PASSAGE ONE OF THE DAY: "The state also introduced as a rebuttal witness a jailhouse informant and career criminal named Melvin Tarver, who was briefly in jail with Albert Debelbot. He testified that on the morning that the trial was to start, Debelbot told him that his wife might have harmed the infant. Tarver said: “He told me, said, ‘Man, I went out to get some dope’ . . . And when he came back he asked his wife where the baby was. And he said ‘She say she spanked her and put her to bed’ … And then he got up and he went in the room where the baby were (sic) and he picked the baby up and the baby wasn’t moving. So he asked her what she had done. And she said ‘Nothing. I just spanked her and put her to bed.’"
-----------------------------------------------------------------------
PASSAGE TWO OF THE DAY: "Ashley Debelbot testified and said her daughter was in her bassinet next to the couple’s bed. She noticed the bump on McKenzy’s head when she checked on her in the middle of the night. She testified that she didn’t know how the infant was harmed, but also said that she had had some labor issues, including high blood pressure. “You think high-blood pressure crushes a skull?” asked prosecutor Sadhana Dailey, “A severe hand blow crushes a skull. Tell us what else crushes a skull.” Moments later, Dailey said, “It’s either you or your husband. Which of you did it?” “I didn’t do it, and I don’t think my husband did it,” Ashley Debelbot replied.
------------------------------------------------------------------------
PASSAGE THREE OF THE DAY: "The final defense witness was Dr. Daniel Sahlein, a neuroradiologist. He said there was evidence of blood clots in the infant’s brain, a condition known as dural sinus thrombosis. He said this creates an abnormally thin skull, and that a vaginal delivery can cause it to tear. He said these injuries often go unnoticed, even by experienced physicians. The infant’s initial post-birth exam was conducted by a second-year resident."
-----------------------------------------------------------------------
ENTRY: Ashley and Albert Debelbot, by Ken Ottrbourg, published by The National Registry of Exonerations on May 25, 2021.
GIST: "On May 29, 2008, Ashley Debelbot gave birth to a baby girl named McKenzy Debelbot at Martin Army Hospital in Fort Benning, Georgia, near the city of Columbus.Ashley, who was 23 years old, and her husband, 22-year-old Albert Debelbot, had met in the Army, when they were both stationed in South Korea. He had served in combat in Iraq, and Ashley had left the service after becoming pregnant.
The family left the hospital on May 31, 2008, but quickly returned in the early morning of June 1, 2008, after they noticed a bump on the infant’s forehead. McKenzy died a few hours later.
Very quickly, the Columbus Police Department began investigating. A detective took Ashley back to the couple’s apartment to take photographs and then brought her to the police station to give a statement. Ashley told the officer she did not know what happened but said, “God may have done this to the baby.”
Dr. Lora Darrisaw, a medical examiner with the Georgia Bureau of Investigation, performed an autopsy on June 2. Her report said there was significant bleeding in the infant’s brain associated with head trauma. She found fractures in the skull, suggesting it had been crushed, and swelling of the brain.
Darrisaw said it was her opinion that the injuries were not caused by the birth itself, which she said had been without complications. She noted that the child had cried vigorously upon delivery. In addition, she said that the injuries were of such a traumatic nature that they would have been noticed at the hospital.
Darrisaw concluded that the cause of death was a homicide due to blunt force trauma. She also concluded that the injury had to have happened after the Debelbots brought their daughter home from the hospital. Albert and Ashley Debelbot were arrested that day and later charged with malice murder, felony murder, and child abuse.
The Debelbots were tried jointly in Muscogee County Superior Court in October 2009. Ashley Debelbot was represented by Sandy Callahan. Albert Debelbot was represented by Bill Mason.
The two attorneys clashed over legal strategy. Callahan would later say that Mason, as a court-appointed attorney, had greater access to funds for expert witnesses, and Callahan wanted to use those monies to hire a forensic expert to examine the autopsy and other medical records. Mason said no. Callahan would later testify that Mason, who died in 2014, told him that he had seen Darrisaw testify before and “I see no need to question her credibility or her statements.”
Undeterred, Callahan went out on his own and found an expert witness, Dr. John Plunkett, a forensic pathologist. Two weeks before trial, Plunkett said he was not available during that period. Callahan asked for a continuance. Mason opposed it. Judge Douglas Pullen denied it, and the trial began.
Darrisaw was the state’s primary witness, and she offered the only evidence that a crime occurred. Darrisaw testified that the infant’s injuries had been received less than four hours before her death, during a time when the girl was with only her parents. “The baby after this injury is completely flaccid, unable to do anything and eventually dies very rapidly.” If such an injury had occurred at the hospital, Darrisaw said, the hospital staff would have noticed it.
Darrisaw did testify that sections of her autopsy were inconsistent with trauma, noting that the right side of the infant’s brain was “soft and mushy” but the left side was “unremarkable.” She said that part of her conclusion that the cause of death was homicide was based on the lack of other explanations.
During Callahan’s cross-examination, Darrisaw testified that she had seen an investigative report prepared by the Muscogee County Coroner’s Office before starting her autopsy. Neither the prosecution nor the defense had seen the document. The report offered no explanation for the injuries and, by default, advanced the idea of a crime. It also painted Albert Debelbot as hen-pecked and noted discrepancies in the couple’s statements to police, suggesting they might be hiding something. Callahan moved for a mistrial, arguing that the report had improperly influenced Darrisaw. Pullen denied the motion.
Mason had planned on using a “good-character” defense for Albert Debelbot, having him testify about his military service and the awards he had won while deployed overseas. But the tactic didn’t work. Prosecutors objected to the relevance of this testimony, and the judge sustained their objection. Later, Mason would ask Pullen to give the jurors a “good-character” instruction prior to deliberations. He declined, stating, “There has been no substantive evidence of good character in this case.”
The state also introduced as a rebuttal witness a jailhouse informant and career criminal named Melvin Tarver, who was briefly in jail with Albert Debelbot. He testified that on the morning that the trial was to start, Debelbot told him that his wife might have harmed the infant.
Tarver said: “He told me, said, ‘Man, I went out to get some dope’ . . . And when he came back he asked his wife where the baby was. And he said ‘She say she spanked her and put her to bed’ … And then he got up and he went in the room where the baby were (sic) and he picked the baby up and the baby wasn’t moving. So he asked her what she had done. And she said ‘Nothing. I just spanked her and put her to bed.’”
Ashley Debelbot testified and said her daughter was in her bassinet next to the couple’s bed. She noticed the bump on McKenzy’s head when she checked on her in the middle of the night.
She testified that she didn’t know how the infant was harmed, but also said that she had had some labor issues, including high blood pressure.
“You think high-blood pressure crushes a skull?” asked prosecutor Sadhana Dailey, “A severe hand blow crushes a skull. Tell us what else crushes a skull.” Moments later, Dailey said, “It’s either you or your husband. Which of you did it?”
“I didn’t do it, and I don’t think my husband did it,” Ashley Debelbot replied.
During closing arguments, Dailey pointed out that the Debelbots hadn’t presented any evidence contradicting the autopsy.
“In seventeen months what has the defense brought you? What have they brought you into the court to refute our evidence? Nothing. Except the two people charged with killing their baby telling you, ‘Yeah, we don’t know what happened. We don’t know.’”
Dailey also noted that the Debelbots hadn’t filed a lawsuit against the hospital. “They haven’t done that. Why? Because they don’t have any evidence that the hospital did this or that these injuries were caused by the birthing process.”
Dailey then turned to the principle of reasonable doubt. “The judge will charge you on reasonable doubt. Just keep in mind, and he will charge you, reasonable doubt does not mean beyond all doubt. It does not mean to a mathematical certainty. Which means we don’t have to prove that ninety percent. You don’t have to be ninety percent sure. You don’t have to be eighty percent sure. You don’t have to be fifty-one percent sure. It does not mean to a mathematical certainty.”
Neither Callahan nor Mason objected to this argument. The jury convicted the Debelbots on October 29, 2009 of all three charges. They were later sentenced to life in prison, and the felony murder and abuse charges were vacated.
The Debelbots appealed. Albert Debelbot was now represented by the Wisconsin Innocence Project, which had developed an expertise in cases involving infant deaths, and the Office of the Public Defender in Chattahoochee County. Attorneys with the law firms of Robins Kaplan and Eversheds Sutherland, along with the Georgia Public Defenders Council, handled Ashley Debelbot’s appeal, coordinating with her husband’s team.
In 2015, the Debelbots moved for new trials, arguing ineffective assistance of counsel based largely on a failure to present medical evidence rebutting the state’s case. Their joint post-conviction hearing was held before Judge Arthur Smith III, who had taken over the case after Judge Pullen retired.
Four medical experts testified about the infant’s death and said her injuries occurred either before or during her birth. Critically, these experts made their findings using CT scans of McKenzy’s brain, records that Ashley Debelbot claimed in a court filing that prosecutors had not given to Callahan.
Plunkett, the forensic pathologist who was to testify at the trial, testified at the hearing that the autopsy photos showed pieces of McKenzy’s skull had rounded edges, indicating a healing process and an earlier wound. The fractures, he said, could not have been acute, because they didn’t fit together. The “soft and mushy” brain that Dr. Darrisaw testified about, Plunkett said, could not have happened in a single day just before death.
Dr. Julie Mack, a pediatric radiologist, testified that CT scans showed the infant had extensive brain loss. “[T]here’s no question the loss of brain occurred intrauterine. You can’t lose this amount of volume of brain after birth in three days. Can’t happen. Absolutely can’t happen.”
Dr. Peter Dehnel, a pediatrician, testified that he examined the autopsy and other medical records and noticed that there was a significant size difference between the infant’s right and left thighs and that this discrepancy carried through the girl’s body. He said it was likely caused by an “intrauterine vascular insult” that caused underdevelopment on the left side.
Dehnel said there were other signs that the infant’s fatal injury occurred well before discharge from the hospital. In particular, there was a sharp increase in the circumference of the infant’s head, and he said this abnormality, which was measured by the hospital staff, should have been investigated.
The final defense witness was Dr. Daniel Sahlein, a neuroradiologist. He said there was evidence of blood clots in the infant’s brain, a condition known as dural sinus thrombosis. He said this creates an abnormally thin skull, and that a vaginal delivery can cause it to tear. He said these injuries often go unnoticed, even by experienced physicians. The infant’s initial post-birth exam was conducted by a second-year resident.
Darrisaw, the state medical examiner, also testified at the hearing. She agreed with the defense witnesses that there was a size difference between the left and right side of the infant’s brain. She also backed off her trial testimony that suggested a quick death after the occurrence of the injuries. Instead of a few hours, she now placed the window for the injuries to between eight and 12 hours before death.
Dr. Susan Palasis, a neuroradiologist, also testified for the state. She appeared to take issue with Darrisaw’s autopsy, stating that pathologists “have the final say and they’re not always a hundred percent accurate.”
She appeared to contradict Darrisaw in other areas. The “soft and mushy” part of McKenzy’s brain suggested an injury that occurred 24 hours or even longer before the child’s death. She also said the bleeding in the brain was either acute or subacute, indicating a time of injury up to seven to 10 days before death.
On December 12, 2017, Smith denied the motion for a new trial. His three-page order offered little in the way of explanation but said the evidence offered by the defendants failed to reach a threshold level of admissibility. Smith based his order on an interpretation of a Georgia Supreme Court ruling in Harper v. Georgia that excluded the testimony of a psychiatrist who had administered a so-called “truth serum” to a murder defendant. Moreover, issues of admissibility notwithstanding, Smith wrote that none of the medical evidence was credible.
The Debelbots appealed to the Georgia Supreme Court, which on March 13, 2019, upheld the conviction but sent the case back to Muscogee County for further review. The justices said there was sufficient evidence to sustain the convictions, but they sharply criticized Smith’s order for its vagueness.
The court’s ruling said: “Despite having qualified all four of the Debelbots’ expert witnesses as experts, however, the motion-for-new-trial court dismissed all their testimony in two separate ways. First, the court concluded in one sentence that all the Debelbots’ witnesses, expert and otherwise, were not credible. And second, the court concluded that all of the Debelbots’ medical evidence was inadmissible under our decision in Harper. As we explain further below, the sweeping nature of these conclusions precludes our meaningful review at this time, requiring that we vacate and remand for more precision.”
Two months later, on May 6, 2019, Smith again denied a motion for a new trial. His ruling said that “the verdict was not contrary to the evidence.”
The Debelbots appealed, arguing that Smith had misinterpreted the Harperruling and that the mistakes by their trial attorneys violated their right to effective representation.
On February 28, 2020, the Georgia Supreme Court vacated their convictions. It did not rule on whether their attorneys were ineffective for failing to present expert testimony but said they were ineffective in failing to object to Dailey’s misstatement of the law during closing arguments, when she told jurors that they didn’t have to be 51 percent certain to convict the couple.
The court wrote: “Accepting the unrebutted expert testimony that McKenzy died as a result of the criminal infliction of blunt force trauma, accepting the compelling evidence that Albert and Ashley had essentially equal opportunities — and no one else had any opportunity at all — to inflict that trauma, in the absence of evidence suggesting that the trauma was inflicted specifically by one or the other, and irrespective of whether Albert and Ashley colluded, the logical probability that either of them inflicted the fatal trauma would be 50 percent. A 50 percent probability of guilt does not, of course, authorize a jury to find guilt beyond a reasonable doubt.”
Pullen’s jury instructions didn’t cure the “gross misstatement of the law,” the opinion said, because he may have inadvertently reinforced the problem when he told the jurors that there was no fixed number of certainty beyond a reasonable doubt.
Following the court’s ruling, the Debelbots were released from prison in July 2020. On April 13, 2021, the charges were dismissed.
Mark Jones, the district attorney for the Chattahoochee Judicial Circuit, said in court that there was “mounting medical evidence that says the child was born this way.” He was not district attorney during the trial, and he apologized to the Debelbots “on behalf of Chattahoochee Judicial Circuit for not getting a fair trial.”
Speaking to reporters after the charges were dismissed, Ashley Debelbot said, “I thought I would never hear that being said to me, ever. Once you’ve been incarcerated, the word ‘Sorry’ never comes up, at all. So, I was grateful. I was thankful that was even an option at that moment. I don’t hold any bitterness toward anybody. I’m just happy that me and my husband can now properly grieve for the daughter that we lost.""
The entire entry can be read at:
http://www.law.umich.edu/special/exoneration/Pages/about.aspx
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;
-----------------------------------------------------------------
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;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
