This past week, I walked from San Diego to Los Angeles.
That’s a sentence I never thought I’d write. It sounds like an insane thing to do, particularly as summer closes in, and the Santa Ana winds heat up Southern California and kick off the fire season. Yet, it was only the beginning of the Innocence March: A 660-mile trek across the state of California from San Diego to Sacramento to raise awareness about wrongful convictions and to ask the governor to free 12 men and women who have strong cases of factual innocence (the “California 12”).
The March began with a press conference on Saturday April 27 at California Western School of Law in San Diego, the home of the California Innocence Project. The law school’s moot court room was filled with the families of the California 12.
Mothers, fathers, sisters, brothers, husbands and wives cried together and celebrated together the march to free their loved ones. As I looked over the room, filled with so many people who had dealt with so many painful years of loss, I was overcome with emotion. It was a vision I want to keep in my mind to motivate me through the pain of walking 660 miles.
San Diego mayor Bob Filner addressed the crowd and talked about his own activism back in the ’60s, when he was a freedom rider. At the age of 18, he along with other social activists intentionally violated the interstate busing laws to protest the segregationist policies of the South. The mayor himself spent two months in prison, making him the perfect speaker for the day.
“Justice sometimes requires activism,” he told the packed auditorium.
Ken served 20 years in prison before we proved he hadn’t beaten and killed a toddler in his care. The child had accidentally fallen off a couch and hit his head on a brick hearth. The death was tragic, but it wasn’t murder.
“His generation’s activism motivated me,” I told the audience. “I hope I can similarly motivate my students.”
After the mayor spoke, I was thrilled to lead the crowd out into the streets as they joined us for the first eight miles of our journey. Michael Semanchik and Alissa Bjerkhoel, the young lawyers who will walk all 660 miles with me, stood by my side as they have throughout the planning of this challenge.
One of the marchers on the first day was Ken Marsh. Ken served 20 years in prison before we proved he hadn’t beaten and killed a toddler in his care. The child had accidentally fallen off a couch and hit his head on a brick hearth. The death was tragic, but it wasn’t murder.
Ken was exonerated in 2004. He showed up at the march to support two of the California 12, Suzanne Johnson and Alan Giminez, who were similarly convicted of killing babies in their care in spite of strong evidence that the deaths were accidental.
The Case of Suzanne Johnson
On June 24, 1997, Suzanne Johnson was babysitting six-month-old Jasmine Miller. Jasmine fell out of her highchair and cried for a few minutes, but then appeared to be fine. Suzanne warmed Jasmine’s food, picked her up, and fed the child while holding her on her lap. Suddenly, Jasmine began to vomit and then became unresponsive. Suzanne immediately called 911 and performed CPR until paramedics arrived. Jasmine did not recover.
Suzanne Johnson (L) embraces Toni Blake, a shaken-baby syndrome expert who has advocated for Suzanne’s release. (Photo: California Innocence Project)
At autopsy, the medical examiner determined Jasmine’s death was due to violent shaking and blunt force trauma to the head. After two trials, on April 30, 1999, Johnson was convicted of assault on a child causing death, and sentenced to 25 years to life in prison.
At the time of Suzanne’s conviction, the prevailing belief was that when an infant died of head injuries, the person with the infant at the time of death must have caused the injury. Experts believed the presence of three symptoms (hemorrhages in the eyes, bleeding in the brain, and swelling of the brain) always proved an infant had been violently shaken. It was also a widely held belief that an infant could not sustain a fatal head injury from a short fall, such as a fall from a highchair.
Because of scientific advancements, if Suzanne were tried today, she would not be convicted. In fact, other than the now-discredited circumstantial scientific evidence, there would not even be a basis upon which to bring charges.
Based on the science accepted in 1999, Suzanne’s account of Jasmine’s death couldn’t have been true. The only explanation was that Suzanne shook the baby, slammed her head against a hard object, watched for two hours as the child slowly died, and called 911 only after Jasmine appeared to be dead. Near the end of Suzanne’s trial, the judge said she was obviously an exemplary, caring and loving lady, but the medical science established her guilt.
Since Suzanne’s conviction, the understanding and science of shaken-baby syndrome and non-accidental trauma has advanced. The beliefs that were held at the time of her conviction have largely been abandoned. It is now known that other conditions (such as hepatitis immunization and the effects of CPR) can result in the three symptoms previously only attributed to shaken-baby syndrome. Jasmine received her hepatitis immunization three days before her death and was administered CPR by Suzanne, by the paramedics and by doctors at the hospital.
It is also now known that a short fall, such as a fall from a high chair, can result in trauma sufficient to cause an infant’s death, and death from a short-fall injury is more probable when an infant has a previous skull injury.
In fact, when Jasmine fell from her high chair, she had an existing skull fracture that had occurred months earlier. The preexisting skull fracture was confirmed by Jasmine’s failure to thrive, physical discomfort, feeding problems, constant crying, and by autopsy findings.
Because of these scientific advancements, if Suzanne were tried today, she would not be convicted. In fact, other than the now-discredited circumstantial scientific evidence, there would not even be a basis upon which to bring charges.
The Case of Alan Giminez
On June 25, 1991, after an emergency C-section, Alan Gimenez and his wife became proud parents of a baby girl who they named Priscilla. Immediately after she was born, it was apparent that Priscilla was a sick child. Nurses aspirated thick yellow mucous from her mouth. Due to the lengthy birthing process before the emergency C-section, doctors suspected Priscilla might have swallowed amniotic fluid that contained feces, which may have led to pneumonia.
Not only did Alan Gimenez lose his daughter, Priscilla, in 1991, when she was 49 days old, he’s been in prison ever since her death. (Photo: California Innocence Project)
Doctors ordered a spinal tap, took blood and urine samples and, after a chest x-ray showed retained fluid and a healing fractured rib, administered two antibiotics. Priscilla was also placed on 100 percent oxygen for the first two days of her life, but taken off the oxygen on the third day.
The treating doctors were unable to identify a specific cause for her problems.
Upon her release from the hospital, and upon early discontinuation of the antibiotics, Priscilla showed symptoms of fever. Within weeks, she was suffering from projectile vomiting and seizures. Her parents brought her to the hospital, but no tests were performed; she was released with instructions to the parents to cut down her formula, feed her upright, and to burp her after feeding her every few ounces.
On August 7, 1991, Priscilla again vomited and demonstrated seizure activity while Alan fed her. Alan called 911 and administered CPR. Responding paramedics witnessed Priscilla having another seizure.
The hospital conducted another CT scan and inserted a surgical bolt in Priscilla’s head. Later that day, Priscilla died. She was just 49 days old. As if losing a child in this horrific manner weren’t bad enough, in 1992 a jury convicted Alan of murdering Priscilla.
Doctors conducted numerous tests on Priscilla in an attempt to determine the source of her problems. Blood tests showed Priscilla had anemia. A spinal tap (used to detect blood in the spinal column) came out bloody. Priscilla had “oral thrush” (a yeast infection) in her mouth and a fresh tear of the tissue under her tongue likely caused by the seizure. She also appeared to have a clotting problem that prevented the “drawing” of her blood.
Additionally, doctors discovered Priscilla’s mother had hepatitis A. Despite these test problems, doctors could not pinpoint what, exactly, was causing the projectile vomiting and seizures. Nevertheless, Priscilla was released from the hospital only three days after being admitted.
Hours after her release, while Alan was attempting to feed her, Priscilla vomited forcefully and again exhibited seizure activity. Alan gave Priscilla phenobarbital as recommended by a neurologist from Children’s Hospital. Alan called the doctor, and he recommended Alan take Priscilla to the emergency room.
The hospital conducted a CT scan and the radiologist noted the healing rib fracture and, for the first time, bleeding in Priscilla’s brain. Numerous additional blood tests were performed to assess Priscilla’s anemia. She received three blood transfusions. She was also given a coagulopathy screening, which confirmed she suffered from severe blood-clotting issues. The following day, the hospital conducted another CT scan and inserted a surgical bolt in Priscilla’s head. Later that day, Priscilla died. She was just 49 days old.
As if losing a child in this horrific manner weren’t bad enough, in 1992 a jury convicted Alan of murdering Priscilla.
Even worse, many of the medical problems mentioned above were either not disclosed to the defense at trial, or the defense attorney failed to discover them. Instead, prosecution experts testified that Alan must have shaken Priscilla to death.
The medical examiner testified that he found a subdural hematoma (blood within the outer layer of the brain), retinal hemorrhages (bleeding behind the eyes) and a swollen brain. Again, the triad of symptoms led to the conclusion of shaken baby syndrome.
What the medical examiner failed to know was that the hospital had tissue slides proving that Priscilla’s retinal hemorrhages occurred after she was hospitalized. Priscilla died of existing medical conditions, not from shaking.
As we walked across San Diego on the first day of the march, I thought about Ken Marsh and the 20 horrific years in prison he served as a convicted child killer. I thought about the time Alan and Suzanne are currently serving. There is a hierarchy in prison, and baby killers are at the bottom of it. No one does worse time.
Marching Out of San Diego
On day two of the march, our 300 followers fell away, and a few family and friends joined us on the walk from Ocean Beach to Del Mar. It was a time to say goodbye to some people we wouldn’t see for 55 days.
By day three we were alone trudging to Oceanside where we met Adam Riojas, an old friend. Adam was convicted of murder and spent 12 years in prison for a crime he didn’t commit. He was a victim of the leading cause of wrongful conviction: Misidentification. His was one of the worst types of identifications, cross-racial and done by witnesses who had a brief view of the true culprit. Even worse, the murderer was Adam’s father, who allowed his son to go to prison.
When Adam first got out, he didn’t want to talk about the crime with anyone. He struggled with the horrible reality of what his father had put him through.
I was relieved to hug a happy Adam who has put the nightmare of his incarceration behind him. He’s rebuilt his life and is now a minister at a church in Oceanside. Walking with him and his wife to the entrance of Camp Pendleton, while he pushed his baby in a stroller, was exactly the pick-me-up we needed. It helped us to make it through the endless concrete of the military base, dodging tanks and looking out for stray bullets from the firing ranges.
Once we cleared Camp Pendleton, we spent a couple of days marching alongside the McMansions of Orange County. Pristine and sterile, it has no connection to the world of our work and our clients, except that one of the California 12 was convicted of a robbery there.
The Case of Guy Miles
On June 29, 1998, around closing time, Trina Gomez and Maximilian “Max” Patlan were working at a Fidelity Financial Institution in Fullerton, California, when two men, Jason Steward and Harold Bailey, committed an armed robbery. Bernard Teamer acted as the getaway driver, and the three left and divided up the money.
Guy Miles presented nine witnesses who confirmed he was in Nevada at the time of a crime he was accused of committing in California. The three perpetrators of the crime have all disavowed any Guy Miles involvement. Guy remains in prison on that crime. (Photo: California Innocence Project)
Officers interviewed Trina and Max, but generated no leads other than very generic descriptions of the robbers. The lead detective created faulty photo arrays; many of the photos didn’t even match the general descriptions. An expert on identifications later testified that, based on the way the photo arrays were created, it was likely Guy Miles would be selected because he was one of the few individuals in the lineup who matched the general description surrounded by photos of men who didn’t match the description.
Nonetheless, witnesses ultimately gave very shaky and uncertain testimony that Guy was one of the robbers.
At trial, Guy had a total of nine alibi witnesses, six of whom the judge allowed to testify, who stated that Guy was in Las Vegas at the time of the robbery. The witnesses included relatives, neighbors and even his landlord. It took a jury five days of deliberation to find Guy guilty.
Convinced of Guy’s claim of innocence, after nine years of investigation the California Innocence Project located the three true perpetrators of the robbery. They all came forward and confessed to the crime.
Sadly, despite discovering and unveiling the truth behind the robbery in a post-conviction evidentiary hearing in front of Guy’s original trial judge, Guy remains incarcerated for a crime he didn’t commit. The judge refused to reverse his conviction.
Our final day of the first week of the march began at the Huntington Beach Pier, where Guy Miles’s family greeted us. His wife was carrying a “Free Guy Miles” sign. His elderly parents, both ministers, were ready to walk for their son. His uncle was limping on a bad knee, but he also didn’t want to miss it.
Together, we all marched from Huntington Beach to Long Beach. We talked about Guy and how he was doing. We talked about events in their lives he’d missed over the past 14 years he’s been incarcerated: Weddings, funerals, the births of his grandkids.
The final miles of the week were hard. The concrete was pounding away at my 47-year-old knees, but I was reminded again that walking 660 miles is nowhere near as hard as being wrongfully incarcerated.
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Professor Justin Brooks is the Director and Co-Founder of the California Innocence Project and a law professor at California Western School of Law in San Diego. He has practiced as a criminal defense attorney for more than two decades, has served as counsel on several high-profile criminal cases, and has been successful in exonerating many wrongfully convicted clients. He has been recognized several times by the Los Angeles Daily Journal as one of the Top 100 Lawyers in California. In 2010 and 2012, California Lawyer Magazine awarded him the prestigious "Lawyer of the Year" award for his work in the area of criminal law. California Innocence Project | @CA_Innocence