While the appeals on behalf of care providers Jennifer Del Prete and René Bailey work their ways through the courts, a number of other painful cases have been passing milestones without news coverage.
Hopes Dimmed in the West
In the “exasperating” category is an April 2 decision in Montana, where a district judge has rejected an Innocence Project petition to reopen the case of single father Robert James “Dave” Wilkes, convicted in 2009. As described in past news coverage of the case, Wilkes had spent the day moving into a new apartment, and then stopped by the unit of a friend and neighbor who had been caring for 3-month-old Gabriel. He stayed and chatted while feeding the boy a bottle. Wilkes says that a few minutes after the two returned to their own apartment, Gabriel made a “gurgling” noise and quit breathing. At the hospital, though, doctors said the presence of the triad proved the child had been shaken.
The appeal argued that Wilkes had ineffective assistance of counsel, because his trial attorney had called only one witness, Wilkes himself, who told the jury his version of what happened that evening. But the jury also heard from nine prosecution experts, who agreed that little Gabriel couldn’t have drunk a bottle after the presumed assault. Remarkably, the district court overlooked this imbalance, noting that the attorney had tried to find a defense expert, and in fact had contacted forensic pathologist Dr. Thomas Bennett, a “recognized expert in child abuse”—who had agreed with the state’s doctors.
One fundamental problem here is that if the defense attorney had done his research, he never would have contacted Dr. Bennett with a shaking case: Dr. Bennett’s over-diagnosis of shaking injuries triggered one of the first high-profile articles questioning shaken baby syndrome in the courtroom, the 1998 piece by Mark Hanson in the ABA Journal, “Why Are Iowa’s Babies Dying?” As also reported in the Los Angeles Times, Dr. Bennett ultimately resigned his post as state medical examiner after a series of unsupportable shaking diagnoses. The eventual exoneration of babysitter Mary Weaver was part of his unraveling.
Still, Judge Ed McLean of the Montana Fourth Judicial District agreed in his written opinion (Wilkes 2014-04-02) with a lower court that the trial strategy had been reasonable and that “any assertion that the mere presence of an expert for the defense would have made a difference… is mere speculation.” Judge McLean’s decision also dismissed new opinions offered in the petition from an array of medical experts for the defense, although attorney Brendan McQuillan from the Montana Innocence Project insists his team “found and presented new evidence never discovered before or after trial that the child had neonatal-hemochromitosis, a rare liver disorder which is most often fatal.”
Clearer Thinking in Maryland
Illustrating the unpredictable nature of these appeals, a Maryland circuit court reached the opposite decision just a few days later in a similar case, overturning the 2010 conviction of Gail Pinder Dobson, a child care provider with both a long history and a sterling reputation in her community before she was accused of shaking a 9-month-old baby to death. Dobson had in fact taken care of the infant’s mother when she was a baby decades earlier.
Like Wilkes in Montana, Dobson reported that a few minutes after she fed the boy a bottle, he made a “gurgling” sound and stopped breathing. She attempted first aid and dialed 911, but the boy died later that day. Soon after Dobson’s indictment in November of 2009, her attorney contacted a single expert witness, who supplied his report at the end of July for an August trial: He agreed with the state’s physicians that the infant had suffered an inflicted injury just before the 911 call. Although Dobson’s trial featured a number of character witnesses, her attorney did not call any medical experts, with the explanation that “Petitioner denied any type of abuse and her credibility should have been sufficient.”
In Dobson’s case, though, the court concluded that the attorney “did not use reasonable diligence” by not getting the doctor’s opinion in time to find an alternative expert. The state argued that Dobson’s attorney was employing a legitimate trial tactic, but the judge wrote, “[The attorney’s] assertion that he did not need expert testimony is both illogical and untenable. Such testimony would have both corroborated Petitioner’s version of the facts and refuted the testimony of the State’s experts.” You can read the decision, by Kent County Circuit Court Judge Paul M. Bowman, at Dobson -Kent County, 2014-04-07.
A Long, Lonely Road in Tennessee
I was especially sad to hear that the U.S. Sixth Circuit Court of Appeals has denied the habeas petition of convicted father Russell Maze, now serving a life sentence for the death of his son Alex, only five weeks old and still days short of his due date the afternoon in 1999 that Russell claims he found the boy gasping for breath in his crib. Alex had been born in respiratory distress, with the umbilical cord wrapped tightly around his neck, and he spent his first two weeks of life in the intensive care nursery. A few days before his collapse, his parents had taken him to the after-hours clinic, where they were told they were being over-anxious first-time parents.
Maze’s case history is complex. His prosecutor at two trials was Brian Holmgren, an advisory board member of the National Center on Shaken Baby Sydnrome and the co-author of a passionate essay last year in the Utah Law Review decrying the minority opinion in the Shirley Ree Smith case.
Dropped Before Trial
Finally, in Washington state, a welcome outcome that short-circuits the need for an appeal later: Charges have been dropped against a young father after a prosecution motion that said staffing shortages had precluded their dealing with the case in a timely manner. Charges were dropped without prejudice, so the state could refile, but defense attorney Chuck Henry said he doubts they will revisit, as both the evidence and the handling of the case were inadequate. “This case was truly more about prosecutorial case mismanagement than it was about SBS, which never existed in the first place,” he summarized.
copyright 2014 Sue Luttner
If you are not familiar with the debate surrounding Shaken Baby Syndrome, please see the home page of this web site.