Police frequently interrogate certain suspects and ignore others solely based on when the forensic pathologist concluded the victim was killed. Along with shaping investigations, these doctors can shut them down when they rule a suspicious death was suicide.
Timothy Hegarty, a veteran police commander and member of the Council on Criminal Justice, a nonpartisan think tank focused on criminal justice reform, said that quite often, there are no eyewitnesses to a homicide, no video and not much evidence. “The less evidence you have, the more important the medical examiner is,” he said.
Autopsy doctors are part of a remarkably small club. Most in the medical field prefer to work with the living. Of the 1 million medical doctors practicing in the United States, fewer than 750 conduct autopsies for coroners and medical examiners.
There is such a shortage of forensic pathologists that many coroner’s offices do not have a single one and must transport bodies to neighboring jurisdictions for postmortem exams.
It is widely considered best practice to have a second opinion on the conclusions of technically difficult autopsies and in homicide cases before a final report is issued. But very often, no peer is available.
No other doctor reviewed Dean’s conclusions before police arrested Mounts.
Defendants are increasingly turning to independent forensic pathologists to challenge autopsy results. Mounts’s lawyer hired Satish Chundru, who had performed thousands of autopsies for local government offices before becoming a private consultant in Texas.
When Chundru reviewed Dean’s report, photos and slides of brain tissue in Jayce’s case, he completely disagreed with her conclusions. He saw a healing skull fracture and bleeding that were weeks, if not months, old — not the fresh injury Dean had diagnosed.
Chundru was certain that whatever happened to Jayce had not occurred in the hours that Mounts was caring for him. In fact, he was so sure Mounts should not have been charged that he waived his fee.
In a March 2020 report to the court, Chundru said Dean “grossly misinterpreted” the medical evidence. He said he wanted to get involved in the case because mistakes made by autopsy doctors can have “dire consequences.”
By the time the trial started, the defense had lined up three doctors who were sure Dean was wrong. The prosecution had Dean and three other doctors saying she was right, setting up a courtroom showdown that the judge called a “battle of the experts.”
Acting normally, then not breathing
Jayce’s mother, Kayla Fitzhugh, was 24 and living with her grandparents when her son died. Mounts was living with his parents. Each had a child from previous relationships: Fitzhugh was caring for her 4-year-old son full time, and Mounts saw his 1-year-old daughter regularly.
“He was the love of my life,” Fitzhugh said of Mounts, in an interview with The Washington Post in January 2021 at her grandparents’ small brick home in the Cincinnati suburb of Reading.
Fitzhugh said she had been addicted to pain pills but quit when she found out she was pregnant with Jayce. He was born six weeks premature and spent his first 16 days in the hospital.
In the interview, Fitzhugh said Jayce had stopped breathing twice for about a minute, when he was 1 month and 4 months old. Each time he started breathing again on his own, but Fitzhugh rushed him to the hospital. She said doctors called the incidents BRUEs: brief resolved unexplained events.
BRUEs are not fully understood. But they are believed to have many causes, including infections; allergies; birth defects; brain, neurological or muscle disorders; and trauma from child abuse. Secondhand smoke is also believed to be a factor, and Mounts and Fitzhugh smoked cigarettes.
Fitzhugh has given differing accounts of how many BRUE episodes her son suffered. She told police in one interview that Jayce had two; in another interview, she told them he had three or four. At trial, she said it happened only once. She said several times at trial that it was difficult for her to remember precise details of things that happened three years earlier.
Fitzhugh told police that Jayce seemed completely normal on Jan. 24, 2018. He played in his bouncy seat and ate strawberries and bananas before she drove him to Mounts’s house that evening.
The next day was Mounts’s birthday. He hadn’t seen his infant son in almost a month. When Fitzhugh and Jayce arrived, Mounts’s parents played with their grandson. They later told police the baby was acting normally.
Late in the evening, Fitzhugh and Mounts left the house with their baby. They bought baby wipes at Walmart and then briefly stopped at a friend’s house. Mounts went inside; Fitzhugh and Jayce stayed in the car. Fitzhugh initially told police she wasn’t sure why Mounts stopped there, according to police reports and trial testimony, but she later told them that he was buying drugs — but that she didn’t know what kind.
Fitzhugh testified at trial that she didn’t initially tell police that Mounts stopped for drugs because “I didn’t want him to be in trouble — I loved him.” At trial, neither the prosecution nor the defense specified what kind of drugs Mounts bought. But three people close to the case said it was Percocet, a prescription opioid painkiller. Fitzhugh and Mounts told police that neither of them drank alcohol or used drugs that evening.
When they returned that night to Mounts’s home, Fitzhugh asked Mounts if he could keep Jayce overnight because she had a drug rehab meeting in the morning. Jayce had slept over at Mounts’s house three or four times before.
Fitzhugh fed the baby, prepared another bottle for later and left around midnight. Mounts’s mother, Theresa Mounts, said she and her husband had gone to bed before 10 p.m. and she left the house early the next morning for her housecleaning job.
In a video interview with The Post from jail in January 2021, Mounts said he stayed up all night watching TV and playing video games while Jayce slept beside him. He said he didn’t own a crib, so he pushed his queen-size bed against the wall and created a little space for Jayce by surrounding him with pillows.
Mounts said he finally went to sleep at 9 a.m. and woke two hours later when he heard Jayce wake up. He said the baby was fussy and wouldn’t take the room-temperature bottle or a pacifier. He said he changed the baby’s diaper and then went to the kitchen to warm the bottle. When he returned a few minutes later, he realized Jayce was limp and not breathing, he said.
Police said Mounts called 911 at 12:34 p.m. and frantically asked the operator to tell him how to perform CPR on a baby. With the operator’s assistance, Mounts tried to resuscitate him as he waited for the ambulance.
Medics and police said they saw no sign of injury or trauma on the baby’s body. But one officer testified at trial that he saw a marijuana bong in Mounts’s room.
Jayce was still alive when he arrived at Cincinnati Children’s Hospital Medical Center, but doctors determined he had suffered severe and irreversible brain damage from not breathing for so long, according to police reports.
A CT scan showed that Jayce had a skull fracture and bleeding around the brain. Lauren Jacobs, the pediatric critical care doctor who was treating Jayce, told police the skull fracture was “not a catastrophic event.” She said his much bigger problem was deprivation of oxygen to the brain.
Mounts did not go with Jayce in the ambulance to the hospital. According to the police report, Mounts said he was “traumatized” by what had happened to his son. He said he was told he could not ride in the ambulance with Jayce, but paramedics testified at trial that they had offered to give him a ride. Mounts told police he went to the hospital the next day but had a panic attack and started crying in the car before he entered.
Three days after Jayce arrived at the hospital, the family removed him from life support, and he died in Fitzhugh’s arms. “I held my baby while he took his last breath, then his whole body went limp,” she said in the January 2021 interview.
Theresa Mounts was there, but her son was not. He told Fitzhugh he was sick to his stomach.
Bringing in outside experts
Dean, who had performed about 6,000 autopsies in her 30-year career, issued an unequivocal report after examining Jayce saying that his death was a homicide. The cause: “Assaulted by another person(s); struck by or against a fixed object(s).”
Doctors at Children’s Hospital had been unsure what caused Jayce’s death. In his police report, detective Brad Hondorf said he met with doctors two days after the baby died. He wrote that they said the death could have been caused by abuse, an accident or a genetic disorder. Hondorf also wrote that Dean was aware of what the doctors said but insisted that Jayce’s skull fracture had led to brain damage that caused his death.
In the document charging Mounts with murder, Hondorf cited Dean’s conclusions as his only evidence. “The coroner determined that the injury would have happened shortly before the child stopped breathing, and could not have happened the day before. This would place Josh in sole care and custody of the child when the injury occurred.”
When Chundru reviewed the records six months later, he determined Jayce’s skull fracture could have been intentional or accidental, but in either case did not cause Jayce’s death.
He said there was no definitive proof of why Jayce died and maybe the BRUE episodes were a factor. Chundru believed the coroner’s office should have listed the cause and manner of death as “undetermined.”
Babies’ small and developing brains and skulls are especially difficult to assess. So Chundru asked Andrew Guajardo, a forensic neuropathologist — a specialist in investigating deaths involving head injuries — to review the case. Guajardo, an assistant medical examiner for Utah, is one of only about 50 board-certified forensic neuropathologists in the nation.
In his written report to the court, Guajardo agreed with Chundru that Jayce’s injuries were suffered at least “three weeks and potentially three months” before he died.
Hamilton County prosecutor David Prem then sought an independent expert of his own. On Dean’s recommendation, he hired Andrea Wiens of Phoenix, another of the nation’s few board-certified forensic neuropathologists.
But when Wiens reviewed the case, she also believed that Dean’s conclusions were wrong.
As required by law, Prem turned over Wiens’s report to the defense. Wiens agreed to testify on Mounts’s behalf.
Questions and suspicions
In the interview with The Post, Fitzhugh said she was torn by the charges against Mounts. She didn’t want to believe he was guilty. But the coroner and the police said he was, so what was she supposed to think?
“I would have never in my life thought that he could do something like this, ever,” she said. “I mean, he's always been so calm.”
She couldn’t believe Mounts would hurt his own son, but she said she was suspicious that he didn’t come to the hospital when Jayce was removed from life support. Even if he was sick, she didn’t understand how a father could miss that moment. It made her wonder.
Her grandmother, Sharyn Fitzhugh, sitting next to her, agreed: “He was so mellow and so even-keeled. If they’d get in an argument, he would walk away. I mean, he wasn’t combative. He didn’t want to argue.”
She knew the defense experts were saying Jayce’s skull had been fractured weeks or months before he died. But she said there had never been a time when he fell or hit his head.
“It just never happened,” she said.
The same week, in a video interview from the county jail, Mounts said it was “ludicrous” that he had spent so long in jail, facing a potential life sentence, on the word of a single doctor when three others said she was wrong.
“I think that anybody else who's looking at it should be concerned about the way that the system is currently operating,” he said.
His daughter, Alice, was now 7. “I missed the last few years of my little girl being a little girl.” His parents said his incarceration had already cost them almost $100,000 — for legal fees, daily phone calls, food at the jail commissary and other costs. They had offered to put up their house, worth about $200,000, as bond for his release, but the judge had denied the request.
Mounts described being accused of murder as like being in a slow-motion car crash, watching another car come toward you, not knowing whether you will live or die.
“It’s hard to trust in a system that has so far not worked for you,” he said. “But I’ve just kind of always believed that in the end, the truth is going to come to light and everything’s going to be all right.”
Mounts’s trial began in October 2021. Before the jurors entered Judge Terry Nestor’s courtroom, Guinan knotted his client’s tie. Mounts didn’t know how.
In his opening statement, Prem, the prosecutor, laid out the state’s theory of how Jayce died: Mounts was exhausted after a night of no sleep and drug use when his baby woke him, and Mounts hit him or banged his head against the wall “to shut him up.”
Prem emphasized that Mounts didn’t go to the hospital with the ambulance and said that it was “not normal” that he wasn’t there when his son was taken off life support.
The prosecutor reminded jurors that Dean worked for the local county government and that his experts “work in our community.” He emphasized that the defense had hired “outside doctors who come in here for money” — and later repeatedly mispronounced Chundru’s and Guajardo’s names in front of the jury.
An appeal to local loyalty is a familiar strategy by trial lawyers. Juries tend to place more faith in local experts and those paid by the government over those flown in and paid by the defense, said Samuel Gross, an emeritus law professor at the University of Michigan Law School who has written widely on the justice system.
Gross said that many jurors view the prosecutor “as the government representing them and know the defense attorney’s role is to represent their client, guilty or not.”
Guinan, the defense attorney, used his opening statement to keep the focus directly on Dean’s credibility, telling the jury that she had misinterpreted the medical evidence. He told them her report was the prosecution’s “entire case” and if she was wrong, “the state’s case completely falls apart.”
Guinan told the jury that police locked onto Mounts without bothering to interrogate Fitzhugh, her grandparents or anyone else who might have cared for Jayce.
The 10-day trial largely hinged on testimony from the medical experts.
When Chundru said he found Dean’s conclusions “unimaginable,” Guinan asked him how he could be so sure.
“This is basic forensics,” he said.
When Wiens testified that the injuries were old, Guinan asked her, “Is there any doubt in your mind?”
“Zero,” she said.
Dean’s conclusions were backed up by Rebecca Folkerth, a New York neuropathologist hired by the prosecution, and a child abuse specialist at Cincinnati Children’s Hospital, who testified that Jayce’s injuries were “consistent with child physical abuse.”
Karen Looman, Dean’s boss, also testified in support of Dean’s work.
Dean’s office did not respond to a request for an interview with The Post.
When Jayce died, the Hamilton County coroner’s office had a policy of reviewing a random 5 percent of its pathology cases at the end of each quarter. There was no requirement for any peer review before issuing an autopsy report.
In 2021, the coroner’s office added mandatory peer review for all autopsies related to homicides, infant deaths and deaths where the cause is undetermined, as well as a random 10 percent of all cases.
Asked by The Post if the policy change had anything to do with the Mounts case, a coroner’s spokeswoman said it did not. “We felt that those cases with potential legal implications should have a secondary review,” she said.
Was there ‘rampant reasonable doubt’?
The testimony at trial was often repetitive and technical. Much of it focused on how Dean interpreted a single slide of tissue she had taken from Jayce’s skull.
In closing arguments, the prosecution urged jurors to follow common sense and conclude that Mounts killed his crying baby “to shut him up.”
The defense focused on how three experts with training that was similar to Dean’s, or even more specialized, disagreed with her, raising “rampant reasonable doubt.”
If the experts “cannot come to a reasonable conclusion to what happened to Jayce Fitzhugh, then how can you?” Guinan asked the jurors.
After six hours of deliberations, a juror read the verdict: Mounts was convicted of murder — committing violence that he knew could result in death. He was acquitted of a more serious aggravated murder charge involving intent to kill. He was sentenced to 15 years to life in prison. Counting time served, Mounts would be eligible for parole in about 11 years.
Mounts sat frozen.
The only sound in the courtroom was the loud sobbing of Kayla Fitzhugh.
Believing the doctor
A juror interviewed by The Post after the trial said some of the jurors initially expressed doubts that Mounts was guilty. “Some people said, “It could be Kayla,” said the juror, who spoke on the condition of anonymity to discuss the private jury deliberations.
She said they also “toyed around with the idea” that reasonable doubt had been raised by the defense experts, before rejecting that.
She said it hurt Mounts when he did not take the stand: “If Josh would have said, like, ‘Oh, the baby hit his head on something and that caused him to have a brain injury,’ that would make more sense than saying nothing happened, because something happened.”
But the main factor in convicting Mounts, she said, was that the jury ultimately found Dean more credible than the defense witnesses."
The entire story can be read at:
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;
