SBS: Wisconsin: Andrew Goldston verdict, first degree reckless homicide

June 10, 2011 : Eric Litke
A jury convicted Andrew Goldston on Thursday of killing his infant son, believing doctors' testimony the child's injuries were too severe for the short, accidental fall Goldston described.
The jury of eight men and four women deliberated five hours before returning the verdict against the 24-year-old Sheboygan man on a felony count of first-degree reckless homicide. Goldston will face a maximum of 40 years in prison at a future sentencing before Judge James Bolgert.
No sentencing date has been set.
Prosecutors said — with backing from doctors who examined the boy — that Goldston shook and/or slammed 1-month-old Leander to the ground while alone with the boy on March 9, 2010.
Leander suffered swelling and bleeding in and around the brain, as well as severe retinal bleeding; he died after nine days at Children's Hospital of Wisconsin in Wauwatosa.
Assistant District Attorney Joel Urmanski said after the verdict he is pleased that "justice was done."
"I'm happy because Leander didn't have any say in what happened. Ultimately, when we're representing the state, we're also representing Leander, so that's satisfying," said Urmanski, who prosecuted the case with Assistant District Attorney Jennifer Bork. "When someone's convicted of this crime — and we'll certainly be recommending a very significant incarceration — it's never easy to see someone go to jail for years and years, but the jury agreed with the allegations of what happened. It's a serious crime."
Jurors said they struggled with the decision to convict Goldston.
"We're not happy about what we had to do today," said one female juror who declined to give her name.
"It's not easy," another added.
Defense attorney Barbara Kirchner declined comment after the hearing, as did Leander's mother, Tammy DePagter.
The case went to the jury about 10 a.m. Thursday after closing arguments from Urmanski and Kirchner. The trial, which began Monday, left the jury to sift through an array of conflicting testimony.
The inconsistencies — as reiterated by Urmanski in his closing — began with Goldston, who told a 911 dispatcher that he dropped Leander onto a bouncy chair while getting off the couch to reach for a remote control.
He later told police the infant actually fell to the floor.
A third version of events emerged from a fellow jail inmate, Jeffery Lucas, who testified that Goldston admitted squeezing, shaking and dropping the infant as the two spoke after a jailhouse Bible study late last year. Goldston said he needed God's forgiveness for hurting his child, Lucas said.
The conversation took place in the jail pod where both were housed, but that fact was withheld from the jury after Bolgert ruled it could bias them against Goldston.
Bolgert also barred prosecutors from telling the jury that Leander suffered rib injuries. The injuries were consistent with so-called shaken baby syndrome, but doctors could not say for sure if they were inflicted at the same time as the fatal injuries.
In closing, Urmanski replayed a video of Goldston demonstrating how he claimed the child fell, dropping 18 to 30 inches onto thin carpeting.
Goldston appears to choke up when asked by a detective about previously showing emotion discussing the child, but he abruptly returns to a normal voice when asked another question.
"Why all these misstatements? He can't keep it straight," Urmanski told the jury. "Those tears, he was real good trying to pour on emotion there, but he's asked a question and (immediately) he responds."
The baby was injured shortly after DePagter got in an argument with Goldston and left.
Goldston told a detective he called 911 about five minutes after the child was injured because Leander was not breathing.
Lucas also testified that Goldston described being frustrated that Leander's birth had kept him from going out more with friends.
"There is no answer other than the defendant was frustrated, the defendant was angry," Urmanski said. "Leander was the point of contention, Leander was the one changing his lifestyle. Leander was the one not allowing him to leave."
Kirchner told the jury Goldston "mistakenly" referenced the "stupid bouncy" initially.
She said Lucas, who showed the jury how Goldston demonstrated shaking the child, was actually referring to Goldston reaching out in an attempt to catch the child.
Kirchner made no reference to Lucas' other statements that Goldston admitted squeezing and shaking the baby.
"What happened in this case was a horrible, tragic accident," Kirchner told the jury.
Urmanski and Kirchner also traded barbs over their expert witnesses.
The forensic pathologist who conducted Leander's autopsy concluded it was an abuse-related homicide, and the director of the child abuse division at Children's Hospital — Dr. Lynn Sheets — said the injuries could not have occurred in a short fall as Goldston described.
A doctor testifying for the defense as a paid witness, Dr. John Plunkett, countered that the fall caused some of the injuries and started a cascade effect that led to others.
Sheets called Plunkett's explanation an unproven theory, and Urmanski reminded the jury Thursday that Plunkett had admitted being proven wrong in a similar case in Montana.
Plunkett testified that a child's fatal injuries couldn't have been caused by shaking, but the child's father later admitted to shaking his daughter to death.
http://www.thenorthwestern.com/print/article/20110610/OSH0101/306100054/Jury-convicts-Sheboygan-man-Andrew-Goldston-killing-infant-son

SBS: Wisconsin: Andrew Goldston trial conflicting evidence

The jury chosen to decide the fate of Andrew Goldston got a crash course in medical analysis Wednesday as doctors brought in by the prosecution and defense offered greatly contrasting explanations for the fatal injuries suffered by his 1-month-old son.
Dr. Lynn Sheets, medical director of the child abuse program at Children’s Hospital of Wisconsin in Wauwatosa, said she can say with “no hesitation” that Leander died of “abusive head trauma.” She examined the boy during the nine days he remained hospitalized before dying of his injuries.

“Absolute abuse – no hesitation,” Sheets told the jury. “You have severe rotational injuries, and that’s very different from straight-line or falling injuries.”

The jury also saw a picture of Leander for the first time, as Sheets displayed a picture of the boy in head restraints at Children’s Hospital. She said Leander had slight facial twitching immediately after he arrived but soon stopped responding and breathing on his own.

Sheets said the injuries, which included bleeding throughout the brain and severe retinal bleeding, could “absolutely not” be caused by falling 18 to 30 inches to the ground. That was the claim Goldston made in describing to police that the child fell from his arms as he reached for a remote control.

But Dr. John Plunkett, a forensic pathologist who specializes in infant head trauma, testified with equal vehemence that Leander’s injuries could have occurred in the fall Goldston described.

“They’re going to be rare, but (deaths) can occur,” he said.

Plunkett said the injuries Sheets cited as too extensive for a simple fall could have occurred as a cascading effect, with one causing the other in the aftermath of the fall.

Goldston also told a 911 dispatcher the child fell onto a bouncy seat, and he told a fellow jail inmate that he needed God’s forgiveness for squeezing, shaking and dropping the boy, witnesses testified earlier in the trial.

Goldston, 24, of Sheboygan, is charged with first-degree reckless homicide for allegedly causing the injuries on March 9, 2010. The trial began Monday and is scheduled to wrap up by the end of the week.
 http://www.sheboyganpress.com/article/20110608/SHE0101/110608065/Doctors-debate-cause-fatal-injuries-infant?odyssey=tab%7Ctopnews%7Cimg%7CFRONTPAGE

SBS: Ohio: Tiffani Calise trial conflicting testimony

June 05,2011 :  Ed Meyer

For years, there was little controversy about what caused the severe head trauma linked to many child fatalities.
Prevailing medical opinion held that with no other outward signs of broken bones or abuse, there was one conclusion: ''shaken-baby syndrome'' — and a very rapid, if not instantaneous, incapacitation of the child.
Some recent scientific studies and research projects in this field, however, are leading forensic pathologists to other conclusions.
The debate will take place again, beginning Monday morning, in the murder trial of Tiffani D. Calise, 20, of Green.
Summit County Common Pleas Judge Alison McCarty, who is hearing Calise's case, set up the impending courtroom drama six months ago with the declaration that testimony by both sides' forensic experts ''is going to be rather crucial.''
Prosecutors, backed by their Summit County medical experts, have accused Calise of causing fatal head injuries to 23-month-old Aaliyah Ali while baby-sitting Aug. 9.
Aaliyah died three days later at Akron Children's Hospital.
Deputy county Medical Examiner Dorothy E. Dean, who performed the autopsy, ruled the death a homicide from ''complications of blunt impact(s) to the head.''
Dean concluded that Aaliyah suffered severe brain injuries during an assault.
Her testimony will be supported by the Children's Hospital pediatric experts who treated Aaliyah and by Dr. R. Daryl Steiner, longtime director of the hospital's child abuse center.
Steiner has testified in many of the county's shaken-baby cases over the past two decades.
Laurie Cramer, spokeswoman for the prosecutor's office, declined to comment on a defense challenge to the state's position that shaken-baby injuries unmistakably caused Aaliyah's death.
''We are bound by ethical rules not to speak, even in general terms, about our evidence,'' Cramer said.
Calise's defense team, Bill Whitaker and Donald R. Hicks, also said it would be inappropriate to comment before the case goes to trial.
But their general position was established with the Aug. 9 emergency call, beginning at 11:44 a.m. and lasting nine minutes, that Calise made from her Mayfair Road apartment.
''Oh, please, help me. Oh, my God, I need a paramedic!'' Calise told the 911 dispatcher. She said Aaliyah had fallen in the bathtub and had bumped her head.
Calise said she didn't see the fall — she said she only heard a thud — because she had stepped away from the nearly empty tub to get a towel.
''I came back in there and she's all limp,'' a sobbing Calise told the dispatcher.
In support of Calise's story that she did not inflict the injuries, the defense has hired neurosurgeon Ronald H. Uscinski, who serves on the faculties of Georgetown University Hospital and George Washington University Medical Center in Maryland. He has 40 years of experience in the field.
Uscinski has filed his own forensic analysis of Aaliyah's injuries, concluding the child did not die from the effects of blunt-impact injuries to the brain.
Uscinski wrote that results of the hospital CT scans were consistent with brain-cell death from oxygen deprivation caused by a bread-like substance removed from Aaliyah's airway as doctors tried to insert a breathing tube in the emergency room.
After about only four minutes of complete oxygen deprivation, brain cells begin to die, Uscinski said.
Experts say such a theory cannot be easily dismissed as simply coming from the defense's ''hired gun.''
'Short-fall' injuries
Forensic pathologist John J. Plunkett of Minnesota, an outspoken critic of shaken-baby syndrome, wrote a 2001 report showing that those findings can be wrong.
Toddlers can and do die from the effects of what is known in forensic science as ''short-fall'' head injuries — similar to Calise's description of how Aaliyah was hurt — according to the report.
Plunkett's case study involved a 23-month-old girl, the same age as Aaliyah, who was playing on a plastic gym set in the garage at her home.
The child lost her balance on the top rail and fell, head first, onto a three-quarter-inch-thick plush carpet remnant spread out on the garage's concrete floor.
She was removed from life support 36 hours later.
Plunkett said hospital personnel, ''who were convinced without any question that this was shaken baby,'' reported the death to law enforcement.
Officers were preparing to arrest the child's father, Plunkett said, when the 23-month-old's grandmother intervened, saying she had videotaped the girl playing on the gym set.
''So the cops went over to the home and found the video camera, which she had dropped when the little girl hit the floor, and they played the videotape and went: 'Oh, my goodness!' '' Plunkett said.
The grandmother's tape showed that the child hit her head on the floor in an accidental fall from a height of 28 inches.
''Prior to publication of my [study] in 2001,'' Plunkett said, ''the pediatric community said, uniformly, that short-distance falls can't cause injuries or death. They didn't say it's rare. They said it doesn't occur. Period. And most forensic pathologists, not all, but most, said the same thing.''

The belief system that once was so firmly in place in the medical community was based on the so-called ''triad'' of sure-fire indicators that a child had been violently shaken to death.
Patrick E. Lantz, professor of forensic pathology at Wake Forest Baptist Medical Center, who said he has conducted more than 1,100 autopsies in his career, said those three signs are swelling of the brain, bleeding over the surface of the brain and hemorrhaging of the retinas.
''It has been assumed for the last 20 to 30 years that [this] combination was fairly diagnostic in little children of shaking or shaking impact, and a lot of [experts] would say it would only occur in shaking or shaking impact or abusive head trauma,'' he said.
But some forensic studies and research, such as that by Plunkett and Lantz, have shown that this triad of signs, particularly retinal hemorrhaging, does not always mean shaken baby syndrome.
An analytical paper from Lantz, scheduled to be published this fall in the Journal of Forensic Science, shows how retinal hemorrhaging can occur from a short fall.
The baby in Lantz's case had fallen down a section of six to seven carpeted steps, suffering bleeding on the surface of the brain and severe retinal hemorrhaging.
''It would have looked just like shaken-baby syndrome or abusive head trauma, except there were three people who were at the home and all three gave the same account of what actually happened,'' Lantz said.
Legitimate challenges to the conclusion of shaken baby syndrome are becoming more common.
''More and more people are realizing that other things can actually cause this triad [of injuries], and if people are basing it on just the triad and nothing else, it's unsafe without more evidence,'' Lantz said.
Calise is charged with murder, involuntary manslaughter and two counts of felony child endangering. She has been held at the county jail in lieu of a $500,000 10 percent cash bond since her Aug. 11 arrest.

Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com. http://www.ohio.com/news/123178573.html

SBS: Illinois: New research on shaken baby syndrome could set Pamela Jacobazzi free

May 5,2011 :  Patrick Yeagle

Something wasn’t right when Cynthia Czapski picked up her 10-month-old son, Matthew, from a Bartlett, Ill., day care on Aug. 11, 1994. The child seemed to be sleeping, but she couldn’t wake him up. Matthew was taken to the emergency room and then to another hospital, where doctors worked to relieve bleeding and swelling in his brain. He never woke up, remaining essentially comatose for 16 months before dying on Dec. 19, 1995.
The assumption from the start was shaken baby syndrome or “SBS,” a condition characterized by a “triad” of symptoms – bleeding and swelling of the brain and retinal bleeding, widely attributed to violent shaking of an infant. The last person to watch Matthew Czapski was Pamela Jacobazzi, then a 39-year-old day care provider in Bartlett, west of Chicago near Elgin, who had just started watching the child eight days earlier. Naturally, Jacobazzi became the main suspect, although no one actually saw her shake Matthew.
During her trial, Jacobazzi denied shaking the baby, but her only real defense was the assertion that Matthew’s injuries could have been caused when he fell forward from a sitting position on the kitchen floor and hit his head on the tile, or from a bump to the head sustained while he was playing with other children at the day care.
Jacobazzi, now 56, was tried and convicted of first degree murder in a DuPage County court in 1999 and sentenced to 32 years in prison, based on the testimony of the prosecution’s nine expert medical witnesses, who told jurors Matthew’s death could only have been caused by violent shaking that must have occurred while the child was in Jacobazzi’s custody. Jacobazzi has spent the past 11 years in Lincoln Correctional Facility, the all-female state prison 30 miles northeast of Springfield.

What seemed to prosecutors and the Czapski family like a straightforward case of child abuse seems like a miscarriage of justice to Jacobazzi’s defense attorney, Anthony Sassan of Crystal Lake, who says he genuinely believes Jacobazzi is innocent. He describes her as “about four feet, eleven inches tall, maybe about 115 pounds soaking wet.
“She is one of the calmest, most polite, pleasant persons that you’d ever want to meet,” he says. “Even when I’ve had to deliver bad news to her, in the times that I’ve met her, I’ve never seen her come close to losing her temper or getting riled up…just a very, very, very nice lady.”
None of the other children in Jacobazzi’s care showed any indications of child abuse, Sassan says, and Matthew Czapski had numerous pre-existing medical conditions that could have caused his death. Sassan is working on Jacobazzi’s third attempt at securing a retrial, and he’s getting some extra help this time.
The Downstate Illinois Innocence Project – based at the University of Illinois Springfield – has taken on Jacobazzi’s case and will work with Sassan to reinvestigate the case and gather new evidence. The project is celebrating its 10th anniversary on May 16, and a large federal grant has allowed them to hire an in-house attorney for the first time.
“I feel this is a case where she is actually innocent,” says Bill Clutter, a Springfield-based private investigator and founding member of the Downstate Illinois Innocence Project. “There’s medical evidence that would have changed the outcome of the jury verdict.”
Jacobazzi’s case is part of a national trend in which people accused of killing infants are challenging in court old assumptions about shaken baby syndrome. While some advocates against child abuse and even the federal Centers for Disease Control and Prevention say SBS (and the more inclusive “abusive head trauma”) account for three to four cases of child brain injury every day in the United States, critics of SBS say the condition is a creation of the legal system, developed without reliable medical research, as a misguided attack on child abuse.
Deborah Tuerkheimer, a professor at DePaul University College of Law in Chicago, estimates that about 200 people in the U.S. are convicted in SBS cases each year, adding that the legal system is slow to catch up to advances in the medical field, so court cases may not incorporate the most up-to-date information on SBS.
“…Dramatic changes [in medicine] have occurred since the 1990s, when the prosecution template emerged,” Tuerkheimer writes in a recent article titled “Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome,” published in the Alabama Law Review. She says the science surrounding SBS has “decisively evolved,” and the “large and highly significant areas of consensus surrounding SBS have shifted.”
Though medical experts once commonly agreed on SBS in the 1990s, there are now legitimate challenges to the idea that shaking a baby is the only way the infamous “triad” of injuries can occur, Tuerkheimer notes. Despite that shift, she says the legal community – particularly prosecutors – have largely persisted in outdated views of SBS.
Jacobazzi’s trial occurred before the shift in medical understanding that Tuerkheimer describes, so the testimony from the expert witnesses in her trial may differ from that of current-day expert witnesses.
Jacobazzi’s attempts to get a new trial revolve around evidence known as the Nadelman records, named after Matthew Czapski’s pediatrician. The records show Matthew had sickle cell trait and abnormal hemoglobin, along with chronic bouts of infection, fever, anemia and dehydration. Additionally, the records show Matthew had a disproportionately large head indicative of external hydrocephalus – a condition in which the space around the brain is enlarged and filled with spinal fluid, often leading to increased pressure on the brain. To Sassan and two new expert medical witnesses recruited for the defense, those records suggest that Matthew’s prior medical problems could have caused his death without a violent force – or any force at all.
Jacobazzi claims her lead trial attorney, Anthony Montemurro of Chicago, failed to provide those records to the defense’s lone expert medical witness and didn’t use the records as part of her defense strategy, leaving unchallenged the prosecution’s assertion that Matthew was perfectly healthy when he arrived at Jacobazzi’s day care. If Jacobazzi can convince the circuit court that the absence of that evidence affected the outcome of her trial, she could get a second chance to assert her innocence.

Jacobazzi appealed her conviction to the Second District Appellate Court of Illinois, which sent the case back to the original trial court with instructions to hash out her claim of “ineffective assistance of counsel.” The lower court again ruled against Jacobazzi, saying Montemurro actually did provide the Nadelman records to the expert witness. Jacobazzi appealed again, this time arguing that the circuit court didn’t address whether the absence of the Nadelman records as evidence affected the outcome of her trial – the second requirement of a legal device known as the “Strickland test” that provides the legal precedent for proving ineffective counsel. The appellate court admitted in its most recent ruling on Nov. 17, 2009, that it had given unclear instructions to the lower court and sent the case back with clarifications.
Bill Clutter with the Innocence Project draws parallels between Jacobazzi’s case and a recently-dismissed Wisconsin case that happened around the same time. Audrey Edmunds of Waunakee, Wis., was accused in 1995 of shaking and killing six-month-old Natalie Beard at the day care she ran in her home. As with Jacobazzi’s case, no one saw Edmunds shake the baby, and there was no history of child abuse or outward signs of injury. For both women, the only evidence against them at trial was that of medical experts who concluded they must have been responsible. And like Jacobazzi, Edmunds spent several years in prison before the local chapter of the Innocence Project got involved.
Edmunds’ big break came when one of the expert witnesses against her realized that he might have misjudged the situation. Pathologist Robert Huntington III performed Natalie Beard’s autopsy and testified at Edmunds’ trial that it was “highly probable” the child was injured shortly before Edmunds reported finding her apparently choking on a bottle of baby formula.
Three years later, Huntington handled a similar autopsy, in which a child had been taken to the hospital with a description of being “clingy” and “fussy” but still responsive – the same description given to Natalie Beard by her parents when she was dropped off at Edmunds’ day care.
The child was in the hospital for 15 hours before doctors detected any brain injury in the child, leading Huntington to believe that there could be a delay in the appearance of SBS symptoms. That revelation caused him to doubt his testimony that the last person to have watched a child who dies from SBS symptoms must be responsible.
Huntington later recanted his testimony against Edmunds in an affidavit, which turned out to be crucial in securing her release. 
Huntington’s reversal puts him in the company of a growing number of medical researchers who are rethinking suspected SBS cases. Some of those researchers, such as Dr. John Plunkett, a retired pathologist from Minnesota, are questioning the very principles and existence of SBS. Plunkett has testified in numerous SBS cases, and his research may act as a model for Jacobazzi’s defense team if she wins a retrial.
“As far as I’m concerned, every goddamn conviction in this country over the past 25 years which is based on testimony regarding shaking has to be overturned,” Plunkett says emphatically. “It [shaken baby syndrome] doesn’t exist. It has never existed.”

 

 

Plunkett says any number of other factors, such as a short fall or a pre-existing medical condition, can cause the triad of SBS symptoms – bleeding and swelling of the brain and retinal bleeding. More importantly, he says, his and others’ research into the very mechanics of human injuries shows that brain injury cannot be caused by shaking a baby. He says the force generated by shaking is simply insufficient to cause the symptoms associated with SBS.
“Despite the fact that we have 30 years of medical testimony that it is a valid medical diagnosis, it is clear that you cannot cause brain injury by shaking a child,” he says. “You may very well be able to cause neck damage, but you cannot cause brain damage.”
Plunkett says a “lucid interval” – a period between when an injury occurs and when symptoms manifest – could explain why seemingly healthy babies can suddenly become ill, much like in the case Robert Huntington witnessed after testifying against Audrey Edmunds in Wisconsin.
Plunkett knows his statements may raise some eyebrows. He has taken mountains of criticism from the medical community, he says, including being accused in 2005 of making false statements as an expert medical witness in an Oregon SBS case. Two counts against Plunkett were dismissed before the trial began, and he was acquitted of the remaining two.
“A dozen years ago, I was the lone wolf,” Plunkett says, referring to his early criticism of SBS. “I was treated like the idiot fringe. The worst part of it is as soon as anybody questions the validity of this diagnosis, they are accused of being a defender of child abusers. It is simply not true for any of us. We all understand that child abuse occurs, but we also understand the importance of scientific integrity.”
Is this a question already settled within the medical community? One expert in Springfield is hesitant to choose one side or the other.
Dr. Tracey Lower, an assistant professor of pediatrics at Southern Illinois University School of Medicine and a staff member at St. John’s Children’s Hospital, says the science of medicine is constantly changing.
“There’s an evolution in what we know and what we’re learning about head injuries in children,” she says, adding that shaken baby syndrome first arose as a concept during the 1940s, before MRIs and similar medical procedures were developed to detect internal injuries. The historical record is largely silent on SBS during the 1950s, she says, until reports of child abuse began to emerge and be taken more seriously in the 1960s.
“There were a lot of assumptions, and I think what we’ve learned over the last five to ten years is that most of the time, the extreme injuries we see are a combination of mechanical forces,” she continues. “I certainly believe there can be severe injuries just by shaking, but usually abusive head trauma includes impact and other substantial injuries.”
Lower, who is also involved with Prevent Child Abuse Illinois, a statewide advocacy organization, says a physician’s primary obligation is caring for the children they treat, rather than investigating suspicions of child abuse themselves.
Plunkett takes that idea a step further. He says members of the medical community who don’t understand how force affects the human body should not even be allowed to testify about SBS in court cases.
“The pediatricians, pathologists and ophthalmologists…need to understand the mechanics of injury,” he says. “They need to understand biomechanics, applications of the principles of motion to human injury, before they open their mouths. If you ask these folks to define force for you, ask them to tell you Newton’s three laws, ask them to define acceleration – you will be shocked at the responses. If you don’t understand the mechanics of injury, I don’t think you should be allowed to be giving testimony on these issues.”
Jacobazzi’s first opportunity for parole is set for 2015, and if the pace of the case so far is any indicator of future progress, she could wind up serving the majority of her sentence before she gets another chance to assert her innocence. Her next hearing is scheduled for May 12.
“If you really get to know her, you would realize that this is not a person who loses her temper, loses her head or would do anything like this to any of the kids,” Sassan says. “It’s a shame. It’s horrible that she’s in this circumstance. As a criminal defense attorney, there are few people you represent that you can say, ‘I really think they’re completely innocent of anything.’ This is somebody who I think is really symbolic of the type of person that can get wrapped up in this theory [of SBS] that shouldn’t.”

Contact Patrick Yeagle at pyeagle@illinoistimes.com
http://www.illinoistimes.com/Springfield/article-8622-caregiver-or-killer.html

SBS: Ohio: Marsha Mills, convicted in babysitting death, seeks federal appeal

Marsha Mills listens during a June 20, 2007, court appearance at the Tuscarawas County Courthouse at New Philadelphia.

  

Lee Morrison  Mar 24, 2011

Marsha Mills is appealing to federal court her conviction in the 2006 death of a 2-year-old New Philadelphia boy whom she was babysitting.
The 44-page appeal has been filed in Ohio Northern District Court in Akron.
Judge Sara Lioi has referred the case to Magistrate Judge Vernelis K. Armstrong in Toledo. Armstrong will review the case and make a recommendation to set the case for trial or dismiss it. Lioi can accept the recommendation and act on it or deny it.
The case was filed in federal court after all appeal options at the state level had been exhausted.
Ohio’s Fifth District Court of Appeals upheld rulings in the case by Tuscarawas County Common Pleas Court Judge Elizabeth Lehigh Thomakos. The Ohio Supreme Court refused to hear the case because it does not involve any substantial constitutional question.
Mills, 60, was convicted and sentenced in June 2007 after a jury found her guilty of two counts of murder, felonious assault and child endangering in the death of Noah A. Shoup. She was sentenced to life in prison with parole eligibility after 15 years. She is serving her sentence in the Ohio Reformatory for Women in Marysville. The prosecution maintains Shoup died a violent death, while the defense contends he died after falling down a short flight of outside steps onto concrete.
Mills is being represented in the federal appeal by attorneys David L. Doughten of Cleveland and Jeffrey Helmick of Toledo. Doughten is a New Philadelphia native. The Ohio Attorney General’s office represents the prison warden in all such cases.
Current Tuscarawas County Prosecutor Ryan Styer said Tuesday, “Although I was not in office when that case was prosecuted, I always respect verdicts of juries. I do not believe it is appropriate for further comment, because we are no longer involved in the case.”
While in the appeals process at the state level, Styer sought and was granted permission to transfer the case to the Ohio Attorney General’s office. That was to avoid any conflict of interest as Styer’s staff includes Assistant Prosecutor Michael Ernest, who helped prosecute Mills, and Assistant Prosecutor Amanda Miller, who was second chair on Mills’ defense team.
The appeal asks the judge for a new trial and to conduct a hearing so that proof can be offered concerning the allegations of the appeal and to permit Mills civil discovery of all information “as is necessary to develop the factual basis for her claims.”
Her attorneys contend Mills was wrongfully convicted based on the improper admission of “junk science” by a prosecution witness; improper restriction on the presentation of the defense’s case; and prosecutor misconduct regarding “improper comments (that) deprived Mills of her right to a fair trial.”
Another contention is that Mills received ineffective assistance from trial counsel, Public Defender Gerald Latanich, who allegedly failed to object to “irrelevant and prejudicial” autopsy photos that had little relevance to the boy’s cause of death. The appeal further contends that Latanich was ineffective in his direct examination of Dr. John Plunkett, who testified for the defense.
The appeals attorneys contend that ineffective counsel allowed hearsay materials into evidence and “admission of these documents denied Mills her right to confrontation” of witnesses or those making the statements.
Several aspects of the appeal involve testimony by the prosecution’s expert pathologist, Dr. Daryl Steiner of Akron Children’s Hospital.
Over two months prior to the trial, it was reported that Dr. Steiner erroneously had determined that two other children had suffered injuries as a result of shaken baby syndrome, according to the appeal.
The appeal also contends information that would have impacted Mills’ sentencing was withheld, and that Latanich failed to fully investigate Steiner’s background. The appeal also claims that Latanich allegedly failed to confront Steiner “with evidence that he had given erroneous medical opinions in the past.”
http://www.timesreporter.com/news/x1777827712/Woman-convicted-in-babysitting-death-seeks-federal-appeal