accident, or later – and more importantly to authorities – to the emergency workers who rushed to her aid.
Authorities theorized that Nadia’s injuries were no accident and Johnson kept silent to cover his crime. Prosecutors believed their experts proved the theory true. The brain swelling, blood in Nadia’s eyes and on her brain were a trifecta of signs that in their view showed she was a shaken baby.
“The first trial wasn’t a close call for us,” said Sacramento County Chief Deputy District Attorney Steve Grippi in January. “It was really an easy, appropriate thing to do.”
For prosecutors, the signs clearly pointed to a shaken baby case. Information from the American Association of Neurological Surgeons outlines the reasons why: Shaken Baby Syndrome is largely seen in children younger than two years old. Most of the cases happen in baby’s first year. The victim’s average age is between three and eight months. The child’s father or mother’s boyfriend are among the ones most likely to have committed the abuse.
But Johnson’s family was steadfast. The prosecutors and experts did not know Zavion or the love he had for his newborn daughter, they testified. In all, 13 members on both sides of baby Nadia’s family, including Nadia’s mother, rose to his defense at trial.
Johnson testified that he didn’t tell his mother about the fall because Nadia did not appear to be seriously hurt. He said he didn’t mention it to the emergency workers because he did not realize the fall and her condition were related. He insisted on the stand that he did not shake his daughter to death. The fall onto the tub that ended his daughter’s life was an accident.
Jurors heard Johnson’s wrenching call to Sacramento Fire Department dispatch, his grandmother by his side:
“My girl – my daughter – she’s not breathing. She’s four months old. … Help me, please. My daughter’s not breathing.”
But the medical evidence was overwhelming.
“All of the doctors said these injuries to Nadia could only have been caused by severe shaking of the baby,” said Mark Melnicoe, a former journalist who once worked for The Sacramento Bee. He was one of the 12 jurors who deliberated Johnson’s fate at trial.
“One doctor after another, they presented this united front that the medical evidence speaks,” Melnicoe said.
‘It weighed on me’
Jurors needed just two days of deliberations in December 2002 to convict Johnson. Johnson was a sympathetic witness, Melnicoe recalled in a January interview, but jurors concluded his story collapsed under the weight of medical evidence.
“We agreed that it didn’t seem to fit him. He really loved his baby and took care of her. We felt he did do it, but that it was badly out of character,” Melnicoe said. “Our thinking was, ‘That must be what happened.’ We thought, ‘Why did he do that?’ The only thing that we could come up with was that it was a fit of anger. It was the DA’s way of explaining it and our way of understanding it.”
Melnicoe did not know the length of Johnson’s sentence until he received an email from the Innocence Project last November asking his recollection of the jurors’ deliberation. But Melnicoe said his panel’s decision has stayed with him since the long ago verdict.
“It weighed on me and I suspected that it weighed on others, to have to convict someone who seemed to be a good guy,” he said. “I remember this overwhelming feeling that we didn’t want to convict him but we had no choice.”
At Johnson’s sentencing, his verdict already delivered by the jury, his court-appointed attorney Greg Foster made one final attempt to keep the 19-year-old out of prison. Foster asked the judge to consider placing Johnson on lifetime probation, calling the case “one of those rare 1 percent where probation would be appropriate.” But even Foster considered it a long-shot.
“I’ve never stood before a court and asked for (probation for) somebody who has been charged with homicide. Because it’s simply out of the ballpark,” Foster told Sacramento Superior Court Judge Jack Sapunor. “This case is highly unusual. I think we all agree that this case is highly unusual. It’s also very sad and tragic.”
Sapunor would call Nadia’s death and the sentence he was about to impose on her father for it “a double tragedy for this family. There was one child’s death and one child to the criminal justice system.”
On Jan. 17, 2003, little more than a year after his 911 call, Johnson was sentenced to state prison. For the next 14 years, from remote lockups north in Susanville to Centinela south on the borderlands of Imperial County to Vacaville’s California State Prison-Solano, Zavion Johnson was California Department of Corrections and Rehabilitation Inmate No. T80425.
“There was a lot of discouragement, anger, questions, but I had a strong will, God, faith and family support,” Johnson said. “My feeling was that I had to fix it. I had to get it right. I did it through a faith in God. The fact of being innocent, too, gives you hope and motivation.”
More than 190 men and women have been exonerated from California prisons since 1989, according to the National Registry of Exonerations, a joint project of University of California, Irvine, Michigan State University and University of Michigan. Many have stories like Johnson’s.
“This is a small group of people (but) they’ve suffered a lot at the hands of the state,” Tillery said.
Craig Coley spent 38 years of a life sentence without the possibility of parole in the murders of a mother and her 4-year-old son in Ventura County before DNA evidence and decades of work by a retired police detective on his behalf led to his freedom and a full pardon from Gov. Jerry Brown in February.
Now 70, Coley is due to receive more than $1.9 million from the state’s Victim Compensation Board for decades of wrongful confinement behind bars. In a Feb. 14 news conference in Sacramento, he told reporters of his years away from the world and how he persevered.
“How would you like to be dragged away from your family and friends? It’s the worst nightmare you can think of,” Coley said. “You can’t put a price on freedom or the career you may have had, the family you may have had, the vacations you could have spent with your family.”
But, Coley added, “you can’t give up hope. When you give up hope, you’ve given up.”
Inside, Johnson also stayed hopeful. He earned his GED, learned the electrician’s trade, learned how to drive a truck, and was entrusted with a work crew.
He also read. Self-improvement books, mostly, but also volumes of court files to build the case for his release. In those stacks of papers, Johnson unearthed declarations from forensic and biomechanics experts in other shaken baby cases that contradicted prosecutors’ allegations – discoveries that he believed bolstered his innocence.
“Once you start pulling up cases, you pick one up and it leads to another. It’s a treasure trove,” Johnson said, adding that, in prison, “about all you can do is research.”
For nearly 10 years, between 2004 and 2013, he filed five habeas corpus petitions with the court, hoping they would lead to a new trial that could overturn his conviction and secure his release. All were denied.
But Johnson was onto something. The science surrounding shaken baby syndrome had evolved in the years since his 2002 conviction, so much so that experts, including those who testified at his trial, were reevaluating – and rejecting – their earlier findings. New evidence was showing that the types of impact injuries that baby Nadia suffered could also have resulted from accidental household falls.
Johnson wrote as much in a 2012 habeas corpus petition to Sacramento Superior Court that was later denied:
“Petitioner asserts that he is actually innocent because the medical evidence relied upon at trial has since been substantially rejected in the medical/forensic field by the increasing and evolving learning and research in the area.”
Johnson was about to get help later that year. It would be his first real chance at freedom. The case had attracted the attention of the Northern California Innocence Project. The Santa Clara University-based group was founded the same year Johnson was arrested, in 2001. By 2017, its work would help free 23 innocent people from prison – including Johnson.
The project’s attorneys reviewed the case throughout 2012 and later contacted Johnson.
“It was a sense of relief. I could see a brighter future, something that felt real and tangible,” Johnson recalled. “Once they got on board, it felt like somebody believed in me.”
But, Tillery added, “Hope can be a scary thing. There’s that hope, but there’s that fear that it could all collapse. The criminal justice system is set up to affirm convictions, not reverse them.”
‘I was wrong’
Tillery’s corporate law firm, San Francisco-based Keker, Van Nest & Peters, provides counsel for Silicon Valley’s biggest companies. But for years its attorneys have also worked pro bono on cases with the Innocence Project and its supervising attorney, Santa Clara University law professor Paige Kaneb. Tillery estimates he has worked “eight or 10 cases” with the project since 2004. In 2016, he joined the team working to free Johnson.
Kaneb’s Innocence Project attorneys began to learn more about shaken baby syndrome and how a household fall like the one Nadia suffered could cause the same type of injuries.
“Medical evidence has changed,” Kaneb said. “There’s a ton of literature (now) on shaken baby.”
Kaneb reached out early in 2017 to the forensic experts who testified at Johnson’s trial. And after years of new information, they were ready to walk back their original testimony and conclude that Nadia’s death could have been caused by an accidental fall.
“It’s a serious thing to have to spend half of your life in prison. For (an expert) to say, ‘You know what? I was wrong,’” Tillery said. “They operated in good faith, but it’s hard for people to come off of their prior beliefs.”
The new evidence ultimately convinced Sacramento County prosecutors that Johnson’s conviction should be vacated.
“It is reasonably probable that had the information available now on this topic had been available then, the outcome of the trial could have been different,” prosecutors wrote last October. “Based on the current state of the law and the circumstances of the case, the conviction should be vacated and set aside.”
The DA’s Justice, Training and Integrity Unit, among its other duties, reviews post-conviction requests for scientific testing and claims of wrongful conviction. The unit’s attorneys worked with Johnson’s defense team and consulted with the forensic experts before deciding not to retry the case.
“We were aware that the science is continuing to evolve” on shaken baby syndrome, Grippi said in January. “It’s our job to do the right thing. This gave us the opportunity to do it.” Grippi added that the office plans to review “other cases that may fall under the same scenario.”
There was a time not that long ago when Johnson was prepared to accept a lifetime in prison. As late as last fall, he was planning to take college courses to earn a degree behind bars.
But photos taken Dec. 8 in Sacramento Superior Court Judge James Arguelles’ courtroom show the joy and relief at the defense table: Tillery, a beaming Kaneb, and at the end of the table, Johnson, offering a smile after allowing himself to hope.
“I cried in the jail with him waiting for him to get out,” said Kaneb.
There was relief in the gallery, too. Johnson’s family is here in Sacramento — his aunts, his grandmother and great-grandmother.
“There was a lot of cheering in that courtroom, a lot of shoutouts,” Johnson said.
Johnson was soft-spoken behind rimmed glasses at a downtown Sacramento hotel where he sat for an interview, a San Francisco Giants cap perched on his head on a January morning days before the final hearing where prosecutors said they would not refile charges. His eyes seemed to betray a person still taking in his new surroundings. He talked about leaving his prison bunk behind for good, building a small library to indulge the voracious reading habit he developed on the inside. First, though, a driver’s license, one of the many tools he’ll need to rebuild.
“I’m ready to start my life,” Johnson said. “I’m ready for it to continue.”
Johnson also joined other exonerees in January to meet with lawmakers at the state Capitol. The gathering, dubbed “Exonerated Nation Health Advocacy Day,” was part of an effort by the Oakland-based non-profit group Exonerated Nation to highlight the challenges exonerees face on the outside as they reenter society without the resources they need to start over.
“We talked about being exonerated, the issues that we face – no housing, food, clothing. We want help, an opportunity, job training. We’re just trying to get back to some normal society,” Johnson said in a later interview. “I was a loving, caring father. It was an accident. The pain is nothing I can change or fix. I just have to lay everything out and be the best person I can be.”