A series of promising decisions has offered renewed hope for a few prisoners and parents while also highlighting some of the outrageous circumstances that can surround charges of inflicted pediatric head trauma.
In early January in Macomb County, Michigan, for example, the circuit court granted a new trial to Ronald Di Mambro, Jr., whose appeal had triggered the release of key autopsy photos not previously disclosed to the defense and therefore not available during his 2014 trial. The appeal that brought the photos to light was based on ineffective assistance of counsel. Di Mambro’s attorney had relied on a single defense expert, Dr. Bader Cassin, who agreed with the prosecution’s argument that a fall from a bar stool the previous day could not have contributed to the boy’s collapse while in Di Mambro’s care. Instead of believing his client and questioning the state’s theory about timing, the attorney opted for a defense of involuntary manslaughter. Di Mambro is now serving a sentence of life in prison without parole.
Ironicallly, the newly available photos answered a number of questions raised by forensic pathologist Ljubisa J. Dragovic, the medical examiner in adjacent Oakland County, who noted in his first affidavit that deficiencies in the autopsy limited his ability to date the findings. Close-ups of the tissues allowed Dr. Dragovic to refine his analysis. He now attributes some bleeding and bruising with more confidence to surgical intervention and concludes that a single event the previous day could account for the two other areas of bruising.
The published opinion granting a new trial recognized both the “Brady violation”—the state’s failure to disclose evidence—and the original claim of inadequate assistance of counsel. Local news coverage quoted prosecutor Eric Smith, who said he and his staff are “shocked, surprised, and disappointed” at the development, and appellate attorney Erin Van Campen, who called the ruling “very thoughtful and well reasoned.”
A Family Court Reversal
A couple of weeks later in nearby Wayne County, Michigan, a state appeals court concluded that parents faced with termination of rights based on a diagnosis of child abuse deserve funds for a second opinion, at least in some circumstances.
A panel of three judges vacated the termination of parental rights in the case of JPY, who was five months old the day he fell limp and unresponsive in the care of his father. The written decision tells a story that began a day before his collapse, when the child’s mother took him to the family pediatrician because his left eye was not lined up with his right. The pediatrician sent the child to the hospital for MRI scans, which were performed both with and without enhancement and which revealed nothing alarming. Doctors sent the child home, with a warning to watch for breathing problems.
The mother said her son seemed warm and cranky the next day, eating only 4 ounces through the late afternoon. Then, while the mother was out on an errand, the boy’s father called 911 for help with a baby gone limp and unconscious. The mother returned to find the father performing CPR and waiting for the ambulance. When the ambulance still hadn’t arrived several minutes later, the father drove them all to St. John’s Hospital, while the mother continued CPR in the car. From the decision:
On arrival at the hospital JPY was flaccid, unconscious, and had no pulse. He took only intermittent gasping breaths. After prolonged resuscitation JPY developed a heart rate. A physician noted that the infant’s estimated “downtime” was approximately 30 minutes, and that the child had been ill with upper respiratory infection symptoms during the preceding week. CT scan of JPY’s brain obtained that evening revealed no acute findings and did not suggest a traumatic injury.
A social worker investigating the possibility of abuse reported that family members were all showing appropriate levels of concern and she could find no evidence of maltreatment. When the child was transferred to Children’s Hospital of Michigan, however, a team of doctors concluded that JPY was “a severely injured baby with subdural hemorrhages, bilateral retinal hemorrhages, skull fracture from abusive trauma.”
The parents requested funds to hire a medical expert, but the court denied the request. At the termination hearing, held only six months after the boy’s collapse, four doctors from the children’s hospital testified that the child had been abused—at least one of them conceded that he had not reviewed the St. John’s records—and one pediatric neurologist from St. John’s was prohibited from giving her opinion on the radiology. Both parents lost parental rights to both JPY and his older sister.
In the January decision that vacated the termination of parental rights, two out of three judges signed the opinion outlining their reasoning, which included this observation:
The medical records confirmed the existence of a profoundly important contradiction. On one hand, St. John physicians determined that JPY’s MRI and CT scans showed no evidence of trauma or any other abnormality. On the other hand, the Children’s medical experts determined that the same films demonstrated powerful evidence of abuse. Respondents’ counsel were incapable of resolving or understanding this critical evidentiary inconsistency without expert assistance.
The third judge concurred with the majority but filed a separate opinion to clarify that the right to an expert does not necessarily apply in all termination cases. This decision was “fact-specific,” the judge wrote, because, “As noted by the majority, the medical records indicated a ‘profoundly important contradiction.'”
A New Look at an Old Conviction
Finally, a superior court in San Diego, California, has agreed to consider vacating the 1999 conviction of child care provider and grandmother Suzanne Johnson, in response to a habeas corpus petition filed by the California Innocence Project.
Johnson has been protesting her innocence for nearly 19 years, since the day a baby in her care went limp and quit breathing after an accidental fall from a high chair. Johnson’s first trial ended with a hung jury, her second with a conviction and a sentence of 25 years to life.
Like the successful appeals in the cases of care providers René Bailey and Heidi Fero, Johnson’s petition pointed to a change in medical thinking about short falls, but her appeal team had also uncovered new medical evidence: A breathing tube had been placed incorrectly at the hospital, which probably contributed to the child’s death.
In early January, a superior court issued an “order to show cause,” that is, an invitation to the prosecution to argue against reopening the case. The order concludes that “Petitioner has made a prima facie showing that she is entitled to relief,” and orders the state to “file a return and to show cause why the Petition should not be granted.” The order gave the state 30 days to file a response, but an attorney has assured me that a lengthy extension is likely.
After Johnson’s sentencing in 1999, Anne Krueger at the San Diego Union-Tribune wrote:
[The judge] noted that he had received 40 letters from Johnson’s supporters who described her as a kind and loving woman. But he said he did not believe that [the girl]’s death was an accident.
Presumably the new appeal left the new judge with a different opinion.
Copyright Sue Luttner, 2016
If you are not familiar with the debate surrounding shaken baby syndrome, now known as abusive head trauma, please see the home page of this blog.