PASSAGE ONE OF THE DAY: "Miller was 19 when a Calhoun County Circuit Court jury convicted her of second-degree murder and she was sentenced in 2003 to 20 to 30 years in prison. The conviction came after three doctors testified, including one for the defense, that Alicia Duff died from shaken baby syndrome, now called abusive head trauma. The defense expert testified the injury occurred a week before the child went to the hospital. But Moran said Monday the science has evolved and the Innocence Clinic has four doctors who will testify Alicia Duff died from fulminant pneumonia. The Michigan Court of Appeals, which had upheld Miller's conviction 16 years ago, said in a new opinion Thursday that a judge should hear the new evidence and decide if she is entitled to a new trial."
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PASSAGE TWO OF THE DAY: "In their 10-page opinion, the three appeals court judges said "during the nearly two decades since Miller's conviction the science underlying the diagnosis of SBS/AHT (Shaken Baby Syndrome/Abusive Head Trauma) has evolved." The court agreed "recent scientific advancements have led to a wholesale reassessment of the assumptions that previously dominated SBS/AHT science." The court noted Dr. Janice Ophoven, a pediatric forensic pathologist and one of the experts quoted by the defense, who said the testimony at trial "was consistent with the predominate views in the forensic pathology community. However, since the time of trial, scientific research has caused a significant shift in the forensic pathology community."
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GIST: "A 37-year-old woman convicted of killing her infant daughter is now awaiting the appointment of a judge and a hearing date as she seeks to overturn her 2003 murder conviction.
Tonia Miller has served 17 years in prison after her conviction in the Oct. 20, 2001 death of her 11-week old daughter, Alicia Duff.
"She is very pleased that she is going to get her day in court," David Moran, director of the Michigan Innocence Clinic at the University of Michigan Law School, said Monday. "She has known for some years now that the evidence used to convict her has been called into deep question."
Miller was 19 when a Calhoun County Circuit Court jury convicted her of second-degree murder and she was sentenced in 2003 to 20 to 30 years in prison.
The conviction came after three doctors testified, including one for the defense, that Alicia Duff died from shaken baby syndrome, now called abusive head trauma. The defense expert testified the injury occurred a week before the child went to the hospital.
But Moran said Monday the science has evolved and the Innocence Clinic has four doctors who will testify Alicia Duff died from fulminant pneumonia.
The Michigan Court of Appeals, which had upheld Miller's conviction 16 years ago, said in a new opinion Thursday that a judge should hear the new evidence and decide if she is entitled to a new trial.
In their 10-page opinion, the three appeals court judges said "during the nearly two decades since Miller's conviction the science underlying the diagnosis of SBS/AHT (Shaken Baby Syndrome/Abusive Head Trauma) has evolved." The court agreed "recent scientific advancements have led to a wholesale reassessment of the assumptions that previously dominated SBS/AHT science."
The court noted Dr. Janice Ophoven, a pediatric forensic pathologist and one of the experts quoted by the defense, who said the testimony at trial "was consistent with the predominate views in the forensic pathology community. However, since the time of trial, scientific research has caused a significant shift in the forensic pathology community."
In their appeal, the Innocence Clinic argued that Miller had taken the child to doctors after her birth because of breathing difficulties.
"The tragic thing is that she tried to get help and had taken the baby to doctors but she was just blown off," Moran said.
During testimony at the trial, Miller said her baby frequently stopped breathing but that doctors didn't think anything was wrong.
"They told me she was holding her breath," Miller said from the witness stand on April 9, 2003. "I knew something was wrong with her."
She told the court she was feeding Alicia the day before she died and she began gasping for air.
"She wasn't breathing," Miller said then. "She looked straight at me and one eye had gone off to the side. I shook her enough where she started back up."
The Appeals Court said Miller acknowledged she shook the child "just enough to where she straightened (her) back out. She called it a "gentle prodding."
Insisting that the shaking was slight, Miller told the jury "I did not stand there shaking my baby."
But Chief Assistant Prosecutor Daniel Buscher, who tried the case, argued the admission by Miller of shaking the baby and the medical testimony was enough to convict.
He said the shaking was violent and caused the child's brain to swell.
"It was like Jello-O bouncing off a container and she did it and no one else," Buscher argued. At her sentencing Buscher said some doctors described the injuries as the worse case of trauma they had ever seen.
But Moran said they will bring evidence that Alicia died from natural causes.
"We know so much more about abusive head trauma and shaken baby syndrome than we did when this case was tried in 2003. We believe that Tonia Miller was convicted on invalid medical testimony at the time."
The Appeals Court ruled Miller should be allowed an evidentiary hearing after Calhoun County Circuit Judge Sarah Lincoln denied a motion for a hearing in July 2019.
Lincoln said the Innocence Clinic was not bringing new evidence but rather a different interpretation of evidence presented at trial. She said the conviction had been reviewed and upheld by the Court of Appeals in 2004.
"There can be no dispute that there are persons in our community who commit acts of child abuse resulting in serious injury or death," Lincoln wrote in her opinion. "The evidence presented at trial was sufficient to convince a jury that Defendant was one of those persons and the Court Appeals agreed."
In its opinion last week the Court of Appeals overruled Lincoln and said Miller should have a hearing and that a different judge should be appointed to hear the case.
Moran said because scientific evidence can change "the Michigan Supreme Court has recognized that and have changed the court rules to make it easier for people to get back into court when they have been convicted on forensic or medical science that has changed.
"They should have a right to get back into court when forensic or medical testimony is no longer seen as valid as it was," Moran said. "It is the nature of science that conclusions change and the law has always had great difficulty accepting that because the law is about final verdicts and final decisions," he said.
Prosecutor David Gilbert said Monday his office won't appeal the decision to order a hearing and acknowledged the case may be tried again but said the conviction should stand.
"You can say it was pneumonia but pneumonia was considered at the first trial."
The Appeals Court ruled the hearing must be held by Oct. 1 and Moran said once a judge is selected, likely from another county, the hearing, which will be held by Zoom because of the COVID-19 pandemic, will be scheduled.
The entire story can be read at:
https://www.battlecreekenquirer.com/story/news/2020/08/10/new-judge-and-new-hearing-woman-convicted-killing-her-child/3335045001/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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