QUOTE OF THE DAY: "Shaken baby syndrome is now a diagnosis that is subject to a good deal of controversy," the judge said. "There has been a shift in the scientific consensus." She said testimony from the experts shows there could have been alternative conclusions if presented at the trial to the jury. But in 2003 when doctors found evidence of the triad "you were steered in a certain direction."
"PASSAGE OF THE DAY: "Moran argued that since the trial the medical community has questioned the conclusion that brain bleeding, brain swelling and retinal bleeding, often called the triad, meant a child died from shaking. "In those days if you have those three symptoms that was the end of the game," Moran told the judge. He said defense attorney Edwin Hettinger was not even able to find a doctor or medical expert to testify at trial about another possible cause of death. "There is now controversy about shaken baby and abusive head trauma," Moran said, and he argued the four experts who reviewed the case said the child died of pneumonia and that other symptoms are explained by her medical history from birth."
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STORY: "Judge recommends new trial for mother convicted of infant's death," by Reporter Trace Christenson, published by The Battlecreek Enquirer on January 25, 2021.
GIST: A judge Monday recommended a Battle Creek woman convicted of killing her infant daughter 20 years ago should have a new trial.
Tonia Miller, 37, is serving a 20 to 30 year sentence after her conviction of second-degree murder in the death Oct. 20, 2001 of her daughter, Alicia Duff.
Miller was 19 when the 11-week-old girl died. Following a jury trial she was sentenced to prison five days before her birthday in 2003. Prosecutors argued that Miller shook the child, causing fatal injuries.
But now a judge has agreed with attorneys from the Michigan Innocence Clinic at the University of Michigan that the medical testimony about the cause of death is flawed and new evidence could change the outcome of a trial.
Barry County Circuit Court Judge Vicky Alspaugh made her ruling after hearing testimony last year and listening to arguments Monday. The recommendation for a new trial will go the Michigan Court of Appeals which said in August that new medical evidence entitled Miller to an evidentiary hearing.
David Moran, a law professor and co-founder of the Innocence Clinic, argued Monday in a virtual hearing that Miller should have a new trial because four medical experts concluded that the child died from pneumonia and that the conclusion by a pathologist at the time of the trial that the child had been shaken was wrong.
Moran argued that since the trial the medical community has questioned the conclusion that brain bleeding, brain swelling and retinal bleeding, often called the triad, meant a child died from shaking.
"In those days if you have those three symptoms that was the end of the game," Moran told the judge.
He said defense attorney Edwin Hettinger was not even able to find a doctor or medical expert to testify at trial about another possible cause of death.
"There is now controversy about shaken baby and abusive head trauma," Moran said, and he argued the four experts who reviewed the case said the child died of pneumonia and that other symptoms are explained by her medical history from birth.
Calhoun County Assistant Prosecutor Karen Pawloski argued a new trial is not warranted because pneumonia was introduced at the trial and the evidence presented by the Innocence Clinic is not new.
Moran countered that there was only a passing reference to pneumonia during the trial and no experts were called to suggest it as a possible cause of death.
"This was a clear case of fatal pneumonia," Moran said.
At trial, Miller testified her baby frequently stopped breathing but that doctors didn't believe anything was wrong.
"They told me she was holding her breath," Miller testified. She told the court that she was feeding the child the day before she died and she began gasping for air.
"She wasn't breathing and she looked straight at me and one eye had gone off to the side. I shook her enough where she started back up."
Miller told the jury the shaking was slight. "I did not stand there shaking my baby."
The judge had to determine if there was new evidence and if Hettinger had been ineffective before she could recommend a new trial.
"Shaken baby syndrome is now a diagnosis that is subject to a good deal of controversy," the judge said. "There has been a shift in the scientific consensus."
She said testimony from the experts shows there could have been alternative conclusions if presented at the trial to the jury. But in 2003 when doctors found evidence of the triad "you were steered in a certain direction."
Hettinger provided a competent defense, she said, because he was not able to find any experts who would dispute the conclusion that the baby died from shaking.
"If given an alternate cause for this young baby's death, I think a different verdict would be probable," the judge said.
Judge Alspaugh said her recommendation will be sent to the Court of Appeals which will make the decision for a new trial.
Miller is housed at the Huron Valley Complex for Woman in Ypsilanti. She is eligible for parole in 2023."
