PASSAGE OF THE DAY: "At the request of the defense, Dr. Fardal re-reviewed the evidence. Analyzing the autopsy slides using a technique not employed at the time of Samaisha’s autopsy, Dr. Fardal said he realized that Samaisha suffered from a remote subdural hemorrhage that was weeks to a month old and potentially rebled four to five days before her death, causing her death. He concluded that the evidence did not prove that Samaisha’s death was caused by an immediate shaking event, as he testified to at trial."
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ENTRY: Kim Hoover-Moore: By Maurice Possley: Entered on November 5, 2021. Contributing factor: 'False or misleading forensic evidence.'
GIST: In September 2002, Kim Hoover-Moore, a child care provider in Columbus, Ohio, began caring for seven-month-old Samaisha Benson and Samaishas’s two-year-old sister Dorica. The girls’ mother, Akila Benson, said she had seen a sign in a grocery store advertising Hoover-Moore’s service, which she had operated since 1997.Over the next several weeks, Hoover-Moore often helped out 22-year-old Akila and her 27-year-old husband, Wendo, by picking up the girls from their home instead of waiting for them to be dropped off.
On November 29, 2002, Wendo dropped the girls off at about 2:55 p.m. At that time, Samaisha was asleep in her car seat. Hoover-Moore removed the baby’s snowsuit and put the child into a baby bed. For the next couple of hours, Samaisha did not make a sound. Later, Hoover-Moore got the child up and buckled her into a highchair to feed her. That’s when Hoover-Moore noticed that Samaisha could not keep her head up. Hoover-Moore checked the child’s mouth. It was empty. She noticed that Samaisha was breathing erratically, and so she called 911. While on the phone with the dispatcher, Hoover-Moore carried Samaisha into the living room and began performing cardiopulmonary resuscitation until she heard Samaisha breathing. Paramedics arrived and took her to Columbus Children’s Hospital after intubating the baby.
Dr. Ellen McManus treated her. Initially, the breathing tube was too small, so it was replaced with a larger tube to give her more oxygen. Then, tests were performed, including a CT scan of her head. Dr. McManus said the CT scan showed Samaisha had a skull fracture and blood across her brain—a subdural hematoma—but no evidence of other head injuries.
Ultimately, Dr. McManus diagnosed Samaisha with shaken impact syndrome based on the presence of a subdural hematoma, retinal hemorrhages, and a skull fracture. Samaisha died two days later, on December 1, 2002.
On December 30, 2002, a Franklin County grand jury indicted Hoover-Moore on charges of murder, involuntary manslaughter, felonious assault, and endangering a child.
In November 2003, Hoover-Moore went to trial in Franklin County Court of Common Pleas.
Dr. McManus, an emergency room physician at Children's Hospital, testified that when Samaisha first arrived at the hospital, she was experiencing “posturing,” a stretching of the muscles indicative of increased pressure in the brain. “Her arms were stretched out, her legs were stretched out, her head was stiff, and she was not moving and not breathing and appeared to be in respiratory failure,” Dr. McManus said. She said that the type of posturing Samaisha exhibited usually indicated a head injury. Samaisha's condition upon arrival at the hospital was “extremely critical, very close to dying,” Dr. McManus said.
She said she ordered a CT scan of Samaisha's head, which revealed a skull fracture on the left posterior portion. In addition, the scan depicted a subdural hematoma, which she said was a “collection of blood between the most exterior surface of the brain called the dura and the brain tissue itself.” The procedure exposed retinal hemorrhages. Dr. McManus said these were the result of vigorous shaking, during which blood vessels at the back of the eye were torn and bled under the retina.
Dr. McManus said she concluded that Samaisha suffered from Shaken Baby Impact Syndrome, a subcategory of Shaken Baby Syndrome (SBS). She told the jury that SBS occurred “where a child, usually a small infant…is violently shaken and their head swings back and forth. The brain tends to bounce around inside the skull causing very tiny blood vessels that help the brain, feed the brain, get torn off and the blood starts to kind of pool around the brain itself, which causes pressure on the brain and can eventually kill the baby.”
She said that Shaken Baby Impact Syndrome was “essentially the same thing, violently shaking, but at some point the head actually impacts a hard surface and sustains a fracture.”
SBS was a term coined to describe a condition first articulated in 1971. SBS is said to arise when an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a tell-tale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms is interpreted by many physicians, child abuse investigators and police to indicate that the child has been violently shaken. Usually, the last person to have physical care of the child is believed to have caused the injuries.
A second CT scan taken the next day revealed increased swelling of the brain, Dr. McManus testified. She estimated that Samaisha's injuries occurred “within probably minutes” of the 911 call. Dr. McManus based that opinion on the fact that Samaisha presented at the hospital unconscious and lifeless. “Babies do not have very large reserves,” she said. “They cannot take that kind of trauma and…remain active and alert and do normal things that babies do.”
Dr. McManus had prepared a written report of the incident, stating that Samaisha's injuries were consistent with child abuse. She did not include in her report her opinion regarding the timing of the injury. When cross-examined, she denied that her opinion was not formulated until well after she assessed the injuries. Dr. McManus also noted in her report that Samaisha's mother related that the baby's father had a history of spousal abuse and had shaken Samaisha's older sister.
Dr. McManus testified that when the baby's mother, Akila, arrived at the hospital, Hoover-Moore quickly asked her to “tell the doctor about the baby's father.” Dr. McManus said that Hoover-Moore's insistence that Akila discuss Wendo with other hospital personnel seemed “unusual,” as if Hoover-Moore were trying to “make a point.”
Deputy Coroner Dr. Patrick Fardal testified that he performed an autopsy on Samaisha on December 2, 2002. The autopsy revealed a skull fracture on the left posterior portion of the head, bruising on the posterior scalp, and several subdural hemorrhages. Dr. Fardal said he concluded the injuries resulted from being struck on the head by an object or having the head strike on an object. The autopsy also revealed several optic nerve and retinal hemorrhages, as well as brain swelling.
Dr. Fardal testified that the cause of death was “blunt impact to her head with the resulting fractures of the skull and subdural hemorrhages.” He testified that the retinal and optic nerve hemorrhages suggested the infant had also been shaken.
During cross-examination, Dr. Fardal testified that the actual cause of death was swelling of the brain and not the skull fracture itself. He further testified that swelling of the brain can occur over a period of time, and that the initial symptoms are lethargy, sleepiness, and difficulty breathing. If, however, the traumatic event is so severe that the force is transmitted to the brain itself, the period of lucidity is contracted to near the time of injury. In other words, he said, a severe impact to the skull could cause incapacity within minutes, rather than hours.
Dr. Charles Johnson, a professor of pediatrics at the Ohio State University and a member of the child abuse team at Children's Hospital, testified as an expert in the area of pediatrics and child abuse. Dr. Johnson described the general physiology of both “shaken baby syndrome” and “shaken baby impact syndrome” in significant detail.
Dr. Johnson testified he neither treated nor examined Samaisha while she was in the hospital. He said he became involved in the case only after Samaisha's death when, on December 6, 2002, he chaired a committee charged with reviewing information regarding the circumstances of Samaisha's death. The committee consisted of Dr. Johnson, a Columbus police detective, a Franklin County Children Services caseworker, and a medical student.
As a member of the committee, Dr. Johnson reviewed several documents, including the emergency medical services report, the emergency room report, the summaries of interviews police conducted with Samaisha's mother, Samaisha's father, Hoover-Moore, and Hoover-Moore’s son. He also reviewed the CT scans taken of Samaisha's head and the preliminary results of the autopsy. From this information, Dr. Johnson constructed a timeline depicting the sequence of events leading to Samaisha's death. The timeline included observations of paramedics and emergency room personnel about Samaisha's physical condition, and it set out the people who were involved in Samaisha's care-taking during relevant periods of time.
Dr. Johnson determined that Samaisha was acting normally at 1:00 p.m. on November 29, 2002. At 3:00 p.m. when she was left in Hoover-Moore's care, Samaisha’s condition was sleepy. She then became fussy and active. At 6:39 p.m., paramedics were dispatched. They arrived at 6:45 p.m. and found Samaisha limp with troubled breathing, and requiring resuscitation. She presented to the hospital with several retinal hemorrhages.
Dr. Johnson concluded that Samaisha suffered her head injury “[w]ithin minutes prior to the squad being called.” In support of his opinion, Dr. Johnson stated, “[b]ecause this baby's condition was such that when the squad arrived, and from the description by the babysitter of needing mouth-to-mouth resuscitation, that the baby's condition had gone from what appeared to be slightly sleepy or calming when picked up, then sleeping normally for a time period, no evidence that this baby is moving downhill into unconsciousness, that something must have happened immediately prior to this baby having trouble with its breathing and requiring resuscitation, a matter of minutes.”
Dr. Johnson further opined that it was “highly unlikely” that Samaisha would still be alive at 6:39 p.m. if she had been shaken before 3:00 p.m.
Akila Benson, Samaisha's mother, testified she met Wendo, a citizen of Tanzania, in 1999. At the time, Wendo was in the United States on a visa. The two married in 2000. As the spouse of an American citizen, Wendo was permitted to remain in the United States after his visa expired. At some point, she said they began having marital problems, which on at least one occasion escalated to physical violence in January 2002 when Akila was seven months pregnant with Samaisha.
At that time, Akila reported to police that Wendo shook her repeatedly during an argument. They ultimately agreed to separate, and Akila made plans to move into a separate residence on December 1, 2002.
Akila testified there was nothing unusual about Samaisha's behavior on the morning of November 29, 2002. She said she went to work at 11:30 a.m., leaving Wendo to care for Samaisha and Dorica until he had to leave for work at 3:00 p.m. when he was to take them to Hoover-Moore’s home.
Akila told the jury that sometime in the early evening, Hoover-Moore telephoned her at work and asked her if Wendo had “hurt the baby.” When Akila asked what was wrong with Samaisha, Hoover-Moore said she didn't know, but that paramedics were “working on her.” After the paramedics left with Samaisha, Hoover-Moore picked up Akila and drove her to the hospital. At the hospital, Akila said Hoover-Moore said that Wendo was acting strangely when he dropped Samaisha off. Akila said Hoover-Moore offered no explanation as to what had happened to Samaisha, other than to say that when she tried to feed Samaisha in the high chair, she “wasn't herself.”
According to the prosecution, when interviewed that night by a Columbus police detective and a hospital social worker, Akila said that in May 2001, Wendo, acting out of frustration, shook Dorica, who was then three months old, because she would not stop crying. Akila also said that in the summer of 2002 she began proceedings to have Wendo deported. She also said that Wendo came home intoxicated at 1:00 a.m. on November 29, 2002.
However, Akila denied saying that Wendo shook Dorica—she said that he simply grabbed her arms.
Wendo testified that Samaisha was acting normally during the morning and early afternoon hours of November 29, 2002. He took the girls to Hoover-Moore's house just before 3:00 p.m., carrying Samaisha in her car seat into the house. He said that when he placed the car seat on a chair, Samaisha was awake and crying. He said that Hoover-Moore assured him that Samaisha would be fine, and he went to work.
He said that he came to the hospital after police notified him that Samaisha had been seriously injured and was in the hospital in critical condition. He said he told detectives that he had driven over some speed bumps on the way to Hoover-Moore's home and that Dorica sometimes played roughly with Samaisha. Wendo denied ever shaking either Dorica or Samaisha.
Thirteen-year-old Ashley Bundy testified that Hoover-Moore cared for her for two weeks when she was ten years old. During that two-week period, Bundy said, Hoover-Moore, in a fit of anger, pushed her against a playpen, causing a bruise to her right eye. Ashley also testified that she saw Hoover-Moore angrily and forcefully shake an infant because the infant would not stop crying.
Ashley's 10–year–old brother, Ryan Bundy, testified that while he was in Hoover-Moore's care, she banged his head on the ground when he refused to take a nap.
These incidents were not reported to police or children services, the evidence showed.
The defense presented testimony from Sheila Grimes and Ruth Years, who told the jury that Hoover-Moore cared for their grandchildren for years without incident.
The defense also played a videotaped deposition of Dr. Gerald Steinman, a pediatric neurologist at Children's Hospital and a professor of neurology at The Ohio State University. Dr. Steinman said he reviewed Samaisha's medical records, as well as Hoover-Moore’s account of events. Although Dr. Steinman agreed that Samaisha's death resulted from Shaken Baby Impact Syndrome, he disagreed with Dr. Johnson's conclusion that Samaisha's injuries were incurred immediately prior to the 911 call.
Dr. Steinman said it was “entirely reasonable to assume that this trauma occurred before the babysitter got the baby.” Although Dr. Steinman acknowledged the possibility that the injuries could have been incurred only minutes before the 911 call was made, he concluded that, based particularly on Hoover-Moore's statement that Samaisha was sleepy and irritable when she arrived at 3:15 p.m., that “my timeline is not minutes; my timeline is hours.”
Hoover-Moore testified that she began her day care service in 1997 and had cared for approximately 20 children. At the time she began caring for Samaisha and Dorica in September 2002, she was also caring for six other children in addition to her son.
Hoover-Moore testified that Wendo arrived with Samaisha and Dorica around 3:00 p.m. Samaisha was still in the car seat and she assumed Samaisha had fallen asleep in the car and was still sleeping. Hoover-Moore said Wendo placed the car seat on a chair and left. After about five minutes, she took Samaisha from the car seat, removed her snowsuit and hat, and laid her in a portable crib to resume her nap.
Hoover-Moore said that because Samaisha was asleep, she did not check on her for the next few hours. She said that sometime between 6:00 and 6:30 p.m., she got Samaisha out of the crib, carried her to the kitchen, and put her in the high chair to feed her. Hoover-Moore testified that she noticed Samaisha was having difficulty holding her head up, so she called 911.
Hoover-Moore said that during the conversation with the 911 operator, she noticed that Samaisha was no longer breathing. So, at the operator’s urging, she placed Samaisha on the floor and began CPR. She stopped when Samaisha started breathing. At almost the same time, paramedics arrived and took Samaisha to the hospital.
On November 7, 2003, the jury convicted Hoover-Moore of murder, involuntary manslaughter, felonious assault, and endangering a child. She was sentenced to 15 years to life in prison.
In 2004, the convictions were upheld by the Ohio Court of Appeals for the Tenth District.
In 2010, Hoover-Moore applied for assistance from the Wrongful Conviction Project (WCP) in the Office of the Ohio Public Defender. Joanna Sanchez was an intern at the time, but became the attorney for the project in 2011, and she started working on Hoover-Moore’s case then. On October 22, 2014, Sanchez filed a motion seeking permission to file a delayed motion for a new trial on the basis of newly discovered evidence. The newly discovered evidence was the body of literature surrounding shaken baby syndrome and infant head trauma, which had advanced significantly since Hoover-Moore’s 2003 trial.
In the motion, Sanchez argued that the advances in medical knowledge had the potential to identify an alternative perpetrator responsible for Samaisha’s death or to identify an accidental or natural cause of her death. The motion was denied.
Hoover-Moore appealed and the ruling was upheld by the Court of Appeals. The Ohio Supreme Court declined to hear a further appeal.
In September 2018, Sanchez filed a motion seeking permission to file a motion for new trial. Ultimately, the defense was allowed to access Samaisha’s medical records, radiology images, and autopsy photographs for the first time since the trial concluded.
In June 2021, Sanchez, by then the director of the WCP, filed an amended motion for a new trial. The motion cited evidence from two defense experts as well as a statement from Dr. Fardal, the physician who had conducted the original autopsy.
At the request of the defense, Dr. Fardal re-reviewed the evidence. Analyzing the autopsy slides using a technique not employed at the time of Samaisha’s autopsy, Dr. Fardal said he realized that Samaisha suffered from a remote subdural hemorrhage that was weeks to a month old and potentially rebled four to five days before her death, causing her death. He concluded that the evidence did not prove that Samaisha’s death was caused by an immediate shaking event, as he testified to at trial.
The defense also presented an affidavit from Dr. Janice Ophoven, a forensic pediatric pathologist. Ophoven said she reviewed Samaisha’s medical records and reviewed her autopsy slides using the technique that Dr. Fardal did not employ in 2002. She concluded that Samaisha suffered from a severe pre-existing brain injury.
Dr. Ophoven said Samaisha’s “injuries absolutely did not occur on the day that she collapsed at the babysitter,” and instead, the evidence showed that “[Samaisha] suffered significant blunt force trauma to the head sometime in the past resulting in skull fracture and intracranial bleeding.” Dr. Ophoven concluded that the skull fracture was many weeks old.
In addition, Dr. Gregory Shoukimas, an expert radiologist specializing in neuroradiology and cross-sectional imaging, reviewed the medical records, including the radiology imaging obtained in 2020. Dr. Shoukimas said the CT scans showed that Samaisha’s skull fracture was healing. Further, the scans upon Samaisha’s arrival to the hospital indicated that the bleeding on her brain was several days to a week old. As a result, he said he could exclude an impact injury in Hoover-Moore’s care as a cause of death. He said that Samaisha suffered an injury prior to November 29, 2002 that caused a skull fracture and subdural hemorrhages. As a result, Samaisha suffered an unobserved seizure, depriving her brain of oxygen and ultimately causing her death.
On October 21, 2021, after the prosecution did not object, Franklin County Court of Common Pleas Judge Carl Aveni granted the motion. He vacated Hoover-Moore’s convictions. The prosecution then dismissed the case and Hoover-Moore, 57, was released, more than 17 years after conviction.
“The medical evidence proves what Ms. Hoover-Moore has always said,” Sanchez declared. “She is innocent."
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6054
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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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;
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FINAL, FINAL, FINAL WORD: "It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice.
Jennifer Givens: DirectorL UVA Innocence Project.
