Kathy Butcher was a licensed Child Care Provider in Howard County, MD. On November 16, 1999, Kathy was caring for an infant, “Baby A”, who was described by her mother as having “yelled out in pain” between 4:00 am and 4:30 am that morning at home. The infant stopped breathing while napping around 12:45 pm that afternoon. Kathy immediately called 911 and began CPR until the Emergency Medical Technicians arrived. The EMTs found Baby A in cardiac arrest and took her by ambulance to Greater Laurel Regional Hospital. Upon arrival, Baby A was still not breathing on her own and had no heartbeat or pulse. The doctors soon were able to establish a heartbeat and pulse, but the baby’s breathing still required assistance. The EMTs documented that “there were no visible signs of injury or trauma” at Kathy’s home nor at Greater Laurel Regional Hospital; this was also documented by the doctors and nurses at Greater Laurel Regional Hospital. From there, Baby A was evaluated and flown by helicopter to Children’s National Medical Center in Washington, D.C. Immediately following a CT scan she was transferred to the PICU. The CT scan showed that Baby A was suffering massive brain hemorrhaging and had no chance of recovery.
On Thursday, November 18, 1999 at 10:20 am Baby A was taken off of life support at which time the following organs were harvested for donation: the heart, liver, kidneys, adrenal glands, spleen, and part of the diaphragm. The D.C. Medical Examiner allowed the organ harvesting to proceed even though he was not present for this very invasive procedure. After the organ donation procedure, Baby A’s body was then taken to the District of Columbia Medical Examiner’s Office where Dr. Jonathan Arden, the Chief Medical Examiner, performed the autopsy. Dr. Arden ruled that Baby A’s death was a homicide caused by blunt head trauma.
Kathy was charged with causing Baby A’s death on December 4, 1999. The trial began on February 20, 2001 and lasted for 13 days. During the trial, both the defense and the prosecution presented several expert witnesses testifying as to the cause of Baby A’s death as well as the timeframe surrounding her demise. The jurors heard conflicting testimony; all but one expert witness (from both the prosecution and defense) testified that the infant’s injury could have occurred prior to her drop off time at 7:30 am. Many of the expert witnesses also spoke of a possible infection Baby A was harboring which could have contributed to her death. The doctor who performed the CT scan testified that the brain hemorrhaging could have begun 12 hours before he took the CT scan. He took the CT scan between 4:00 pm and 4:30 pm that same day, November 16, 1999. Twelve hours previously is the exact time that Baby A had “yelled out in pain” at her home that morning.
The jurors deliberated for more than 15 hours and came back with a hung jury on second-degree murder charges and guilty on involuntary manslaughter and child abuse. Kathy was sentenced on August 16, 2001 to 10 years for the involuntary manslaughter charges and 5 years for the child abuse charges, to be served concurrently. She has been serving time since March 8, 2001. Currently she is being held at the Maryland Correctional Institute for Women.
We firmly believe in Kathy’s Innocence.
Kathy asserts that she did not harm Baby A nor did she witness any accidents that occurred which could have caused injury to Baby A. Kathy is a calm, gentle, nurturing person who absolutely loves and enjoys children and therefore her childcare profession. She had three children of her own and was 4 ½ months pregnant with her 4th child at the time of Baby A’s death and was very experienced both through safety classes and hands-on situations with children.
On Thursday, November 18, 1999 at 10:20 am Baby A was taken off of life support at which time the following organs were harvested for donation: the heart, liver, kidneys, adrenal glands, spleen, and part of the diaphragm. The D.C. Medical Examiner allowed the organ harvesting to proceed even though he was not present for this very invasive procedure. After the organ donation procedure, Baby A’s body was then taken to the District of Columbia Medical Examiner’s Office where Dr. Jonathan Arden, the Chief Medical Examiner, performed the autopsy. Dr. Arden ruled that Baby A’s death was a homicide caused by blunt head trauma.
Kathy was charged with causing Baby A’s death on December 4, 1999. The trial began on February 20, 2001 and lasted for 13 days. During the trial, both the defense and the prosecution presented several expert witnesses testifying as to the cause of Baby A’s death as well as the timeframe surrounding her demise. The jurors heard conflicting testimony; all but one expert witness (from both the prosecution and defense) testified that the infant’s injury could have occurred prior to her drop off time at 7:30 am. Many of the expert witnesses also spoke of a possible infection Baby A was harboring which could have contributed to her death. The doctor who performed the CT scan testified that the brain hemorrhaging could have begun 12 hours before he took the CT scan. He took the CT scan between 4:00 pm and 4:30 pm that same day, November 16, 1999. Twelve hours previously is the exact time that Baby A had “yelled out in pain” at her home that morning.
The jurors deliberated for more than 15 hours and came back with a hung jury on second-degree murder charges and guilty on involuntary manslaughter and child abuse. Kathy was sentenced on August 16, 2001 to 10 years for the involuntary manslaughter charges and 5 years for the child abuse charges, to be served concurrently. She has been serving time since March 8, 2001. Currently she is being held at the Maryland Correctional Institute for Women.
We firmly believe in Kathy’s Innocence.
Kathy asserts that she did not harm Baby A nor did she witness any accidents that occurred which could have caused injury to Baby A. Kathy is a calm, gentle, nurturing person who absolutely loves and enjoys children and therefore her childcare profession. She had three children of her own and was 4 ½ months pregnant with her 4th child at the time of Baby A’s death and was very experienced both through safety classes and hands-on situations with children.
Matthew Watson another innocent man facing the DEATH PENALTY
This is the story of my son, Matthew Watson age 26. He had 2 daughters. Matt is a lover of children, all children, it doesn’t matter whose they were, he loved them. Matthew and his girlfriend, Amy Buie had two daughters, Jordyn (2 1/2) and Averial, who died at approximately 6 weeks old.
Amy had morning sickness constantly during her pregnancy with Averial. The day before Averial was born, Amy had a bad case of food poisoning. Amy wasn’t feeling any movement and went to the doctor. The doctor sent her to the hospital for delivery as she was dilated to (3) centimeters. Averial DeAnn Buie Watson was born on June 21, 2004. Right from the beginning, we felt like there was something wrong with her. The day she was born she had a huge bruise over her right eye. My son watched the delivery and told me the doctor had a hard time getting Averial to come out and used forceps on her and had to force her to come out.
Averial was extremely fussy, sleeping very little in a 24 hour period. She cried constantly, not a wailing cry, but a cat-cry. Matt was the only one that could calm her down. He was extremely over-protective with her and the minute she would whimper he would pick her up. So we all thought she was spoiled. Most of the time she slept lying on Matt’s chest, this seemed to be the only time she would sleep. They had a very close bond.
When she was approximately (3) weeks old, Matt and Amy were house-sitting for us, because we had gone on a trip. Matt was asleep in my recliner with Averial lying on his arm sleeping. In his sleep he rolled to the side and she dropped off his arm, she hit her head on the edge of a metal bucket I had sitting beside the chair. Amy took her to the doctor the next day, but her doctor was on maternity leave so she had to see another one. The doctor said she was fine and didn’t do any x-rays. He was not concerned with her constant crying. The crying and fussiness got worse. Matt seemed to be the only one that could calm her. But again the doctor thought she was spoiled.
At approximately 4 weeks old, her gums started bleeding. Amy told Matt this was normal for a new born baby. Then her urine started to be extremely strong. Two days before she stopped breathing, she had extreme diarrhea. At that same time, my husband had extreme diarrhea and stomach cramps. We thought Averial and Victor, [my husband] had a virus. Averial’s diarrhea was so bad at one point, Amy and I had to strip her naked and put her in the tub. Her stools were always like that, only worse the last few days before she stopped breathing.
On August 06, 2004, the night Averial stopped breathing, we were all at a cook-out and birthday party for my oldest son. We left and brought Matt’s oldest, Jordyn, home with us. Matt left and took my three grandson’s home to spend the night with them. He picked up Amy at work with Averial and his 3 nephews. Averial was extremely fussy that night, between 11:30 p.m. and 1:30 a.m. Amy got up with her twice and Matt got up with her the 3rd time. Matt got her calmed down and was fixing to put her down when he noticed she was barely breathing. He yelled for Amy and by the time she got in there Averial was not breathing. Amy did CPR on her and then rushed her to the hospital.
Matt stayed home waiting for my daughter-in-law to come get the boys. He called me so hysterical I didn’t even know who it was. He said she stopped breathing and had pink frothy stuff coming from her mouth and nose. He was crying and kept saying one of the children at the party must have stuffed cake icing in her mouth because the icing was pink. I got him calmed down and got my husband and Jordyn up and we went to the hospital.
The 1st mistake Matt and I made, was my telling him to stay home until I could find out what was going on, since he had a warrant out for his arrest. Matt was on probation for assault to a public servant. His probation was revoked and a warrant had been previously issued for him. He knew if he came up there he would be arrested for his warrant.
By the time my husband and I got to the hospital, they had revived Averial, after about 20 minutes of CPR. The doctor at the emergency room immediately started her on antibiotics before doing any testing for infection. That is when they decided she had been shaken. The doctor said an infection had not been ruled out, but because Matt was the last one to hold her, was not there and was wanted, they ruled it shaken baby.
I never go a chance to talk to him and find out exactly what happened, before (11) sheriff cars were sent to my house to arrest Matt. When the deputies came in, Matt went in the bathroom and cut his wrists, he said he would rather be dead than have anyone thinking he would hurt one of his babies. The cuts were minor and he was taken to the county jail where they stripped him totally naked and put him in a padded cell, no blanket, no bathroom, only a hole in the floor, no bed, no nothing. He stayed there naked for several days before they put him in a regular cell not being allowed out or having any contact with anyone.
Averial was critical, but stable in Intensive Care in an induced coma. I asked all the doctor’s if anything else could cause this, because by that time they had done x-rays and found healing fractured ribs, no skull fracture. The doctor told me that an infection such as meningitis could cause this, but he checked and she didn’t have it. I later found out after she died, there was no spinal tap done for meningitis. All the authorities kept insisting it was shaken baby. Then on the 8th day they found a small fracture on the right side of her skull. And also a new rib fracture as well as a healing one. So Matt and Amy became suspects for shaken baby.
Child Protective Services (CPS) took Jordyn away and placed her with Amy’s mother that lived in another town. They said I couldn’t have her feeling I put her in danger since Matt was out here the night Averial went to the hospital. So Amy and I were not allowed to see Jordyn. CPS finally allowed Amy to see her under supervision. Eleven days later, Averial died. The doctor took her off the vent tube because he said she was breathing good on her own. She couldn’t breathe good after they took it out, but they said it would not be a good idea to re-insert it because she was brain dead. Amy didn’t want the tube re-inserted either.
After she died, months went by with the investigation. Matt was arraigned for his probation violation and sentenced to 3 years in prison. Everyone at the cook out was questioned along with all the family members. There were letters pouring in to special crimes, by Matt’s friends, family and friends of the family, on his behalf stating there is no way, he was too caring, too protective of her. But it didn’t do any good.
Amy ended up taking a lie detector test and passed it. So Matt was charged with capital murder. His indictment papers stated he hit her in the head with a hard object-blunt force trauma. But there was no depressed skull fracture or evidence of blunt force. The doctor’s at the hospital still were saying “Shaken Baby”. He was not allowed to see Averial before she died or go to her funeral. He was still in the county jail waiting to be sent to prison when we had to go down and tell him Averial had died. He cried and cried. He begged me to not let them strip him naked again and put him in the padded cell. I talked to them and they assured me he would have a paper gown to put on, but didn’t. Again they stripped him naked and put him in there for (7) days with no contact with anyone. He nearly grieved himself to death. Not to mention how badly he was treated for the capital murder charge. The letters on Matt’s behalf kept pouring in. So bad at one point, the DA complained to my attorney.
Amy finally got Jordyn back after passing the lie detector test. After I received the autopsy report I immediately got on the internet and started looking everything up to see what the terms meant. Special crimes had everyone convinced that the skull fracture happened minutes before she stopped breathing. There were never any marks, bruises or outside evidence of inflicted trauma, no lung or neck damage. One doctor said there was a small scalp hematoma, but special crimes said there were no marks. I would have noticed if there were bruises. I was baby-sitting her the last 3 weeks of her life, while Matt and Amy worked.
Dr. Archie Kalokerinos has proven her skull fracture more than likely happened before or during the birth process, as according to the autopsy, it was a healing fracture. At the same time Averial had extreme diarrhea, my husband was diagnosed with Heavy Camplobacter. So Dr. Kalokerinos feels like Averial had the same thing and died from infection. I tried to get a court order for blood samples but the hospital destroyed her blood 30 days after she died.
Anyone with any similar circumstances, insight to share that may be helpful, please fee free to contact me.
Donna Shaw
9101 Bighorn Trail
Amarillo, Texas 79108
e-mail: donna_s2004@yahoo.com
This is the story of my son, Matthew Watson age 26. He had 2 daughters. Matt is a lover of children, all children, it doesn’t matter whose they were, he loved them. Matthew and his girlfriend, Amy Buie had two daughters, Jordyn (2 1/2) and Averial, who died at approximately 6 weeks old.
Amy had morning sickness constantly during her pregnancy with Averial. The day before Averial was born, Amy had a bad case of food poisoning. Amy wasn’t feeling any movement and went to the doctor. The doctor sent her to the hospital for delivery as she was dilated to (3) centimeters. Averial DeAnn Buie Watson was born on June 21, 2004. Right from the beginning, we felt like there was something wrong with her. The day she was born she had a huge bruise over her right eye. My son watched the delivery and told me the doctor had a hard time getting Averial to come out and used forceps on her and had to force her to come out.
Averial was extremely fussy, sleeping very little in a 24 hour period. She cried constantly, not a wailing cry, but a cat-cry. Matt was the only one that could calm her down. He was extremely over-protective with her and the minute she would whimper he would pick her up. So we all thought she was spoiled. Most of the time she slept lying on Matt’s chest, this seemed to be the only time she would sleep. They had a very close bond.
When she was approximately (3) weeks old, Matt and Amy were house-sitting for us, because we had gone on a trip. Matt was asleep in my recliner with Averial lying on his arm sleeping. In his sleep he rolled to the side and she dropped off his arm, she hit her head on the edge of a metal bucket I had sitting beside the chair. Amy took her to the doctor the next day, but her doctor was on maternity leave so she had to see another one. The doctor said she was fine and didn’t do any x-rays. He was not concerned with her constant crying. The crying and fussiness got worse. Matt seemed to be the only one that could calm her. But again the doctor thought she was spoiled.
At approximately 4 weeks old, her gums started bleeding. Amy told Matt this was normal for a new born baby. Then her urine started to be extremely strong. Two days before she stopped breathing, she had extreme diarrhea. At that same time, my husband had extreme diarrhea and stomach cramps. We thought Averial and Victor, [my husband] had a virus. Averial’s diarrhea was so bad at one point, Amy and I had to strip her naked and put her in the tub. Her stools were always like that, only worse the last few days before she stopped breathing.
On August 06, 2004, the night Averial stopped breathing, we were all at a cook-out and birthday party for my oldest son. We left and brought Matt’s oldest, Jordyn, home with us. Matt left and took my three grandson’s home to spend the night with them. He picked up Amy at work with Averial and his 3 nephews. Averial was extremely fussy that night, between 11:30 p.m. and 1:30 a.m. Amy got up with her twice and Matt got up with her the 3rd time. Matt got her calmed down and was fixing to put her down when he noticed she was barely breathing. He yelled for Amy and by the time she got in there Averial was not breathing. Amy did CPR on her and then rushed her to the hospital.
Matt stayed home waiting for my daughter-in-law to come get the boys. He called me so hysterical I didn’t even know who it was. He said she stopped breathing and had pink frothy stuff coming from her mouth and nose. He was crying and kept saying one of the children at the party must have stuffed cake icing in her mouth because the icing was pink. I got him calmed down and got my husband and Jordyn up and we went to the hospital.
The 1st mistake Matt and I made, was my telling him to stay home until I could find out what was going on, since he had a warrant out for his arrest. Matt was on probation for assault to a public servant. His probation was revoked and a warrant had been previously issued for him. He knew if he came up there he would be arrested for his warrant.
By the time my husband and I got to the hospital, they had revived Averial, after about 20 minutes of CPR. The doctor at the emergency room immediately started her on antibiotics before doing any testing for infection. That is when they decided she had been shaken. The doctor said an infection had not been ruled out, but because Matt was the last one to hold her, was not there and was wanted, they ruled it shaken baby.
I never go a chance to talk to him and find out exactly what happened, before (11) sheriff cars were sent to my house to arrest Matt. When the deputies came in, Matt went in the bathroom and cut his wrists, he said he would rather be dead than have anyone thinking he would hurt one of his babies. The cuts were minor and he was taken to the county jail where they stripped him totally naked and put him in a padded cell, no blanket, no bathroom, only a hole in the floor, no bed, no nothing. He stayed there naked for several days before they put him in a regular cell not being allowed out or having any contact with anyone.
Averial was critical, but stable in Intensive Care in an induced coma. I asked all the doctor’s if anything else could cause this, because by that time they had done x-rays and found healing fractured ribs, no skull fracture. The doctor told me that an infection such as meningitis could cause this, but he checked and she didn’t have it. I later found out after she died, there was no spinal tap done for meningitis. All the authorities kept insisting it was shaken baby. Then on the 8th day they found a small fracture on the right side of her skull. And also a new rib fracture as well as a healing one. So Matt and Amy became suspects for shaken baby.
Child Protective Services (CPS) took Jordyn away and placed her with Amy’s mother that lived in another town. They said I couldn’t have her feeling I put her in danger since Matt was out here the night Averial went to the hospital. So Amy and I were not allowed to see Jordyn. CPS finally allowed Amy to see her under supervision. Eleven days later, Averial died. The doctor took her off the vent tube because he said she was breathing good on her own. She couldn’t breathe good after they took it out, but they said it would not be a good idea to re-insert it because she was brain dead. Amy didn’t want the tube re-inserted either.
After she died, months went by with the investigation. Matt was arraigned for his probation violation and sentenced to 3 years in prison. Everyone at the cook out was questioned along with all the family members. There were letters pouring in to special crimes, by Matt’s friends, family and friends of the family, on his behalf stating there is no way, he was too caring, too protective of her. But it didn’t do any good.
Amy ended up taking a lie detector test and passed it. So Matt was charged with capital murder. His indictment papers stated he hit her in the head with a hard object-blunt force trauma. But there was no depressed skull fracture or evidence of blunt force. The doctor’s at the hospital still were saying “Shaken Baby”. He was not allowed to see Averial before she died or go to her funeral. He was still in the county jail waiting to be sent to prison when we had to go down and tell him Averial had died. He cried and cried. He begged me to not let them strip him naked again and put him in the padded cell. I talked to them and they assured me he would have a paper gown to put on, but didn’t. Again they stripped him naked and put him in there for (7) days with no contact with anyone. He nearly grieved himself to death. Not to mention how badly he was treated for the capital murder charge. The letters on Matt’s behalf kept pouring in. So bad at one point, the DA complained to my attorney.
Amy finally got Jordyn back after passing the lie detector test. After I received the autopsy report I immediately got on the internet and started looking everything up to see what the terms meant. Special crimes had everyone convinced that the skull fracture happened minutes before she stopped breathing. There were never any marks, bruises or outside evidence of inflicted trauma, no lung or neck damage. One doctor said there was a small scalp hematoma, but special crimes said there were no marks. I would have noticed if there were bruises. I was baby-sitting her the last 3 weeks of her life, while Matt and Amy worked.
Dr. Archie Kalokerinos has proven her skull fracture more than likely happened before or during the birth process, as according to the autopsy, it was a healing fracture. At the same time Averial had extreme diarrhea, my husband was diagnosed with Heavy Camplobacter. So Dr. Kalokerinos feels like Averial had the same thing and died from infection. I tried to get a court order for blood samples but the hospital destroyed her blood 30 days after she died.
Anyone with any similar circumstances, insight to share that may be helpful, please fee free to contact me.
Donna Shaw
9101 Bighorn Trail
Amarillo, Texas 79108
e-mail: donna_s2004@yahoo.com
Donovan Wright and Doug Wright
Forgotten by Justice
Little Donovan Wright’s death was a tragedy. That tragedy was compounded by the dogmatic misdiagnosis of Shaken Baby Syndrome and the erroneous insistence of a pediatric ophthalmologist that he could reliably time the critical injury based on progression of brain swelling to exclude all but one suspect. The suspect—Donovan’s father, Doug Wright—was convicted of murdering his child based on the ophthalmologist’s testimony. Now the ophthalmologist has changed his mind. He acknowledges his testimony in Doug’s case was faulty, that he was wrong. But the doctor is unconcerned about Doug’s plight—and the failure of the Commonwealth of Pennsylvania to bring Donovan’s abuser to justice—because he can’t remember either of them Doug Wright
When Donovan Wright was born on December 28, 1995 in York, Pennsylvania, he already had two strikes against him. His parents, April Klinedinst and Doug Wright, were young and unmarried, and Donovan had no place to call home. After his birth, April took Donovan from York Hospital to her mother’s home, but two weeks later April’s mother asked both of them to leave. Doug’s parents took them in temporarily, but there simply was not enough room in the Wright home. On February 7, 1996, April and Donovan moved to a homeless shelter.
Shelter staff were concerned about April’s lack of parenting skills and her apparent failure to bond with her baby. She propped Donovan’s bottle with a pillow instead of holding him to feed him, and routinely left him in the care of other shelter residents, including strangers and the four children of another shelter resident who at 5, 6, 7 and 8 were too young to appropriately care for an infant. Another resident reported seeing April vigorously shaking Donovan to make him stop crying. Shelter staff noted that when Donovan “would get fussy, his mother would shake his foot and shake his leg and he would wince. . . . Her way of comforting him would be take his foot in her hand and just jiggle it back and forth.” Early in March, 1996 Donovan became ill, unable to hold down his formula. When he developed such difficulty breathing that he turned blue, shelter staff insisted that his mother take him to the emergency room. Donovan was hospitalized from March 4th to 9th for bronchitis with severe respiratory distress, respiratory syncytial virus (RSV) and streptococcus.
Throughout their stay at the shelter, April received written notices of rules violations, all related to her neglect of Donovan. The resident whose young children took care of Donovan moved out of the shelter while Donovan was hospitalized. At this point, April convinced Doug to get an apartment and try to make their relationship work for their child’s sake. Shelter workers who observed Doug during his visits with Donovan said father and child interacted well. They were encouraged Donovan would be living with his father. On March 17, 1996, the three moved into their own place.
Doug already had a job, and April soon found work in a restaurant. She arranged for the former shelter resident whose four children had so often taken care of Donovan to provide babysitting services. In mid-April, 1996, April was driving her father’s car with Donovan in his infant seat when she lost control and crashed. The car left 180 feet of skid marks and had to be towed from the scene, but Donovan was not seen by a doctor, perhaps because his mother didn’t have a driver’s license.
• On May 9, 1996, April took care of Donovan alone. Doug worked all day, then attended a work-related conference. He didn’t get home until 10:30 p.m.
• Donovan was at his babysitter’s on May 10, where Doug picked him up around 8:00 p.m.
• On May 11, Doug went to a bike shop while April took care of Donovan. Later they left Donovan with Doug’s mother from noon to 3:00 p.m. while they went to a car show. While April worked from 4:00 p.m. to 7:30 p.m., Doug cared for Donovan. They took the child with them while visiting friends later that evening.
• On May 12, while April worked from 11:00 a.m. to 8:00 p.m., Doug cared for Donovan. The baby slept most of the day. He continued to sleep after Doug picked up April from work and they stopped to buy groceries, and throughout the drive to Doug’s mother’s house, where they arrived at about 10:00 p.m.
At Doug’s mother’s, Donovan was limp and could not be roused. He was taken to Hanover Hospital. Deeply comatose, Donovan required a respirator to breathe. Donovan was transferred to Hershey Medical Center, where he remained in a vegetative state for over a year. On June 12, 1997 by court order Donovan was removed from the ventilator and died.
Studies at both hospitals showed blunt force head trauma with a healing skull fracture on the left side of Donovan’s head, subdural hematomas on both sides of his head, a bruise of the left front of his brain, and retinal hemorrhages in both eyes. In addition, multiple healing rib fractures, torsion (twisting) injuries to bones in the knees and ankles and a healing injury of the left tibia (shinbone) were identified. Skull fractures cannot be reliably dated, but Donovan’s was not fresh because his scalp was not swollen over the fracture. His rib fractures dated to between the first week of April and the end of the first week of May. The twisting injuries to his knees and ankles cannot be reliably dated but were probably not fresh.
There was overwhelming evidence that Donovan had been subjected to multiple episodes of abuse over at minimum the two months prior to May 12, 1996, and that he had been hit—very hard—in the head at least a week before May 12th. His injuries are consistent with rebleeding into an old subdural hematoma, either spontaneously or because of a mild bump that went unnoticed. But doctors at Hershey Medical Center declared Donovan’s injuries were the result of violent shaking—Shaken Baby Syndrome (SBS), a controversial diagnosis that holds shaking as the sole cause of retinal bleeding. In Donovan’s case, this diagnosis is preempted by both the evidence of blunt force trauma and the absence of other indicators of SBS—fingertip bruises, fresh rib fractures from squeezing, injury to the neck or witnessed shaking.
The doctors who diagnosed SBS stated dogmatically that the fatal shaking must have occurred within 8 to 12 hours before Donovan was admitted to the hospital. This timing was based on the progression of brain swelling that occurred in reaction to trauma. That left only one suspect: Doug Wright, Donovan’s father, who had cared for the child from 11:00 a.m. to 8:00 p.m. on May 12th. Such certainty made a more thorough investigation unnecessary. Doug Wright was charged with murder and was tried in July, 1998.
Testimony at trial by Dr. James MacManaway, a pediatric ophthalmologist at Hershey Medical Center, was unequivocal:
Q: ... [I]n your testimony, you indicated that you thought that the results you had seen would have had an immediate impact on an intellectual level of the child. Is that a fair statement of what you had thought?
A: That is – it depends on what you call immediate, but there should be a rapid change in the patient’s neurologic status, ability to hold its head up, response to sound or touch, things like that.
Q: Okay. Can you put any time frame on that? Are you able to do that?
A: It is my opinion that given the severe retinal hemorrhages and macular detachment, the brain would have been subjected to those same forces and the child should have had very rapid loss of – changes in his neurologic status. I think loss of consciousness should have happened very quickly, whether it was ten minutes or half an hour. I think an hour at most. These are estimates.
This was pivotal testimony. It ruled out anyone else. The jury convicted Doug Wright. He was sentenced to 20 to 40 years in prison and his conviction was affirmed on appeal, and post collateral appeal. Now he is desperately seeking relief through a Habeas Corpus petition filed pro-se in January of 2005.
In 1999 a babysitter in Dauphin County, Pennsylvania was charged with abusing—specifically, violently shaking—a young child in her care. Dr. MacManaway examined the boy on July 14, 1999 and found retinal hemorrhages and macular detachment in his left eye. His finding, as he testified at the babysitter’s trial in October, 2001, was that “to a reasonable degree of medical certainty the injuries were caused by non-accidental injury.” As in Doug Wright’s case, timing the injury was essential, to exclude everyone but the babysitter based on when the child was in her care.
Q: Can tractional macular detachments be timed precisely?
A: No.
Q: And you said that rather emphatically. Why do you say it with such certainty?
A: The appearance of the retina and of the retinal hemorrhage is characteristic of non-accidental injury but the findings do not evolve in any predictable way meaning to say it looks like this 12 hours after injury and looks like this 24 hours after injury. There is nothing in the medical knowledge or medical literature to allow myself or any other opthalmologist to time the hemorrhage or the macular detachment in terms of how long after the injury. At a national meeting in April 2001 I attended a symposium on non-accidental injury and the consensus of the group was, no argument, was that it is impossible to time the hemorrhage. No one can do that.
. . . No one has studied what happens and how long after an animal or child or whatever has injuries. So the science has not been done to determine how the injuries evolve over time to be able to date them.
When Dr. MacManaway was reminded of his testimony in Doug Wright’s case—handed a certified copy of the transcript—he stated, “My conclusions at that time were based on some personal experience as well as the conclusions in this paper, New England Journal of Medicine in June 1998.”
Q: What steps have you done now that you have changed your mind to go back and rectify the situation?
A: . . . You are asking me to compare one thing which I know today to something which I vaguely remember. I cannot answer that question.
The jury acquitted the babysitter. Doug Wright is still in prison. The real circumstances of Donovan's death remain uninvestigated. Who is going to go back and rectify this situation?
Girl, 13, to be charged in baby's death
By Ashley Broughton
The Salt Lake Tribune
A 13-year-old girl will face juvenile court charges in the Feb. 1 death of a 7-month-old infant she was baby-sitting, Utah County authorities said Friday. Kinlie Dawn Norton of Eagle Mountain died Feb. 1, a day after she was flown to Primary Children's Medical Center in Salt Lake City. Her parents told authorities the infant was unconscious and having difficulty breathing when they picked her up at the home of another family.
The 13-year-old was watching Kinlie and three other children at the home, Utah County sheriff's Sgt. Spencer Cannon has said. Investigators suspected the baby's injuries could have been caused by shaking, but were awaiting autopsy results. Authorities said Friday that those results showed Kinlie's death "was not accidentally caused." The teenager told authorities Kinlie was injured by falling off a bed, Utah County sheriff's Detective Sgt. Wally Perschon said Friday, but an autopsy showed injuries that were not consistent with that account.
While an autopsy is completed fairly soon after a death, results of routine toxicology tests can take up to a month. Perschon said in possible shaken-baby cases, other tests are made to see if injuries are consistent with shaking. The girl and her family have retained an attorney, Perschon said, and she has not admitted any guilt in Kinlie's death. The teen has never been in trouble with the law, Perschon said. The Utah County Attorney's Office had not determined what charges would be filed, Perschon said, and charges are not expected until later this month, after prosecutors meet with representatives from the state Office of the Medical Examiner.
Because of that, the girl's uncle, Joshua Duncan of Midway, said Friday that Kinlie's parents wished to decline comment on the case for now. Under Utah law, a 13-year-old is not old enough to be certified to stand trial as an adult on any charge, said Michael Christensen, juvenile division chief of the Salt Lake County District Attorney's Office. Juveniles must be 14 to undergo certification. Christensen recalled a case a few years ago in which a 13-year-old killed one of her parents. "They kept her in the [juvenile] system 7 or 8 years," he said. "It'll be a similar situation with this one, assuming she's found guilty." That finding will be made by a juvenile court judge in a bench trial, not a jury trial, he said.
Baby Sitter Arrested on Manslaughter Charges By Adriane Hopkins Staff Writer
Phoenix police on Tuesday arrested an Ahwatukee Foothills baby sitter on charges of manslaughter for the death of a 2-month-old boy last July. Police believe the infant, Lucas Walter, died of "shaken impact syndrome" at the hands of his baby sitter. Cheryl Ann Bradley, 45, was arrested Tuesday evening in her home in the 15400 block of South 44th Way on one count of manslaughter, according to Phoenix police Det. Bob Ragsdale. Bradley has since been released on $80,000 bond.
Walter was in Bradley's home July 14, 2000 when the baby sitter called 911 to report one of the children in her care had stopped breathing while drinking from a bottle, according to police reports. During the call, she performed CPR on the infant before paramedics arrived. Bradley was heard during the 911 call whispering to the infant, "Come on, sweetie. Come on, sweetheart. Come on, sweet little baby." She could also be heard counting out chest compressions and breathing into the child's mouth while saying: "Come on, honey. Oh God. Come on, buddy. There you go. Get a breath."
The infant was flown to Maricopa County Medical Center, but died July 15. Bradley, who cared for fewer than five children in her home, did not require a state license for childcare. Bradley had been listed on a referral service registry since July of 1993, according to Susan Wilkins, director of the Association of Supportive Child Care. Wilkins added that there had been no complaints against her record. Bradley had been the baby sitter for the infant for about a week. The infant's parents, Ryan and Jeanne Walter, reside in Chandler. The parents could not be reached for comment.
An autopsy report released by the Maricopa County Medical Examiner's Office in September concluded that the death was a homicide. According to the medical examiner's report, the infant was hospitalized with acute intracranial hemorrhage and retinal hemorrhages. An autopsy revealed the infant sustained a blunt force head trauma resulting in a hemorrhage at the base of the brain and behind the infant's eyes. The report also listed that there was a small contusion found on the scalp. "This represents a case of non-accidental trauma," the report states.
An investigative team comprised of representatives from Phoenix police, medical examiner's office and the Maricopa County Attorney's Office has been looking into the death of Walter since July, according to Ragsdale.
Adriane Hopkins can be reached at (480) 496-0665 or by e-mail at ahopkins@aztrib.com
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Prosecutor grilled by defense in baby-shaking trial
By Greg Moran
STAFF WRITER
February 4, 2004
A deputy district attorney was called to testify yesterday in a baby-shaking trial in which a defense lawyer contends that he and a fellow prosecutor hid evidence favorable to the defendant. For about 30 minutes, prosecutor David Hendren answered a series of sometimes pointed questions from attorney Christopher Plourd, who is representing Christina Diaz.
Diaz, the former operator of a home day-care business in Kensington is accused in the death of 4-month-old Cooper Kuznitz. Hendren was the initial prosecutor on the case. It was re-assigned at the end of July to Garry Haehnle, who also is expected to be called as a witness. Hendren is one of five candidates seeking the Superior Court seat opened by the retirement of Judge Richard Haden.
Prosecutors contend the child was shaken violently, causing his brain to swell. The main evidence against Diaz centers on bleeding in the child's eyes, which the prosecution says definitively shows the child was shaken. Plourd told jurors the child died of other, undetermined causes. He said the baby had no other injuries typically seen in baby-shaking cases. Diaz was also a model day care provider who never harmed the child, he said. Hendren was called to testify as part of a hearing held by San Diego Superior Court Judge Robert J. Trentacosta. The jury was in the courtroom.
The hearing involves issues relating to legal discovery, the process in which each side exchanges information about their cases. Plourd filed a motion Monday asking that the case be dismissed because, he said, rules of discovery were violated. He contends that the prosecution hid evidence that by law must be turned over because it could prove his client's innocence.
At issue is evidence from Dr. Alex Levin, who testified for the prosecution last week. Plourd said he never received reports or other information from Levin, a pediatric ophthalmologist, about the case. Plourd said that when he began his questioning of Levin, the doctor produced a thick file of documents and e-mail correspondence between prosecutors, Levin and other doctors about the case. Plourd says the material includes information that could prove his client is not guilty.
Trentacosta is attempting to determine whether there were any violations. He could dismiss the case, eliminate some testimony, find prosecutors in contempt or determine there that was no violation. Plourd wrote a letter to Hendren last March, contending that the prosecutor was not turning over all the information in the case. Hendren testified that he found the letter offensive and that he wrote back asking what it was Plourd was seeking. He said Plourd never replied. Hendren also testified that he had complied with all the discovery rules "to the best of my knowledge."
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Greg Moran: (619) 542-4586; greg.moran@u...
UPDATE!
By Greg Moran
UNION-TRIBUNE STAFF WRITER
June 25, 2004
A jury acquitted the former owner of a Kensington day-care business yesterday of all charges in the death of a 4-month-old boy whom she was accused of shaking to death. The verdict came after two days of deliberations in the second trial of Christina Diaz. The first jury had deadlocked 8-4 in favor of guilt after a controversial trial earlier this year in which a judge chastised prosecutors for not handing over evidence to the defense. Diaz, who steadfastly insisted she was innocent and never harmed Cooper Kuznitz, broke down after the verdicts were read in San Diego Superior Court, her attorney, Christopher Plourd, said.
She was acquitted of assault on a child causing death, and two lesser assault charges. The first charge carried a sentence of 25 years to life in prison. Diaz, 37, has been under a cloud since Dec. 20, 2002, when the baby died after being taken to Children's Hospital after Diaz called 911 to report that he had stopped breathing. Doctors at the hospital concluded that the infant had been victimized by some kind of trauma, probably violent shaking. Cooper died two days after he was admitted. Doctors initially suspected that he had a bruise to the frontal lobe of the brain. But an autopsy revealed no such injury or any other brain trauma.
Prosecutors still charged Diaz, theorizing that in a moment of exasperation she shook the baby violently, causing his brain to swell. Plourd argued at both trials that authorities had rushed to judgment, misread the medical evidence and overlooked other possible causes of death. He presented several medical experts who testified that Cooper had other medical problems, including a blood coagulating disorder, that could have contributed to his death. Those experts said the baby may have succumbed to sudden infant death syndrome, or died of complications from an infection.
For the second trial, Plourd had a laboratory in England test breast milk that the infant's mother had left with Diaz the morning the baby stopped breathing. The tests showed the milk was contaminated with bacteria that produce a toxin in the body, according to Plourd. Jurors appeared to agree. "They thought something was wrong with the child, though no one figured out what exactly it was," said Plourd, who spoke to several jurors after the verdicts. "They thought the idea that there was some infection going on was probably the best" conclusion.
Prosecutor Garry Haehnle could not be reached for comment.
Diaz's first trial was marked by controversy over the tactics of the prosecution, which Plourd accused of hiding information about a key prosecution witness. The witness, Dr. Alex Levin of Toronto, testified that a key medical finding – that Cooper had bleeding in his eyes – proved that the infant was shaken. Plourd vigorously contested that, arguing that the bleeding was caused by other factors, including the blood-coagulating problem.
During questioning by Plourd, the doctor suddenly produced a thick file of notes, e-mails and other materials relating to his work on the case. Plourd had sought such information for more than year, but had been told it did not exist. Eventually, Superior Court Judge Robert Trentacosta ruled that while the information should have been turned over, it was not an intentional error by prosecutors. Diaz, who has been free on $200,000 bail, had numerous character witnesses testify for her. All said she was a caring, considerate day care provider who would never harm a child. Plourd said she will now try to get her life back on track, though what that will involve is still unknown.
"She's not gloating or anything," he said. "She's glad it's over with. It just devastated her life, this whole thing."
http://cbs2.com/localnews/localnewsla_story_083151506.html
Day care provider arrested for allegedly
shaking baby
ASSOCIATED PRESS
10:55 p.m. March 22, 2004
LONG BEACH – A day care provider was arrested after allegedly shaking a 5-month-old girl causing major internal head injuries, police said Monday. Christina Hipp-Taylor, 34, of Long Beach was arrested Friday for investigation of child abuse. She is being held on $100,000 bail and scheduled to appear in court March 29. Taylor runs a day care business out of her home in Long Beach where the baby's parents left her last Tuesday, police Officer Evor Kerr said.
The baby appeared to be sick when her parents picked her up that day and was worse when they picked her up Wednesday, Kerr said. They took her to the hospital the next day. Doctors at the hospital determined the baby suffered blood clots in her head after allegedly being shaken, Kerr said.
http://www.theroyalgazette.com/apps/pbcs.dll/article?AID=/20040323/
NEWS/103230027
Care worker accused of shaking baby
By Eloisa Mayers
A woman charged with shaking a ten month old child nearly three years ago was left to manage her own defence in Magistrates' Court yesterday. Jacquelyn Fubler, who worked at the Noah's Ark Day Care Centre in Southampton, was charged with causing grievous bodily harm to ten month old Stephen Ebbin, on July 6, 2001. The child was out in a coma after suffering "a severe head injury".
The case had been repeatedly adjourned with four trial dates set to allow Fubler, who did not qualify for legal aid, to fund her own defence and obtain an expert medical witness to challenge the Crown's witness.
But yesterday Magistrate Tyrone Chin ordered the case go ahead after telling the court that he wanted some form of closure for all involved. Mr. Chin said Fubler had had plenty of time to "get her
house in order" despite protest from Defence Counsel Leo Mills. Mr. Mills suggested a trial date should be set within another six weeks to allow Fubler proper time to prepare for her defence and to
enable the case to run in accordance with the proper administration of justice.
Mr. Mills said the Magistrate's decision to allow the case to proceed was highly unusual and he questioned how justice could be properly administered if the defendant was unprepared. "It cannot
be done whereby she has to go into battle unarmed and unprotected," said Mr. Mills. Senior Crown Counsel Lloyd Rayney questioned Police Constable Lynn Hollis about the events of July 6, 2001.
P.c. Hollis said she was called to King Edward VII Memorial Hospital at 1.45 p.m. where she saw a child, who she identified as Stephen Ebbin, lying on his back in an unconscious state with a number of bruises on various parts of his body. She told the court how Police took photographs of the baby's body and of the inside of the Noah's Ark Day Care Centre. A red child-sized chair which Stephen was sitting on during the time of the alleged incident was also photographed by the Police as evidence. Inspector Mike Chlebek told the court how he went to Fubler's house on the day of the alleged incident and asked her questions about Stephen's injuries. "She (Fubler) said to me, I will help you any way I can," said Insp. Chlebek. "When I was asking Fubler how he received these injuries she demonstrated to me that the baby had been sitting in a red chair and had fallen out of the chair on two occasions. On the first occasion he felt out the chair and landed on the floor." Mr. Beck said Fubler had notified the mother about the fall, which she said occurred on July 3, several days before the alleged incident. "The second time he had fallen she had left the baby in the chair and when she came back it had fallen down so the two front legs of the chair were up and the baby had hit his head on the pillar behind him," he said. Mr. Rayney asked Insp. Chlebek what position the child was sitting in and the explanation Fubler had given him. "She told me the child went into seizures and as a result she called the ambulance," he said. In the afternoon session of the court, Mr. Mills withdrew from the case, saying that he did not have the adequate resources to question the expert witness produced by the Crown. Mr. Chin responded: "I sit up here and I take my oath seriously to get on with the job. This is a July 01 case and I must press on. Mr. Mills, I understand the costs of private practice and the overheads involved but my concern is that justice must be seen to be done three years on."
Before leaving the courtroom, Mr. Mills, who represents the firm Trott & Duncan said: "This case is about people who are in serious financial difficulty and have been for many years. This is not an offence similar to a traffic violation." With her head bent and a notebook in hand Fubler began to take notes, which she told the court was for her own records. Dr.Alexander Baron, a paediatrician at KEMH, took the stand to give medical evidence telling the court that on the night of July 6, he was called by a physician at the hospital to come immediately to see Stephen, his patient, because he was in a coma and the doctor felt he had sustained a serious head injury. Dr. Baron told the court that Stephen did not react normally when a light was shone into his eyes, and that his upper and lower limbs were shaking uncontrollably. In the early hours of July 7, 2001 Stephen was airlifted to the Children's Hospital of Boston for further care. Dr. Baron told the court that in his opinion Stephen was suffering from an internal brain injury caused by what is commonly referred to as non-accidental trauma or "shaken baby syndrome". In order for a child to suffer from such injuries, Dr. Baron said he would have to be shaken back and forth at a high velocity. "Because their neck at that age is still as weak as a baby's the result would be the bursting of blood vessels in the brain leading to the injuries Stephen had sustained."
After Dr. Baron finished giving evidence Fubler was asked if she wanted to cross examine the witness, to which she declined. "I'm not a lawyer, I half understand all of this because I have two children of my own, but only a lawyer could cross examine a witness because he understands what he is doing," she said. After mumbling to herself "this is a joke" Mr. Chin told Fubler to be careful about what she said under her breath, or she may find herself in contempt of court. "Keep your comments to yourself Ms. Fubler." A Royal Gazette photographer had observed defence lawyer Mark Pettingill trying to get into court to assist Fubler, but he was unable to come to her aid as the front door to Magistrate's Court closes at precisely 5pm. The trial continues today at 9.30 a.m.
Nanny Faces Child Abuse Charges
Police: Victim May Never Fully Recover
Renee Wallisch
POSTED: 4:57 pm EDT April 13, 2004
UPDATED: 5:23 pm EDT April 13, 2004
PITTSBURGH -- A local nanny is accused of severely injuring an infant. The woman was arrested last week, accused of shaking the baby and charged with assaulting the child. The family told Channel 11's Renee Wallisch they trusted the young woman and that she came with impressive credentials. They said that all changed when their baby boy almost died. Three months ago, Pittsburgh police said Sara Miller, 21, (pictured, right) was hired as a live-in nanny for a young couple on the North Side.
But instead of caring for their baby, police said Miller sent him to the hospital with life-threatening injuries. Pittsburgh Police Sgt. Amanda Aldridge said, "He was bleeding from the brain or head (with) hemorrhagic bleeding, similar to shaken baby syndrome." According to police, the infant has since endured two brain surgeries and may never fully recover, suffering irreversible physical trauma inflicted, police say, at the hands of Miller. The Dravosburg native is charged with aggravated assault, endangering the welfare of a child and reckless endangerment.
Police said Miller was placed in the home by a nanny-for-hire firm known as Sterling Domestic Placement. Its Web site boasts extensive background checks and references on all its caregivers before they are recommended for hire. In fact, Sterling representatives told Channel 11 Miller passed a criminal background check with flying colors and provided an impressive work history.
The agency said Miller was a temporary referral and that they received no complaints about her work. Miller is currently out of jail. Tuesday, her attorney asked for a postponement in her preliminary hearing, which had been set for Friday. Shaken baby syndrome happens when a baby is shaken forcibly and causes severe bruising and swelling of the brain. If not treated immediately, it can cause permanent damage
Forgotten by Justice
Little Donovan Wright’s death was a tragedy. That tragedy was compounded by the dogmatic misdiagnosis of Shaken Baby Syndrome and the erroneous insistence of a pediatric ophthalmologist that he could reliably time the critical injury based on progression of brain swelling to exclude all but one suspect. The suspect—Donovan’s father, Doug Wright—was convicted of murdering his child based on the ophthalmologist’s testimony. Now the ophthalmologist has changed his mind. He acknowledges his testimony in Doug’s case was faulty, that he was wrong. But the doctor is unconcerned about Doug’s plight—and the failure of the Commonwealth of Pennsylvania to bring Donovan’s abuser to justice—because he can’t remember either of them Doug Wright
When Donovan Wright was born on December 28, 1995 in York, Pennsylvania, he already had two strikes against him. His parents, April Klinedinst and Doug Wright, were young and unmarried, and Donovan had no place to call home. After his birth, April took Donovan from York Hospital to her mother’s home, but two weeks later April’s mother asked both of them to leave. Doug’s parents took them in temporarily, but there simply was not enough room in the Wright home. On February 7, 1996, April and Donovan moved to a homeless shelter.
Shelter staff were concerned about April’s lack of parenting skills and her apparent failure to bond with her baby. She propped Donovan’s bottle with a pillow instead of holding him to feed him, and routinely left him in the care of other shelter residents, including strangers and the four children of another shelter resident who at 5, 6, 7 and 8 were too young to appropriately care for an infant. Another resident reported seeing April vigorously shaking Donovan to make him stop crying. Shelter staff noted that when Donovan “would get fussy, his mother would shake his foot and shake his leg and he would wince. . . . Her way of comforting him would be take his foot in her hand and just jiggle it back and forth.” Early in March, 1996 Donovan became ill, unable to hold down his formula. When he developed such difficulty breathing that he turned blue, shelter staff insisted that his mother take him to the emergency room. Donovan was hospitalized from March 4th to 9th for bronchitis with severe respiratory distress, respiratory syncytial virus (RSV) and streptococcus.
Throughout their stay at the shelter, April received written notices of rules violations, all related to her neglect of Donovan. The resident whose young children took care of Donovan moved out of the shelter while Donovan was hospitalized. At this point, April convinced Doug to get an apartment and try to make their relationship work for their child’s sake. Shelter workers who observed Doug during his visits with Donovan said father and child interacted well. They were encouraged Donovan would be living with his father. On March 17, 1996, the three moved into their own place.
Doug already had a job, and April soon found work in a restaurant. She arranged for the former shelter resident whose four children had so often taken care of Donovan to provide babysitting services. In mid-April, 1996, April was driving her father’s car with Donovan in his infant seat when she lost control and crashed. The car left 180 feet of skid marks and had to be towed from the scene, but Donovan was not seen by a doctor, perhaps because his mother didn’t have a driver’s license.
• On May 9, 1996, April took care of Donovan alone. Doug worked all day, then attended a work-related conference. He didn’t get home until 10:30 p.m.
• Donovan was at his babysitter’s on May 10, where Doug picked him up around 8:00 p.m.
• On May 11, Doug went to a bike shop while April took care of Donovan. Later they left Donovan with Doug’s mother from noon to 3:00 p.m. while they went to a car show. While April worked from 4:00 p.m. to 7:30 p.m., Doug cared for Donovan. They took the child with them while visiting friends later that evening.
• On May 12, while April worked from 11:00 a.m. to 8:00 p.m., Doug cared for Donovan. The baby slept most of the day. He continued to sleep after Doug picked up April from work and they stopped to buy groceries, and throughout the drive to Doug’s mother’s house, where they arrived at about 10:00 p.m.
At Doug’s mother’s, Donovan was limp and could not be roused. He was taken to Hanover Hospital. Deeply comatose, Donovan required a respirator to breathe. Donovan was transferred to Hershey Medical Center, where he remained in a vegetative state for over a year. On June 12, 1997 by court order Donovan was removed from the ventilator and died.
Studies at both hospitals showed blunt force head trauma with a healing skull fracture on the left side of Donovan’s head, subdural hematomas on both sides of his head, a bruise of the left front of his brain, and retinal hemorrhages in both eyes. In addition, multiple healing rib fractures, torsion (twisting) injuries to bones in the knees and ankles and a healing injury of the left tibia (shinbone) were identified. Skull fractures cannot be reliably dated, but Donovan’s was not fresh because his scalp was not swollen over the fracture. His rib fractures dated to between the first week of April and the end of the first week of May. The twisting injuries to his knees and ankles cannot be reliably dated but were probably not fresh.
There was overwhelming evidence that Donovan had been subjected to multiple episodes of abuse over at minimum the two months prior to May 12, 1996, and that he had been hit—very hard—in the head at least a week before May 12th. His injuries are consistent with rebleeding into an old subdural hematoma, either spontaneously or because of a mild bump that went unnoticed. But doctors at Hershey Medical Center declared Donovan’s injuries were the result of violent shaking—Shaken Baby Syndrome (SBS), a controversial diagnosis that holds shaking as the sole cause of retinal bleeding. In Donovan’s case, this diagnosis is preempted by both the evidence of blunt force trauma and the absence of other indicators of SBS—fingertip bruises, fresh rib fractures from squeezing, injury to the neck or witnessed shaking.
The doctors who diagnosed SBS stated dogmatically that the fatal shaking must have occurred within 8 to 12 hours before Donovan was admitted to the hospital. This timing was based on the progression of brain swelling that occurred in reaction to trauma. That left only one suspect: Doug Wright, Donovan’s father, who had cared for the child from 11:00 a.m. to 8:00 p.m. on May 12th. Such certainty made a more thorough investigation unnecessary. Doug Wright was charged with murder and was tried in July, 1998.
Testimony at trial by Dr. James MacManaway, a pediatric ophthalmologist at Hershey Medical Center, was unequivocal:
Q: ... [I]n your testimony, you indicated that you thought that the results you had seen would have had an immediate impact on an intellectual level of the child. Is that a fair statement of what you had thought?
A: That is – it depends on what you call immediate, but there should be a rapid change in the patient’s neurologic status, ability to hold its head up, response to sound or touch, things like that.
Q: Okay. Can you put any time frame on that? Are you able to do that?
A: It is my opinion that given the severe retinal hemorrhages and macular detachment, the brain would have been subjected to those same forces and the child should have had very rapid loss of – changes in his neurologic status. I think loss of consciousness should have happened very quickly, whether it was ten minutes or half an hour. I think an hour at most. These are estimates.
This was pivotal testimony. It ruled out anyone else. The jury convicted Doug Wright. He was sentenced to 20 to 40 years in prison and his conviction was affirmed on appeal, and post collateral appeal. Now he is desperately seeking relief through a Habeas Corpus petition filed pro-se in January of 2005.
In 1999 a babysitter in Dauphin County, Pennsylvania was charged with abusing—specifically, violently shaking—a young child in her care. Dr. MacManaway examined the boy on July 14, 1999 and found retinal hemorrhages and macular detachment in his left eye. His finding, as he testified at the babysitter’s trial in October, 2001, was that “to a reasonable degree of medical certainty the injuries were caused by non-accidental injury.” As in Doug Wright’s case, timing the injury was essential, to exclude everyone but the babysitter based on when the child was in her care.
Q: Can tractional macular detachments be timed precisely?
A: No.
Q: And you said that rather emphatically. Why do you say it with such certainty?
A: The appearance of the retina and of the retinal hemorrhage is characteristic of non-accidental injury but the findings do not evolve in any predictable way meaning to say it looks like this 12 hours after injury and looks like this 24 hours after injury. There is nothing in the medical knowledge or medical literature to allow myself or any other opthalmologist to time the hemorrhage or the macular detachment in terms of how long after the injury. At a national meeting in April 2001 I attended a symposium on non-accidental injury and the consensus of the group was, no argument, was that it is impossible to time the hemorrhage. No one can do that.
. . . No one has studied what happens and how long after an animal or child or whatever has injuries. So the science has not been done to determine how the injuries evolve over time to be able to date them.
When Dr. MacManaway was reminded of his testimony in Doug Wright’s case—handed a certified copy of the transcript—he stated, “My conclusions at that time were based on some personal experience as well as the conclusions in this paper, New England Journal of Medicine in June 1998.”
Q: What steps have you done now that you have changed your mind to go back and rectify the situation?
A: . . . You are asking me to compare one thing which I know today to something which I vaguely remember. I cannot answer that question.
The jury acquitted the babysitter. Doug Wright is still in prison. The real circumstances of Donovan's death remain uninvestigated. Who is going to go back and rectify this situation?
Girl, 13, to be charged in baby's death
By Ashley Broughton
The Salt Lake Tribune
A 13-year-old girl will face juvenile court charges in the Feb. 1 death of a 7-month-old infant she was baby-sitting, Utah County authorities said Friday. Kinlie Dawn Norton of Eagle Mountain died Feb. 1, a day after she was flown to Primary Children's Medical Center in Salt Lake City. Her parents told authorities the infant was unconscious and having difficulty breathing when they picked her up at the home of another family.
The 13-year-old was watching Kinlie and three other children at the home, Utah County sheriff's Sgt. Spencer Cannon has said. Investigators suspected the baby's injuries could have been caused by shaking, but were awaiting autopsy results. Authorities said Friday that those results showed Kinlie's death "was not accidentally caused." The teenager told authorities Kinlie was injured by falling off a bed, Utah County sheriff's Detective Sgt. Wally Perschon said Friday, but an autopsy showed injuries that were not consistent with that account.
While an autopsy is completed fairly soon after a death, results of routine toxicology tests can take up to a month. Perschon said in possible shaken-baby cases, other tests are made to see if injuries are consistent with shaking. The girl and her family have retained an attorney, Perschon said, and she has not admitted any guilt in Kinlie's death. The teen has never been in trouble with the law, Perschon said. The Utah County Attorney's Office had not determined what charges would be filed, Perschon said, and charges are not expected until later this month, after prosecutors meet with representatives from the state Office of the Medical Examiner.
Because of that, the girl's uncle, Joshua Duncan of Midway, said Friday that Kinlie's parents wished to decline comment on the case for now. Under Utah law, a 13-year-old is not old enough to be certified to stand trial as an adult on any charge, said Michael Christensen, juvenile division chief of the Salt Lake County District Attorney's Office. Juveniles must be 14 to undergo certification. Christensen recalled a case a few years ago in which a 13-year-old killed one of her parents. "They kept her in the [juvenile] system 7 or 8 years," he said. "It'll be a similar situation with this one, assuming she's found guilty." That finding will be made by a juvenile court judge in a bench trial, not a jury trial, he said.
Baby Sitter Arrested on Manslaughter Charges By Adriane Hopkins Staff Writer
Phoenix police on Tuesday arrested an Ahwatukee Foothills baby sitter on charges of manslaughter for the death of a 2-month-old boy last July. Police believe the infant, Lucas Walter, died of "shaken impact syndrome" at the hands of his baby sitter. Cheryl Ann Bradley, 45, was arrested Tuesday evening in her home in the 15400 block of South 44th Way on one count of manslaughter, according to Phoenix police Det. Bob Ragsdale. Bradley has since been released on $80,000 bond.
Walter was in Bradley's home July 14, 2000 when the baby sitter called 911 to report one of the children in her care had stopped breathing while drinking from a bottle, according to police reports. During the call, she performed CPR on the infant before paramedics arrived. Bradley was heard during the 911 call whispering to the infant, "Come on, sweetie. Come on, sweetheart. Come on, sweet little baby." She could also be heard counting out chest compressions and breathing into the child's mouth while saying: "Come on, honey. Oh God. Come on, buddy. There you go. Get a breath."
The infant was flown to Maricopa County Medical Center, but died July 15. Bradley, who cared for fewer than five children in her home, did not require a state license for childcare. Bradley had been listed on a referral service registry since July of 1993, according to Susan Wilkins, director of the Association of Supportive Child Care. Wilkins added that there had been no complaints against her record. Bradley had been the baby sitter for the infant for about a week. The infant's parents, Ryan and Jeanne Walter, reside in Chandler. The parents could not be reached for comment.
An autopsy report released by the Maricopa County Medical Examiner's Office in September concluded that the death was a homicide. According to the medical examiner's report, the infant was hospitalized with acute intracranial hemorrhage and retinal hemorrhages. An autopsy revealed the infant sustained a blunt force head trauma resulting in a hemorrhage at the base of the brain and behind the infant's eyes. The report also listed that there was a small contusion found on the scalp. "This represents a case of non-accidental trauma," the report states.
An investigative team comprised of representatives from Phoenix police, medical examiner's office and the Maricopa County Attorney's Office has been looking into the death of Walter since July, according to Ragsdale.
Adriane Hopkins can be reached at (480) 496-0665 or by e-mail at ahopkins@aztrib.com
http://www.signonsandiego.com/news/uniontrib/wed/metro/news_1m4diaz.ht
ml
Prosecutor grilled by defense in baby-shaking trial
By Greg Moran
STAFF WRITER
February 4, 2004
A deputy district attorney was called to testify yesterday in a baby-shaking trial in which a defense lawyer contends that he and a fellow prosecutor hid evidence favorable to the defendant. For about 30 minutes, prosecutor David Hendren answered a series of sometimes pointed questions from attorney Christopher Plourd, who is representing Christina Diaz.
Diaz, the former operator of a home day-care business in Kensington is accused in the death of 4-month-old Cooper Kuznitz. Hendren was the initial prosecutor on the case. It was re-assigned at the end of July to Garry Haehnle, who also is expected to be called as a witness. Hendren is one of five candidates seeking the Superior Court seat opened by the retirement of Judge Richard Haden.
Prosecutors contend the child was shaken violently, causing his brain to swell. The main evidence against Diaz centers on bleeding in the child's eyes, which the prosecution says definitively shows the child was shaken. Plourd told jurors the child died of other, undetermined causes. He said the baby had no other injuries typically seen in baby-shaking cases. Diaz was also a model day care provider who never harmed the child, he said. Hendren was called to testify as part of a hearing held by San Diego Superior Court Judge Robert J. Trentacosta. The jury was in the courtroom.
The hearing involves issues relating to legal discovery, the process in which each side exchanges information about their cases. Plourd filed a motion Monday asking that the case be dismissed because, he said, rules of discovery were violated. He contends that the prosecution hid evidence that by law must be turned over because it could prove his client's innocence.
At issue is evidence from Dr. Alex Levin, who testified for the prosecution last week. Plourd said he never received reports or other information from Levin, a pediatric ophthalmologist, about the case. Plourd said that when he began his questioning of Levin, the doctor produced a thick file of documents and e-mail correspondence between prosecutors, Levin and other doctors about the case. Plourd says the material includes information that could prove his client is not guilty.
Trentacosta is attempting to determine whether there were any violations. He could dismiss the case, eliminate some testimony, find prosecutors in contempt or determine there that was no violation. Plourd wrote a letter to Hendren last March, contending that the prosecutor was not turning over all the information in the case. Hendren testified that he found the letter offensive and that he wrote back asking what it was Plourd was seeking. He said Plourd never replied. Hendren also testified that he had complied with all the discovery rules "to the best of my knowledge."
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Greg Moran: (619) 542-4586; greg.moran@u...
UPDATE!
By Greg Moran
UNION-TRIBUNE STAFF WRITER
June 25, 2004
A jury acquitted the former owner of a Kensington day-care business yesterday of all charges in the death of a 4-month-old boy whom she was accused of shaking to death. The verdict came after two days of deliberations in the second trial of Christina Diaz. The first jury had deadlocked 8-4 in favor of guilt after a controversial trial earlier this year in which a judge chastised prosecutors for not handing over evidence to the defense. Diaz, who steadfastly insisted she was innocent and never harmed Cooper Kuznitz, broke down after the verdicts were read in San Diego Superior Court, her attorney, Christopher Plourd, said.
She was acquitted of assault on a child causing death, and two lesser assault charges. The first charge carried a sentence of 25 years to life in prison. Diaz, 37, has been under a cloud since Dec. 20, 2002, when the baby died after being taken to Children's Hospital after Diaz called 911 to report that he had stopped breathing. Doctors at the hospital concluded that the infant had been victimized by some kind of trauma, probably violent shaking. Cooper died two days after he was admitted. Doctors initially suspected that he had a bruise to the frontal lobe of the brain. But an autopsy revealed no such injury or any other brain trauma.
Prosecutors still charged Diaz, theorizing that in a moment of exasperation she shook the baby violently, causing his brain to swell. Plourd argued at both trials that authorities had rushed to judgment, misread the medical evidence and overlooked other possible causes of death. He presented several medical experts who testified that Cooper had other medical problems, including a blood coagulating disorder, that could have contributed to his death. Those experts said the baby may have succumbed to sudden infant death syndrome, or died of complications from an infection.
For the second trial, Plourd had a laboratory in England test breast milk that the infant's mother had left with Diaz the morning the baby stopped breathing. The tests showed the milk was contaminated with bacteria that produce a toxin in the body, according to Plourd. Jurors appeared to agree. "They thought something was wrong with the child, though no one figured out what exactly it was," said Plourd, who spoke to several jurors after the verdicts. "They thought the idea that there was some infection going on was probably the best" conclusion.
Prosecutor Garry Haehnle could not be reached for comment.
Diaz's first trial was marked by controversy over the tactics of the prosecution, which Plourd accused of hiding information about a key prosecution witness. The witness, Dr. Alex Levin of Toronto, testified that a key medical finding – that Cooper had bleeding in his eyes – proved that the infant was shaken. Plourd vigorously contested that, arguing that the bleeding was caused by other factors, including the blood-coagulating problem.
During questioning by Plourd, the doctor suddenly produced a thick file of notes, e-mails and other materials relating to his work on the case. Plourd had sought such information for more than year, but had been told it did not exist. Eventually, Superior Court Judge Robert Trentacosta ruled that while the information should have been turned over, it was not an intentional error by prosecutors. Diaz, who has been free on $200,000 bail, had numerous character witnesses testify for her. All said she was a caring, considerate day care provider who would never harm a child. Plourd said she will now try to get her life back on track, though what that will involve is still unknown.
"She's not gloating or anything," he said. "She's glad it's over with. It just devastated her life, this whole thing."
http://cbs2.com/localnews/localnewsla_story_083151506.html
Day care provider arrested for allegedly
shaking baby
ASSOCIATED PRESS
10:55 p.m. March 22, 2004
LONG BEACH – A day care provider was arrested after allegedly shaking a 5-month-old girl causing major internal head injuries, police said Monday. Christina Hipp-Taylor, 34, of Long Beach was arrested Friday for investigation of child abuse. She is being held on $100,000 bail and scheduled to appear in court March 29. Taylor runs a day care business out of her home in Long Beach where the baby's parents left her last Tuesday, police Officer Evor Kerr said.
The baby appeared to be sick when her parents picked her up that day and was worse when they picked her up Wednesday, Kerr said. They took her to the hospital the next day. Doctors at the hospital determined the baby suffered blood clots in her head after allegedly being shaken, Kerr said.
http://www.theroyalgazette.com/apps/pbcs.dll/article?AID=/20040323/
NEWS/103230027
Care worker accused of shaking baby
By Eloisa Mayers
A woman charged with shaking a ten month old child nearly three years ago was left to manage her own defence in Magistrates' Court yesterday. Jacquelyn Fubler, who worked at the Noah's Ark Day Care Centre in Southampton, was charged with causing grievous bodily harm to ten month old Stephen Ebbin, on July 6, 2001. The child was out in a coma after suffering "a severe head injury".
The case had been repeatedly adjourned with four trial dates set to allow Fubler, who did not qualify for legal aid, to fund her own defence and obtain an expert medical witness to challenge the Crown's witness.
But yesterday Magistrate Tyrone Chin ordered the case go ahead after telling the court that he wanted some form of closure for all involved. Mr. Chin said Fubler had had plenty of time to "get her
house in order" despite protest from Defence Counsel Leo Mills. Mr. Mills suggested a trial date should be set within another six weeks to allow Fubler proper time to prepare for her defence and to
enable the case to run in accordance with the proper administration of justice.
Mr. Mills said the Magistrate's decision to allow the case to proceed was highly unusual and he questioned how justice could be properly administered if the defendant was unprepared. "It cannot
be done whereby she has to go into battle unarmed and unprotected," said Mr. Mills. Senior Crown Counsel Lloyd Rayney questioned Police Constable Lynn Hollis about the events of July 6, 2001.
P.c. Hollis said she was called to King Edward VII Memorial Hospital at 1.45 p.m. where she saw a child, who she identified as Stephen Ebbin, lying on his back in an unconscious state with a number of bruises on various parts of his body. She told the court how Police took photographs of the baby's body and of the inside of the Noah's Ark Day Care Centre. A red child-sized chair which Stephen was sitting on during the time of the alleged incident was also photographed by the Police as evidence. Inspector Mike Chlebek told the court how he went to Fubler's house on the day of the alleged incident and asked her questions about Stephen's injuries. "She (Fubler) said to me, I will help you any way I can," said Insp. Chlebek. "When I was asking Fubler how he received these injuries she demonstrated to me that the baby had been sitting in a red chair and had fallen out of the chair on two occasions. On the first occasion he felt out the chair and landed on the floor." Mr. Beck said Fubler had notified the mother about the fall, which she said occurred on July 3, several days before the alleged incident. "The second time he had fallen she had left the baby in the chair and when she came back it had fallen down so the two front legs of the chair were up and the baby had hit his head on the pillar behind him," he said. Mr. Rayney asked Insp. Chlebek what position the child was sitting in and the explanation Fubler had given him. "She told me the child went into seizures and as a result she called the ambulance," he said. In the afternoon session of the court, Mr. Mills withdrew from the case, saying that he did not have the adequate resources to question the expert witness produced by the Crown. Mr. Chin responded: "I sit up here and I take my oath seriously to get on with the job. This is a July 01 case and I must press on. Mr. Mills, I understand the costs of private practice and the overheads involved but my concern is that justice must be seen to be done three years on."
Before leaving the courtroom, Mr. Mills, who represents the firm Trott & Duncan said: "This case is about people who are in serious financial difficulty and have been for many years. This is not an offence similar to a traffic violation." With her head bent and a notebook in hand Fubler began to take notes, which she told the court was for her own records. Dr.Alexander Baron, a paediatrician at KEMH, took the stand to give medical evidence telling the court that on the night of July 6, he was called by a physician at the hospital to come immediately to see Stephen, his patient, because he was in a coma and the doctor felt he had sustained a serious head injury. Dr. Baron told the court that Stephen did not react normally when a light was shone into his eyes, and that his upper and lower limbs were shaking uncontrollably. In the early hours of July 7, 2001 Stephen was airlifted to the Children's Hospital of Boston for further care. Dr. Baron told the court that in his opinion Stephen was suffering from an internal brain injury caused by what is commonly referred to as non-accidental trauma or "shaken baby syndrome". In order for a child to suffer from such injuries, Dr. Baron said he would have to be shaken back and forth at a high velocity. "Because their neck at that age is still as weak as a baby's the result would be the bursting of blood vessels in the brain leading to the injuries Stephen had sustained."
After Dr. Baron finished giving evidence Fubler was asked if she wanted to cross examine the witness, to which she declined. "I'm not a lawyer, I half understand all of this because I have two children of my own, but only a lawyer could cross examine a witness because he understands what he is doing," she said. After mumbling to herself "this is a joke" Mr. Chin told Fubler to be careful about what she said under her breath, or she may find herself in contempt of court. "Keep your comments to yourself Ms. Fubler." A Royal Gazette photographer had observed defence lawyer Mark Pettingill trying to get into court to assist Fubler, but he was unable to come to her aid as the front door to Magistrate's Court closes at precisely 5pm. The trial continues today at 9.30 a.m.
Nanny Faces Child Abuse Charges
Police: Victim May Never Fully Recover
Renee Wallisch
POSTED: 4:57 pm EDT April 13, 2004
UPDATED: 5:23 pm EDT April 13, 2004
PITTSBURGH -- A local nanny is accused of severely injuring an infant. The woman was arrested last week, accused of shaking the baby and charged with assaulting the child. The family told Channel 11's Renee Wallisch they trusted the young woman and that she came with impressive credentials. They said that all changed when their baby boy almost died. Three months ago, Pittsburgh police said Sara Miller, 21, (pictured, right) was hired as a live-in nanny for a young couple on the North Side.
But instead of caring for their baby, police said Miller sent him to the hospital with life-threatening injuries. Pittsburgh Police Sgt. Amanda Aldridge said, "He was bleeding from the brain or head (with) hemorrhagic bleeding, similar to shaken baby syndrome." According to police, the infant has since endured two brain surgeries and may never fully recover, suffering irreversible physical trauma inflicted, police say, at the hands of Miller. The Dravosburg native is charged with aggravated assault, endangering the welfare of a child and reckless endangerment.
Police said Miller was placed in the home by a nanny-for-hire firm known as Sterling Domestic Placement. Its Web site boasts extensive background checks and references on all its caregivers before they are recommended for hire. In fact, Sterling representatives told Channel 11 Miller passed a criminal background check with flying colors and provided an impressive work history.
The agency said Miller was a temporary referral and that they received no complaints about her work. Miller is currently out of jail. Tuesday, her attorney asked for a postponement in her preliminary hearing, which had been set for Friday. Shaken baby syndrome happens when a baby is shaken forcibly and causes severe bruising and swelling of the brain. If not treated immediately, it can cause permanent damage
INNOCENT WITH A LIFE SENTENCE?
Bryant Arroyo was wrongfully accused in the death of a baby and was sent to prison where he remains today. Here again we have sloppy work coming out of the Lancaster County PA Medical Examiner's Office and medical evidence which was intentionally withheld from the jury. Evidence (medical proof) withheld which would have served to immediately exonerate Bryant Arroyo. Bryant's attorney took his client's money and then the attorney did not work to represent his client's innocence.
Bryant Arroyo's innocence is represented by Nancy Garcia, a Paralegal and family advocate. Nancy gives the facts in this startling case. Bryant is a U.S. Citizen. He was wrongfully accused in the death of a baby and was sent to prison where he remains today. Here again we have sloppy work coming out of the Lancaster County PA Medical Examiner's Office and medical evidence which was intentionally withheld from the jury. Evidence (medical proof) withheld which would have served to immediately exonerate Bryant Arroyo. Bryant's attorney took his client's money and then the attorney did not work to represent his client's innocence. Dr. Al-Bayati has examined the evidence which was used to incarcerate Bryant Arroyo and has fully exposed the medical facts... and it will shock you! Our medical and judicial system is broken. Please listen as Nancy explains the facts in Bryant's case. We need your prayers and an attorney willing to take on this case and we need funds. We are asking for your help, your donations. If you are willing to help right the wrong done to Bryant Arroyo please contact Nancy Garcia:
P.O. Box 1125
Springfield, Mass 01101
Telephone 1-413-736-6590
Fax: 413.736.6616
Police look into infant's injuries
By Lou Whitmire
News Journal
Alex Congrove is shown here in his hospital bed. Alex was released from Children's Hospital in Columbus on Friday.
Hearing may decide baby's fate
News Journal staff report
AKRON -- An Akron attorney is seeking permission to end to the life of Aiden Stein. Summit County Probate Judge Bill Spicer -- who recently decided a similar case as a right-to-die issue involving a Wayne County infant -- has scheduled a hearing Wednesday at 1 p.m. in Akron. Stein was taken to MedCentral/Mansfield Hospital with serious head injuries March 15 and later transported to Akron Children's Hospital. He is the son of Matt Stein and Erica Heimlich of Mansfield. Akron attorney Ellen Kaforey filed paperwork April 6 asking Spicer to "evaluate the need for and removal of life-sustaining treatment currently being administered."
Aiden suffered severe brain injuries and is being kept alive through life support. The criminal investigation into what caused the infant's injuries continues and is in part reliant on Aiden's fate, authorities have said.
MANSFIELD -- Mansfield police are investigating a second potential case of shaken baby syndrome in less than a month. Medical reports indicate a Mansfield baby hospitalized this month has injuries consistent with shaken baby syndrome, according to Greg Frankenfield, a spokesman for Richland County Children Services. Alex Congrove, who turned 6 months old Friday, was taken to MedCentral/Mansfield Hospital on April 2 by a baby-sitter. He was taken to Children's Hospital in Columbus and was released Friday. Alex Congrove is the second Mansfield infant seriously injured in recent weeks. A 5-month-old boy, Aiden Stein, is on life support in Akron Children's Hospital. Stein was flown to Akron Children's Hospital on March 15 with serious head injuries. Authorities said his injuries are consistent with shaken-baby syndrome and doctors do not expect him to recover.
Frankenfield said there has been no official ruling the Congrove baby's injuries are the result of shaken baby syndrome. He said Children Services is working with the police on the investigation. No one was has been charged with a crime and Mansfield police Detective Jeff Shook did not return calls Monday about the Congrove case. Frankenfield said doctors are uncertain of the baby's long-term prognosis. The baby's mother, Andrea Mitchell, 26, of Mansfield, on Monday was caring for Alex and her three other children. Alex has a twin brother, Aiden, along with siblings Isaac, 2, and Jacob, 9. Mitchell has taken leave from her job in Columbus to care for the baby. "I think (Alex) is happy to be home," she said. "There's a good possibility he will be blind in his left eye. His right eye also has damage."
She said her son apparently suffered a stroke. "It could be one year until they know the outcome of his health," she said. Mitchell said she left for work April 2 at 7:30 a.m. and called home around 9 a.m. Mitchell said the baby-sitter, an adult man, told her Alex was not breathing. She told him to get the child to the hospital. Debbi Sheris, Alex's grandmother in South Carolina, established a fund at Mechanics Bank, 2 S. Main St., Mansfield, Ohio, 44902. She said her daughter does not have insurance for the babies. The twins' father, Ben, is unemployed.
lwhitmire@nncogannett.com
(419) 521-7223
Originally published Tuesday, April 13, 2004
http://www.courier-journal.com/localnews/2004/06/02in/B1-sent0602-4262.html
Man gets 30 years for toddler's death
By HAROLD J. ADAMS
hjadams@courier-journal.com
The Courier-Journal A Corydon man convicted in April of shaking his 2-year-old nephew to death was sentenced yesterday to 30 years in prison. aA Harrison County Superior Court jury convicted Joseph E. Ray, 38, of battery on April 30 in the death of Blake Barger.
Ray, who had been babysitting for his sister-in-law, faced sentences ranging from 20 to 50 years in prison. Emotional testimony in yesterday's sentencing hearing, which lasted for more than three hours, illustrated the way the case has divided surviving family members. Ray's wife, Stacy Ray, argued for the minimum sentence, saying she still doesn't believe her husband killed Blake.
"No one in this courtroom can look me in the face and tell me, over 30 years of life, a man within 40 minutes changed his entire personality." She referred to the time between Blake's being dropped off at her home on Walnut Street on Jan. 16, 2002, and when Joseph Ray called 911 to report that the child was having difficulty breathing. Pointing to the side of the courtroom where her parents and sister sat, Stacy Ray said, "I dare somebody to stand in my face and look me in the eye and tell me that."
But her sister, Michelle Loney, the mother of the dead child, sought the maximum sentence.
"I think that he deserves to spend the whole 50 years in jail, and I hope that the court shows no mercy for him," Loney said. Jerry and Sandra Turner, parents of Stacy Ray and Michelle Loney and grandparents of Blake Barger, argued for the maximum sentence. "It wouldn't hurt my feelings to see him go to prison for 50 years," Sandra Turner said of her son-in-law.
Jerry Turner pointed to the split between his daughters. Addressing his son-in-law, Turner said, "If you did shake little Blake, at least be man enough to be honest with your wife. ... Maybe one day you can be honest with Stacy so we can have our family back again." Michelle Loney dropped Blake off at the Ray home about 8:15 a.m., a few minutes before her sister left for work, leaving Joseph Ray to care for Blake and Ray's two daughters.
Joseph Ray told investigators that he left Blake on a couch and went into another room to get a diaper and returned to find the child on the floor having breathing problems. The Ray girls, ages 2 and 3, were asleep upstairs at the time. Eleven medical experts testified in support of the prosecution claim that Joseph Ray caused his nephew's fatal injuries "by shaking, bouncing, hitting and/or causing blunt force trauma to the head."
Doctors diagnosed the child with massive bleeding of the brain and hemorrhages in both retinas consistent with shaken baby syndrome. The lone defense expert testified that shaken baby syndrome does not exist and that Blake's injuries could be explained by other causes. Judge Roger Davis said the aggravating and mitigating circumstances in the case were roughly equal, which led him to give the "presumptive" or standard sentence of 30 years.
Posted June 02, 2004
Baby hurt in sitters’ care dies
Police hope autopsy, 911 tape aid homicide investigation
By John Leeand Michael King
Post-Crescent staff writers
TOWN OF MENASHA — An autopsy was conducted today on a 3-month-old Appleton boy who died Tuesday of injuries allegedly sustained May 3 at the home of an unlicensed day care provider.
At a press conference this morning, Town of Menasha police identified the victim as Fischer J. Weigelt, born Feb. 23 to a couple whose identity was withheld by authorities.
The Milwaukee County Medical Examiner’s Office performed the autopsy in Fond du Lac. The cause of death was not yet known, but Lt. Doug Jahsman said doctors described the injuries as “consistent with abused/battered child.”
Police said the child sustained a severe head injury while in the care of baby sitters at a home in the 1100 block of Goss Avenue in the Town of Menasha. “No charges or arrests have been requested or made,” said Jahsman, who declined to identify the couple in whose care Weigelt was injured.
Deputy Dist. Atty. John Jorgensen said Tuesday that the case is being treated as a homicide. “We are waiting for some other evidence, not the least of which is the autopsy results,” he said. The audiotape of the 911 call made from the home has been sent to Mid-States Organized Crime Information Center, Springfield, Mo., for enhancement. “There’s voices on the tape and we’re trying to get exactly what was said and who said what,” Jahsman said. Police Chief Rod McCants said the husband, who said the child had fallen off a piece of furniture, apparently made the 911 call.
“We’re taking a better look at the 911 tape to see if there’s any conflict with how it was reported and follow-up statements made by the person involved,” he said. Police were called to the home at 11:26 a.m. May 3. The infant was taken to St. Elizabeth Hospital in Appleton and then transferred to UW Hospital in Madison. Jahsman said the boy was discharged May 18.
“(The parents) brought the child home to die,” Jorgensen said.The Town of Menasha couple was caring for their child and five other children at the time of the incident. The couple is facing a possible charge of operating an unlicensed day care facility. The couple stopped the home baby sitting business the day after the incident, police said.
John Lee can be reached at 920-993-1000, ext. 362, or by e-mail at jlee@ postcrescent.com Michael King can be reached at 920-729-6620, ext. 33, or by e-mail at mking@postcrescent.com
http://www.wisinfo.com/postcrescent/news/archive/local_16352275.shtml
baby had no injuries before placed with foster carers
AAP General News (Australia); 10/14/2003
AAP General News (Australia)
10-14-2003
NSW:Shaken baby had no injuries before placed with foster carers
The New South Wales Supreme Court's heard a toddler who died from a brain haemorrhage while in foster care had no injuries before being placed into care. Thirty-two-year-old LINDA WILSON has pleaded not guilty of murdering the child -- who died three weeks short of his second birthday in May 2001 in Sutherland, in Sydney's south. The Crown alleges the toddler -- who cannot be named -- died of shaken baby syndrome.
Department of Community Services child protection worker JASON MCDONALD's told the court the boy and his three-year-old sister had no injuries when placed in the care of Mrs WILSON and her husband TONY in March 2001. Mr MCDONALD said the boy's natural mother asked DOCS to place all three of her children in foster care because she could not properly look after them. The court was told during his two-and-a-half month stay with the couple, he was admitted to Sutherland Hospital three times for vomiting, diarrhoea and stomach migraines.
AAP RTV klw/kbw/swe/rp
KEYWORD: WILSON (SYDNEY)
© 2003 AAP Information Services Pty Limited (AAP) or its Licensors.
This material is published under license from the publisher through ProQuest Information and Learning Company, Ann Arbor, Michigan. All inquiries regarding rights should be directed to ProQuest Information and Learning Company.
HighBeam™ Research, LLC. © Copyright 2004. All rights reserved.
The Babysitter's Story
LAWRENCEVILLE, GEORGIA, May 7, 2003
Chris Routh, 16, is the kind of kid you’d like to have living next door.
“I don't mean to toot my own horn, but I was a good kid,” he says. “I was an ‘A’ student. I never broke any laws or anything. Never got into any trouble at school. I don’t think I’ve ever lost my temper in my life. I’m a very calm-mannered, very mellow guy.” Now, this mild-mannered teenager is about to find out if he will spend the rest of his life living in prison. His mother, Sissy Routh, says: “I think this was a series of tragedies that fell one upon another. And I think that Christopher happens to be the person who was caught in the wrong place at the wrong time.”
Chris stands accused of sexually assaulting 23-month-old Emily Woodruff, and then shaking the toddler to death. It doesn’t get any worse than that. The fate of Sissy and Charlie Routh’s son rests in the hands of 12 strangers in a jury box. “I try to be as realistic as I can that they may not see it our way,” Sissy says. “But I’ll fight forever to prove that he’s innocent.”
It seemed at the time to be a perfectly safe babysitting agreement between two families. ”I just shudder when any of my friends talk about their children babysitting, because we know what can happen,” Sissy now says. “It can take away your whole life.” Lawrenceville, Georgia, is a picture-perfect small suburban town about 40 minutes outside of Atlanta. Charlie is a professional photographer. Daughter Emily plays soccer on Saturdays. And there’s football for Chris. Sissy runs a children’s clothing store right off the town square. One day, in the Spring of 2000, a mother of two walked into Sissy’s store after seeing a “help wanted” sign in the window. Her name was Kim Woodruff.
Sissy hired Kim for the job, and over time they became friends. “It was almost like a family business, and she was part of the family,” Sissy says. Kim and her husband, Lewis, were raising two toddlers, 3-year-old Hunter and Emily, almost two years old. The Woodruffs felt especially lucky to have these two kids. They’d been through years of fertility problems before Hunter came along. Just three months after that miracle baby, Kim became pregnant again, with Emily.
Like many working families, the Woodruffs had day-care issues. Lewis travels for his job selling paint spray guns. Kim was working full time at Sissy Routh’s store. The Woodruffs needed a babysitter they could trust. They needed someone like Chris Routh. Chris recalls that when Kim asked him if he wanted to baby-sit for her children, he thought, “Well, that’d be pretty neat.” Chris began to baby-sit for the Woodruffs on a regular basis, taking care of Hunter and Emily at the Woodruff’s house. “I love kids,” he says. “I’ve always watched kids and loved being around kids.” Everyone was happy with the way it was working. “I’d watched him interact with them, and they seemed to like him,” Kim says. But then, on July 25, 2001, something terrible happened to Emily Woodruff. In a 911 call, Chris is heard saying, “My 2-year-old’s not breathing. I’m baby-sitting for her and she’s not breathing…”
That night, his parents were watching the 11 o’clock news. It was reported that the police were looking for Christopher Scott Routh, and that he was suspected of murder and child molestation.
The Babysitter Goes To Trial
LAWRENCEVILLE, GEORGIA, May 7, 2003
For a year and a half, the Routh family prepared for the trial, and tried to prepare for the worst. “We could go in there tomorrow and he could be found guilty. And they will take him out of the courtroom and we will never be able to touch him again,” says Charlie Routh. Doug Peters, Chris’ lead attorney, knows that to keep Chris out of prison, he’s going to have to take some big chances. “This is an all-or-nothing case here,” he says. “We have not requested any type of manslaughter or anything like that. He either is guilty of murder or nothing.” For four days, the jury heard from prosecution witnesses — the doctors, nurses and paramedics who treated Emily. They all agreed that she was first sexually assaulted, and then shaken to death.
With medical experts and Emily’s mother making the prosecution’s case, the defense needs to counterattack and decides to make a high-risk move. He calls Chris Routh to the stand. And for the very first time, Chris tells his side of the story, reliving the last day of Emily’s life. In his emotional description of that day, Chris says that he has seen her scratching herself between the legs before, and that she was scratching “really hard” that day. In fact, Emily had eczema. And, the defense says, it was possible that she scratched herself hard enough to cause bleeding, and to make it look like a case of sexual assault. Dr. Joseph Burton acknowledges that no definitive diagnostic evidence contradicts that theory.
Now, the defense must answer the most basic question: how did Emily die? Chris’s lawyers have a surprising theory: They say that a rare brain virus killed Emily. But even more surprising than their theory is whom they get to explain it. Dr. Kris Sperry is the chief medical examiner for the state of Georgia. The defense asked him to look at Emily’s medical records and he agreed to testify for Chris, even though it is his employer, the state, that has brought this case against Chris. Dr. Sperry testified that, in his opinion, Emily’s death was the result of “a natural disease process.” In fact, he said, she died as a consequence of irreversible brain damage.
In addition, he testified, shaking is extremely rare as a cause of severe brain injury or death in children older than six months. He also said, “I find it very unusual that if this child was shaken, that there was no evidence of any bruising on the chest wall, or even any broken ribs.” Finally, he testified that Emily “did not die as a consequence of any abusive or inflicted injuries.” Defense attorney Phyllis Miller hopes Sperry’s willingness to risk his professional reputation will convince the jury that Emily died of natural causes. “Thank God, Dr. Sperry believed that telling the truth was more important than what he might have at stake,” she said.
The new testimony had the Rouths feeling confident. But before the jury reached a verdict, it asked the judge a stunning question. Is it possible for them to convict Chris on count one and not count two, or do they go together? The jury seemed ready to convict Chris Routh on the most serious charge - murder. His parents have heard some harsh words against their son in the nearly two-week trial. But they’ve never believed that he had anything to do with the tragic death of Emily Woodruff. Now, the opinions of 12 jurors are all that matters. The jury deliberated for just eight hours. Chris was found not guilty of all counts. For the Routh family, it was a welcome verdict and an expensive one. Chris’ defense cost them nearly $400,000 dollars. But at this moment, freedom is priceless.
“It felt like a million pounds had just been pushed off from me,” says Chris. “I could just feel all that stress and all that pressure just shroooom! It went right out.” It was not a verdict the Woodruffs were prepared to hear. They’ve lost their daughter forever. They still feel that Chris somehow had something to do with their daughter’s death. “I believe what I believe about what happened,” Lewis says.
Two years ago, Chris was a normal kid living a normal life.
Now he’s trying to piece that life back together. The first step: removing the ankle monitor he’s had to wear the past four months.
Then, it’s driving lessons with Mom.
And finally, the biggest step of all - Orientation Day at high school.
Chris is 16 now, and tomorrow he’ll join the class of 2005 as a sophomore.
“I cannot wait,” Chris says. “Tomorrow marks the beginning of my normal life again. I hope!”
TOLL OF SHAME: RECENT SHAKEN BABY CASES
Wisconsin State Journal; 3/20/2000; Jason Shepard The Capital Times
Wisconsin State Journal
03-20-2000
TOLL OF SHAME: RECENT SHAKEN BABY CASES
Byline: Jason Shepard The Capital Times
Edition: All
Section: Local/State
A number of other shaken/impact baby cases in the past seven years in Dane County have resulted in either death or serious injury.
SERIOUS INJURIES:
November 1993 - Kyla Boebel, 10 months old, suffered severe injuries that a doctor described as being equivalent to a severe car accident. Donald McKinney, the husband of Kyla's baby sitter, was convicted in November 1994 of intentionally causing bodily harm to a child and was sentenced to five years in prison.
March 1996 - Ryan Gist, 11 weeks old, was rushed to the hospital with seizures; doctors found bleeding around his brain and eyes. Baby- sitter Vicki Olson was charged with reckless physical abuse of a child but the District Attorney's Office dropped charges against her a week before she was scheduled to go to trial, citing differences in expert medical testimony. No one has since been charged.
November 1996 - Colton Derrick, 2 months old, was left blinded and portions of his brain were destroyed. Stephen Jensen, Colton's father who cared for the boy on alternating weekends, was convicted of child abuse and first-degree reckless injury. He was sentenced to 16 years in prison. His case remains on appeal with the Wisconsin Supreme Court.
July 1997 - Demetris Mathes, 7 months old, was discovered with severe head injuries after his mother left him with her boyfriend, Calvin T. Buckner, while she went grocery shopping. Dr. William Perloff, an expert in shaken-baby syndrome, said at the time, "If the baby doesn't die, it is extremely likely it will suffer lifelong devastating injury if it survives." Buckner pleaded no contest to intentionally causing bodily harm to a child and was sentenced to 54 months in prison.
November 1998 - Brett Cochrane, 3 months old, was brought to the hospital and was difficult to wake up, had a bulging soft spot on his head and was lethargic and dehydrated. Authorities say Brett has since shown improvement but will likely suffer some developmental impairments. Police suspected Brett's parents but filed no criminal charges against them, instead going to juvenile court to place Brett in foster care, where he now lives.
DEATHS:
October 1995 - Natalie Beard, 7 months old, died from what doctors said was violent shaking. Baby-sitter Audrey Edmunds was sentenced to 18 years in prison after being convicted of first-degree reckless homicide.
July 1998 - Michell Aguilar Santibanez, 11 months old, arrived at University Hospital with extensive hemorrhaging in the back of her eyes and fresh blood in the brain. Olga Juares-Guiteres, who was baby- sitting Michell at the time doctors said the injuries occurred, was sentenced just this month to 15 years in prison for the death.
March 1999 - Nina Marie Allen was severely beaten and died. Baby- sitter Adrian Mosby was sentenced to 45 years in prison after he was convicted of first-degree reckless homicide.
(Copyright (c) Madison Newspapers, Inc. 2000)
This material is published under license from the publisher through ProQuest Information and Learning Company, Ann Arbor, Michigan.
All inquiries regarding rights should be directed to ProQuest Information and Learning Company.
HighBeam™ Research, LLC. © Copyright 2004. All rights reserved.
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Jurors find sitter not guilty in shaken-baby case
By MIKE WELLS of the Tribune’s staff
Published Friday, June 4, 2004
Boone County jurors deliberated three hours yesterday before returning a not guilty verdict for an Auxvasse baby-sitter accused of shaking a 3-month-old vigorously enough to cause a brain hemorrhage.
Even with testimony from four University Hospital doctors who treated Matthew Zuroweste on Dec. 3, 2002, Callaway County prosecutors couldn’t convince jurors that Janet L. Moore, 32, was responsible for an injury brought on by shaken baby syndrome. The case was moved to Boone County on a change of venue.
Moore, who is no longer a child-care provider, was charged with first- and second-degree assault and endangering the welfare of a child.
Callaway County Prosecuting Attorney Bob Sterner expressed disappointment in the verdict. "It’s done," he said. "She’s free. She’s legally innocent, despite the evidence of the four treating doctors."
Defense attorney Doug Hennon of Jefferson City said it was Moore’s testimony that won the case. "She, of course, didn’t have to testify in a criminal case," he said. "But I think the jury needed to hear from her." Hennon said Moore’s account of what occurred at her day care was consistent with the case evidence, and that a number of reasonable medical explanations exist for what was wrong with the child.
When the child first came to the hospital, doctors didn’t notice he had bled previously at the location of the hemorrhage, Hennon said. "We don’t know what happened or when," Hennon said. "It could have gone all the way back to birth, and this child was never abused by anybody." In the state’s closing argument, Assistant Prosecutor Carol England said it was not a case of overzealous doctors who sounded the alarm for Shaken Baby Syndrome. "If anyone hit the ‘on’ switch, it was the defendant when she picked up that baby and shook him," England said.
The baby’s parents, Kevin and Lori Zuroweste of Auxvasse, continue to take him to a neurologist for follow-up care, she told the jury. "Doctors are not certain about long-term prognosis," she said. "He’s too young to know."
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Reach Mike Wells at (573) 815-1720 or mwells@tribmail.com.
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'Obvious' errors cited in murder conviction
By John Wilkens
STAFF WRITER
June 12, 2004
Attorneys seeking to free a San Diego man convicted of killing a 2-year-old boy in 1983 have filed a new batch of declarations from doctors arguing that the child was injured in an accidental fall, not a beating. "The errors and misjudgments in Kenneth Marsh's case seem painfully obvious, with the advantage of hindsight," wrote Tracy Emblem, his lead attorney, in a petition accompanying the declarations. "Convicted by the jury, exonerated by science."
The new paperwork says that "false medical testimony born out of a zeal for child abuse prosecutions" doomed Marsh at his trial. In the years since, advances in the understanding of head trauma and falls prove much of the testimony was inaccurate, according to the declarations.
The District Attorney's Office, which has opposed earlier motions to overturn the conviction because "the evidence of guilt remains overwhelming," is reviewing the petition. Prosecutor Steve Carr said he had seen nothing so far that would make the office change its mind.
Marsh, 49, was convicted of second-degree murder in the death of Phillip Buell, the son of his girlfriend. He is serving a sentence of 15 years to life at the Richard J. Donovan Correctional Facility in Otay Mesa.
On the morning of April 27, 1983, Marsh was watching Phillip and the boy's younger sister. He told police the children were playing on the living-room couch and he was in the master bedroom when he heard a crash. He said he found Phillip unconscious on the floor in front of the brick fireplace hearth.
The boy died the next day. Homicide detectives said the evidence at the scene was consistent with a fall, but doctors at Children's Hospital disagreed.
They said it would take a fall from a multistory building to cause the head trauma Phillip suffered, making it more likely he was beaten. Marsh was arrested. At trial, the defense called no experts to contradict the medical testimony.
In the new declarations, filed Monday, five physicians and a biomechanical engineer said they believe Phillip's injuries are consistent with a short fall, especially since the boy may have had a bleeding disorder that contributed to his death. "Were I to have performed the autopsy today, given the history and scene evidence, I would have classified Phillip's death as an accident," wrote Dr. Janice Ophoven, a pediatric forensic pathologist from Minnesota.
The declarations were prepared in support of a writ of habeas corpus, originally filed by Emblem and attorneys with the California Innocence Project in October 2002. In response papers filed in July, prosecutors said Marsh is "guilty beyond a reasonable doubt of murdering" the boy. They included declarations from three medical examiners who said they had reviewed the records and agreed with the 1983 findings that Phillip's injuries were inflicted.
Marsh's habeas writ – the second his attorneys have filed – now goes to San Diego Superior Court Judge David Gill for review.
Sentence in child's death set for appeal
By Michael Zeigler
Staff Writer
(July 9, 2004) — Prosecutors will ask an appeals court to reconsider a decision that shaved 10 years off the prison term of a Greece baby sitter who fatally shook a 2-year-old girl. The Monroe County District Attorney's Office will argue that Rene S. Bailey, who was convicted of second-degree murder in the death of Brittney Sheets in 2001, didn't request a sentence reduction in appeals papers, District Attorney Michael C. Green said Thursday.
“It also was never raised in the oral argument before the court,” Green said. “It's our position that we never had the opportunity to give the court the relevant facts.” Green's office also will argue that reduction was wrong. “A jury sat there and listened to the testimony and convicted her of murder,” he said. “The trial judge listened to all the facts and circumstances of the case … and felt that 25 years to life was appropriate.”
Bailey's appellate lawyer, Assistant Public Defender James G. Eckert, couldn't be reached for comment. Pam Nagel, Brittney's maternal grandmother, said the girl's family supports the request of the District Attorney's Office. “It's very, very disheartening to go through the trial and have the decisions made and know that the appellate court can just undo a sentence that's already been done,” Nagel said. Her family has collected 1,600 signatures on petitions that ask the Appellate Division to reconsider. About 1,200 of those signatures have been collected on a Web site.
In a decision June 14, a five-judge panel of the Appellate Division affirmed Bailey's conviction but reduced her term to 15 years to life after ruling that the sentence of 25 years to life was too severe.
If the decision stands, Bailey, now 44, will be eligible for parole in 2017 instead of 2027. She's an inmate at Bedford Hills Correctional Facility in Westchester County. Brittney suffered a head injury on June 6, 2001, at a licensed day care center in Bailey's home. Brittney died the next day. Bailey said Brittney fell off a chair and hit her head on a carpeted floor. But three prosecution experts testified that the amount of bleeding found in the girl's brain and retinas could have been caused only by shaken baby syndrome.
MZEIGLER@DemocratandChronicle.com
http://www.democratandchronicle.com/news/07093T4RSHL_news.shtml
Posted on Fri, Jul. 30, 2004
Doctors testify baby shaken
Day-care provider on trial in death of 9-month-old boy
BY SHANNON PRATHER
Pioneer Press
Five doctors called to testify by prosecutors were unwavering in their diagnoses that violent shaking caused the bleeding in 9-month-old Vance Johnson's brain and ultimately led to his death.
Their testimony bolstered the Dakota County attorney's case against Apple Valley day-care provider Dianne Scribner, who is standing trial on a charge of second-degree murder in Vance's death in February 2003. Prosecutors continued to put doctors on the stand Thursday afternoon and will call more today.
A pediatric neurosurgeon, radiologist, intensive care doctor, eye surgeon and the Hennepin County medical examiner all examined Vance and agreed that the baby suffered from what one doctor called "abusive head trauma" — better known as shaken baby syndrome.
Vance's injuries were so severe that almost immediately after the shaking, he would have lost consciousness and would have been unable to hold a bottle, coo or sit up, doctors said.
Intensive care physician Ken Maslonka said he suspected shaken baby syndrome "from the minute I examined him."
"I felt he suffered a traumatic brain injury that most likely was from a violent shaking," Maslonka testified. "I could not think of another clinical situation that would explain that trauma."
Maslonka, with Children's Hospitals and Clinics of Minneapolis, said he considered all other medical possibilities for Vance's injuries, including sudden infant death syndrome, and concluded that nothing else fit with the brain and eye bleeding the baby suffered.
It would be very difficult for a 9-month-old to suffocate in a crib, said Maslonka, explaining that the baby was old enough to roll around and move blankets and other items that might obstruct breathing.
Prosecutors have no eyewitnesses but say the jury can convict on the strength of the medical testimony. Vance's parents have been eliminated as suspects.
When Vance and his twin brother, Vaughan, arrived at Scribner's home day care at 8 a.m. on Feb. 11, 2003, Charlene Johnson testified that her son was alert — babbling "dada" and fussing about his snowsuit. She said he was sitting in the play area when she left.
The baby stopped breathing and his heart stopped about an hour later in Scribner's care. Scribner, a day-care provider for 25 years, called 911. By early afternoon Vance's injuries were so severe that he was virtually brain dead, doctors at Children's Hospital testified. Vance didn't respond to pain or a doctor touching his eyes. Scans of his brain showed bleeding.
Thursday morning, neurosurgeon Michael McCue said he examined Vance and determined that he suffered from "non-accidental trauma."
"The constellation of injuries means it was inflicted," said McCue, adding that he's seen numerous cases of shaken baby syndrome in Minneapolis and at a children's hospital in Boston where he worked.
Eye surgeon George Miller testified Wednesday afternoon that after examining Vance's eyes he concluded: "This particular pattern of hemorrhaging can only be caused by shaken baby syndrome — I would add with a degree of medical certainty. It would be contrary to all my experience that this would be caused by something else."
Radiologist Richard Patterson examined scans of Vance's brain.
"The findings are highly suspicious for abusive head trauma," Patterson said. "This would be a particularly striking case."
Minneapolis defense attorney Douglas Olson tried to cast doubt on the diagnoses, asking doctors why, if Vance was violently shaken, he didn't suffer neck injuries, bruising or other signs of external injury. But Patterson said the lack of bruising and broken bones made him more confident.
"It's more useful for my interpretation to not find it than to find it," Patterson said.
Defense attorneys promised jurors during opening statements that they would call three medical experts who would cast doubt on the shaken-baby diagnosis and the prosecution's timeline indicating that Vance must have been injured in Scribner's care. Autopsy results showed that Vance had suffered from a previous head trauma, since healed. Olson said that made the baby "fragile."
Scribner, 57, will also take the stand in her own defense, where she's expected to testify that she found the baby gray and not breathing in his crib. If convicted, state guidelines recommend a sentence of 12½ years in prison for someone with a clean record.
http://www.twincities.com/mld/twincities/
news/local/9305679.htm?ERIGHTS=
7399910756451648108twincities::spcp4u@netzero.net
&KRD_RM=5onnmqssutmrtqqqllllllllnq|c|N
Posted on Tue, Aug. 03, 2004
Old injury linked to baby's death
Pathologist says tot 'in trouble for weeks'
BY SHANNON PRATHER
Pioneer Press
An old brain injury, not a violent shaking at the hands of a day-care provider, likely caused 9-month-old Vance Johnson to stop breathing and die a day later, a forensic pathologist told a jury Monday.
Dr. Janice Ophoven testified in defense of Dianne Scribner, the Apple Valley day-care provider on trial for Vance's death in February 2003. Ophoven, a paid expert, said the Hennepin County medical examiner was incorrect when he ignored a weeks-old injury found on Vance's brain during autopsy and concluded the baby died from a severe shaking.
"This baby was in trouble for weeks before Feb. 11," Ophoven said. "The brain had suffered serious trauma weeks before." Ophoven explained to the jury that the entire theory of "shaken-baby syndrome" she and the medical community once believed true is now the center of a serious controversy. "There is a place where evidence is telling us to start over on this theory," said Ophoven, citing several studies that call into question the shaken-baby diagnosis.
No witnesses claim to have seen Vance being shaken. The Dakota County attorney's office is relying on physicians to make its case against Scribner. Last week, prosecutors called six medical doctors who said there was little doubt Vance suffered serious injuries and stopped breathing immediately after being violently shaken. Vance's mother had dropped off a fussy Vance and his twin brother, Vaughan, at Scribner's home about an hour before the day-care provider called 911 reporting a baby had "passed away."
The defense is expected to call three doctors, including Ophoven, to dispute the diagnosis and the prosecution's timeline that Scribner is the only one who could have inflicted the fatal injuries. The 11-man, one-woman jury, which could start deliberations this week, will be sent back to the jury room to weigh more than a dozen medical journal articles entered as exhibits as well at its own notes full of complicated expert testimony. Ophoven, an assistant medical examiner in St. Louis County and an outside consultant who bills her time at $300 an hour, said Monday she examined Vance's complete medical record, including the autopsy report.
The baby had an "enlarged head" at a doctor's visit three months before his death, Ophoven found. Autopsy results uncovered a previous brain injury that had resulted in internal bleeding but was healing. Ophoven described the old injury as "potentially lethal." At the same time, the autopsy found no external bruising or neck injuries that would show Vance's head had been hit or whipped around.
Vance's brain died from lack of oxygen after he stopped breathing, Ophoven concluded. She said she could not determine why Vance stopped breathing but said the old injury "put him at risk." Ophoven added that if she were conducting the autopsy, she would describe the manner of death as undetermined. All the symptoms that doctors for the prosecution said proved shaking — including eye hemorrhage, brain swelling and bleeding of the brain — could have been caused by the previous brain injury and efforts to revive Vance the day he stopped breathing, Ophoven said.
Tragedy - no money for defense - caregiver UT
Attorneys Withdraw From Murder Case
Aug. 3, 2004
FARMINGTON, Utah (AP) -- Attorneys for a woman charged with murder in the death of a toddler she was babysitting have withdrawn from the case, citing financial reasons. Raynette Marian Olsen, 31, formerly of Layton, appeared at a hearing Monday with attorneys John T. Caine and Bill Morrison. Olsen's family has attempted to come up with funds to pay the private attorneys. "I feel really badly (about withdrawing)," Caine said. "I normally don't withdraw from cases, but economics were involved and the funding for the defense has not been met."
The judge will assign a public defender.
Olsen is charged in the death of 20-month-old Jordyn Marie Parker, whom she was baby-sitting Sept. 26, 2002. Olsen called 911 and reported the child was having medical problems but then told dispatchers she was taking the child to the hospital. After Jordyn Marie arrived at the hospital, she was transported to Primary Children's Medical Hospital, where she died the following day. Authorities said the child's death was due to Shaken Baby Syndrome. "Raynette has maintained her complete innocence through this whole thing," Caine said. Olsen was declared indigent in April 2003, and the state has paid for her defense expert witnesses.
(Copyright 2004 by The Associated Press. All Rights Reserved.)
Jurors explain acquittal
Medical issue confusing; malicious act unproven
BY SHANNON PRATHER
Pioneer Press
While Apple Valley day-care provider Dianne Scribner stood trial for murder, as many as 10 doctors rattled off conflicting theories loaded with medical jargon to explain how 9-month-old Vance Johnson died. So when the jury, which ultimately acquitted Scribner, was finally asked to deliberate Thursday afternoon, juror Ronald Lasker said he largely ignored the medical testimony."You had to throw all the medical testimony out. None of the jurors understood the medical testimony," said Lasker, vice president of sales for Worthington Aviation in Eagan. "None of the jurors was a doctor, and you have conflicting testimony."
The two sets of dueling doctors looked at the same injuries — bleeding around the brain, eye hemorrhaging and brain swelling — and reached different conclusions. That left jurors with the impression that a great debate raged in the medical community over what Harvard and University of Minnesota doctors said Friday was the well-accepted theory of shaken-baby syndrome. The prosecution's doctors concluded Vance died of head trauma in February 2003 due to violent shaking while in Scribner's care. Defense doctors, who looked at Vance's medical records and found no bruising or broken bones, said a previous head injury could have led to his death."There was so much of it. We were all laypeople. It was really confusing," said juror Homer Dredge, a Hastings resident who works in retail.
So bewildered jurors zeroed in on what they could understand: Scribner's testimony that she didn't harm Vance and a juror's own experience with an infant's death discussed in the jury room. "I thought it was really tough for her to get up there and do that," Dredge said. "In my heart, I couldn't imagine this woman doing that. I think a lot of us felt that way." It took the 11 men and one woman on the jury five hours to acquit. Dakota County prosecutors, who had no eyewitnesses, never proved that Scribner was trying to maliciously punish Vance, jurors said. That was a required element of the crime. Instead, jurors said it seemed as though doctors and prosecutors jumped to conclusions too quickly, noting that an hour after Vance died at the hospital, doctors had labeled it a homicide. "It was almost like a witch hunt right from the beginning. There were no marks, just the medical testimony she must have done something," said Lasker.
Lasker said one of his five children died of sudden infant death syndrome 40 years ago. He shared that experience with the other jurors while deliberating. "Most jurors felt something happened there. Did she put the kid down wrong? Did she put him on his back? Did he spit up and choke on his milk that morning? But she didn't do anything violent because there were no marks on the body," Lasker said. Both Lasker and Dredge said they did take away one conclusion from all the medical testimony. They're now no longer sure shaken-baby syndrome is a legitimate diagnosis. "Today with the rush to judgment, maybe that's wrong," Lasker said
Outside the vacuum of the Hastings courtroom, pediatricians and teaching doctors affiliated with Harvard and the University of Minnesota said shaken-baby syndrome and abusive head trauma in infants have been well-accepted theories for 20 years. Virtually every medical school in the country teaches the shaken-baby diagnosis as a "well-accepted medical theory," said James Nixon, an assistant professor at the University of Minnesota Medical School who oversees pediatric education for second and third-year students. Doctors said the injuries Vance suffered are classic symptoms of shaken-baby syndrome. "It's clear to the American Academy of Pediatrics this is a true medical diagnosis," said Alice Newton, a pediatrics instructor at Harvard Medical School. "Because of the implications for families and caretakers, it's a controversial field not only because it involves medicine but the legal world quite often."
Newton said defense attorneys in child death trials across the country are hiring doctors like the ones who testified in Johnson's case to cast seeds of doubt. "There is a small subset of physicians who are known to testify mostly for the defense and who have a subset of unusual and not scientifically supported defense techniques they use," Newton said. But Scribner's defense attorney, Douglas Olson, said the public shouldn't discount defense doctors' theories, pointing out that one neurosurgeon who testified in Scribner's defense did it for free. "There are many knowledgeable doctors who dispute what is viewed as accepted dogma among members of the medical community," Olson said. "This woman is innocent and never harmed this child. That's why this whole theory needs to be reconsidered." Marjorie Hogan, a pediatrician and a member of the University of Minnesota's child-maltreatment physician consult team, said she and other Twin Cities doctors closely followed Scribner's trial. Hogan called the acquittal dismaying. "There is real concern in the pediatric and child-abuse communities about some of the testimony presented at trials from these experts that, in fact, it may be misleading," Hogan said. "You can inject enough doubt in a juror's mind. The confusion is very understandable."
Shannon Prather can be reached at sprather@pioneerpress.com or 651-228-5452.
August 11, 2004
SAN DIEGO — A San Diego man imprisoned for 21 years for the killing of a 2-year-old boy was freed Tuesday after a recent review of medical evidence raised doubts about the case. Prosecutors said last week that Kenneth Marsh, 49, deserved a new trial because the evidence cast doubt on whether the boy, his girlfriend's son, was a victim of child abuse. "He'll be seeing the stars tonight for the first time in 21 years," Marsh's attorney, Thor Emblem, said after a judge Tuesday set aside Marsh's conviction.
Dist. Atty. Bonnie Dumanis must now decide whether to retry the case. She opposed efforts two years ago to set aside Marsh's conviction, but changed her mind after she hired an independent forensic pathologist to review the case. Marsh has always maintained his innocence, and the boy's mother, Brenda Buell Warter, has supported him. He told police he was baby-sitting when he heard a crash from another room and found Phillip in front of a brick hearth. Detectives determined that the boy died from a fall, but doctors from Children's Hospital said he was beaten.
Marsh left Donovan Correctional Facility in San Diego on Tuesday night.
By Greg Moran
UNION-TRIBUNE STAFF WRITER
September 19, 2004
EARNIE GRAFTON / Union-Tribune Life as Christina Diaz knew it ended Dec. 18, 2002, when she was accused of shaking a baby boy to death at her Kensington day care. She endured two jury trials before being acquitted.
She was always good with children.
That was the one thing about Christina Diaz everyone agreed on. She had a smile for the playful ones, a hug for the crying ones, patience with the fussy ones.
She built a small in-home day-care business around that sympathetic nature over the course of a decade and thought it would be her life's work.
"I always thought I would get gray hair and retire doing day care," Diaz, 37, said recently.
But that all came to a crushing end on Dec. 18, 2002, when she was accused of just about the worst thing she could imagine: killing a baby that had been left in her care by violently shaking the child to death.
It would take nearly 18 months and two grueling trials for Diaz to emerge from her nightmare. In June, a jury acquitted her in the death of 4-month-old Cooper Kuznitz.
Diaz walked out of the downtown courthouse that day with her freedom returned. But on Thursday, in an unusual move, she will go back inside those halls and ask for something more.
She wants Superior Court Judge Robert Trentacosta to declare her factually innocent. Such a move – rarely successful – would seal her arrest records forever.
From the very beginning, Diaz maintained she never harmed the child. She turned down offers to plead guilty to a lesser charge, according to her lawyer, Chris Plourd. And she repeatedly volunteered to take a lie-detector test administered by police but was rebuffed.
Prosecutors plan to oppose the request. Deputy District Attorney Garry Haehnle, who prosecuted Diaz, maintains that even with her acquittal, she does not meet the legal criteria for being declared innocent.
Catherine Kuznitz, Cooper's mother, declined to be interviewed for this story, saying she was too distraught to discuss the case.
EARNIE GRAFTON / Union-Tribune Returning to the Kensington home where she ran her business, Christina Diaz, 37, said that even though a jury found her not guilty, she will never provide day care again.
Diaz's trials featured fiercely debated medical testimony about how Cooper died, and the scientific and legal debate over shaken-baby deaths. At the same time, her case was buoyed by an extraordinary network of friends, neighbors and parents of the children she cared for who came to her defense.
She said she will never provide day care again. But before Diaz starts anew, there is something she feels she needs to fight for: her reputation.
A baby dies It began a week before Christmas, right around 3:15 p.m. Diaz had just finished a lengthy phone conversation four minutes earlier with her sister, Patti, about plans for the holiday.
Cooper had been in Diaz's day care for about three weeks, and Dec. 18 was supposed to be his final day with her.
As she hung up the phone, Diaz had no inkling this would also be her last as a day-care provider.
She noticed the infant was not breathing normally in the car seat in which she had placed him for his nap. She picked him up, and he went limp. She called 911 and began CPR.
Paramedics rushed the baby – who had no visible injuries or trauma – to Children's Hospital, arriving about 3:40 p.m. Meanwhile, a stunned and shaken Diaz sat down at her Kensington home with two San Diego police officers who had come in response to the emergency call.
They would stay there for seven hours, talking to Diaz while doctors at the hospital worked on Cooper.
The baby had no pulse and was not breathing on his own. He was given CPR, intubated with a breathing tube, and he had a slew of drugs and fluids pumped into him.
Doctors found Cooper had a high blood-sugar reading and very high potassium levels. And there was one other finding about his body chemistry that would later become an issue in the trial: The child had a severe blood-clotting problem.
A CT scan showed that Cooper's brain was clearly swollen. And Dr. Bradley Peterson, an experienced doctor who was the admitting pediatrician, believed he saw something more ominous.
Reading the scan with a radiologist, Peterson said there appeared to be a frontal lobe contusion, a bruise on the front of the brain.
But the key finding was this: An eye exam using a device called an ophthalmoscope showed that Cooper had bilateral retinal hemorrhages – bleeding in the eyes.
Medical debate Even as they stabilized the child, doctors at Children's Hospital were arriving at a conclusion about what had happened. The swollen brain and bleeding eyes were the result of trauma, they concluded. Cooper Kuznitz had been shaken, violently, and was going to die.
The baby was taken off life support Dec. 20. Shortly afterward, the charges against Diaz – who was arrested the night of Dec. 18 as Cooper lay in a coma – were changed from attempted murder to assault on a child causing death. If convicted on the new charge, Diaz faced 25 years to life.
The report from the Dec. 22 autopsy confirmed the retinal hemorrhages, as well as small injuries to the neck and spinal cord. It also said Cooper had no other known medical problems and noted no other injuries. No bruises, no broken bones.
Police reports state that a sergeant informed detectives, in a briefing at the hospital Dec. 18, that doctors had said Cooper was bleeding "from the frontal lobe area." Peterson would later testify he could not remember saying such a thing to police. Moreover, he testified during the trial that the frontal lobe bleeding was not an important factor in his conclusion that the child had been shaken.
Plourd, Diaz's lawyer, would argue in court that this was the first in a string of police and medical misjudgments that led to Diaz's prosecution. He said erroneous information was key in framing the case as a homicide, crowding out other possible reasons why the child died.
But Haehnle dismissed those suggestions.
"The fact is a number of highly qualified doctors came to the conclusion it was an intentional act that caused the injuries to this child," he said in a recent interview.
Plourd hired his own pathologists to review the medical records. They dismissed the conclusion that the baby had been shaken, pointing to several factors.
Cooper did not have some of the injuries associated with shaken-baby deaths, such as broken ribs and "grab marks" on his body. Another injury often seen in such deaths – the tearing and shearing of "bridging veins" in the brain as it is slammed from side to side – was not there.
He also had no subdural hematomas, a pooling of blood in the brain. Finally, Plourd's experts argued that the bleeding in the eyes was not caused by the head being violently shaken back and forth.
In the contentious area of shaken-baby death cases, the theory that retinal bleeding is nearly always indicative of a shaking event is hotly debated.
"It's like trying to diagnose a heart attack with one symptom," said Dr. Jan Leestma a neuropathologist from Chicago and an outspoken critic of many shaken-baby diagnoses. "Yes, you could be right, but it could be many other things."
Retinal bleeding without brain injuries or any other hallmarks of shaken-baby deaths was not enough to conclude the child had been assaulted, Plourd's experts said.
They posited other reasons for Cooper's death. Dr. Victor Weedn, a pathologist and research scientist at Carnegie Mellon University, said the baby died from a "near-SIDS" event. Sudden infant death syndrome is the medical term used to describe the inexplicable death of seemingly healthy babies during their first year of life.
He said the bleeding in the eyes likely resulted from CPR efforts, as pressure from the chest was transmitted to blood vessels in the retinas. Cooper's blood-clotting problem and the fact that at one point his lungs were hyperinflated as doctors fed oxygen to his brain could have caused the hemorrhages, Weedn said.
The defense experts argued that the head and neck injuries were caused by swelling in the brain that pushed down on the spinal cord and neck. Weedn said the injuries were "isolated" and could not be the result of a massive, traumatic shaking episode.
Yet every defense expert was countered with a prosecution claim. For example, Haehnle said after the trial, not all shaken-baby cases have rib fractures. And, he said, he has prosecuted other cases with retinal bleeding, but no brain injuries.
Dr. Cynthia Kuelbs of Children's Hospital said she ruled out a SIDS deaths because SIDS babies don't have retinal bleeding. Other experts said the extent of the blood in the eye could have been caused only by a shaking event.
As would become evident during Diaz's two trials, the medical evidence would be fiercely debated among experts.
Strong support After Diaz was arrested, she spent 10 days in jail before her parents tapped the equity in their Olive Street home in North Park to bail her out.
Almost as soon as her arrest became known, a network of neighbors and friends began to mobilize to support her. Diaz had lived on Olive Street most of her life, starting to care for children at a house next to her parents. She got her state license in 1993, and – with the exception of a minor housekeeping violation in 1999 – had a spotless record with licensing authorities over the years.
"She was caring for her second child with some families, and one mother was about to put her third child with Christina," said her mother, Mercedes Diaz.
Several parents testified at the trials on Diaz's behalf.
"She was patient, she was very structured, and she knew how to handle the children," said Mike Kull of San Diego. His two children were in Diaz's day care, and both he and his wife testified on her behalf during the trials.
"There was never a single doubt with us about Chris and her ability with children," Kull said. "It was not within her to do that to a child."
As the case headed to the first trial, supporters organized fund-raisers to defray some of the mounting costs. They rented out the La Mesa Recreation Center for one event featuring a band and silent auction, said Grady Dutton, a former Olive Street neighbor whose child was in Diaz's care.
Auction items included pedicures, a handmade quilt and two home-cooked dinners for four, Dutton said. About 100 people showed up, and while the money that was raised helped, Dutton said the emotional support Diaz got as the trial loomed was just as important.
Diaz tried to keep busy, but it was difficult at times. She had never been to the courthouse, let alone ever involved in a case. And now her future hung in the balance.
"I imagined the truth would prevail, but I didn't know how," she said. "I thought some magic point would come out, and then all these people would see I did not do this."
But that moment was months away.
'Is it really over?' Two juries sized up Diaz, struggling through the ping-pong of testimony from dueling medical experts, in two trials this year. Both were marked by moments of controversy.
During the first trial, which began in January, prosecutors were accused of not turning over to the defense key information from an expert witness. Plourd said he had requested the information for more than a year.
While the judge ultimately ruled that the error was not intentional, he told jurors about the violation and said they could give whatever weight to it they wanted. After several days, the panel was unable to reach a verdict, deadlocking 8-4 in favor of a guilty verdict.
"I believe what we had here was doctors misdiagnosing something, and two hours later the detectives are in on it," said juror Renee Stern. "I don't see how she did it."
Diaz said she and her family were deflated when prosecutors decided to retry the case. What more could be done? But despair soon turned to resolve. A second trial, Diaz concluded, was a second chance to be cleared.
Again, neighbors and friends rallied, and the family slowly became more determined.
"We just did not entertain any thoughts that she would not be exonerated," her mother said.
The second trial began in May. It was largely a replay of the first, but Plourd was able to introduce one intriguing piece of new evidence.
Laboratory tests on some of the breast milk from Cooper's mother revealed the presence of a bacteria that can produce an infection, said Dr. Harry Bonnell. Bonnell, a former deputy medical examiner in San Diego – who was fired in 2001 for reasons that were not made public – testified for the defense in both trials.
The finding backed up Diaz's observations that Cooper hadn't been eating and wasn't feeling well before the incident, the jury was told. In an interview after the trial, Bonnell said it could have been the cause of a toxic infection which may have triggered the fatal sequence of events for Cooper.
Haehnle scoffed at that notion. He said there was never any indication the child had been fed the breast milk the day he died, and that the levels found in the test were too low to cause serious harm.
But the finding was one more bit of doubt cast on the case. On June 24, after deliberating a couple of days, word came: The jury had a verdict.
Diaz remembers that time as "the longest 20 minutes of my life." She remembers Plourd telling her that if the verdict was guilty, she would likely go straight to jail. Sitting at the defense table, she shook as the clerk began to read the verdict.
Not guilty. Diaz broke down and turned to Plourd. "I know what I heard, but I had a doubt – is it really over?" Then, she remembers hearing the judge say, "You're free to go now."
Some jurors later said there was too much reasonable doubt in the medical evidence to convict her, Haehnle said. Plourd said at least one juror told him the case was "a rush to judgment" by the authorities.
That had long been the thrust of Plourd's defense. He also points the finger at prosecutors for "failing to analyze the case properly, and letting one entity – Children's Hospital – rule the roost."
"That's a systemic problem, and it's been going on for years," Plourd said.
Haehnle dismissed that claim. "That's a total misperception," he said. "They are not child-abuse advocates. They don't like finding it. They don't like accusing people of it. There are lots of cases we don't file based on their opinion."
To this day, Diaz says Cooper's death baffles her. Never in her years of caring for children had something so terrifying occurred.
"I don't know what happened to that child," she said recently. "I've thought about it, and I just don't know."
Soon after the verdict, Diaz decided she wanted the declaration of her innocence. It is a daunting task because the law says she must prove that "no reasonable cause exists" to believe she committed the crime for which she was arrested.
Haehnle contends Diaz has not met that standard. The case survived a preliminary hearing and several motions to dismiss the charge, which Haehnle said showed there was reason to believe she committed the crime.
Still, Diaz plans to press forward. "I need to have this taken off my record," she said. "It's one step further that I need to take."
Greg Moran: (619) 542-4586; greg.moran@uniontrib.com
Wendy Hill is free!
Wendy, the caregiver in Atlanta [mother of lovely 4-yr-old daughter, Taylor], was accused of SBS in her daycare. She gave the baby CPR - saved her life- and the baby is perfectly well today, but Wendy and her family has had two years of hell and $50,000 unnecessary legal fees, putting them in debt for years.
Her expensive medical expert was able to discover missing tests, which the state withheld from the defense. Only through a judge's subpoena did they cough up the missing test, which showed OLD BLOOD and destroyed the state's case and their expert signed a sworn statement that he would not swear that Wendy shook the baby with the evidence of old blood. The lovely state withheld pertinent evidence again - justice is a farce.
Still the state wanted to proceed with a 2-week trial, threatening Wendy with prison time for her innocence. She settled for 3 years probation with the record being expunged so that she could go back to day care at the end of that time.
IT IS A GREAT TRAGEDY THAT INNOCENT PEOPLE ARE SO COERCED OUT OF THEIR FREEDOM AND RIGHTS AND WAKE UP IN A NIGHTMARE, but it is fantastic that the nightmare is behind her now and she can get on with her life.
Congratulations, Wendy, and best wishes for a carefree and better future!!!!!!!!!!!!!!!!!!!!
More questions than answers in baby's death
By CHARITY VOGEL
News Staff Reporter
10/31/2004
Dennis C. Enser/Buffalo News
Bethann Boser holds son Connor, 15 months, who reaches out for a photo of his deceased brother, Noah.
Sharon Cantillon/Buffalo News
Christina Smith, serving a sentence in Albion Correctional Facility, insists she is innocent.
Noah Boser was 7 months old when he died of a head injury in September 2002. The woman in state prison in connection with his death says she's innocent. Noah's mother disagrees.
His name was Noah.
He was a baby boy who died in a Buffalo hospital, two days after he abruptly stopped breathing in a large Victorian house in Olean.
He died a violent, mysterious death - a death caused by a brutal beating.
And in less time than it took for an ambulance to wail down South Seventh Street to the house where his limp body lay on the floor that warm Wednesday afternoon in mid-September two years ago, his death shattered the lives of two young women.
One still mourns her son.
The other sits in state prison, jailed for a crime she insists she didn't commit.
His name was Noah. What follows is as much as anyone - except one person, the killer - knows of his story. Noah Boser was 7 months old when he stopped breathing in the house on Seventh Street, a home day care run by Christina M. Smith, just before 3 p.m. on Sept. 18, 2002. His mother, Bethann M. Boser, had dropped him off a little more than an hour earlier.
That hour, like a few other aspects of this crime, remains a mystery, but what happened after Noah's death played out more like a macabre drama. As he was taken off life-support machines in Women and Children's Hospital, police hunted for the killer. That's when Smith volunteered to take a polygraph test, to clear herself. The test ended in an unexpected statement - which police said was a confession, but which Smith says was not.
Today, she's an inmate at Albion State Correctional Facility. She decided, earlier this year, to forgo a trial, instead taking a plea that allowed her to accept a prison sentence without admitting guilt. In an interview with The Buffalo News, she talked about her case for the first time.
"If there was anything I did that caused harm, then I deserve to be here," said Smith, 34, sitting in a cement-walled room in the prison. "That's what I believe. But I didn't do it." Meanwhile, Bethann Boser believes her baby's killer is in prison. "I hated God for a long time," said Boser, 26. "God had given me this special gift. And he took him away from me for his own reasons." Noah died of head injuries, an autopsy showed. Medical examiners ruled that he had been beaten on the back of the head with a blunt object - so forcibly that his brain ricocheted around inside his skull.
But his head was not bleeding, his skin not bruised or broken, when he arrived at Olean General Hospital. And the two women tell very different stories of what happened to baby Noah.
Parallel lives
Both Smith and Boser are Olean natives and come from families with deep roots in the Southern Tier. Each decided to attend St. Bonaventure University, and each knew what it was like to have a first child born out of wedlock, to struggle as a single mother. Smith graduated from St. Bonaventure in 1996 with an accounting degree. For four years, she worked as a business specialist for Cattaraugus County. Then in 2000, pregnant with her second child, she and her husband, Scott, decided she would open a day care.
"I wanted to be able to help people who work at night, single mothers, people like that," Smith said. "This was my whole life. This was all I did." Boser graduated in 2000 with a degree in elementary education. At the time of Noah's birth, on Feb. 13, 2002, Boser was working part time as an event coordinator in St. Bonaventure's School of Journalism and Mass Communication. She also was working night shifts as a "victim specialist" at a women's shelter.
By the spring of 2002, Boser was looking for daily child care for Noah. When she learned that Smith ran a day care near her apartment, it seemed ideal. "I thought, "Oh wow, we knew her,' " Boser said. "She had kids of her own. She was right down the street from my house." Boser needed to work that Wednesday afternoon in 2002, to help run an event at St. Bonaventure. Boser said she called Smith to see if she could watch Noah for longer than usual that day. The day before, Noah had gone to a doctor's appointment - where he got some vaccinations - and then stayed at Smith's house until 8 p.m.
Smith remembers a last-minute phone call, too. She said it came at around 11 a.m., and that Boser was anxious for her to take Noah for the day. Smith said she responded that Noah could come at 1:30 p.m. Boser dropped Noah off at Smith's house and then left for work. She said her one big regret is that she never kissed her son goodbye. "He gave me the biggest smile. I had never seen a smile like that before," Boser said. "I said, "Bye, sweetie, I love you.' " Smith remembers it differently. She said Noah was fussy and irritable when he arrived at her house, which was unusual for him. He wouldn't take any juice from his bottle, which was also unusual. Police records show that she told officers about those concerns at the time.
"He just started to get really fussy," Smith recalled. "He was cranky. That's not typical. But he was just cutting teeth the week before, so I figured that's what it was." Whatever Noah's mood was that day, one thing remains clear: He stopped breathing slightly more than one hour later.
The 911 call
Here's where the stories of the two women diverge.
Boser believes that Smith struck Noah forcibly on the head because she was stressed over her personal life, including the fact that her eldest son, then 13, had been sent home early from school that day for bad behavior. "I think she just struck him because he was there," Boser said. Smith insists that she didn't hit Noah and that he must already have been injured before he was dropped off.
"I have no idea how it happened," Smith said. "But it did not happen at my house." Smith told police that Noah went down for a nap at about 2:40 p.m. At 2:59 p.m., Smith placed a call to 911. A tape of the call reveals a panicked woman:
"He's not conscious and he's not breathing," Smith gasps into the phone.
On the tape, Smith tells the 911 attendant that Noah is lying on her couch. The attendant orders Smith to put Noah on the floor, lift his chin, cover his mouth with hers and blow two small breaths.
"He's not doing anything," Smith says, crying.
The attendant asks Smith how old the baby is.
"Seven months. He had his shots yesterday. I laid him down for a nap on his belly, we just started laying him on his belly . . ."
A few moments later, she cries into the phone: "Oh my God."
And then: "I'm scared."
By 3:02 p.m., an ambulance crew arrived at Smith's house.
At 3:11 p.m., when Noah was admitted to Olean General Hospital, doctors examined him and made a preliminary diagnosis of cardiac arrest, according to hospital records. Doctors noted on hospital paperwork "no evidence of head trauma." Meanwhile, Boser, at St. Bonaventure, got a phone call from campus security and rushed to the hospital. "I was crying on the way to the hospital," Boser recalls. "I was crying so hard I got sick and threw up in my mom's Jeep," Boser recalls. "It was horrible."
Noah didn't die right away. He was flown to Women and Children's Hospital, where he was kept alive for 48 hours. On Friday, Sept. 20, his life-support machines were turned off. "I was pleading with God, please take my life, please take anybody's life," Boser said. "Please show me a sign that everything's going to be all right."
As family and friends stood around his bedside, Noah died.
Focusing investigation
In the days after Noah's death, police interviewed Smith and Boser; Cristopher Rowand, Noah's father; Mike Flynn, a man Boser had a relationship with at the time; Nick Davison, another man Boser was close to; Smith's older son; and others. • Rowand, who was in Cattaraugus County jail at the time, told police that Noah was born after he and Boser had a brief relationship in 2001.
• Flynn, who was at Boser's apartment on Monday and Tuesday, according to police records, told police that Noah "appeared fine" when he saw him last on Tuesday morning. • Davison told police he saw Noah Tuesday evening and then again on Wednesday, the day Noah stopped breathing. He said Noah seemed to be in a "good mood." • Smith's 13-year-old son was initially interviewed because he was known for bad behavior and had been sent home from school early that day for infractions. But police ruled out the son when he told them he was doing errands during much of the time period in question - and produced time-stamped receipts from the library and drugstore to prove it.
Polygraph test
Police weren't getting very far. Then something happened that changed everything: Smith volunteered for a polygraph test. Smith made the offer the day after Noah died. She said she did it because she wanted to clear herself. "I know I didn't do anything," she said. "I hoped it would make them stop questioning me." That Monday morning, Smith - shaken after seeing her house on the TV news - swallowed an anti-anxiety drug, Lorazepam, that her doctor had prescribed to help her calm down after Noah's death.
At 9:30 a.m., police officers arrived at her house to tell her she could take the polygraph test immediately. Smith went to the State Police barracks in Olean. She said recently that she wouldn't have taken the medication if she had known she would be tested that day. Lorazepam, according to the National Institutes of Health, can cause dizziness, drowsiness and weakness.
5-hour session
Smith's polygraph session lasted from about noon to nearly 5 p.m. First, Smith said she "accidentally" bumped Noah's head against his car carrier. Then she said she "squeezed" Noah's head while walking him, trying to make him stop crying. Later, she said her dog, a Pekinese, might have jumped on Noah's head while he was laying on the couch. Finally, shortly before 6 p.m., Smith signed a statement. This is what it said, in part:
"I laid him on his stomach on the couch and he was still fussing and crying and I started rubbing his back. I sat on the couch, at his feet and he would not stop. I hit him in the back of the head, with my left hand, where his head is sort of flat . . . When I hit him I said at the same time, "Noah, come on.' My hand was open and I hit him with the flat of my hand. I really wasn't trying to hurt him I just wanted him to stop."
Smith today maintains that she offered those four scenarios to give her questioner answers that would satisfy her, so the test would stop. She said she never admitted hitting Noah with force - definitely not with enough force to cause massive trauma. She said that when she signed the statement - after five hours of questioning with no breaks for food or drink, and after spells of dizziness - she didn't know what she was doing. "I didn't even read the statement I had signed," she said. "I couldn't see it. My eyes had swelled shut from crying."
Baby Noah's head
The crucial question about Noah's death remains: When did he suffer the head injuries that caused him to stop breathing, then to die? The autopsy does not specify. It says Noah's brain was bruised and "extremely swollen," with a small amount of bleeding. The back of his head was swollen and had hemorrhaged. All the suture lines of his skull had separated, and there was hemorrhaging behind his eyes. The medical examiner ruled Noah's death a homicide, caused by being "beaten on the back of the head with a blunt object."
But medical and legal experts contacted by The Buffalo News said that Noah's autopsy leaves room for disagreement as to how and when he was injured. Noah's death would have happened right after the injuries were caused, said Dr. Mary E. Case, co-director of the division of forensic pathology at Saint Louis University and chief medical examiner for four counties in Missouri. She said Noah could have been hit with an object or shaken sharply. "It happens immediately," she said. "As soon as the child is significantly injured, it happens - it doesn't take minutes or hours. The child would be immediately symptomatic and unconscious."
But another expert argued that Noah's injuries could have happened earlier that morning, the day before or the previous week. "(Noah) could have been battered six or seven or even 10 hours before this death happened," said Dr. James Baumgartner, associate professor of surgery at the University of Texas at Houston and an expert who testifies in head injury cases. Local defense attorney Anne E. Adams concurred and said baby death cases are hard to argue in court precisely because the autopsy reports - like Noah's - can be interpreted in a variety of ways. "You can have babies who are hit seven or eight days before they start exhibiting problems," she said.
Charles F. Gallagher, Smith's attorney, planned to argue at trial that Noah's injury could have been caused in different ways and at different times, but that Smith did not do it during the hour Noah was at her house. Boser, who acknowledged that she was aware of initial police questions to determine whether Noah could have been fatally injured before he was dropped off at Smith's day care, denies that she - or anyone in her household - could have hurt Noah in any way.
"I can't even hurt a fly, let alone hurt a child," she said. "Let alone hurt my child." Records kept by Noah's pediatrician in Olean show that Noah was a well and healthy baby up until his death.
The aftermath
After signing the statement, Smith was arrested. As her murder trial approached, she began to fear that the community of Olean had turned against her. Her "confession" had been splashed across the front page of the local paper. On the day her trial was to begin, in November 2003, she decided to take a plea - an Alford plea, which meant she would not have to admit any guilt, even though she would accept a prison sentence. "I didn't think I was going to get an impartial jury," she said. "And I didn't want to be away from my kids any longer than I had to. I wish I had gone to trial - but I'm glad I did what I had to do for my kids."
Before Smith's sentencing, on charges of second-degree manslaughter, letters poured into Cattaraugus County Court. Three people - including the dean of St. Bonaventure's journalism school, Lee Coppola - wrote letters asking for a stiff sentence for Smith. Forty-two people wrote letters on Smith's behalf, asking for leniency.
On Jan. 20, 2004, Judge Larry M. Himelein sentenced Smith to three to nine years in prison.
These days, Smith is struggling through her first year in prison.
Gallagher, Smith's attorney, said that Smith never waived her right to appeal the case. That may happen, he said, although no appeal has been filed. Meanwhile, Boser is caring for her second son, 15-month-old Connor, and working part time at St. Bonaventure. Connor goes to a day care center at a local church a few times a week. The Boser family is still reeling from the shock of Noah's death, Boser's mother said. "I have days when I feel we're starting to move on," Kathy Boser said. "But then I have days when I think my family is never going to get beyond this."
Baby sitter charged in infant's death Woman, 19, says child suddenly went limp
By DAVID DOEGE
ddoege@journalsentinel.com
Posted: June 8, 2005
Waukesha - A second-degree reckless homicide charge was filed Wednesday against a 19-year-old Mukwonago woman in connection with the April death of a 9-week-old boy she was baby-sitting. Christy M. Woppert was charged in a criminal complaint that says the boy died from brain injuries typically associated with shaken-baby syndrome, but that Woppert professed doing nothing untoward while caring for him.
A physician who performed an autopsy on the body of Mason Maciosek concluded that he "died of a severe inflicted head injury," according to the complaint. Yet Woppert told medical personnel that the child simply cried out from his crib one minute then went "completely limp and unresponsive" the next, the complaint says. The complaint charging Woppert, who turns 20 Saturday, was filed in Waukesha County Circuit Court Wednesday with a warrant for her arrest. Attorney Matthew Huppertz, who was representing Woppert at the time of the boy's death, could not be reached for comment.
The complaint says the boy's mother, Michelle Maciosek, dropped off her son at a Muskego home where Woppert cared for him about 9:45 a.m. April 12 and he appeared normal. Shortly after 2 p.m., however, Woppert called 911 and reported that the child was "breathing but unresponsive," the complaint says. Police have said that Woppert was watching the baby at her boyfriend's residence.
The complaint gives the following account:
Woppert told the first police officer who arrived at the scene that the boy was in a crib on his back while she was in the kitchen making a sandwich and he suddenly began to cry. When she went to check on him he stopped crying and when she picked him up "she noticed he was completely limp."
The child was rushed to Children's Hospital of Wisconsin in Wauwatosa where he was listed in "critical condition with a grave prognosis" and placed on life support. Before life support measures were ended, medical personnel spoke with Woppert to determine what happened. She said that after his mother dropped him off, the boy went to sleep and she changed his diaper about one hour later. The boy remained calm and playful until about 1:15 p.m. when she changed his diaper again and he "demonstrated an unusual amount of fussiness."
Woppert said she turned on some music to calm the boy, then went to the kitchen to make a sandwich. At 2 p.m., he suddenly cried out, according to Woppert, and when she went to check on him, she found him limp.
In an effort to get the boy to resume breathing, she "undressed him, pinched his feet and blew on his face continuously" while "yelling his name in an effort to wake him up."
After a few minutes passed, she dialed 911.
Woppert insisted that nothing physical occurred to the boy while he was with her.
A nurse told authorities that while Woppert was with the boy in the intensive care unit she was weeping and told him, "I'm sorry this happened. You are such a beautiful baby."
http://www.newszap.com/articles/2005/06/02/fl/lake_okeechobee/okee01.txt
Woman granted a new trial in baby case
By Christina Locke, Special to theOkeechobee News
A woman found guilty of in connection with the shaking death of a 14-month-old girl will get a new trial, according to an opinion released by the 4th Circuit Court of Appeals. Michelle Sparkman, 26, was convicted of manslaughter during her October 2003 trial at the Okeechobee County Courthouse. She was later sentenced to 15 years in prison for the death of Courtney Mikus, the daughter of the man Sparkman was living with at a Four Seasons mobile home in September 2000, the time of Courtney's death. Sparkman was granted a $30,000 bond at her December 2003 sentencing hearing since she had no prior felonies.
The appeals court ruled May 18 that a video of Sparkman's interview with Okeechobee County Sheriff's Office Detective T.J. Brock contained comments by the detective that should not have been heard by the jury. The case will be retried within 90 days of the appeals court ruling, unless Sparkman waives her right to speedy trial. Sparkman's attorney at the time, Public Defender Carlos Wells, was supposed to review the tape before the trial, but did not, court documents show. When he objected to the tape during Sparkman's trial, Judge Dan Vaughn ruled his objection untimely. The 4th Circuit ruled that Judge Vaughn's decision was incorrect.
During the original trial, Jason Mikus testified that on Saturday, Sept. 2, 2000, he was working when he got a call from his live-in girlfriend, Sparkman, saying that something was wrong with his daughter. He arrived at his home to find Courtney Mikus vomiting and unresponsive. Courtney was resuscitated by Okeechobee County Fire/Rescue personnel, but died the following Monday at St. Mary's Hospital in West Palm Beach. Prosecutors and medical examiner Dr. Roger Middleton presented the jury with the theory that Courtney was a victim of "Shaken Baby Syndrome" or "Shaken-Impact Syndrome."
"She either beat that child or shook that child ... or did both," said Assistant State Attorney Ashley Albright during closing arguments at trial. Mr. Wells countered that Courtney, who had a history of seizures, may have suffered from an undiagnosed neurological condition and that another medical examiner, Dr. Frederick Hobin, came to a different conclusion about Courtney's death.
Dr. Hobin was not called to testify for the state.
"I didn't do anything to hurt Courtney," Sparkman said during her 2003 sentencing hearing.
(14month vaccines?)
Article Last Updated: 7/28/2005 01:19 AM
Woman tries to rebuild life
She lost day care, reputation fighting shaken-baby charges
By Christopher Smart
The Salt Lake Tribune
Salt Lake Tribune
PARK CITY - Abigail Tiscare o weeps.
Convicted of a felony shaken-baby assault charge that carries up to a 15-year sentence and later found not guilty of the crime at a second trial, she now can only wonder what's next in her shattered life. So she weeps for her three children, who were ridiculed at school during the two-year ordeal; and for her husband, who spent the family's entire savings on her defense. She weeps knowing that even when she finds the courage to go shopping amid whispers and finger-pointing, she will never have another Abby's Day Care.
And she weeps for Nathan Molineaux, the toddler whose severe brain damage means he never will enjoy a normal life and will require constant care. "I no longer had a life. I just wanted to be with my kids and my husband and pray that it would be over," Tiscare o says of the period after her October 2004 conviction in Summit County's 3rd District Court. "They were going to give me 15 years in prison. When the judge [in the second trial] said, 'not guilty,' I just cried."
The story swirls around a justice system that continues to grapple with crimes against infants and how police and courts depend upon physicians to guide them to perpetrators and, hopefully, to justice. It's about the renewed debate over whether "shaken-baby syndrome" - believed to be gospel for the past two decades or more - can be supported by science. For Tiscare o, it's also a tale about a crucial piece of evidence that inexplicably was omitted from her first trial and how a second defense team found what it calls the "smoking gun" that eventually exonerated the day-care provider.
A fateful day: It was Nov. 14, 2003, when Tiscare o's life began to unravel shortly after James Molineaux dropped off his sons, Jaden, 2, and Nathan, 12 months, at Abby's Day Care in her modest home near Park City at about 7:40 a.m. By 10:28 a.m., according to Summit County's 911 log, she was explaining to an emergency operator that Nathan was having difficulty breathing.
Paramedics rushed the child to Primary Children's Medical Center in Salt Lake City, where doctors diagnosed an acute subdural hematoma - bleeding between the brain and the skull - that quickly can reach life-threatening dimensions.
Through special X-rays called CT scans, they assessed that Nathan's brain was swelling dangerously. Surgeons moved quickly to remove the top of his skull to give the enlarged brain more space until the swelling subsided. The operation saved his life, but was not in time to avert severe brain damage.
During the crisis, according to trial testimony, Lori Frasier, the pediatrician who directs the hospital's Center for Safe and Healthy Families, advised Summit County investigators that the injury could have been caused only by the day-care provider. Although sheriff's detectives had sought a warrant to search the home where Nathan lived with his father, grandmother and several others, they immediately dropped that avenue of investigation and focused on Tiscare o.
That evening at 9, authorities summoned the baby sitter to the Summit County Sheriff's Office, where they questioned her for five hours.
"They asked me why I hurt Nathan," she recalls of the interrogation in which no attorney was present. "I said I did nothing to Nathan. And they said, 'You were the only one there.' I didn't know what was going on, but I began to see that they thought I did it." By the time she was allowed to return home at about 2 a.m., detectives believed they had their perpetrator, according to investigative reports. Within days, authorities charged Tiscare o with felony aggravated assault.
Summit County prosecutor David Brickey assembled a case against the day-care provider with witnesses, including Frasier, an expert in "shaken-baby syndrome," and Marion "Jack" Walker, the surgeon who had saved Nathan's life.
Frasier testified that Nathan's injuries were inflicted by shaking that could have only occurred directly before the baby showed the symptoms of trauma. Walker told the jury that the blood on Nathan's brain was from an hours-old injury. Responding to a question from Brickey, Walker said the pathology report showed that "it was basically a fresh blood clot." It was largely on the strength of the two doctors' testimony that a jury convicted Tiscare o. While awaiting sentencing, Tiscare o and her family found themselves on a second legal front. Nathan's parents, James Molineaux and Christina McIntire, sued in civil court - the case is still pending - hoping to recover monetary damages for what will be a lifetime of medical care for their son.
James Molineaux met McIntire at the Summit County Jail, where they both were serving sentences. The pair had two children and a volatile relationship, according to police reports and courtroom testimony. The day Nathan was taken to the hospital, McIntire again was incarcerated at the Utah State Prison. Her parole had been revoked after Molineaux reported to authorities that she continued to use methamphetamine.
Missing report: It was the couple's suit that spurred Salt Lake City-based attorneys James Bradshaw and Mark Moffat, who had picked up Tiscare o's case after her conviction, to seek records from Primary Children's Medical Center. But in the dozens of documents provided by the hospital, the pathology report was nowhere to be found, Bradshaw said, making it conspicuous by its absence. Although Walker's testimony referred to the pathology analysis at the first trial, the document was not in evidence before the jury.
Tiscare o's original attorney, Earl Xiaz, said despite requesting all pertinent records from the Summit County prosecutor, the pathology report never turned up. "I don't want to speculate as to why we didn't have it," Xiaz said. "But I think it would have made a lot of difference. I would like to think that a jury would look at that and say, 'That's enough for reasonable doubt.' '' Bradshaw and Moffat kept digging for the pathology report. "It's inherently unbelievable there wouldn't be one," Bradshaw said.
But no such document could be found in Nathan Molineaux's file at Primary Children's. Working outside the hospital's official channels, however, the defense team eventually found it after prodding a clerk in the medical center's pathology department. "It was a bomb," Bradshaw said of the analysis. "It was remarkable because it showed old blood from a previous brain injury. The whole premise of the prosecution's case is that it had to be Abby because it happened that morning. But the pathology report says that is not true."
Oddly, Bradshaw and Moffat won a new criminal trial based not on the new evidence but on an improper jury instruction during the 2004 trial. For the new trial this past May, the defense waived a jury in favor of arguing the case directly to 3rd District Judge Deno Himonas. Despite the revelation of the pathology analysis, Walker and Frasier testified as they had at the first trial.
Walker said the injury was new and not the result of previous trauma. And Frasier insisted that Abigail Tiscare o was the only person who could have caused the injury.
Nathan had a "very serious head injury and he would have had to manifest symptoms of a very serious head injury," Frasier testified. "You just don't walk around with a serious head injury like Nathan had with bleeding blood vessels, arteries and brain swelling and act normal."
But Primary Children's pathologist Theodore Pyshar explained to the court that his analysis revealed some of the bleeding on Nathan's brain could have taken place three days before the baby fell into a coma.
11 to 14 days before: And Jan Leestma, a neuropathologist from Children's Memorial Hospital at Northwestern University in Chicago, testified that, based on the pathology analysis and CT scans, some of the bleeding from veins and arteries attached to Nathan's brain could have occurred 11 to 14 days before the crisis at Abby's Day Care.
In an interview, Leestma said a brain injury like Nathan's would require the force of at least 10 G's - something he maintains is not attainable by shaking alone. "That could not be accomplished without striking the baby's head against a solid object. But there were no bruises to suggest such impact."
A previous injury could well have led to acute trauma on Nov. 14, 2003, Leestma said.
"This child had a very large subdural hematoma. It may have been weeks old. We don't know how it got there, but it percolates and grows," Leestma explained. "If the brain moves even 1 millimeter and the bulging vessels are tight, it could snap some of them, leading to new bleeding."
Further, Leestma said there is no scientific evidence to support the "shaken-baby" theory. "If you could shake a baby hard enough to reach 10 G's, it would break its neck. Yet, it is very rare to see one of these cases with spinal injuries."
Tiscare o was acquitted May 27, 2005.
The discovery of the pathology report came as a shock, said prosecutor Brickey. On two separate occasions, he said, the Summit County Attorney's Office subpoenaed all documents from Primary Children's. But, Brickey said, he became aware of the pathology analysis only through Tiscare o's attorneys, Bradshaw and Moffat. "I'm surprised and I'm disappointed in Primary Children's," Brickey said in an interview. Knowing that Nathan had an earlier brain injury would have led to a re-evaluation of the case against Tiscare o, Brickey said. It could also have led to a more thorough investigation of other possible suspects. "If we had had that report, I don't know without further investigation that the [Tiscare o] trial would have gone forward," Brickey said.
Frasier and Walker declined several requests for interviews for this story through Primary Children's spokeswoman Bonnie Midget. While Abigail Tiscare o tries to adjust to life after the ordeal, her husband, Guillermo, remains angry at the Primary Children's physicians and at Summit County authorities. Going forward with a second prosecution after the pathology analysis came to light is unconscionable, Guillermo said. "As soon as I heard that, I just didn't understand why. The only thing I was thinking is, they are going to put someone in jail, no matter what."
Starting over: The Tiscare os must start all over again, Guillermo laments.
"Now everything is gone. I don't care about the money. Thank God I have hands to work. Maybe someday we can recover, I don't know," he said. "But they threw my wife's reputation out the window. It's going to be hard."
csmart@sltrib.com
http://www.sltrib.com/portlet/article/html/fragments/print_article.jsp?article=2894992
Here is an interesting story from the UK Guardian newspaper...This man was in the Shaken Baby Appeal that may make a difference for a lot more "falsely Accused" people there. I have cut and pasted it here for you...
Title: 'If I had been on the jury I would have convicted myself'
Raymond Rock spent six years in prison for killing his girlfriend's 13-month-old daughter. It seemed a classic case of Shaken Baby Syndrome. But when new scientific evidence emerged, doubt was cast on his conviction and last week he was freed. In this exclusive
interview, he tells John Sweeney why he was at fault for baby Heidi's death and how that one moment has changed his life for ever
Friday July 29, 2005
When Ray Rock walked out of London's court of appeal on Thursday last week, there were no reporters waiting for him. The former fork- lift truck driver had just spent six years in prison for violently shaking his girlfriend's baby to death, only to have his conviction quashed on appeal. His appeal was a test case that could see 89 other parents and carers accused of shaking babies having their convictions overturned: this was a legal turning point. But as it was, he walked free into media silence. It was the afternoon of July
21, and London had other things on its mind. The mother of the dead baby, Rock's ex-girlfriend, Lisa Davis, had left the court some time before, immediately after the verdict was announced, and before news had filtered through of the attempted bombings. Her anger did make it on to the news. "I am devastated," she told reporters. "What they are basically saying is that you can shake a baby and you will not get murder. But my Heidi suffered the worst injuries doctors had seen. This man has shown no remorse whatsoever. He has only done six years for killing my little baby."
Rock, 35, remains a convicted child-killer: much to his regret, the appeal court only reduced his murder conviction to manslaughter. But, for the record, this is his side of the story. "I feel desperately sorry for Lisa. I know she still hates me, and cannot understand why I am at liberty," he says. "I know that I was in charge of her baby when she died. But that does not mean I deliberately meant to harm baby Heidi in any way whatsoever - let alone kill her."
Rock's remaining manslaughter conviction fills many with unease. New science, developed after his trial in 1999, questions the entire basis of Shaken Baby Syndrome (SBS) - the syndrome that did for Rock and, in 1997, saw British nanny Louise Woodward convicted of killing a baby in America. In the absence of witnesses, the logic of the prosecution case against Rock, as in so many other cases of this sort, is that he must have violently shaken Heidi because she suffered the three classic symptoms of SBS - bleeds over the brain and in the back of the eyes, and a swollen brain. But experts such as consultant neuropathologist Jennian Geddes, formerly of the Royal London, now say there is no must, and the appeal court chose to believe them: "We do not think it possible to find that it must automatically and necessarily lead to a diagnosis," the judges said last week. Nevertheless, they found that Rock, originally from Great Yarmouth in Norfolk, was still guilty of manslaughter. Justice has been done - but, perhaps, only up to a point.
I, for one, find Rock's story of a tragic accident compelling. He is a big man, like his father, Brian, who died in February. But he gets his gentleness and sunny disposition from his Argentinian mother, Linda.
Heidi sustained her injuries one summer evening in June, 1998 at home in Great Yarmouth. Lisa was out. The crown says that Rock was watching the X-Files and was angered by her cries. He went upstairs, shook her viciously, and caused her brain to bleed, leading to her death. He remembers things very differently. "I was watching a video," he says. "No need to get angry about anything: I could always rewind. I loved Heidi and I loved looking after her. There was a baby mobile with shiny lights that often helped soothe her. She was still crying as I was trying to wind it up. I was cack-handed, holding the baby in my right arm, and trying to turn the mobile with my left and she fell, straight down on her bottom. She had fallen badly - on the base of spine. There was a carpet but it was thin.
"I picked her up. She wasn't breathing at all. I felt panic rising in me but I fought it. I'm a calm person, and I never once lost control. I carried on hoping and praying that she would snap out of it and draw breath."
Rock has admitted that, after the accident, he did shake Heidi - so is he a killer? "No, not at all. The lawyer in the Louise Woodward case did this crazy thing when he shook an imaginary baby for two minutes. It wasn't like that. I just shook her ever so gently, as if trying to wake her up. The idea that I would have violently shaken her is so untrue. I would never have hurt her - ever." He shook her -but she still wasn't breathing. "Her colour hadn't gone at that stage but the muscles in her face were contorted, strange, somehow
frozen. It was as if something inside her had switched off."
Rock rang 999. They went to the wrong address. When the finally arrived, they cleared Heidi's airway, and gave her oxygen. She trembled back into life, a little, so there was some hope at last. At the hospital, the doctors began treatment. Lisa arrived and hugged him. At this stage, before the "proof" emerged that Rock must have violently shaken Heidi, Lisa believed in Rock. The accident happened on Tuesday, June 2 1998. They switched the life support off on the Friday. Heidi was brain dead. On the Monday, police arrested Rock. "I couldn't believe this was happening," he says. "And yet it was."
Rock could feel Lisa slipping away from him. The doctors had found, so they thought, the tell-tale injuries of SBS. "I'm not saying that the police acted improperly towards me. But, to me, it felt as though their whole mental framework was based on the fact that I was guilty. To me, it seemed that they thought that I was lying through my teeth. There was no way out, no way I could get through to them." From the moment Rock walked into court he knew, he says, that he was damned: "I was a child-killer. You know the jury are thinking that this man must be a monster. It felt like the same mind-set I thought that the police had: 'You are sick, you are evil, you are twisted, you did it.'"
Seven experts gave evidence in his trial, which started in September 1999, at Chelmsford crown court. They were all for the prosecution. The experts said Rock must have shaken Heidi violently; one said the force he used must have been the same as that in a high-speed car crash. One said they had never seen injuries as severe as Heidi's in his whole career. "If I had been on the jury I would have convicted myself," says Rock. He got mandatory life for murder, which meant at least 10 years.
Inside, he suffered more than a loss of freedom. One afternoon, a year into his sentence, some men came for him. He was in his cell at Long Lartin prison. The door swung open and he thought it was an officer coming to check the cell. No words, no cries of "nonce"
or "beast". He looked up and saw a white flash. They used a sock filled with snooker balls. He felt a torrent of blows. Two more men came in and hit him with something like a table leg. When they split his scalp open, the blood spurted like a fountain. He thought he was
sweating and he put his hand up to wipe his face and he realised it was blood. He couldn't walk for a month and couldn't speak properly for weeks.
When Rock was convicted, SBS was a fact. Enter Jennian Geddes, an expert in such matters. In 2004, I interviewed Geddes for BBC1's Real Story on Rock's case, and asked her: "Are you saying that you now believe that it is possible Raymond Rock is innocent?" She replied: "Yes."
Geddes had compared the brains of babies who had been violently shaken in car crashes, to babies who had been allegedly shaken to death. She found that, unlike in crash victims, there was no axonal damage - no trauma to the inside of the brain - in baby Heidi. And the baby had no significant injury to the neck. This indicated she hadn't been shaken violently at all. And in fact some other doctors were now saying that babies and infants can die from falls from a very low height - exactly as Rock said had happened.
The world was beginning to wake up to the possibility that medical experts could get it wrong. Sally Clark and Angela Cannings went to prison because they must have smothered their babies - so when they were freed in 2003, the doubts about the convictions of Rock and other "shakers" resonated. Alongside Rock's case, the appeal court last week quashed the manslaughter conviction against alleged baby-shaker Lorraine Harris and the grievous bodily harm conviction against Michael Faulder, but upheld manslaughter against Alan Cherry - a verdict he intends to challenge.
For Rock, now starting a new life away from Great Yarmouth, the lonely fight to clear his name continues. "That beautiful baby had turned into a rag doll and it was my fault because I had dropped her. I am to blame. My clumsiness, my cack-handedness, my mistake. The reason she is no longer with us is me. And I will never, ever forgive myself for dropping her. But I didn't mean to do it. It was a terrible accident. I did not deliberately hurt that child. I only loved her. And I will go to my grave saying this: there was no crime. I am innocent of murder or manslaughter. And I never, ever meant to do anything other than care for and love that child. And I have spent six years in prison as a child-killer for a crime that never was."
· John Sweeney is a reporter for the BBC.
SocietyGuardian.co.uk © Guardian Newspapers Limited 2005
Bryant Arroyo was wrongfully accused in the death of a baby and was sent to prison where he remains today. Here again we have sloppy work coming out of the Lancaster County PA Medical Examiner's Office and medical evidence which was intentionally withheld from the jury. Evidence (medical proof) withheld which would have served to immediately exonerate Bryant Arroyo. Bryant's attorney took his client's money and then the attorney did not work to represent his client's innocence.
Bryant Arroyo's innocence is represented by Nancy Garcia, a Paralegal and family advocate. Nancy gives the facts in this startling case. Bryant is a U.S. Citizen. He was wrongfully accused in the death of a baby and was sent to prison where he remains today. Here again we have sloppy work coming out of the Lancaster County PA Medical Examiner's Office and medical evidence which was intentionally withheld from the jury. Evidence (medical proof) withheld which would have served to immediately exonerate Bryant Arroyo. Bryant's attorney took his client's money and then the attorney did not work to represent his client's innocence. Dr. Al-Bayati has examined the evidence which was used to incarcerate Bryant Arroyo and has fully exposed the medical facts... and it will shock you! Our medical and judicial system is broken. Please listen as Nancy explains the facts in Bryant's case. We need your prayers and an attorney willing to take on this case and we need funds. We are asking for your help, your donations. If you are willing to help right the wrong done to Bryant Arroyo please contact Nancy Garcia:
P.O. Box 1125
Springfield, Mass 01101
Telephone 1-413-736-6590
Fax: 413.736.6616
Police look into infant's injuries
By Lou Whitmire
News Journal
Alex Congrove is shown here in his hospital bed. Alex was released from Children's Hospital in Columbus on Friday.
Hearing may decide baby's fate
News Journal staff report
AKRON -- An Akron attorney is seeking permission to end to the life of Aiden Stein. Summit County Probate Judge Bill Spicer -- who recently decided a similar case as a right-to-die issue involving a Wayne County infant -- has scheduled a hearing Wednesday at 1 p.m. in Akron. Stein was taken to MedCentral/Mansfield Hospital with serious head injuries March 15 and later transported to Akron Children's Hospital. He is the son of Matt Stein and Erica Heimlich of Mansfield. Akron attorney Ellen Kaforey filed paperwork April 6 asking Spicer to "evaluate the need for and removal of life-sustaining treatment currently being administered."
Aiden suffered severe brain injuries and is being kept alive through life support. The criminal investigation into what caused the infant's injuries continues and is in part reliant on Aiden's fate, authorities have said.
MANSFIELD -- Mansfield police are investigating a second potential case of shaken baby syndrome in less than a month. Medical reports indicate a Mansfield baby hospitalized this month has injuries consistent with shaken baby syndrome, according to Greg Frankenfield, a spokesman for Richland County Children Services. Alex Congrove, who turned 6 months old Friday, was taken to MedCentral/Mansfield Hospital on April 2 by a baby-sitter. He was taken to Children's Hospital in Columbus and was released Friday. Alex Congrove is the second Mansfield infant seriously injured in recent weeks. A 5-month-old boy, Aiden Stein, is on life support in Akron Children's Hospital. Stein was flown to Akron Children's Hospital on March 15 with serious head injuries. Authorities said his injuries are consistent with shaken-baby syndrome and doctors do not expect him to recover.
Frankenfield said there has been no official ruling the Congrove baby's injuries are the result of shaken baby syndrome. He said Children Services is working with the police on the investigation. No one was has been charged with a crime and Mansfield police Detective Jeff Shook did not return calls Monday about the Congrove case. Frankenfield said doctors are uncertain of the baby's long-term prognosis. The baby's mother, Andrea Mitchell, 26, of Mansfield, on Monday was caring for Alex and her three other children. Alex has a twin brother, Aiden, along with siblings Isaac, 2, and Jacob, 9. Mitchell has taken leave from her job in Columbus to care for the baby. "I think (Alex) is happy to be home," she said. "There's a good possibility he will be blind in his left eye. His right eye also has damage."
She said her son apparently suffered a stroke. "It could be one year until they know the outcome of his health," she said. Mitchell said she left for work April 2 at 7:30 a.m. and called home around 9 a.m. Mitchell said the baby-sitter, an adult man, told her Alex was not breathing. She told him to get the child to the hospital. Debbi Sheris, Alex's grandmother in South Carolina, established a fund at Mechanics Bank, 2 S. Main St., Mansfield, Ohio, 44902. She said her daughter does not have insurance for the babies. The twins' father, Ben, is unemployed.
lwhitmire@nncogannett.com
(419) 521-7223
Originally published Tuesday, April 13, 2004
http://www.courier-journal.com/localnews/2004/06/02in/B1-sent0602-4262.html
Man gets 30 years for toddler's death
By HAROLD J. ADAMS
hjadams@courier-journal.com
The Courier-Journal A Corydon man convicted in April of shaking his 2-year-old nephew to death was sentenced yesterday to 30 years in prison. aA Harrison County Superior Court jury convicted Joseph E. Ray, 38, of battery on April 30 in the death of Blake Barger.
Ray, who had been babysitting for his sister-in-law, faced sentences ranging from 20 to 50 years in prison. Emotional testimony in yesterday's sentencing hearing, which lasted for more than three hours, illustrated the way the case has divided surviving family members. Ray's wife, Stacy Ray, argued for the minimum sentence, saying she still doesn't believe her husband killed Blake.
"No one in this courtroom can look me in the face and tell me, over 30 years of life, a man within 40 minutes changed his entire personality." She referred to the time between Blake's being dropped off at her home on Walnut Street on Jan. 16, 2002, and when Joseph Ray called 911 to report that the child was having difficulty breathing. Pointing to the side of the courtroom where her parents and sister sat, Stacy Ray said, "I dare somebody to stand in my face and look me in the eye and tell me that."
But her sister, Michelle Loney, the mother of the dead child, sought the maximum sentence.
"I think that he deserves to spend the whole 50 years in jail, and I hope that the court shows no mercy for him," Loney said. Jerry and Sandra Turner, parents of Stacy Ray and Michelle Loney and grandparents of Blake Barger, argued for the maximum sentence. "It wouldn't hurt my feelings to see him go to prison for 50 years," Sandra Turner said of her son-in-law.
Jerry Turner pointed to the split between his daughters. Addressing his son-in-law, Turner said, "If you did shake little Blake, at least be man enough to be honest with your wife. ... Maybe one day you can be honest with Stacy so we can have our family back again." Michelle Loney dropped Blake off at the Ray home about 8:15 a.m., a few minutes before her sister left for work, leaving Joseph Ray to care for Blake and Ray's two daughters.
Joseph Ray told investigators that he left Blake on a couch and went into another room to get a diaper and returned to find the child on the floor having breathing problems. The Ray girls, ages 2 and 3, were asleep upstairs at the time. Eleven medical experts testified in support of the prosecution claim that Joseph Ray caused his nephew's fatal injuries "by shaking, bouncing, hitting and/or causing blunt force trauma to the head."
Doctors diagnosed the child with massive bleeding of the brain and hemorrhages in both retinas consistent with shaken baby syndrome. The lone defense expert testified that shaken baby syndrome does not exist and that Blake's injuries could be explained by other causes. Judge Roger Davis said the aggravating and mitigating circumstances in the case were roughly equal, which led him to give the "presumptive" or standard sentence of 30 years.
Posted June 02, 2004
Baby hurt in sitters’ care dies
Police hope autopsy, 911 tape aid homicide investigation
By John Leeand Michael King
Post-Crescent staff writers
TOWN OF MENASHA — An autopsy was conducted today on a 3-month-old Appleton boy who died Tuesday of injuries allegedly sustained May 3 at the home of an unlicensed day care provider.
At a press conference this morning, Town of Menasha police identified the victim as Fischer J. Weigelt, born Feb. 23 to a couple whose identity was withheld by authorities.
The Milwaukee County Medical Examiner’s Office performed the autopsy in Fond du Lac. The cause of death was not yet known, but Lt. Doug Jahsman said doctors described the injuries as “consistent with abused/battered child.”
Police said the child sustained a severe head injury while in the care of baby sitters at a home in the 1100 block of Goss Avenue in the Town of Menasha. “No charges or arrests have been requested or made,” said Jahsman, who declined to identify the couple in whose care Weigelt was injured.
Deputy Dist. Atty. John Jorgensen said Tuesday that the case is being treated as a homicide. “We are waiting for some other evidence, not the least of which is the autopsy results,” he said. The audiotape of the 911 call made from the home has been sent to Mid-States Organized Crime Information Center, Springfield, Mo., for enhancement. “There’s voices on the tape and we’re trying to get exactly what was said and who said what,” Jahsman said. Police Chief Rod McCants said the husband, who said the child had fallen off a piece of furniture, apparently made the 911 call.
“We’re taking a better look at the 911 tape to see if there’s any conflict with how it was reported and follow-up statements made by the person involved,” he said. Police were called to the home at 11:26 a.m. May 3. The infant was taken to St. Elizabeth Hospital in Appleton and then transferred to UW Hospital in Madison. Jahsman said the boy was discharged May 18.
“(The parents) brought the child home to die,” Jorgensen said.The Town of Menasha couple was caring for their child and five other children at the time of the incident. The couple is facing a possible charge of operating an unlicensed day care facility. The couple stopped the home baby sitting business the day after the incident, police said.
John Lee can be reached at 920-993-1000, ext. 362, or by e-mail at jlee@ postcrescent.com Michael King can be reached at 920-729-6620, ext. 33, or by e-mail at mking@postcrescent.com
http://www.wisinfo.com/postcrescent/news/archive/local_16352275.shtml
baby had no injuries before placed with foster carers
AAP General News (Australia); 10/14/2003
AAP General News (Australia)
10-14-2003
NSW:Shaken baby had no injuries before placed with foster carers
The New South Wales Supreme Court's heard a toddler who died from a brain haemorrhage while in foster care had no injuries before being placed into care. Thirty-two-year-old LINDA WILSON has pleaded not guilty of murdering the child -- who died three weeks short of his second birthday in May 2001 in Sutherland, in Sydney's south. The Crown alleges the toddler -- who cannot be named -- died of shaken baby syndrome.
Department of Community Services child protection worker JASON MCDONALD's told the court the boy and his three-year-old sister had no injuries when placed in the care of Mrs WILSON and her husband TONY in March 2001. Mr MCDONALD said the boy's natural mother asked DOCS to place all three of her children in foster care because she could not properly look after them. The court was told during his two-and-a-half month stay with the couple, he was admitted to Sutherland Hospital three times for vomiting, diarrhoea and stomach migraines.
AAP RTV klw/kbw/swe/rp
KEYWORD: WILSON (SYDNEY)
© 2003 AAP Information Services Pty Limited (AAP) or its Licensors.
This material is published under license from the publisher through ProQuest Information and Learning Company, Ann Arbor, Michigan. All inquiries regarding rights should be directed to ProQuest Information and Learning Company.
HighBeam™ Research, LLC. © Copyright 2004. All rights reserved.
The Babysitter's Story
LAWRENCEVILLE, GEORGIA, May 7, 2003
Chris Routh, 16, is the kind of kid you’d like to have living next door.
“I don't mean to toot my own horn, but I was a good kid,” he says. “I was an ‘A’ student. I never broke any laws or anything. Never got into any trouble at school. I don’t think I’ve ever lost my temper in my life. I’m a very calm-mannered, very mellow guy.” Now, this mild-mannered teenager is about to find out if he will spend the rest of his life living in prison. His mother, Sissy Routh, says: “I think this was a series of tragedies that fell one upon another. And I think that Christopher happens to be the person who was caught in the wrong place at the wrong time.”
Chris stands accused of sexually assaulting 23-month-old Emily Woodruff, and then shaking the toddler to death. It doesn’t get any worse than that. The fate of Sissy and Charlie Routh’s son rests in the hands of 12 strangers in a jury box. “I try to be as realistic as I can that they may not see it our way,” Sissy says. “But I’ll fight forever to prove that he’s innocent.”
It seemed at the time to be a perfectly safe babysitting agreement between two families. ”I just shudder when any of my friends talk about their children babysitting, because we know what can happen,” Sissy now says. “It can take away your whole life.” Lawrenceville, Georgia, is a picture-perfect small suburban town about 40 minutes outside of Atlanta. Charlie is a professional photographer. Daughter Emily plays soccer on Saturdays. And there’s football for Chris. Sissy runs a children’s clothing store right off the town square. One day, in the Spring of 2000, a mother of two walked into Sissy’s store after seeing a “help wanted” sign in the window. Her name was Kim Woodruff.
Sissy hired Kim for the job, and over time they became friends. “It was almost like a family business, and she was part of the family,” Sissy says. Kim and her husband, Lewis, were raising two toddlers, 3-year-old Hunter and Emily, almost two years old. The Woodruffs felt especially lucky to have these two kids. They’d been through years of fertility problems before Hunter came along. Just three months after that miracle baby, Kim became pregnant again, with Emily.
Like many working families, the Woodruffs had day-care issues. Lewis travels for his job selling paint spray guns. Kim was working full time at Sissy Routh’s store. The Woodruffs needed a babysitter they could trust. They needed someone like Chris Routh. Chris recalls that when Kim asked him if he wanted to baby-sit for her children, he thought, “Well, that’d be pretty neat.” Chris began to baby-sit for the Woodruffs on a regular basis, taking care of Hunter and Emily at the Woodruff’s house. “I love kids,” he says. “I’ve always watched kids and loved being around kids.” Everyone was happy with the way it was working. “I’d watched him interact with them, and they seemed to like him,” Kim says. But then, on July 25, 2001, something terrible happened to Emily Woodruff. In a 911 call, Chris is heard saying, “My 2-year-old’s not breathing. I’m baby-sitting for her and she’s not breathing…”
That night, his parents were watching the 11 o’clock news. It was reported that the police were looking for Christopher Scott Routh, and that he was suspected of murder and child molestation.
The Babysitter Goes To Trial
LAWRENCEVILLE, GEORGIA, May 7, 2003
For a year and a half, the Routh family prepared for the trial, and tried to prepare for the worst. “We could go in there tomorrow and he could be found guilty. And they will take him out of the courtroom and we will never be able to touch him again,” says Charlie Routh. Doug Peters, Chris’ lead attorney, knows that to keep Chris out of prison, he’s going to have to take some big chances. “This is an all-or-nothing case here,” he says. “We have not requested any type of manslaughter or anything like that. He either is guilty of murder or nothing.” For four days, the jury heard from prosecution witnesses — the doctors, nurses and paramedics who treated Emily. They all agreed that she was first sexually assaulted, and then shaken to death.
With medical experts and Emily’s mother making the prosecution’s case, the defense needs to counterattack and decides to make a high-risk move. He calls Chris Routh to the stand. And for the very first time, Chris tells his side of the story, reliving the last day of Emily’s life. In his emotional description of that day, Chris says that he has seen her scratching herself between the legs before, and that she was scratching “really hard” that day. In fact, Emily had eczema. And, the defense says, it was possible that she scratched herself hard enough to cause bleeding, and to make it look like a case of sexual assault. Dr. Joseph Burton acknowledges that no definitive diagnostic evidence contradicts that theory.
Now, the defense must answer the most basic question: how did Emily die? Chris’s lawyers have a surprising theory: They say that a rare brain virus killed Emily. But even more surprising than their theory is whom they get to explain it. Dr. Kris Sperry is the chief medical examiner for the state of Georgia. The defense asked him to look at Emily’s medical records and he agreed to testify for Chris, even though it is his employer, the state, that has brought this case against Chris. Dr. Sperry testified that, in his opinion, Emily’s death was the result of “a natural disease process.” In fact, he said, she died as a consequence of irreversible brain damage.
In addition, he testified, shaking is extremely rare as a cause of severe brain injury or death in children older than six months. He also said, “I find it very unusual that if this child was shaken, that there was no evidence of any bruising on the chest wall, or even any broken ribs.” Finally, he testified that Emily “did not die as a consequence of any abusive or inflicted injuries.” Defense attorney Phyllis Miller hopes Sperry’s willingness to risk his professional reputation will convince the jury that Emily died of natural causes. “Thank God, Dr. Sperry believed that telling the truth was more important than what he might have at stake,” she said.
The new testimony had the Rouths feeling confident. But before the jury reached a verdict, it asked the judge a stunning question. Is it possible for them to convict Chris on count one and not count two, or do they go together? The jury seemed ready to convict Chris Routh on the most serious charge - murder. His parents have heard some harsh words against their son in the nearly two-week trial. But they’ve never believed that he had anything to do with the tragic death of Emily Woodruff. Now, the opinions of 12 jurors are all that matters. The jury deliberated for just eight hours. Chris was found not guilty of all counts. For the Routh family, it was a welcome verdict and an expensive one. Chris’ defense cost them nearly $400,000 dollars. But at this moment, freedom is priceless.
“It felt like a million pounds had just been pushed off from me,” says Chris. “I could just feel all that stress and all that pressure just shroooom! It went right out.” It was not a verdict the Woodruffs were prepared to hear. They’ve lost their daughter forever. They still feel that Chris somehow had something to do with their daughter’s death. “I believe what I believe about what happened,” Lewis says.
Two years ago, Chris was a normal kid living a normal life.
Now he’s trying to piece that life back together. The first step: removing the ankle monitor he’s had to wear the past four months.
Then, it’s driving lessons with Mom.
And finally, the biggest step of all - Orientation Day at high school.
Chris is 16 now, and tomorrow he’ll join the class of 2005 as a sophomore.
“I cannot wait,” Chris says. “Tomorrow marks the beginning of my normal life again. I hope!”
TOLL OF SHAME: RECENT SHAKEN BABY CASES
Wisconsin State Journal; 3/20/2000; Jason Shepard The Capital Times
Wisconsin State Journal
03-20-2000
TOLL OF SHAME: RECENT SHAKEN BABY CASES
Byline: Jason Shepard The Capital Times
Edition: All
Section: Local/State
A number of other shaken/impact baby cases in the past seven years in Dane County have resulted in either death or serious injury.
SERIOUS INJURIES:
November 1993 - Kyla Boebel, 10 months old, suffered severe injuries that a doctor described as being equivalent to a severe car accident. Donald McKinney, the husband of Kyla's baby sitter, was convicted in November 1994 of intentionally causing bodily harm to a child and was sentenced to five years in prison.
March 1996 - Ryan Gist, 11 weeks old, was rushed to the hospital with seizures; doctors found bleeding around his brain and eyes. Baby- sitter Vicki Olson was charged with reckless physical abuse of a child but the District Attorney's Office dropped charges against her a week before she was scheduled to go to trial, citing differences in expert medical testimony. No one has since been charged.
November 1996 - Colton Derrick, 2 months old, was left blinded and portions of his brain were destroyed. Stephen Jensen, Colton's father who cared for the boy on alternating weekends, was convicted of child abuse and first-degree reckless injury. He was sentenced to 16 years in prison. His case remains on appeal with the Wisconsin Supreme Court.
July 1997 - Demetris Mathes, 7 months old, was discovered with severe head injuries after his mother left him with her boyfriend, Calvin T. Buckner, while she went grocery shopping. Dr. William Perloff, an expert in shaken-baby syndrome, said at the time, "If the baby doesn't die, it is extremely likely it will suffer lifelong devastating injury if it survives." Buckner pleaded no contest to intentionally causing bodily harm to a child and was sentenced to 54 months in prison.
November 1998 - Brett Cochrane, 3 months old, was brought to the hospital and was difficult to wake up, had a bulging soft spot on his head and was lethargic and dehydrated. Authorities say Brett has since shown improvement but will likely suffer some developmental impairments. Police suspected Brett's parents but filed no criminal charges against them, instead going to juvenile court to place Brett in foster care, where he now lives.
DEATHS:
October 1995 - Natalie Beard, 7 months old, died from what doctors said was violent shaking. Baby-sitter Audrey Edmunds was sentenced to 18 years in prison after being convicted of first-degree reckless homicide.
July 1998 - Michell Aguilar Santibanez, 11 months old, arrived at University Hospital with extensive hemorrhaging in the back of her eyes and fresh blood in the brain. Olga Juares-Guiteres, who was baby- sitting Michell at the time doctors said the injuries occurred, was sentenced just this month to 15 years in prison for the death.
March 1999 - Nina Marie Allen was severely beaten and died. Baby- sitter Adrian Mosby was sentenced to 45 years in prison after he was convicted of first-degree reckless homicide.
(Copyright (c) Madison Newspapers, Inc. 2000)
This material is published under license from the publisher through ProQuest Information and Learning Company, Ann Arbor, Michigan.
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HighBeam™ Research, LLC. © Copyright 2004. All rights reserved.
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Jurors find sitter not guilty in shaken-baby case
By MIKE WELLS of the Tribune’s staff
Published Friday, June 4, 2004
Boone County jurors deliberated three hours yesterday before returning a not guilty verdict for an Auxvasse baby-sitter accused of shaking a 3-month-old vigorously enough to cause a brain hemorrhage.
Even with testimony from four University Hospital doctors who treated Matthew Zuroweste on Dec. 3, 2002, Callaway County prosecutors couldn’t convince jurors that Janet L. Moore, 32, was responsible for an injury brought on by shaken baby syndrome. The case was moved to Boone County on a change of venue.
Moore, who is no longer a child-care provider, was charged with first- and second-degree assault and endangering the welfare of a child.
Callaway County Prosecuting Attorney Bob Sterner expressed disappointment in the verdict. "It’s done," he said. "She’s free. She’s legally innocent, despite the evidence of the four treating doctors."
Defense attorney Doug Hennon of Jefferson City said it was Moore’s testimony that won the case. "She, of course, didn’t have to testify in a criminal case," he said. "But I think the jury needed to hear from her." Hennon said Moore’s account of what occurred at her day care was consistent with the case evidence, and that a number of reasonable medical explanations exist for what was wrong with the child.
When the child first came to the hospital, doctors didn’t notice he had bled previously at the location of the hemorrhage, Hennon said. "We don’t know what happened or when," Hennon said. "It could have gone all the way back to birth, and this child was never abused by anybody." In the state’s closing argument, Assistant Prosecutor Carol England said it was not a case of overzealous doctors who sounded the alarm for Shaken Baby Syndrome. "If anyone hit the ‘on’ switch, it was the defendant when she picked up that baby and shook him," England said.
The baby’s parents, Kevin and Lori Zuroweste of Auxvasse, continue to take him to a neurologist for follow-up care, she told the jury. "Doctors are not certain about long-term prognosis," she said. "He’s too young to know."
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Reach Mike Wells at (573) 815-1720 or mwells@tribmail.com.
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'Obvious' errors cited in murder conviction
By John Wilkens
STAFF WRITER
June 12, 2004
Attorneys seeking to free a San Diego man convicted of killing a 2-year-old boy in 1983 have filed a new batch of declarations from doctors arguing that the child was injured in an accidental fall, not a beating. "The errors and misjudgments in Kenneth Marsh's case seem painfully obvious, with the advantage of hindsight," wrote Tracy Emblem, his lead attorney, in a petition accompanying the declarations. "Convicted by the jury, exonerated by science."
The new paperwork says that "false medical testimony born out of a zeal for child abuse prosecutions" doomed Marsh at his trial. In the years since, advances in the understanding of head trauma and falls prove much of the testimony was inaccurate, according to the declarations.
The District Attorney's Office, which has opposed earlier motions to overturn the conviction because "the evidence of guilt remains overwhelming," is reviewing the petition. Prosecutor Steve Carr said he had seen nothing so far that would make the office change its mind.
Marsh, 49, was convicted of second-degree murder in the death of Phillip Buell, the son of his girlfriend. He is serving a sentence of 15 years to life at the Richard J. Donovan Correctional Facility in Otay Mesa.
On the morning of April 27, 1983, Marsh was watching Phillip and the boy's younger sister. He told police the children were playing on the living-room couch and he was in the master bedroom when he heard a crash. He said he found Phillip unconscious on the floor in front of the brick fireplace hearth.
The boy died the next day. Homicide detectives said the evidence at the scene was consistent with a fall, but doctors at Children's Hospital disagreed.
They said it would take a fall from a multistory building to cause the head trauma Phillip suffered, making it more likely he was beaten. Marsh was arrested. At trial, the defense called no experts to contradict the medical testimony.
In the new declarations, filed Monday, five physicians and a biomechanical engineer said they believe Phillip's injuries are consistent with a short fall, especially since the boy may have had a bleeding disorder that contributed to his death. "Were I to have performed the autopsy today, given the history and scene evidence, I would have classified Phillip's death as an accident," wrote Dr. Janice Ophoven, a pediatric forensic pathologist from Minnesota.
The declarations were prepared in support of a writ of habeas corpus, originally filed by Emblem and attorneys with the California Innocence Project in October 2002. In response papers filed in July, prosecutors said Marsh is "guilty beyond a reasonable doubt of murdering" the boy. They included declarations from three medical examiners who said they had reviewed the records and agreed with the 1983 findings that Phillip's injuries were inflicted.
Marsh's habeas writ – the second his attorneys have filed – now goes to San Diego Superior Court Judge David Gill for review.
Sentence in child's death set for appeal
By Michael Zeigler
Staff Writer
(July 9, 2004) — Prosecutors will ask an appeals court to reconsider a decision that shaved 10 years off the prison term of a Greece baby sitter who fatally shook a 2-year-old girl. The Monroe County District Attorney's Office will argue that Rene S. Bailey, who was convicted of second-degree murder in the death of Brittney Sheets in 2001, didn't request a sentence reduction in appeals papers, District Attorney Michael C. Green said Thursday.
“It also was never raised in the oral argument before the court,” Green said. “It's our position that we never had the opportunity to give the court the relevant facts.” Green's office also will argue that reduction was wrong. “A jury sat there and listened to the testimony and convicted her of murder,” he said. “The trial judge listened to all the facts and circumstances of the case … and felt that 25 years to life was appropriate.”
Bailey's appellate lawyer, Assistant Public Defender James G. Eckert, couldn't be reached for comment. Pam Nagel, Brittney's maternal grandmother, said the girl's family supports the request of the District Attorney's Office. “It's very, very disheartening to go through the trial and have the decisions made and know that the appellate court can just undo a sentence that's already been done,” Nagel said. Her family has collected 1,600 signatures on petitions that ask the Appellate Division to reconsider. About 1,200 of those signatures have been collected on a Web site.
In a decision June 14, a five-judge panel of the Appellate Division affirmed Bailey's conviction but reduced her term to 15 years to life after ruling that the sentence of 25 years to life was too severe.
If the decision stands, Bailey, now 44, will be eligible for parole in 2017 instead of 2027. She's an inmate at Bedford Hills Correctional Facility in Westchester County. Brittney suffered a head injury on June 6, 2001, at a licensed day care center in Bailey's home. Brittney died the next day. Bailey said Brittney fell off a chair and hit her head on a carpeted floor. But three prosecution experts testified that the amount of bleeding found in the girl's brain and retinas could have been caused only by shaken baby syndrome.
MZEIGLER@DemocratandChronicle.com
http://www.democratandchronicle.com/news/07093T4RSHL_news.shtml
Posted on Fri, Jul. 30, 2004
Doctors testify baby shaken
Day-care provider on trial in death of 9-month-old boy
BY SHANNON PRATHER
Pioneer Press
Five doctors called to testify by prosecutors were unwavering in their diagnoses that violent shaking caused the bleeding in 9-month-old Vance Johnson's brain and ultimately led to his death.
Their testimony bolstered the Dakota County attorney's case against Apple Valley day-care provider Dianne Scribner, who is standing trial on a charge of second-degree murder in Vance's death in February 2003. Prosecutors continued to put doctors on the stand Thursday afternoon and will call more today.
A pediatric neurosurgeon, radiologist, intensive care doctor, eye surgeon and the Hennepin County medical examiner all examined Vance and agreed that the baby suffered from what one doctor called "abusive head trauma" — better known as shaken baby syndrome.
Vance's injuries were so severe that almost immediately after the shaking, he would have lost consciousness and would have been unable to hold a bottle, coo or sit up, doctors said.
Intensive care physician Ken Maslonka said he suspected shaken baby syndrome "from the minute I examined him."
"I felt he suffered a traumatic brain injury that most likely was from a violent shaking," Maslonka testified. "I could not think of another clinical situation that would explain that trauma."
Maslonka, with Children's Hospitals and Clinics of Minneapolis, said he considered all other medical possibilities for Vance's injuries, including sudden infant death syndrome, and concluded that nothing else fit with the brain and eye bleeding the baby suffered.
It would be very difficult for a 9-month-old to suffocate in a crib, said Maslonka, explaining that the baby was old enough to roll around and move blankets and other items that might obstruct breathing.
Prosecutors have no eyewitnesses but say the jury can convict on the strength of the medical testimony. Vance's parents have been eliminated as suspects.
When Vance and his twin brother, Vaughan, arrived at Scribner's home day care at 8 a.m. on Feb. 11, 2003, Charlene Johnson testified that her son was alert — babbling "dada" and fussing about his snowsuit. She said he was sitting in the play area when she left.
The baby stopped breathing and his heart stopped about an hour later in Scribner's care. Scribner, a day-care provider for 25 years, called 911. By early afternoon Vance's injuries were so severe that he was virtually brain dead, doctors at Children's Hospital testified. Vance didn't respond to pain or a doctor touching his eyes. Scans of his brain showed bleeding.
Thursday morning, neurosurgeon Michael McCue said he examined Vance and determined that he suffered from "non-accidental trauma."
"The constellation of injuries means it was inflicted," said McCue, adding that he's seen numerous cases of shaken baby syndrome in Minneapolis and at a children's hospital in Boston where he worked.
Eye surgeon George Miller testified Wednesday afternoon that after examining Vance's eyes he concluded: "This particular pattern of hemorrhaging can only be caused by shaken baby syndrome — I would add with a degree of medical certainty. It would be contrary to all my experience that this would be caused by something else."
Radiologist Richard Patterson examined scans of Vance's brain.
"The findings are highly suspicious for abusive head trauma," Patterson said. "This would be a particularly striking case."
Minneapolis defense attorney Douglas Olson tried to cast doubt on the diagnoses, asking doctors why, if Vance was violently shaken, he didn't suffer neck injuries, bruising or other signs of external injury. But Patterson said the lack of bruising and broken bones made him more confident.
"It's more useful for my interpretation to not find it than to find it," Patterson said.
Defense attorneys promised jurors during opening statements that they would call three medical experts who would cast doubt on the shaken-baby diagnosis and the prosecution's timeline indicating that Vance must have been injured in Scribner's care. Autopsy results showed that Vance had suffered from a previous head trauma, since healed. Olson said that made the baby "fragile."
Scribner, 57, will also take the stand in her own defense, where she's expected to testify that she found the baby gray and not breathing in his crib. If convicted, state guidelines recommend a sentence of 12½ years in prison for someone with a clean record.
http://www.twincities.com/mld/twincities/
news/local/9305679.htm?ERIGHTS=
7399910756451648108twincities::spcp4u@netzero.net
&KRD_RM=5onnmqssutmrtqqqllllllllnq|c|N
Posted on Tue, Aug. 03, 2004
Old injury linked to baby's death
Pathologist says tot 'in trouble for weeks'
BY SHANNON PRATHER
Pioneer Press
An old brain injury, not a violent shaking at the hands of a day-care provider, likely caused 9-month-old Vance Johnson to stop breathing and die a day later, a forensic pathologist told a jury Monday.
Dr. Janice Ophoven testified in defense of Dianne Scribner, the Apple Valley day-care provider on trial for Vance's death in February 2003. Ophoven, a paid expert, said the Hennepin County medical examiner was incorrect when he ignored a weeks-old injury found on Vance's brain during autopsy and concluded the baby died from a severe shaking.
"This baby was in trouble for weeks before Feb. 11," Ophoven said. "The brain had suffered serious trauma weeks before." Ophoven explained to the jury that the entire theory of "shaken-baby syndrome" she and the medical community once believed true is now the center of a serious controversy. "There is a place where evidence is telling us to start over on this theory," said Ophoven, citing several studies that call into question the shaken-baby diagnosis.
No witnesses claim to have seen Vance being shaken. The Dakota County attorney's office is relying on physicians to make its case against Scribner. Last week, prosecutors called six medical doctors who said there was little doubt Vance suffered serious injuries and stopped breathing immediately after being violently shaken. Vance's mother had dropped off a fussy Vance and his twin brother, Vaughan, at Scribner's home about an hour before the day-care provider called 911 reporting a baby had "passed away."
The defense is expected to call three doctors, including Ophoven, to dispute the diagnosis and the prosecution's timeline that Scribner is the only one who could have inflicted the fatal injuries. The 11-man, one-woman jury, which could start deliberations this week, will be sent back to the jury room to weigh more than a dozen medical journal articles entered as exhibits as well at its own notes full of complicated expert testimony. Ophoven, an assistant medical examiner in St. Louis County and an outside consultant who bills her time at $300 an hour, said Monday she examined Vance's complete medical record, including the autopsy report.
The baby had an "enlarged head" at a doctor's visit three months before his death, Ophoven found. Autopsy results uncovered a previous brain injury that had resulted in internal bleeding but was healing. Ophoven described the old injury as "potentially lethal." At the same time, the autopsy found no external bruising or neck injuries that would show Vance's head had been hit or whipped around.
Vance's brain died from lack of oxygen after he stopped breathing, Ophoven concluded. She said she could not determine why Vance stopped breathing but said the old injury "put him at risk." Ophoven added that if she were conducting the autopsy, she would describe the manner of death as undetermined. All the symptoms that doctors for the prosecution said proved shaking — including eye hemorrhage, brain swelling and bleeding of the brain — could have been caused by the previous brain injury and efforts to revive Vance the day he stopped breathing, Ophoven said.
Tragedy - no money for defense - caregiver UT
Attorneys Withdraw From Murder Case
Aug. 3, 2004
FARMINGTON, Utah (AP) -- Attorneys for a woman charged with murder in the death of a toddler she was babysitting have withdrawn from the case, citing financial reasons. Raynette Marian Olsen, 31, formerly of Layton, appeared at a hearing Monday with attorneys John T. Caine and Bill Morrison. Olsen's family has attempted to come up with funds to pay the private attorneys. "I feel really badly (about withdrawing)," Caine said. "I normally don't withdraw from cases, but economics were involved and the funding for the defense has not been met."
The judge will assign a public defender.
Olsen is charged in the death of 20-month-old Jordyn Marie Parker, whom she was baby-sitting Sept. 26, 2002. Olsen called 911 and reported the child was having medical problems but then told dispatchers she was taking the child to the hospital. After Jordyn Marie arrived at the hospital, she was transported to Primary Children's Medical Hospital, where she died the following day. Authorities said the child's death was due to Shaken Baby Syndrome. "Raynette has maintained her complete innocence through this whole thing," Caine said. Olsen was declared indigent in April 2003, and the state has paid for her defense expert witnesses.
(Copyright 2004 by The Associated Press. All Rights Reserved.)
Jurors explain acquittal
Medical issue confusing; malicious act unproven
BY SHANNON PRATHER
Pioneer Press
While Apple Valley day-care provider Dianne Scribner stood trial for murder, as many as 10 doctors rattled off conflicting theories loaded with medical jargon to explain how 9-month-old Vance Johnson died. So when the jury, which ultimately acquitted Scribner, was finally asked to deliberate Thursday afternoon, juror Ronald Lasker said he largely ignored the medical testimony."You had to throw all the medical testimony out. None of the jurors understood the medical testimony," said Lasker, vice president of sales for Worthington Aviation in Eagan. "None of the jurors was a doctor, and you have conflicting testimony."
The two sets of dueling doctors looked at the same injuries — bleeding around the brain, eye hemorrhaging and brain swelling — and reached different conclusions. That left jurors with the impression that a great debate raged in the medical community over what Harvard and University of Minnesota doctors said Friday was the well-accepted theory of shaken-baby syndrome. The prosecution's doctors concluded Vance died of head trauma in February 2003 due to violent shaking while in Scribner's care. Defense doctors, who looked at Vance's medical records and found no bruising or broken bones, said a previous head injury could have led to his death."There was so much of it. We were all laypeople. It was really confusing," said juror Homer Dredge, a Hastings resident who works in retail.
So bewildered jurors zeroed in on what they could understand: Scribner's testimony that she didn't harm Vance and a juror's own experience with an infant's death discussed in the jury room. "I thought it was really tough for her to get up there and do that," Dredge said. "In my heart, I couldn't imagine this woman doing that. I think a lot of us felt that way." It took the 11 men and one woman on the jury five hours to acquit. Dakota County prosecutors, who had no eyewitnesses, never proved that Scribner was trying to maliciously punish Vance, jurors said. That was a required element of the crime. Instead, jurors said it seemed as though doctors and prosecutors jumped to conclusions too quickly, noting that an hour after Vance died at the hospital, doctors had labeled it a homicide. "It was almost like a witch hunt right from the beginning. There were no marks, just the medical testimony she must have done something," said Lasker.
Lasker said one of his five children died of sudden infant death syndrome 40 years ago. He shared that experience with the other jurors while deliberating. "Most jurors felt something happened there. Did she put the kid down wrong? Did she put him on his back? Did he spit up and choke on his milk that morning? But she didn't do anything violent because there were no marks on the body," Lasker said. Both Lasker and Dredge said they did take away one conclusion from all the medical testimony. They're now no longer sure shaken-baby syndrome is a legitimate diagnosis. "Today with the rush to judgment, maybe that's wrong," Lasker said
Outside the vacuum of the Hastings courtroom, pediatricians and teaching doctors affiliated with Harvard and the University of Minnesota said shaken-baby syndrome and abusive head trauma in infants have been well-accepted theories for 20 years. Virtually every medical school in the country teaches the shaken-baby diagnosis as a "well-accepted medical theory," said James Nixon, an assistant professor at the University of Minnesota Medical School who oversees pediatric education for second and third-year students. Doctors said the injuries Vance suffered are classic symptoms of shaken-baby syndrome. "It's clear to the American Academy of Pediatrics this is a true medical diagnosis," said Alice Newton, a pediatrics instructor at Harvard Medical School. "Because of the implications for families and caretakers, it's a controversial field not only because it involves medicine but the legal world quite often."
Newton said defense attorneys in child death trials across the country are hiring doctors like the ones who testified in Johnson's case to cast seeds of doubt. "There is a small subset of physicians who are known to testify mostly for the defense and who have a subset of unusual and not scientifically supported defense techniques they use," Newton said. But Scribner's defense attorney, Douglas Olson, said the public shouldn't discount defense doctors' theories, pointing out that one neurosurgeon who testified in Scribner's defense did it for free. "There are many knowledgeable doctors who dispute what is viewed as accepted dogma among members of the medical community," Olson said. "This woman is innocent and never harmed this child. That's why this whole theory needs to be reconsidered." Marjorie Hogan, a pediatrician and a member of the University of Minnesota's child-maltreatment physician consult team, said she and other Twin Cities doctors closely followed Scribner's trial. Hogan called the acquittal dismaying. "There is real concern in the pediatric and child-abuse communities about some of the testimony presented at trials from these experts that, in fact, it may be misleading," Hogan said. "You can inject enough doubt in a juror's mind. The confusion is very understandable."
Shannon Prather can be reached at sprather@pioneerpress.com or 651-228-5452.
August 11, 2004
SAN DIEGO — A San Diego man imprisoned for 21 years for the killing of a 2-year-old boy was freed Tuesday after a recent review of medical evidence raised doubts about the case. Prosecutors said last week that Kenneth Marsh, 49, deserved a new trial because the evidence cast doubt on whether the boy, his girlfriend's son, was a victim of child abuse. "He'll be seeing the stars tonight for the first time in 21 years," Marsh's attorney, Thor Emblem, said after a judge Tuesday set aside Marsh's conviction.
Dist. Atty. Bonnie Dumanis must now decide whether to retry the case. She opposed efforts two years ago to set aside Marsh's conviction, but changed her mind after she hired an independent forensic pathologist to review the case. Marsh has always maintained his innocence, and the boy's mother, Brenda Buell Warter, has supported him. He told police he was baby-sitting when he heard a crash from another room and found Phillip in front of a brick hearth. Detectives determined that the boy died from a fall, but doctors from Children's Hospital said he was beaten.
Marsh left Donovan Correctional Facility in San Diego on Tuesday night.
By Greg Moran
UNION-TRIBUNE STAFF WRITER
September 19, 2004
EARNIE GRAFTON / Union-Tribune Life as Christina Diaz knew it ended Dec. 18, 2002, when she was accused of shaking a baby boy to death at her Kensington day care. She endured two jury trials before being acquitted.
She was always good with children.
That was the one thing about Christina Diaz everyone agreed on. She had a smile for the playful ones, a hug for the crying ones, patience with the fussy ones.
She built a small in-home day-care business around that sympathetic nature over the course of a decade and thought it would be her life's work.
"I always thought I would get gray hair and retire doing day care," Diaz, 37, said recently.
But that all came to a crushing end on Dec. 18, 2002, when she was accused of just about the worst thing she could imagine: killing a baby that had been left in her care by violently shaking the child to death.
It would take nearly 18 months and two grueling trials for Diaz to emerge from her nightmare. In June, a jury acquitted her in the death of 4-month-old Cooper Kuznitz.
Diaz walked out of the downtown courthouse that day with her freedom returned. But on Thursday, in an unusual move, she will go back inside those halls and ask for something more.
She wants Superior Court Judge Robert Trentacosta to declare her factually innocent. Such a move – rarely successful – would seal her arrest records forever.
From the very beginning, Diaz maintained she never harmed the child. She turned down offers to plead guilty to a lesser charge, according to her lawyer, Chris Plourd. And she repeatedly volunteered to take a lie-detector test administered by police but was rebuffed.
Prosecutors plan to oppose the request. Deputy District Attorney Garry Haehnle, who prosecuted Diaz, maintains that even with her acquittal, she does not meet the legal criteria for being declared innocent.
Catherine Kuznitz, Cooper's mother, declined to be interviewed for this story, saying she was too distraught to discuss the case.
EARNIE GRAFTON / Union-Tribune Returning to the Kensington home where she ran her business, Christina Diaz, 37, said that even though a jury found her not guilty, she will never provide day care again.
Diaz's trials featured fiercely debated medical testimony about how Cooper died, and the scientific and legal debate over shaken-baby deaths. At the same time, her case was buoyed by an extraordinary network of friends, neighbors and parents of the children she cared for who came to her defense.
She said she will never provide day care again. But before Diaz starts anew, there is something she feels she needs to fight for: her reputation.
A baby dies It began a week before Christmas, right around 3:15 p.m. Diaz had just finished a lengthy phone conversation four minutes earlier with her sister, Patti, about plans for the holiday.
Cooper had been in Diaz's day care for about three weeks, and Dec. 18 was supposed to be his final day with her.
As she hung up the phone, Diaz had no inkling this would also be her last as a day-care provider.
She noticed the infant was not breathing normally in the car seat in which she had placed him for his nap. She picked him up, and he went limp. She called 911 and began CPR.
Paramedics rushed the baby – who had no visible injuries or trauma – to Children's Hospital, arriving about 3:40 p.m. Meanwhile, a stunned and shaken Diaz sat down at her Kensington home with two San Diego police officers who had come in response to the emergency call.
They would stay there for seven hours, talking to Diaz while doctors at the hospital worked on Cooper.
The baby had no pulse and was not breathing on his own. He was given CPR, intubated with a breathing tube, and he had a slew of drugs and fluids pumped into him.
Doctors found Cooper had a high blood-sugar reading and very high potassium levels. And there was one other finding about his body chemistry that would later become an issue in the trial: The child had a severe blood-clotting problem.
A CT scan showed that Cooper's brain was clearly swollen. And Dr. Bradley Peterson, an experienced doctor who was the admitting pediatrician, believed he saw something more ominous.
Reading the scan with a radiologist, Peterson said there appeared to be a frontal lobe contusion, a bruise on the front of the brain.
But the key finding was this: An eye exam using a device called an ophthalmoscope showed that Cooper had bilateral retinal hemorrhages – bleeding in the eyes.
Medical debate Even as they stabilized the child, doctors at Children's Hospital were arriving at a conclusion about what had happened. The swollen brain and bleeding eyes were the result of trauma, they concluded. Cooper Kuznitz had been shaken, violently, and was going to die.
The baby was taken off life support Dec. 20. Shortly afterward, the charges against Diaz – who was arrested the night of Dec. 18 as Cooper lay in a coma – were changed from attempted murder to assault on a child causing death. If convicted on the new charge, Diaz faced 25 years to life.
The report from the Dec. 22 autopsy confirmed the retinal hemorrhages, as well as small injuries to the neck and spinal cord. It also said Cooper had no other known medical problems and noted no other injuries. No bruises, no broken bones.
Police reports state that a sergeant informed detectives, in a briefing at the hospital Dec. 18, that doctors had said Cooper was bleeding "from the frontal lobe area." Peterson would later testify he could not remember saying such a thing to police. Moreover, he testified during the trial that the frontal lobe bleeding was not an important factor in his conclusion that the child had been shaken.
Plourd, Diaz's lawyer, would argue in court that this was the first in a string of police and medical misjudgments that led to Diaz's prosecution. He said erroneous information was key in framing the case as a homicide, crowding out other possible reasons why the child died.
But Haehnle dismissed those suggestions.
"The fact is a number of highly qualified doctors came to the conclusion it was an intentional act that caused the injuries to this child," he said in a recent interview.
Plourd hired his own pathologists to review the medical records. They dismissed the conclusion that the baby had been shaken, pointing to several factors.
Cooper did not have some of the injuries associated with shaken-baby deaths, such as broken ribs and "grab marks" on his body. Another injury often seen in such deaths – the tearing and shearing of "bridging veins" in the brain as it is slammed from side to side – was not there.
He also had no subdural hematomas, a pooling of blood in the brain. Finally, Plourd's experts argued that the bleeding in the eyes was not caused by the head being violently shaken back and forth.
In the contentious area of shaken-baby death cases, the theory that retinal bleeding is nearly always indicative of a shaking event is hotly debated.
"It's like trying to diagnose a heart attack with one symptom," said Dr. Jan Leestma a neuropathologist from Chicago and an outspoken critic of many shaken-baby diagnoses. "Yes, you could be right, but it could be many other things."
Retinal bleeding without brain injuries or any other hallmarks of shaken-baby deaths was not enough to conclude the child had been assaulted, Plourd's experts said.
They posited other reasons for Cooper's death. Dr. Victor Weedn, a pathologist and research scientist at Carnegie Mellon University, said the baby died from a "near-SIDS" event. Sudden infant death syndrome is the medical term used to describe the inexplicable death of seemingly healthy babies during their first year of life.
He said the bleeding in the eyes likely resulted from CPR efforts, as pressure from the chest was transmitted to blood vessels in the retinas. Cooper's blood-clotting problem and the fact that at one point his lungs were hyperinflated as doctors fed oxygen to his brain could have caused the hemorrhages, Weedn said.
The defense experts argued that the head and neck injuries were caused by swelling in the brain that pushed down on the spinal cord and neck. Weedn said the injuries were "isolated" and could not be the result of a massive, traumatic shaking episode.
Yet every defense expert was countered with a prosecution claim. For example, Haehnle said after the trial, not all shaken-baby cases have rib fractures. And, he said, he has prosecuted other cases with retinal bleeding, but no brain injuries.
Dr. Cynthia Kuelbs of Children's Hospital said she ruled out a SIDS deaths because SIDS babies don't have retinal bleeding. Other experts said the extent of the blood in the eye could have been caused only by a shaking event.
As would become evident during Diaz's two trials, the medical evidence would be fiercely debated among experts.
Strong support After Diaz was arrested, she spent 10 days in jail before her parents tapped the equity in their Olive Street home in North Park to bail her out.
Almost as soon as her arrest became known, a network of neighbors and friends began to mobilize to support her. Diaz had lived on Olive Street most of her life, starting to care for children at a house next to her parents. She got her state license in 1993, and – with the exception of a minor housekeeping violation in 1999 – had a spotless record with licensing authorities over the years.
"She was caring for her second child with some families, and one mother was about to put her third child with Christina," said her mother, Mercedes Diaz.
Several parents testified at the trials on Diaz's behalf.
"She was patient, she was very structured, and she knew how to handle the children," said Mike Kull of San Diego. His two children were in Diaz's day care, and both he and his wife testified on her behalf during the trials.
"There was never a single doubt with us about Chris and her ability with children," Kull said. "It was not within her to do that to a child."
As the case headed to the first trial, supporters organized fund-raisers to defray some of the mounting costs. They rented out the La Mesa Recreation Center for one event featuring a band and silent auction, said Grady Dutton, a former Olive Street neighbor whose child was in Diaz's care.
Auction items included pedicures, a handmade quilt and two home-cooked dinners for four, Dutton said. About 100 people showed up, and while the money that was raised helped, Dutton said the emotional support Diaz got as the trial loomed was just as important.
Diaz tried to keep busy, but it was difficult at times. She had never been to the courthouse, let alone ever involved in a case. And now her future hung in the balance.
"I imagined the truth would prevail, but I didn't know how," she said. "I thought some magic point would come out, and then all these people would see I did not do this."
But that moment was months away.
'Is it really over?' Two juries sized up Diaz, struggling through the ping-pong of testimony from dueling medical experts, in two trials this year. Both were marked by moments of controversy.
During the first trial, which began in January, prosecutors were accused of not turning over to the defense key information from an expert witness. Plourd said he had requested the information for more than a year.
While the judge ultimately ruled that the error was not intentional, he told jurors about the violation and said they could give whatever weight to it they wanted. After several days, the panel was unable to reach a verdict, deadlocking 8-4 in favor of a guilty verdict.
"I believe what we had here was doctors misdiagnosing something, and two hours later the detectives are in on it," said juror Renee Stern. "I don't see how she did it."
Diaz said she and her family were deflated when prosecutors decided to retry the case. What more could be done? But despair soon turned to resolve. A second trial, Diaz concluded, was a second chance to be cleared.
Again, neighbors and friends rallied, and the family slowly became more determined.
"We just did not entertain any thoughts that she would not be exonerated," her mother said.
The second trial began in May. It was largely a replay of the first, but Plourd was able to introduce one intriguing piece of new evidence.
Laboratory tests on some of the breast milk from Cooper's mother revealed the presence of a bacteria that can produce an infection, said Dr. Harry Bonnell. Bonnell, a former deputy medical examiner in San Diego – who was fired in 2001 for reasons that were not made public – testified for the defense in both trials.
The finding backed up Diaz's observations that Cooper hadn't been eating and wasn't feeling well before the incident, the jury was told. In an interview after the trial, Bonnell said it could have been the cause of a toxic infection which may have triggered the fatal sequence of events for Cooper.
Haehnle scoffed at that notion. He said there was never any indication the child had been fed the breast milk the day he died, and that the levels found in the test were too low to cause serious harm.
But the finding was one more bit of doubt cast on the case. On June 24, after deliberating a couple of days, word came: The jury had a verdict.
Diaz remembers that time as "the longest 20 minutes of my life." She remembers Plourd telling her that if the verdict was guilty, she would likely go straight to jail. Sitting at the defense table, she shook as the clerk began to read the verdict.
Not guilty. Diaz broke down and turned to Plourd. "I know what I heard, but I had a doubt – is it really over?" Then, she remembers hearing the judge say, "You're free to go now."
Some jurors later said there was too much reasonable doubt in the medical evidence to convict her, Haehnle said. Plourd said at least one juror told him the case was "a rush to judgment" by the authorities.
That had long been the thrust of Plourd's defense. He also points the finger at prosecutors for "failing to analyze the case properly, and letting one entity – Children's Hospital – rule the roost."
"That's a systemic problem, and it's been going on for years," Plourd said.
Haehnle dismissed that claim. "That's a total misperception," he said. "They are not child-abuse advocates. They don't like finding it. They don't like accusing people of it. There are lots of cases we don't file based on their opinion."
To this day, Diaz says Cooper's death baffles her. Never in her years of caring for children had something so terrifying occurred.
"I don't know what happened to that child," she said recently. "I've thought about it, and I just don't know."
Soon after the verdict, Diaz decided she wanted the declaration of her innocence. It is a daunting task because the law says she must prove that "no reasonable cause exists" to believe she committed the crime for which she was arrested.
Haehnle contends Diaz has not met that standard. The case survived a preliminary hearing and several motions to dismiss the charge, which Haehnle said showed there was reason to believe she committed the crime.
Still, Diaz plans to press forward. "I need to have this taken off my record," she said. "It's one step further that I need to take."
Greg Moran: (619) 542-4586; greg.moran@uniontrib.com
Wendy Hill is free!
Wendy, the caregiver in Atlanta [mother of lovely 4-yr-old daughter, Taylor], was accused of SBS in her daycare. She gave the baby CPR - saved her life- and the baby is perfectly well today, but Wendy and her family has had two years of hell and $50,000 unnecessary legal fees, putting them in debt for years.
Her expensive medical expert was able to discover missing tests, which the state withheld from the defense. Only through a judge's subpoena did they cough up the missing test, which showed OLD BLOOD and destroyed the state's case and their expert signed a sworn statement that he would not swear that Wendy shook the baby with the evidence of old blood. The lovely state withheld pertinent evidence again - justice is a farce.
Still the state wanted to proceed with a 2-week trial, threatening Wendy with prison time for her innocence. She settled for 3 years probation with the record being expunged so that she could go back to day care at the end of that time.
IT IS A GREAT TRAGEDY THAT INNOCENT PEOPLE ARE SO COERCED OUT OF THEIR FREEDOM AND RIGHTS AND WAKE UP IN A NIGHTMARE, but it is fantastic that the nightmare is behind her now and she can get on with her life.
Congratulations, Wendy, and best wishes for a carefree and better future!!!!!!!!!!!!!!!!!!!!
More questions than answers in baby's death
By CHARITY VOGEL
News Staff Reporter
10/31/2004
Dennis C. Enser/Buffalo News
Bethann Boser holds son Connor, 15 months, who reaches out for a photo of his deceased brother, Noah.
Sharon Cantillon/Buffalo News
Christina Smith, serving a sentence in Albion Correctional Facility, insists she is innocent.
Noah Boser was 7 months old when he died of a head injury in September 2002. The woman in state prison in connection with his death says she's innocent. Noah's mother disagrees.
His name was Noah.
He was a baby boy who died in a Buffalo hospital, two days after he abruptly stopped breathing in a large Victorian house in Olean.
He died a violent, mysterious death - a death caused by a brutal beating.
And in less time than it took for an ambulance to wail down South Seventh Street to the house where his limp body lay on the floor that warm Wednesday afternoon in mid-September two years ago, his death shattered the lives of two young women.
One still mourns her son.
The other sits in state prison, jailed for a crime she insists she didn't commit.
His name was Noah. What follows is as much as anyone - except one person, the killer - knows of his story. Noah Boser was 7 months old when he stopped breathing in the house on Seventh Street, a home day care run by Christina M. Smith, just before 3 p.m. on Sept. 18, 2002. His mother, Bethann M. Boser, had dropped him off a little more than an hour earlier.
That hour, like a few other aspects of this crime, remains a mystery, but what happened after Noah's death played out more like a macabre drama. As he was taken off life-support machines in Women and Children's Hospital, police hunted for the killer. That's when Smith volunteered to take a polygraph test, to clear herself. The test ended in an unexpected statement - which police said was a confession, but which Smith says was not.
Today, she's an inmate at Albion State Correctional Facility. She decided, earlier this year, to forgo a trial, instead taking a plea that allowed her to accept a prison sentence without admitting guilt. In an interview with The Buffalo News, she talked about her case for the first time.
"If there was anything I did that caused harm, then I deserve to be here," said Smith, 34, sitting in a cement-walled room in the prison. "That's what I believe. But I didn't do it." Meanwhile, Bethann Boser believes her baby's killer is in prison. "I hated God for a long time," said Boser, 26. "God had given me this special gift. And he took him away from me for his own reasons." Noah died of head injuries, an autopsy showed. Medical examiners ruled that he had been beaten on the back of the head with a blunt object - so forcibly that his brain ricocheted around inside his skull.
But his head was not bleeding, his skin not bruised or broken, when he arrived at Olean General Hospital. And the two women tell very different stories of what happened to baby Noah.
Parallel lives
Both Smith and Boser are Olean natives and come from families with deep roots in the Southern Tier. Each decided to attend St. Bonaventure University, and each knew what it was like to have a first child born out of wedlock, to struggle as a single mother. Smith graduated from St. Bonaventure in 1996 with an accounting degree. For four years, she worked as a business specialist for Cattaraugus County. Then in 2000, pregnant with her second child, she and her husband, Scott, decided she would open a day care.
"I wanted to be able to help people who work at night, single mothers, people like that," Smith said. "This was my whole life. This was all I did." Boser graduated in 2000 with a degree in elementary education. At the time of Noah's birth, on Feb. 13, 2002, Boser was working part time as an event coordinator in St. Bonaventure's School of Journalism and Mass Communication. She also was working night shifts as a "victim specialist" at a women's shelter.
By the spring of 2002, Boser was looking for daily child care for Noah. When she learned that Smith ran a day care near her apartment, it seemed ideal. "I thought, "Oh wow, we knew her,' " Boser said. "She had kids of her own. She was right down the street from my house." Boser needed to work that Wednesday afternoon in 2002, to help run an event at St. Bonaventure. Boser said she called Smith to see if she could watch Noah for longer than usual that day. The day before, Noah had gone to a doctor's appointment - where he got some vaccinations - and then stayed at Smith's house until 8 p.m.
Smith remembers a last-minute phone call, too. She said it came at around 11 a.m., and that Boser was anxious for her to take Noah for the day. Smith said she responded that Noah could come at 1:30 p.m. Boser dropped Noah off at Smith's house and then left for work. She said her one big regret is that she never kissed her son goodbye. "He gave me the biggest smile. I had never seen a smile like that before," Boser said. "I said, "Bye, sweetie, I love you.' " Smith remembers it differently. She said Noah was fussy and irritable when he arrived at her house, which was unusual for him. He wouldn't take any juice from his bottle, which was also unusual. Police records show that she told officers about those concerns at the time.
"He just started to get really fussy," Smith recalled. "He was cranky. That's not typical. But he was just cutting teeth the week before, so I figured that's what it was." Whatever Noah's mood was that day, one thing remains clear: He stopped breathing slightly more than one hour later.
The 911 call
Here's where the stories of the two women diverge.
Boser believes that Smith struck Noah forcibly on the head because she was stressed over her personal life, including the fact that her eldest son, then 13, had been sent home early from school that day for bad behavior. "I think she just struck him because he was there," Boser said. Smith insists that she didn't hit Noah and that he must already have been injured before he was dropped off.
"I have no idea how it happened," Smith said. "But it did not happen at my house." Smith told police that Noah went down for a nap at about 2:40 p.m. At 2:59 p.m., Smith placed a call to 911. A tape of the call reveals a panicked woman:
"He's not conscious and he's not breathing," Smith gasps into the phone.
On the tape, Smith tells the 911 attendant that Noah is lying on her couch. The attendant orders Smith to put Noah on the floor, lift his chin, cover his mouth with hers and blow two small breaths.
"He's not doing anything," Smith says, crying.
The attendant asks Smith how old the baby is.
"Seven months. He had his shots yesterday. I laid him down for a nap on his belly, we just started laying him on his belly . . ."
A few moments later, she cries into the phone: "Oh my God."
And then: "I'm scared."
By 3:02 p.m., an ambulance crew arrived at Smith's house.
At 3:11 p.m., when Noah was admitted to Olean General Hospital, doctors examined him and made a preliminary diagnosis of cardiac arrest, according to hospital records. Doctors noted on hospital paperwork "no evidence of head trauma." Meanwhile, Boser, at St. Bonaventure, got a phone call from campus security and rushed to the hospital. "I was crying on the way to the hospital," Boser recalls. "I was crying so hard I got sick and threw up in my mom's Jeep," Boser recalls. "It was horrible."
Noah didn't die right away. He was flown to Women and Children's Hospital, where he was kept alive for 48 hours. On Friday, Sept. 20, his life-support machines were turned off. "I was pleading with God, please take my life, please take anybody's life," Boser said. "Please show me a sign that everything's going to be all right."
As family and friends stood around his bedside, Noah died.
Focusing investigation
In the days after Noah's death, police interviewed Smith and Boser; Cristopher Rowand, Noah's father; Mike Flynn, a man Boser had a relationship with at the time; Nick Davison, another man Boser was close to; Smith's older son; and others. • Rowand, who was in Cattaraugus County jail at the time, told police that Noah was born after he and Boser had a brief relationship in 2001.
• Flynn, who was at Boser's apartment on Monday and Tuesday, according to police records, told police that Noah "appeared fine" when he saw him last on Tuesday morning. • Davison told police he saw Noah Tuesday evening and then again on Wednesday, the day Noah stopped breathing. He said Noah seemed to be in a "good mood." • Smith's 13-year-old son was initially interviewed because he was known for bad behavior and had been sent home from school early that day for infractions. But police ruled out the son when he told them he was doing errands during much of the time period in question - and produced time-stamped receipts from the library and drugstore to prove it.
Polygraph test
Police weren't getting very far. Then something happened that changed everything: Smith volunteered for a polygraph test. Smith made the offer the day after Noah died. She said she did it because she wanted to clear herself. "I know I didn't do anything," she said. "I hoped it would make them stop questioning me." That Monday morning, Smith - shaken after seeing her house on the TV news - swallowed an anti-anxiety drug, Lorazepam, that her doctor had prescribed to help her calm down after Noah's death.
At 9:30 a.m., police officers arrived at her house to tell her she could take the polygraph test immediately. Smith went to the State Police barracks in Olean. She said recently that she wouldn't have taken the medication if she had known she would be tested that day. Lorazepam, according to the National Institutes of Health, can cause dizziness, drowsiness and weakness.
5-hour session
Smith's polygraph session lasted from about noon to nearly 5 p.m. First, Smith said she "accidentally" bumped Noah's head against his car carrier. Then she said she "squeezed" Noah's head while walking him, trying to make him stop crying. Later, she said her dog, a Pekinese, might have jumped on Noah's head while he was laying on the couch. Finally, shortly before 6 p.m., Smith signed a statement. This is what it said, in part:
"I laid him on his stomach on the couch and he was still fussing and crying and I started rubbing his back. I sat on the couch, at his feet and he would not stop. I hit him in the back of the head, with my left hand, where his head is sort of flat . . . When I hit him I said at the same time, "Noah, come on.' My hand was open and I hit him with the flat of my hand. I really wasn't trying to hurt him I just wanted him to stop."
Smith today maintains that she offered those four scenarios to give her questioner answers that would satisfy her, so the test would stop. She said she never admitted hitting Noah with force - definitely not with enough force to cause massive trauma. She said that when she signed the statement - after five hours of questioning with no breaks for food or drink, and after spells of dizziness - she didn't know what she was doing. "I didn't even read the statement I had signed," she said. "I couldn't see it. My eyes had swelled shut from crying."
Baby Noah's head
The crucial question about Noah's death remains: When did he suffer the head injuries that caused him to stop breathing, then to die? The autopsy does not specify. It says Noah's brain was bruised and "extremely swollen," with a small amount of bleeding. The back of his head was swollen and had hemorrhaged. All the suture lines of his skull had separated, and there was hemorrhaging behind his eyes. The medical examiner ruled Noah's death a homicide, caused by being "beaten on the back of the head with a blunt object."
But medical and legal experts contacted by The Buffalo News said that Noah's autopsy leaves room for disagreement as to how and when he was injured. Noah's death would have happened right after the injuries were caused, said Dr. Mary E. Case, co-director of the division of forensic pathology at Saint Louis University and chief medical examiner for four counties in Missouri. She said Noah could have been hit with an object or shaken sharply. "It happens immediately," she said. "As soon as the child is significantly injured, it happens - it doesn't take minutes or hours. The child would be immediately symptomatic and unconscious."
But another expert argued that Noah's injuries could have happened earlier that morning, the day before or the previous week. "(Noah) could have been battered six or seven or even 10 hours before this death happened," said Dr. James Baumgartner, associate professor of surgery at the University of Texas at Houston and an expert who testifies in head injury cases. Local defense attorney Anne E. Adams concurred and said baby death cases are hard to argue in court precisely because the autopsy reports - like Noah's - can be interpreted in a variety of ways. "You can have babies who are hit seven or eight days before they start exhibiting problems," she said.
Charles F. Gallagher, Smith's attorney, planned to argue at trial that Noah's injury could have been caused in different ways and at different times, but that Smith did not do it during the hour Noah was at her house. Boser, who acknowledged that she was aware of initial police questions to determine whether Noah could have been fatally injured before he was dropped off at Smith's day care, denies that she - or anyone in her household - could have hurt Noah in any way.
"I can't even hurt a fly, let alone hurt a child," she said. "Let alone hurt my child." Records kept by Noah's pediatrician in Olean show that Noah was a well and healthy baby up until his death.
The aftermath
After signing the statement, Smith was arrested. As her murder trial approached, she began to fear that the community of Olean had turned against her. Her "confession" had been splashed across the front page of the local paper. On the day her trial was to begin, in November 2003, she decided to take a plea - an Alford plea, which meant she would not have to admit any guilt, even though she would accept a prison sentence. "I didn't think I was going to get an impartial jury," she said. "And I didn't want to be away from my kids any longer than I had to. I wish I had gone to trial - but I'm glad I did what I had to do for my kids."
Before Smith's sentencing, on charges of second-degree manslaughter, letters poured into Cattaraugus County Court. Three people - including the dean of St. Bonaventure's journalism school, Lee Coppola - wrote letters asking for a stiff sentence for Smith. Forty-two people wrote letters on Smith's behalf, asking for leniency.
On Jan. 20, 2004, Judge Larry M. Himelein sentenced Smith to three to nine years in prison.
These days, Smith is struggling through her first year in prison.
Gallagher, Smith's attorney, said that Smith never waived her right to appeal the case. That may happen, he said, although no appeal has been filed. Meanwhile, Boser is caring for her second son, 15-month-old Connor, and working part time at St. Bonaventure. Connor goes to a day care center at a local church a few times a week. The Boser family is still reeling from the shock of Noah's death, Boser's mother said. "I have days when I feel we're starting to move on," Kathy Boser said. "But then I have days when I think my family is never going to get beyond this."
Baby sitter charged in infant's death Woman, 19, says child suddenly went limp
By DAVID DOEGE
ddoege@journalsentinel.com
Posted: June 8, 2005
Waukesha - A second-degree reckless homicide charge was filed Wednesday against a 19-year-old Mukwonago woman in connection with the April death of a 9-week-old boy she was baby-sitting. Christy M. Woppert was charged in a criminal complaint that says the boy died from brain injuries typically associated with shaken-baby syndrome, but that Woppert professed doing nothing untoward while caring for him.
A physician who performed an autopsy on the body of Mason Maciosek concluded that he "died of a severe inflicted head injury," according to the complaint. Yet Woppert told medical personnel that the child simply cried out from his crib one minute then went "completely limp and unresponsive" the next, the complaint says. The complaint charging Woppert, who turns 20 Saturday, was filed in Waukesha County Circuit Court Wednesday with a warrant for her arrest. Attorney Matthew Huppertz, who was representing Woppert at the time of the boy's death, could not be reached for comment.
The complaint says the boy's mother, Michelle Maciosek, dropped off her son at a Muskego home where Woppert cared for him about 9:45 a.m. April 12 and he appeared normal. Shortly after 2 p.m., however, Woppert called 911 and reported that the child was "breathing but unresponsive," the complaint says. Police have said that Woppert was watching the baby at her boyfriend's residence.
The complaint gives the following account:
Woppert told the first police officer who arrived at the scene that the boy was in a crib on his back while she was in the kitchen making a sandwich and he suddenly began to cry. When she went to check on him he stopped crying and when she picked him up "she noticed he was completely limp."
The child was rushed to Children's Hospital of Wisconsin in Wauwatosa where he was listed in "critical condition with a grave prognosis" and placed on life support. Before life support measures were ended, medical personnel spoke with Woppert to determine what happened. She said that after his mother dropped him off, the boy went to sleep and she changed his diaper about one hour later. The boy remained calm and playful until about 1:15 p.m. when she changed his diaper again and he "demonstrated an unusual amount of fussiness."
Woppert said she turned on some music to calm the boy, then went to the kitchen to make a sandwich. At 2 p.m., he suddenly cried out, according to Woppert, and when she went to check on him, she found him limp.
In an effort to get the boy to resume breathing, she "undressed him, pinched his feet and blew on his face continuously" while "yelling his name in an effort to wake him up."
After a few minutes passed, she dialed 911.
Woppert insisted that nothing physical occurred to the boy while he was with her.
A nurse told authorities that while Woppert was with the boy in the intensive care unit she was weeping and told him, "I'm sorry this happened. You are such a beautiful baby."
http://www.newszap.com/articles/2005/06/02/fl/lake_okeechobee/okee01.txt
Woman granted a new trial in baby case
By Christina Locke, Special to theOkeechobee News
A woman found guilty of in connection with the shaking death of a 14-month-old girl will get a new trial, according to an opinion released by the 4th Circuit Court of Appeals. Michelle Sparkman, 26, was convicted of manslaughter during her October 2003 trial at the Okeechobee County Courthouse. She was later sentenced to 15 years in prison for the death of Courtney Mikus, the daughter of the man Sparkman was living with at a Four Seasons mobile home in September 2000, the time of Courtney's death. Sparkman was granted a $30,000 bond at her December 2003 sentencing hearing since she had no prior felonies.
The appeals court ruled May 18 that a video of Sparkman's interview with Okeechobee County Sheriff's Office Detective T.J. Brock contained comments by the detective that should not have been heard by the jury. The case will be retried within 90 days of the appeals court ruling, unless Sparkman waives her right to speedy trial. Sparkman's attorney at the time, Public Defender Carlos Wells, was supposed to review the tape before the trial, but did not, court documents show. When he objected to the tape during Sparkman's trial, Judge Dan Vaughn ruled his objection untimely. The 4th Circuit ruled that Judge Vaughn's decision was incorrect.
During the original trial, Jason Mikus testified that on Saturday, Sept. 2, 2000, he was working when he got a call from his live-in girlfriend, Sparkman, saying that something was wrong with his daughter. He arrived at his home to find Courtney Mikus vomiting and unresponsive. Courtney was resuscitated by Okeechobee County Fire/Rescue personnel, but died the following Monday at St. Mary's Hospital in West Palm Beach. Prosecutors and medical examiner Dr. Roger Middleton presented the jury with the theory that Courtney was a victim of "Shaken Baby Syndrome" or "Shaken-Impact Syndrome."
"She either beat that child or shook that child ... or did both," said Assistant State Attorney Ashley Albright during closing arguments at trial. Mr. Wells countered that Courtney, who had a history of seizures, may have suffered from an undiagnosed neurological condition and that another medical examiner, Dr. Frederick Hobin, came to a different conclusion about Courtney's death.
Dr. Hobin was not called to testify for the state.
"I didn't do anything to hurt Courtney," Sparkman said during her 2003 sentencing hearing.
(14month vaccines?)
Article Last Updated: 7/28/2005 01:19 AM
Woman tries to rebuild life
She lost day care, reputation fighting shaken-baby charges
By Christopher Smart
The Salt Lake Tribune
Salt Lake Tribune
PARK CITY - Abigail Tiscare o weeps.
Convicted of a felony shaken-baby assault charge that carries up to a 15-year sentence and later found not guilty of the crime at a second trial, she now can only wonder what's next in her shattered life. So she weeps for her three children, who were ridiculed at school during the two-year ordeal; and for her husband, who spent the family's entire savings on her defense. She weeps knowing that even when she finds the courage to go shopping amid whispers and finger-pointing, she will never have another Abby's Day Care.
And she weeps for Nathan Molineaux, the toddler whose severe brain damage means he never will enjoy a normal life and will require constant care. "I no longer had a life. I just wanted to be with my kids and my husband and pray that it would be over," Tiscare o says of the period after her October 2004 conviction in Summit County's 3rd District Court. "They were going to give me 15 years in prison. When the judge [in the second trial] said, 'not guilty,' I just cried."
The story swirls around a justice system that continues to grapple with crimes against infants and how police and courts depend upon physicians to guide them to perpetrators and, hopefully, to justice. It's about the renewed debate over whether "shaken-baby syndrome" - believed to be gospel for the past two decades or more - can be supported by science. For Tiscare o, it's also a tale about a crucial piece of evidence that inexplicably was omitted from her first trial and how a second defense team found what it calls the "smoking gun" that eventually exonerated the day-care provider.
A fateful day: It was Nov. 14, 2003, when Tiscare o's life began to unravel shortly after James Molineaux dropped off his sons, Jaden, 2, and Nathan, 12 months, at Abby's Day Care in her modest home near Park City at about 7:40 a.m. By 10:28 a.m., according to Summit County's 911 log, she was explaining to an emergency operator that Nathan was having difficulty breathing.
Paramedics rushed the child to Primary Children's Medical Center in Salt Lake City, where doctors diagnosed an acute subdural hematoma - bleeding between the brain and the skull - that quickly can reach life-threatening dimensions.
Through special X-rays called CT scans, they assessed that Nathan's brain was swelling dangerously. Surgeons moved quickly to remove the top of his skull to give the enlarged brain more space until the swelling subsided. The operation saved his life, but was not in time to avert severe brain damage.
During the crisis, according to trial testimony, Lori Frasier, the pediatrician who directs the hospital's Center for Safe and Healthy Families, advised Summit County investigators that the injury could have been caused only by the day-care provider. Although sheriff's detectives had sought a warrant to search the home where Nathan lived with his father, grandmother and several others, they immediately dropped that avenue of investigation and focused on Tiscare o.
That evening at 9, authorities summoned the baby sitter to the Summit County Sheriff's Office, where they questioned her for five hours.
"They asked me why I hurt Nathan," she recalls of the interrogation in which no attorney was present. "I said I did nothing to Nathan. And they said, 'You were the only one there.' I didn't know what was going on, but I began to see that they thought I did it." By the time she was allowed to return home at about 2 a.m., detectives believed they had their perpetrator, according to investigative reports. Within days, authorities charged Tiscare o with felony aggravated assault.
Summit County prosecutor David Brickey assembled a case against the day-care provider with witnesses, including Frasier, an expert in "shaken-baby syndrome," and Marion "Jack" Walker, the surgeon who had saved Nathan's life.
Frasier testified that Nathan's injuries were inflicted by shaking that could have only occurred directly before the baby showed the symptoms of trauma. Walker told the jury that the blood on Nathan's brain was from an hours-old injury. Responding to a question from Brickey, Walker said the pathology report showed that "it was basically a fresh blood clot." It was largely on the strength of the two doctors' testimony that a jury convicted Tiscare o. While awaiting sentencing, Tiscare o and her family found themselves on a second legal front. Nathan's parents, James Molineaux and Christina McIntire, sued in civil court - the case is still pending - hoping to recover monetary damages for what will be a lifetime of medical care for their son.
James Molineaux met McIntire at the Summit County Jail, where they both were serving sentences. The pair had two children and a volatile relationship, according to police reports and courtroom testimony. The day Nathan was taken to the hospital, McIntire again was incarcerated at the Utah State Prison. Her parole had been revoked after Molineaux reported to authorities that she continued to use methamphetamine.
Missing report: It was the couple's suit that spurred Salt Lake City-based attorneys James Bradshaw and Mark Moffat, who had picked up Tiscare o's case after her conviction, to seek records from Primary Children's Medical Center. But in the dozens of documents provided by the hospital, the pathology report was nowhere to be found, Bradshaw said, making it conspicuous by its absence. Although Walker's testimony referred to the pathology analysis at the first trial, the document was not in evidence before the jury.
Tiscare o's original attorney, Earl Xiaz, said despite requesting all pertinent records from the Summit County prosecutor, the pathology report never turned up. "I don't want to speculate as to why we didn't have it," Xiaz said. "But I think it would have made a lot of difference. I would like to think that a jury would look at that and say, 'That's enough for reasonable doubt.' '' Bradshaw and Moffat kept digging for the pathology report. "It's inherently unbelievable there wouldn't be one," Bradshaw said.
But no such document could be found in Nathan Molineaux's file at Primary Children's. Working outside the hospital's official channels, however, the defense team eventually found it after prodding a clerk in the medical center's pathology department. "It was a bomb," Bradshaw said of the analysis. "It was remarkable because it showed old blood from a previous brain injury. The whole premise of the prosecution's case is that it had to be Abby because it happened that morning. But the pathology report says that is not true."
Oddly, Bradshaw and Moffat won a new criminal trial based not on the new evidence but on an improper jury instruction during the 2004 trial. For the new trial this past May, the defense waived a jury in favor of arguing the case directly to 3rd District Judge Deno Himonas. Despite the revelation of the pathology analysis, Walker and Frasier testified as they had at the first trial.
Walker said the injury was new and not the result of previous trauma. And Frasier insisted that Abigail Tiscare o was the only person who could have caused the injury.
Nathan had a "very serious head injury and he would have had to manifest symptoms of a very serious head injury," Frasier testified. "You just don't walk around with a serious head injury like Nathan had with bleeding blood vessels, arteries and brain swelling and act normal."
But Primary Children's pathologist Theodore Pyshar explained to the court that his analysis revealed some of the bleeding on Nathan's brain could have taken place three days before the baby fell into a coma.
11 to 14 days before: And Jan Leestma, a neuropathologist from Children's Memorial Hospital at Northwestern University in Chicago, testified that, based on the pathology analysis and CT scans, some of the bleeding from veins and arteries attached to Nathan's brain could have occurred 11 to 14 days before the crisis at Abby's Day Care.
In an interview, Leestma said a brain injury like Nathan's would require the force of at least 10 G's - something he maintains is not attainable by shaking alone. "That could not be accomplished without striking the baby's head against a solid object. But there were no bruises to suggest such impact."
A previous injury could well have led to acute trauma on Nov. 14, 2003, Leestma said.
"This child had a very large subdural hematoma. It may have been weeks old. We don't know how it got there, but it percolates and grows," Leestma explained. "If the brain moves even 1 millimeter and the bulging vessels are tight, it could snap some of them, leading to new bleeding."
Further, Leestma said there is no scientific evidence to support the "shaken-baby" theory. "If you could shake a baby hard enough to reach 10 G's, it would break its neck. Yet, it is very rare to see one of these cases with spinal injuries."
Tiscare o was acquitted May 27, 2005.
The discovery of the pathology report came as a shock, said prosecutor Brickey. On two separate occasions, he said, the Summit County Attorney's Office subpoenaed all documents from Primary Children's. But, Brickey said, he became aware of the pathology analysis only through Tiscare o's attorneys, Bradshaw and Moffat. "I'm surprised and I'm disappointed in Primary Children's," Brickey said in an interview. Knowing that Nathan had an earlier brain injury would have led to a re-evaluation of the case against Tiscare o, Brickey said. It could also have led to a more thorough investigation of other possible suspects. "If we had had that report, I don't know without further investigation that the [Tiscare o] trial would have gone forward," Brickey said.
Frasier and Walker declined several requests for interviews for this story through Primary Children's spokeswoman Bonnie Midget. While Abigail Tiscare o tries to adjust to life after the ordeal, her husband, Guillermo, remains angry at the Primary Children's physicians and at Summit County authorities. Going forward with a second prosecution after the pathology analysis came to light is unconscionable, Guillermo said. "As soon as I heard that, I just didn't understand why. The only thing I was thinking is, they are going to put someone in jail, no matter what."
Starting over: The Tiscare os must start all over again, Guillermo laments.
"Now everything is gone. I don't care about the money. Thank God I have hands to work. Maybe someday we can recover, I don't know," he said. "But they threw my wife's reputation out the window. It's going to be hard."
csmart@sltrib.com
http://www.sltrib.com/portlet/article/html/fragments/print_article.jsp?article=2894992
Here is an interesting story from the UK Guardian newspaper...This man was in the Shaken Baby Appeal that may make a difference for a lot more "falsely Accused" people there. I have cut and pasted it here for you...
Title: 'If I had been on the jury I would have convicted myself'
Raymond Rock spent six years in prison for killing his girlfriend's 13-month-old daughter. It seemed a classic case of Shaken Baby Syndrome. But when new scientific evidence emerged, doubt was cast on his conviction and last week he was freed. In this exclusive
interview, he tells John Sweeney why he was at fault for baby Heidi's death and how that one moment has changed his life for ever
Friday July 29, 2005
When Ray Rock walked out of London's court of appeal on Thursday last week, there were no reporters waiting for him. The former fork- lift truck driver had just spent six years in prison for violently shaking his girlfriend's baby to death, only to have his conviction quashed on appeal. His appeal was a test case that could see 89 other parents and carers accused of shaking babies having their convictions overturned: this was a legal turning point. But as it was, he walked free into media silence. It was the afternoon of July
21, and London had other things on its mind. The mother of the dead baby, Rock's ex-girlfriend, Lisa Davis, had left the court some time before, immediately after the verdict was announced, and before news had filtered through of the attempted bombings. Her anger did make it on to the news. "I am devastated," she told reporters. "What they are basically saying is that you can shake a baby and you will not get murder. But my Heidi suffered the worst injuries doctors had seen. This man has shown no remorse whatsoever. He has only done six years for killing my little baby."
Rock, 35, remains a convicted child-killer: much to his regret, the appeal court only reduced his murder conviction to manslaughter. But, for the record, this is his side of the story. "I feel desperately sorry for Lisa. I know she still hates me, and cannot understand why I am at liberty," he says. "I know that I was in charge of her baby when she died. But that does not mean I deliberately meant to harm baby Heidi in any way whatsoever - let alone kill her."
Rock's remaining manslaughter conviction fills many with unease. New science, developed after his trial in 1999, questions the entire basis of Shaken Baby Syndrome (SBS) - the syndrome that did for Rock and, in 1997, saw British nanny Louise Woodward convicted of killing a baby in America. In the absence of witnesses, the logic of the prosecution case against Rock, as in so many other cases of this sort, is that he must have violently shaken Heidi because she suffered the three classic symptoms of SBS - bleeds over the brain and in the back of the eyes, and a swollen brain. But experts such as consultant neuropathologist Jennian Geddes, formerly of the Royal London, now say there is no must, and the appeal court chose to believe them: "We do not think it possible to find that it must automatically and necessarily lead to a diagnosis," the judges said last week. Nevertheless, they found that Rock, originally from Great Yarmouth in Norfolk, was still guilty of manslaughter. Justice has been done - but, perhaps, only up to a point.
I, for one, find Rock's story of a tragic accident compelling. He is a big man, like his father, Brian, who died in February. But he gets his gentleness and sunny disposition from his Argentinian mother, Linda.
Heidi sustained her injuries one summer evening in June, 1998 at home in Great Yarmouth. Lisa was out. The crown says that Rock was watching the X-Files and was angered by her cries. He went upstairs, shook her viciously, and caused her brain to bleed, leading to her death. He remembers things very differently. "I was watching a video," he says. "No need to get angry about anything: I could always rewind. I loved Heidi and I loved looking after her. There was a baby mobile with shiny lights that often helped soothe her. She was still crying as I was trying to wind it up. I was cack-handed, holding the baby in my right arm, and trying to turn the mobile with my left and she fell, straight down on her bottom. She had fallen badly - on the base of spine. There was a carpet but it was thin.
"I picked her up. She wasn't breathing at all. I felt panic rising in me but I fought it. I'm a calm person, and I never once lost control. I carried on hoping and praying that she would snap out of it and draw breath."
Rock has admitted that, after the accident, he did shake Heidi - so is he a killer? "No, not at all. The lawyer in the Louise Woodward case did this crazy thing when he shook an imaginary baby for two minutes. It wasn't like that. I just shook her ever so gently, as if trying to wake her up. The idea that I would have violently shaken her is so untrue. I would never have hurt her - ever." He shook her -but she still wasn't breathing. "Her colour hadn't gone at that stage but the muscles in her face were contorted, strange, somehow
frozen. It was as if something inside her had switched off."
Rock rang 999. They went to the wrong address. When the finally arrived, they cleared Heidi's airway, and gave her oxygen. She trembled back into life, a little, so there was some hope at last. At the hospital, the doctors began treatment. Lisa arrived and hugged him. At this stage, before the "proof" emerged that Rock must have violently shaken Heidi, Lisa believed in Rock. The accident happened on Tuesday, June 2 1998. They switched the life support off on the Friday. Heidi was brain dead. On the Monday, police arrested Rock. "I couldn't believe this was happening," he says. "And yet it was."
Rock could feel Lisa slipping away from him. The doctors had found, so they thought, the tell-tale injuries of SBS. "I'm not saying that the police acted improperly towards me. But, to me, it felt as though their whole mental framework was based on the fact that I was guilty. To me, it seemed that they thought that I was lying through my teeth. There was no way out, no way I could get through to them." From the moment Rock walked into court he knew, he says, that he was damned: "I was a child-killer. You know the jury are thinking that this man must be a monster. It felt like the same mind-set I thought that the police had: 'You are sick, you are evil, you are twisted, you did it.'"
Seven experts gave evidence in his trial, which started in September 1999, at Chelmsford crown court. They were all for the prosecution. The experts said Rock must have shaken Heidi violently; one said the force he used must have been the same as that in a high-speed car crash. One said they had never seen injuries as severe as Heidi's in his whole career. "If I had been on the jury I would have convicted myself," says Rock. He got mandatory life for murder, which meant at least 10 years.
Inside, he suffered more than a loss of freedom. One afternoon, a year into his sentence, some men came for him. He was in his cell at Long Lartin prison. The door swung open and he thought it was an officer coming to check the cell. No words, no cries of "nonce"
or "beast". He looked up and saw a white flash. They used a sock filled with snooker balls. He felt a torrent of blows. Two more men came in and hit him with something like a table leg. When they split his scalp open, the blood spurted like a fountain. He thought he was
sweating and he put his hand up to wipe his face and he realised it was blood. He couldn't walk for a month and couldn't speak properly for weeks.
When Rock was convicted, SBS was a fact. Enter Jennian Geddes, an expert in such matters. In 2004, I interviewed Geddes for BBC1's Real Story on Rock's case, and asked her: "Are you saying that you now believe that it is possible Raymond Rock is innocent?" She replied: "Yes."
Geddes had compared the brains of babies who had been violently shaken in car crashes, to babies who had been allegedly shaken to death. She found that, unlike in crash victims, there was no axonal damage - no trauma to the inside of the brain - in baby Heidi. And the baby had no significant injury to the neck. This indicated she hadn't been shaken violently at all. And in fact some other doctors were now saying that babies and infants can die from falls from a very low height - exactly as Rock said had happened.
The world was beginning to wake up to the possibility that medical experts could get it wrong. Sally Clark and Angela Cannings went to prison because they must have smothered their babies - so when they were freed in 2003, the doubts about the convictions of Rock and other "shakers" resonated. Alongside Rock's case, the appeal court last week quashed the manslaughter conviction against alleged baby-shaker Lorraine Harris and the grievous bodily harm conviction against Michael Faulder, but upheld manslaughter against Alan Cherry - a verdict he intends to challenge.
For Rock, now starting a new life away from Great Yarmouth, the lonely fight to clear his name continues. "That beautiful baby had turned into a rag doll and it was my fault because I had dropped her. I am to blame. My clumsiness, my cack-handedness, my mistake. The reason she is no longer with us is me. And I will never, ever forgive myself for dropping her. But I didn't mean to do it. It was a terrible accident. I did not deliberately hurt that child. I only loved her. And I will go to my grave saying this: there was no crime. I am innocent of murder or manslaughter. And I never, ever meant to do anything other than care for and love that child. And I have spent six years in prison as a child-killer for a crime that never was."
· John Sweeney is a reporter for the BBC.
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