“But a Jury of 12 Convicted Him”

Can Juries Make Mistakes?

Joshua Burns was pronounced guilty of child abuse “beyond a reasonable doubt” by a jury of twelve people. How could a rational person claim he is innocent? Surely twelve jurors could not make such a big mistake. Surely Josh is guilty.

Unless something went terribly wrong in the courtroom…

An Emotional Issue
The thought of someone abusing a child is horrifying, so it is easy to see how this emotional topic could affect one’s judgment. Former Chief Judge Abner Mivka of the U.S. Court of Appeals for the District of Columbia Circuit states, “I do not think you can get a fair child abuse trial before a jury anywhere in the country. I really don’t . . . I don’t care how sophisticated or smart the jurors are, when they hear that a child has been abused, a piece of their mind closes up, and that goes for the judge, the juror, and all of us.” The desire to protect a vulnerable child makes it tempting to err on the side of caution, even at the risk of convicting an innocent person.

Complex Medical Evidence
Such a complex medical case must have been daunting for the jurors. In a recent Livingston Daily article a juror spoke out reaffirming her decision to convict Josh.  She said, “the jury discussed many angles to the voluminous medical testimony about Naomi’s injuries.” The jury had to analyze copious amounts of information without the benefit of medical training. How many people are familiar with terms like “thrombocytosis” or “subdural hematoma?” Many in the legal community agree that complex medical cases can lead to convictions that have strayed far from the intricacies of the facts. An article published in the Journal of the American Medical Association attests to this problem:

[well type=””]”Physicians involved in the diagnosis and treatment of AHT, [Abusive Head Trauma, aka Shaken Baby Syndrome] as well as members of the criminal justice system and general public, should be concerned that different AHT cases with identical findings and similar circumstances have led to different verdicts. The possibility that an innocent person may go to prison or that a guilty person may go free is a troubling conundrum, but is well known in the criminal justice system. Jurors making decisions in AHT cases are required to evaluate complicated medical testimony and legal instructions. Accordingly, in some cases, there may be an unexpected outcome that is contradictory to what an objective view of the science and facts would otherwise dictate.”[/well]

To complicate this, juries are often predisposed to assume a crime has taken place. In her book, Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice, Deborah Tuerkheimer says “. . . jurors come to the courtroom with an expectation that a crime has been committed. The archetypal investigation and a trial center on the mystery of ‘whodunit,’ not whether there is in fact an ‘it.’” Often a crime feels like a simpler explanation than a series of intricate medical arguments.

Suppression of Truth
In order for a jury to properly convict they need all the facts. However, Judge Miriam Cavanaugh did not allow the jury to see peer reviewed medical research that supports non-abusive explanations for Naomi’s symptoms. How would this excluded research have affected the outcome?

This was not the only information excluded in the trial. The prosecution’s witness, Dr. Bethany Mohr, obtained a second opinion from pediatric ophthalmologist Dr. Alex Levin. Dr. Levin is far more qualified than Mohr on the topic of pediatric ophthalmology.  Regarding Naomi’s high platelets Dr. Levin said, “we have no idea what this might do re retinal [sic] bleeding and could be considered to throw the retinal findings into question. We just don’t know.”  In another Livingston Daily article the juror said the eye trauma “sealed the case for everybody.” How might access to Levin’s email exchange have affected their decision?

Reasonable Doubt
Even if the prosecution was correct, that the only explanation for Naomi’s symptoms was abuse, those symptoms do not indicate who committed the alleged abuse. Dr. Mohr herself admitted that the alleged abuse could have happened during a span of 3-8 days. During part of the time frame, Josh was not even present in the state of Michigan. Anyone who came into contact with Naomi could have been the alleged abuser. In a phone call William Vailliencourt was asked why he chose to prosecute Josh absent any forensic evidence or eye witness. He responded that Josh was the one with the story of an accident – Josh had stated Naomi had slipped from his lap. William Valliencourt theorized that abusers tend to downplay their abusive actions.

In another Livingston Daily article, a commenter with the same name as a jury member said “One or both of these parents caused the hundreds of retinal hemorrhages in this poor baby cuz [sic] they didn’t come from birth trauma.” This juror apparently convicted Josh in spite of not being sure which parent caused the harm. The question before the jury was not, “Did someone abuse Naomi?” but rather, “Did Joshua Burns abuse Naomi?”

The Hope for Truth
Jury duty is not easy. It is a difficult task that requires a sacrifice of time and energy. This case with its intricate medical issues and emotional demands was no doubt especially challenging.

The jury system is intended to render just verdicts; however, juries are made up of humans and no human is infallible. We have many reasons to stand with Josh including the numerous friends and family who vouch for his character, the expert opinions of six highly regarded doctors, the support of the prestigious Innocence Clinic, his consistent testimony of what happened on the day of Naomi’s accident, two passed polygraphs tests, and multiple psychological evaluations that do not match the profile of an abuser. This is not the picture of a guilty man.

After others urged the juror in the comments section of the Livingston Daily article to consider the information that was excluded from the Jury, she left this comment: “I only hope that if Mr. Burns is truly not guilty that the truth is discovered and that this whole family finds the answers and the peace they all deserve.”

We too hope that logic and justice prevail and that peace can be restored to the Burns Family.


Click here to learn about the flawed science behind Shaken Baby Syndrome, or SBS.