LISE OLSENSept. 14, 2009,
The Harris County Medical Examiner’s office has quietly rewritten the results of a 1998 autopsy, prompting renewed innocence claims on behalf of a baby sitter sent to prison nearly a decade ago for allegedly shaking a 4-month-old infant hard enough to cause fatal injuries.
The original autopsy classified the baby’s death as a homicide and was used by prosecutors as a key piece of evidence against Cynthia Cash, now 53, a former nurse convicted of fatal injury to a child after 4-month-old Abbey Clements died after being rushed to the hospital from Cash’s home.
But the modified autopsy report made public in a new appeal calls the cause of death “undetermined” and found no evidence of “trauma” in the postmortem exam. Those changes came five years after local officials announced a review of problematic autopsies conducted by a former Harris County associate medical examiner, Dr. Patricia Moore. Moore, who declined requests for comment, left Harris County in 2002 but still works for Southeast Texas Forensic Center, a Conroe-based company that provides forensic work for six counties.
It is at least the fourth time Harris County officials have reclassified a child’s autopsy that Moore originally labeled as a homicide. Two women have been cleared in other cases — including Brandy Briggs, who was jailed at 19 after rushing her baby to the hospital and who spent several years in a prison isolation cell before being freed in 2005. Dr. Luis Sanchez, head of the medical examiner’s office, did not respond to Chronicle questions about Cash’s case or whether he has finished an audit he promised to conduct after finding problems in the Briggs case.
After learning about the new autopsy results, Cash’s husband contacted Briggs’ attorney, Charles Portz, to file an innocence claim on her behalf. The pending appeal asks for her release or a new hearing — though Cash now has only six months left to serve on her seven-year sentence for felony injury to a child. The case is being considered by Harris County District Court Judge Mark Ellis, who oversaw the original trial a decade ago.
Assistant District Attorney Lynn Hardaway said prosecutors remain confident about their case based on other “evidence presented at trial from doctors who thought she was a victim of shaken baby syndrome.”
Abbey Clements received three vaccinations at a checkup a few hours before Cash, her baby sitter, claimed to have found the baby blue in her crib after a nap. Cash had kept Abbey and her brother along with her own son and five other children.
Abbey died at Texas Children’s Hospital. Doctors there later testified that though she did not have any external injuries, she suffered swelling of the brain and retinal hemorrhages — injuries they described as consistent with so-called shaken baby syndrome.
A neurologist expert for the defense testified at trial that he found none of the broken bones, external bruises or other injuries considered to be classic signs of shaken baby syndrome and the girl likely suffered an extremely rare fatal reaction to vaccines. Dr. Richard M. Hirshberg also reviewed the new autopsy and repeated his argument for Cash’s appeal: “It’s my firm belief now as it was during the Feb., 5, 1999, trial that this defendant is innocent.”
The modified autopsy issued in February 2008 says “a diagnosis of trauma cannot be substantiated,” though no other cause of death was determined. The report also says that doctors who testified in Cash’s trial made some “erroneous” conclusions, wrongly describing bleeding patterns found in the examination of the child’s brain as evidence of trauma.
The revised autopsy, however, also says it could not substantiate claims made by defense experts that the baby likely died from anaphylactic shock — a severe allergic reaction to vaccines. Such rare reactions are well documented in medical literature but generally occur soon after a vaccination is administered.
Paul Clements, Abbey’s father, said he had been briefed on the new results but said “one ME changing an autopsy still doesn’t change what we think happened because of all the other evidence presented at the trial.”
Clements said he also bases his conviction that Cash was guilty on his experience of seeing his daughter “right after it happened and discussing it with the doctors in the hospital. They had never seen a baby shaken as badly as Abbey.”
Cash’s husband, Ken Cash, and her attorney, Portz, both claim that Cash never would have been indicted if the autopsy had been conducted correctly in the first place.
“All I want for her is justice,” said Cash, who sold his house to help pay legal fees and raised their young son on his own after his wife was imprisoned. “They railroaded her in that autopsy report. She is innocent.”
The Harris County District Attorney’s office, however, opposes the appeal.
“The Court of Criminal Appeals held that a claim of actual innocence based upon newly discovered evidence should not be overturned lightly and the burden on the defendant who has had error-free proceedings is exceedingly heavy,” the prosecutor’s answer in the case says, later continuing: “There is considerable evidence in the record to support the … conviction.”
MOORE AUTOPSY PROBLEMS:
Dr. Patricia Moore, a former associate medical examiner in Harris County, was repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999, Harris County personnel records show. She left Harris County in 2002 for personal reasons, but her work on children’s autopsies here continues to be challenged:
• New innocence claim: After a baby’s 1998 death was reclassified from homicide to undermined causes last year, family and an attorney for 53-year-old former baby-sitter Cynthia Cash recently filed an appeal claiming innocence and seeking her release.
• Mother freed in 2005: Moore’s original autopsy called 2-month-old Brandon Lemons’ 1999 death a homicide, but it was reclassified years later as “undetermined.” The new report suggested that the baby may have died from lack of oxygen because of a medical error. Lemons’ mother, Brandy Briggs, was subsequently freed.
• Mother cleared in 2004: Prosecutors dropped charges against another woman originally accused of reckless injury to her newborn after Moore’s autopsy was challenged and the baby’s cause of death was changed to undetermined.
• Other cases questioned: Trenda Kemmerer, a woman convicted in 1997 in another child’s death remains in prison, though the child’s autopsy was changed and Moore reprimanded for failing to show objectivity in the case. And Moore herself changed the results of a Montgomery County child’s autopsy in 2007.