 Joshua Burns, his wife, Brenda, and their daughter, Naomi (Photo: Facebook)
When she arrived, Joshua was holding a wet washcloth to a superficial scratch on Naomi’s face. He explained that when she had called for the PIN number, he was sitting on the living room couch burping Naomi after she finished her bottle. Naomi, who was two months and nine days old, was perched on his left knee and supported by his left hand. Joshua said that when he leaned forward to put the cell phone onto a coffee table, Naomi lurched forward. He said that he lunged and caught her face with his right hand.
Brenda, who was a registered nurse, and Joshua closely examined Naomi and concluded that the baby was fine. They attended a church anniversary dinner that night and Naomi exhibited no adverse symptoms.
The following morning as they prepared to go to church, Naomi vomited after being fed her bottle. The couple had been increasing the frequency of feedings because Naomi was still trying to regain weight that she lost due to having difficulty breast-feeding. At church, a few minutes before the service, Naomi projectile vomited. Brenda, assisted by friends, cleaned up Naomi. Brenda would later recall that Naomi was pale. “We wondered if we should go home, but she started to pink up. And she seemed to be doing better, so we just decided to stay.”
When they returned home after the service, Naomi again appeared pale, so Brenda phoned the on-call service for Naomi’s pediatrician and spoke with a nurse. The nurse said that if they were concerned, they should take Naomi to the emergency room. They took her to St. Joseph’s Hospital in Ann Arbor, Michigan, where Naomi had been born on January 7, 2014.
The birth had been difficult. After several hours of labor, Naomi’s head was lodged in the birth canal. After three or four attempts at a vacuum-assisted delivery failed, an emergency Caesarian section had been performed.
In the emergency room at St. Joseph’s, Naomi was examined and nothing amiss was found. Brenda and Joshua both reported the events of the past two days, including how Joshua had caught Naomi as she was falling forward from his lap. The scratch had largely faded. Brenda reported a bruise the size of a fingertip on Naomi’s cheek and a very faint bruise near the baby’s eye. The couple were sent home with instructions to keep an eye on Naomi.
That night, Naomi vomited again. The couple called the on-call service and a pediatrician called back. The doctor mentioned that a virus had been circulating and advised them to begin administering Pedialyte, a hydrating liquid for babies. The following morning, March 17, Naomi vomited again. When they called the on-call service, the couple were told to take Naomi to the emergency room.
There, medical personnel began administering fluids through an intravenous line. An ultrasound of Naomi’s abdomen was performed, but revealed nothing. Blood was drawn for laboratory testing, and the baby was given an anti-nausea drug. The baby was discharged that afternoon.
That evening, Naomi vomited again. The following morning, March 18, she vomited again. The couple were advised to go to their pediatrician’s office. They were advised to continue giving Naomi anti-nausea medicine and sent home. Brenda would later say that Naomi was “acting normal for herself.” She was taking Pedialyte and keeping it down.
Later that day, however, Naomi became listless and pale. She was breathing slowly and appeared limp. The couple called 911. Livingston County Emergency Medical Services responded, and the paramedics took Naomi to C.S. Mott’s Children’s Hospital which was part of the University of Michigan in Ann Arbor.
Naomi was admitted to the hospital. The initial concerns were septic or hypovolemic shock, either an infection or low blood volume, or shock brought on by dehydration.
Naomi remained at the hospital until March 24. During that time, multiple tests were performed, including an MRI of her brain, lumbar punctures, and blood assays. The MRI was normal, the family was told.
When Naomi was discharged in the early afternoon of March 24, Brenda and Joshua were told that the likely cause of Naomi’s symptoms was a viral gastrointestinal infection. By that point, Naomi was virtually back to normal. On the way home, they stopped at a pharmacy to pick up phenobarbital which had been prescribed to combat seizures that Naomi had suffered, ostensibly due to the viral infection.
When Naomi was up for a feeding at 9 p.m., she was pale, and she vomited. Brenda and Joshua immediately called 911. The paramedics took Naomi back to Motts. More tests were performed. More blood was drawn.
On March 26, Brenda and Joshua were informed that Naomi was found to have retinal hemorrhages. Dr. Terrance Murphy informed them that the findings were suggestive of child abuse.
On March 27, 2014, Dr. Bethany Mohr, clinical associate professor of pediatrics and medical director of the child protective team at Motts was called in to review the medical records. Dr. Mohr concluded that the existence of the retinal hemorrhages as well as evidence of subdural hematoma were evidence of child abuse.
On March 31, 2014, Joshua was asked to demonstrate, using a doll, how Naomi had lunged forward on his lap and how he had grabbed her to stop her from hitting the coffee table. Mohr would later testify that she thought Joshua had aggressively grabbed Naomi’s face.
On April 1, 2014, Naomi was discharged and went home. She was deemed recovered.
On April 4, 2014, Dr. Mohr filed her final report. She concluded that Naomi was the victim of abusive head trauma – a term that was used to describe what had previously been known as Shaken Baby Syndrome (SBS) – and that Joshua was responsible.
Naomi was removed from the family’s home and moved to foster care. In June 2014, Joshua was charged with second-degree child abuse.
The case became the focus of demonstrations at the hospital at the University of Michigan and was featured on the Dr. Phil television program as an example of how SBS was being misdiagnosed and resulting in the unfair prosecution of caregivers.
In January 2015, Joshua went to trial in Livingston County Circuit Court. The prosecution’s primary witness was Dr. Mohr.
She testified that Naomi had multi-layered retinal hemorrhages in both eyes which were “very specific or highly specific for physical abuse. Specifically repetitive acceleration deceleration.” She said that when she saw the evidence of the hemorrhages, “I became extremely concerned that these findings were the result of abusive head trauma.”
Dr. Mohr said that absent a plausible explanation, such as a car accident or other violent incident, the existence of the hemorrhages was “close to 100 percent” diagnostic of child abuse.
Defense attorney Michael Cronkright attempted to cross-examine Mohr with an email exchange that Mohr had with Dr. Alex Levin, chief of Pediatric Ophthalmology and Ocular Genetics at the Wills Eye Institute in Philadelphia. Mohr had sent the records in the case to Dr. Levin and asked for his “thoughts.” After responding that the case was well-documented, Dr. Levin said he was unsure what Dr. Mohr was asking. “I can’t think of another diagnosis other than abuse assuming no obvious [blood clotting] or other…event,” Dr. Levin wrote. He later noted that the evidence of a clotting issue was problematic. “[W]e have no idea what this might do re retinal bleeding and could be considered to throw the retinal findings into question,” Dr. Levin said. “We just don’t know.”
The prosecutor objected to the use of the email, and the trial judge sustained the objection.
Dr. Douglas Quint, a neuroradiologist, testified that the MRI of Naomi’s head showed old blood, likely from the traumatic birth process, as well as new blood that was “two to four days old.” He told the jury that “when you see bleeds of two different ages inside a child, particularly a baby, that’s one of the first things which raises a flag for abusive head trauma.”
Dr. Quint said that Joshua’s description of catching Naomi as she fell forward was not “enough of an explanation for me. Anybody with children has caught their child falling forward.”
Dr. Cagri Besirli, an ophthalmologist, testified that he examined Naomi under anesthesia and saw the retinal hemorrhages. “There were too many to count,” he said. Dr. Besirli said the hemorrhages were not the result of the traumatic birth. He also said that by the middle of May 2014, six weeks after Naomi was discharged, the hemorrhages had all disappeared. “They were completely resolved,” he said.
Brenda and Joshua both testified. They recounted how they were shocked and devastated when informed that Joshua was being accused of physically abusing Naomi. By the time of the trial, Naomi was fully recovered and showed no aftereffects.
Joshua denied that he had abused Naomi and insisted that her head not struck the coffee table.
The defense also called Dr. Stephen Guertin, director of the pediatric intensive care unit at Sparrow Hospital in Lansing, Michigan. He also was the physician member of the child abuse evaluation program there. Asked if the cause of retinal hemorrhages such as Naomi’s were the result of any force being applied to her body Dr. Guertin said. “I don’t know. I don’t think anybody knows that.”
Dr. Marcus Degraw, a child abuse pediatrician, testified that “Naomi’s case is extraordinarily complicated and complex…it’s probably as complex and complicated of a case of head injury
as I’ve ever dealt with. Naomi didn’t present simply with evidence of traumatic injury. Naomi didn’t present with simply brand new injury or brand new bleeding. Naomi presented with [an] extraordinarily complex set of circumstances that included old injury, new injury, illness,
um, thrombotic problems.”
He said, “She presented with evidence of acute illness, viral gastroenteritis. She presented with evidence of dehydration. She presented with evidence of increased intracranial pressure.” He said that the subdural bleeding was “very clear evidence” of “a condition ongoing for many weeks at that point, probably related back to birth trauma.”
He acknowledged that retinal hemorrhaging “is used in our field as a marker for a certain
time of trauma. And it’s pretty darn specific for that type of trauma. However, when you complicate that with other factors, that no longer holds true. Nobody in my field, child
abuse pediatrics, nobody in neurosurgery, nobody in ophthalmology including the world’s best child abuse specialty ophthalmology specialist will be able to delineate when you complicate retinal hemorrhages with thrombocytosis, previous trauma, chronic subdurals, rebleeding subdurals, acute viral gastroenteritis…all of those things.”
“This child clearly has evidence of viral gastroenteritis, thrombocytosis, dehydration, all of those symptoms can lead to subdural hemorrhaging,” Dr. Degraw testified. “Naomi had clear symptoms that would indicate she was suffering from viral gastroenteritis. Both the way she was acting, vomiting, diarrhea, dehydration; those all especially the dehydration and diarrhea would point towards an acute infection, an acute viral gastroenteritis.”
He said that relying on retinal hemorrhages “as a definite marker for abusive head trauma is not good science. It’s not good medicine.”
Defense attorney Cronkright asked, “If this case had come to you…at the request of Child
Protective Services or law enforcement or prosecution, would you be opining today that this is the result of abuse?”
“No,” Dr. Degraw said.
On January 26, 2015, the jury convicted Joshua of second-degree child abuse. He was sentenced to one year in jail.
In September 2015, the Michigan Innocence Clinic at the University of Michigan Law School filed a motion for a new trial, arguing that the prosecution’s case was based on junk science – that retinal hemorrhages had been shown to be the result of other causes that were not child abuse. The motion included a medical report from Dr. Khaled Tawansy, an expert in retinal hemorrhages, particularly in cases alleging SBS. Dr. Tawansy said that was no scientific basis for Dr. Mohr’s conclusion that Naomi’s retinal hemorrhages were evidence of child abuse. The motion also claimed that Cronkright had provided an inadequate legal defense by failing to get the email exchange between Dr. Mohr and Dr. Levin into evidence. The motion also faulted Cronkright for failing to seek a pretrial hearing to challenge the scientific basis for Dr. Mohr’s conclusions.
In November 2016, the Michigan Court of Appeals affirmed the conviction. By then, Joshua had served his year in jail, and the family had moved out of state. The appeals court acknowledged that there was a “lack of direct evidence linking” Joshua to Naomi’s medical problems, but said the evidence did support “an inference” that he committed a “reckless act that caused serious physical harm to the infant.”
The appeals court did say that Dr. Mohr’s statement that Naomi’s symptoms were “close to 100 percent” indicative of abuse was too broad. But, the court said, “The controversy within the medical community noted by defendant on appeal presents, at least in this case, a question of credibility, a so-called battle of the experts.” And since the defense had challenged the diagnosis at trial with experts for the defense, Joshua had received a fair trial, the court held.
David Moran, co-director of the Michigan Innocence Clinic, decried the ruling. “I am very confident, within a few years nobody will, with a straight face, defend Shaken Baby Syndrome,” he declared. “Dr. Mohr’s testimony was pure Shaken Baby Syndrome.”
Subsequently, the Michigan Innocence Clinic filed a federal petition for a writ of habeas corpus on behalf of Joshua claiming he had received an inadequate legal defense. In 2019, U.S. District Court Judge Laurie Michelson denied the petition.
Subsequently, after Michigan Attorney General Dana Nessel created a Conviction Integrity Unit (CIU), the Innocence Clinic asked the unit to review the case.
On November 21, 2024, following a review of the case by the CIU, Assistant Attorney General John Pallas and Jenna Cobb and Imran Syed, co-directors of the Innocence Clinic, filed a joint motion to vacate the conviction. The motion was granted, and Judge Miriam Cavanaugh signed an order dismissing the case.
– Maurice Possley
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