PUBLISHER'S NOTE: Dear Readers. I must take a short break to complete an unrelated publishing assignment, In the meantime, please keep in touch as usual with story ideas, suggestions, developments, comments and whatever, at hlevy15@gmail. Back soon. Be well. Au Revoir. Harold Levy. Publisher. The Charles Smith Blog.
Wednesday, October 26, 2022
Tuesday, October 25, 2022
Jennifer Del Prete: Illinois: Finally free to persue the alleged "conspirators" she alleges were responsible for her conviction of first-degree murder in the 2003 so-called 'shaken baby syndrome' death of a 4-month-old at the day care facility where she served as a caretaker, The Daily North Western (Summer Editor Ben Pope)...The allegations, as initially reported) are eye-popping: A taste: "Thursday’s lawsuit alleges that the two Romeoville officers, an officer from Plainfield, Illinois and a primary medical witness in the case — Dr. Emalee Flaherty, a retired physician and a former professor at the Feinberg School of Medicine — conspired to frame Del Prete for the infant’s death. “Although they knew there were natural or accidental causes (for the death), Defendants fabricated false medical evidence and reports implicating Plaintiff in violently shaking the child,” reads the lawsuit, which was filed by three Chicago attorneys. According to the lawsuit, the Romeoville officers ignored the advice of several physicians, who said the infant’s health problems were likely preexisting and not caused by Del Prete, and instead worked with Flaherty to label the incident as a case of Shaken Baby Syndrome."
PUBLISHER'S NOTE ONE: I am delighted to have been invited by The International Wrongful Conviction Day Committee, to participate in a 'Zoom' interview conducted by Charlotte Taylor-Baer - to be held on Tuesday October 25, at 6.00 PM EST, in which we will be discussing, 'Wrongful Convictions and The Goudge Inquiry," with reference to some of the cases of disgraced pathologist, Charles Smith."
Charlotte graduated from Simon Fraser University with a BA (Hons) in Criminology and Archaeology and is currently enrolled in the BCL/JD Program at McGill's Faculty of Law. She is a Lead Caseworker at Innocence McGill, the Fundraising Project Manager for the International Wrongful Conviction Day Committee, and the Co-Founder and Outreach Director for the Wrongful Convictions Collective. Her research interests include criminal procedure and evidence, judicial gatekeeping, wrongful convictions, and forensic science.
"I am particularly gratified to have the opportunity to vent my wrath and draw attention to the fact that there are several outstanding cases (mainly shaken baby syndrome cases - in which some of Charles Smith's all-too-many innocent victims - are still seeking exoneration, some 14 years after Justice Stephen Goudge released his report on his public inquiry into many of Smith's cases, on October 1, 2008.
Moreover, this interview will allow me to question why the media has largely moved away from the Charles Smith story, leaving the public in the dark on the important question as to whether Justice Goudge's many thoughtful recommendations have been heeded - or whether all the promises which flooded out from the individuals and institutions who empowered Charles Smith were little more than words.
This will also be an opportunity for me to share with viewers the story of how Charles Smith came into my life as a Toronto Star reporter - and some of the intriguing twists and turns that the story took.
I hope you will join us.
Harold Levy:
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Publisher: The Charles Smith Blog.
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Click on the following link to access the Zoom connection
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PUBLISHER'S NOTE TWO: As previously posted, on October 21, 2022, Jennifer Del Prete is 'finally, finally, finally free. With this freedom becomes the opportunity for her to pursue the civil action she launched against the alleged "conspirators" responsible for her conviction of first-degree murder in the 2003 so-called 'shaken baby syndrome' death of a 4-month-old at the day care facility where she served as a caretaker." My headnote (followed by a 2017 story containing details of the claim she would ultimately pursue when exonerated, as happened this week, read as follows:
Jennifer Del Prete: Illinois: Shaken Baby Syndrome: Major (Unexpected) Development: She has been cleared by a finalized expert report, and is 'finally, finally, finally' free, The Chicago Tribune (Reporters Shazeh Ahmad and Rosemary Sobol) report..."On Wednesday morning, Del Prete, 51, with her father by her side, was in the Will County courthouse for yet another court date to find out if the trial would in fact start on Nov. 29, or if the state needed more time to build its case. Neither she or her attorney could have predicted what happened next: Her criminal case was dismissed Wednesday after the state was no longer able to make a case against her with a new expert opinion, according to a court order, and all of the charges against her were dropped. “We both burst into tears,” Del Prete said of her and her father’s immediate reactions. “I was screaming, ‘Finally, finally, finally,’ and we were crying.” “The People have received and tendered the finalized expert report of Dr. Thomas Bennett,” the dismissal order said. “After careful consideration of the newly obtained expert opinion in conjunction with all of the other physical and opinion evidence in this case, the People no longer believe they can sustain their burden of proof beyond a reasonable doubt.” “The matter was dismissed,” was all Carole Cheney, a spokesperson for the Will County state’s attorney’s office, said in an email. Del Prete had been found guilty of first-degree murder in the 2003 death of 14-month-old Isabella Zielinski. Authorities accused Del Prete of shaking the 4-month-old at the day care facility where Del Prete served as a caretaker."
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THE 2017 STORY:
PASSAGE OF THE DAY: "Thursday’s lawsuit alleges that the two Romeoville officers, an officer from Plainfield, Illinois and a primary medical witness in the case — Dr. Emalee Flaherty, a retired physician and a former professor at the Feinberg School of Medicine — conspired to frame Del Prete for the infant’s death. “Although they knew there were natural or accidental causes (for the death), Defendants fabricated false medical evidence and reports implicating Plaintiff in violently shaking the child,” reads the lawsuit, which was filed by three Chicago attorneys. According to the lawsuit, the Romeoville officers ignored the advice of several physicians, who said the infant’s health problems were likely preexisting and not caused by Del Prete, and instead worked with Flaherty to label the incident as a case of Shaken Baby Syndrome. Also according to the lawsuit, the Plainfield officer, who attended an autopsy that cast into doubt the cause of the infant’s death, tipped off the Romeoville officers about the autopsy’s findings — allowing the officers to withhold medical evidence from a doctor at the coroner’s office — and then suppressed evidence of the conversation. Additionally, the lawsuit accuses Flaherty of operating with an ulterior motive. Flaherty was then part of a child protection task force that “target(ed) babysitters and caretakers” and wrote a report on the infant’s death without examining the infant and with knowledge that the claims made in her report were false, according to the lawsuit."
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STORY: "Woman previously freed by Medill Justice Project investigation to sue alleged conspirators," by Summer Editor Ben Pope, published on August 25, 2022.
PHOTO CAPTION: "Jennifer Del Prete smiles minutes after being released from prison in 2014. Del Prete is now suing prosecutors of her initial 2005 conviction."
GIST: Attorneys representing Jennifer Del Prete filed a civil lawsuit Thursday against the village of Romeoville, Illinois and numerous other parties for their actions in Del Prete’s 2005 conviction on first-degree murder charges.
Del Prete, now 46, was released from prison in 2014 and her conviction was reversed in 2016 by federal judges partially because of the results of an investigation by The Medill Justice Project into the case, which found a letter that had not been admitted as evidence in the original trial.
The letter, written by one of two primary police investigators in the case, said a medical examiner had questioned whether the actions of Del Prete, then a daycare worker, actually led to the eventual death of the infant she was charged with killing.
Thursday’s lawsuit alleges that the two Romeoville officers, an officer from Plainfield, Illinois and a primary medical witness in the case — Dr. Emalee Flaherty, a retired physician and a former professor at the Feinberg School of Medicine — conspired to frame Del Prete for the infant’s death.
“Although they knew there were natural or accidental causes (for the death), Defendants fabricated false medical evidence and reports implicating Plaintiff in violently shaking the child,” reads the lawsuit, which was filed by three Chicago attorneys.
According to the lawsuit, the Romeoville officers ignored the advice of several physicians, who said the infant’s health problems were likely preexisting and not caused by Del Prete, and instead worked with Flaherty to label the incident as a case of Shaken Baby Syndrome.
Also according to the lawsuit, the Plainfield officer, who attended an autopsy that cast into doubt the cause of the infant’s death, tipped off the Romeoville officers about the autopsy’s findings — allowing the officers to withhold medical evidence from a doctor at the coroner’s office — and then suppressed evidence of the conversation.
Additionally, the lawsuit accuses Flaherty of operating with an ulterior motive. Flaherty was then part of a child protection task force that “target(ed) babysitters and caretakers” and wrote a report on the infant’s death without examining the infant and with knowledge that the claims made in her report were false, according to the lawsuit.
The lawsuit alleges that Del Prete suffered damages as a result of her nine-year imprisonment and emotional stress and accuses the officers — for whom their respective municipalities are liable — and Flaherty of violating due process, undergoing malicious prosecution and committing civil conspiracy, among other wrongdoings.
“The Village (of Romeoville) is confident that its officers acted lawfully and appropriately and that they will be exonerated in the litigation,” Romeoville assistant village manager Dawn Caldwell told The Daily in a statement. “Due to the pendency of the suit, the Village has no further comment.”
Plainfield community relations director Amy De Boni said Plainfield could not comment because it has not yet received the lawsuit.
Flaherty did not respond to multiple requests for comment, and a receptionist at her former Feinberg office said she had retired several years ago.
Del Prete’s prison release and eventual exoneration has been considered one of The Medill Justice Project’s seminal accomplishments.
The letter that members of The Medill Justice Project found, sent from the Romeoville officers to Flaherty after the tip from the Plainfield officer, said that the coroner had questioned the diagnosis of Shaken Baby Syndrome. Prior to 2014, Del Prete’s lawyers had not been aware of the letter.
Last year, a circuit court judge threw out Del Prete’s previous conviction and ordered a new trial.
At a press conference Thursday in Chicago, Del Prete said she hopes the lawsuit will lead to justice for all involved in the initial case.
“Nothing can compensate for the tragedy we all went through, but I’m hoping that we can get some justice,” Del Prete said, according to The Medill Justice Project. “Although we can’t get our time back that we missed, I would just like to feel like I was acknowledged.”
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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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Monday, October 24, 2022
Commentary: A blot on America: Mississippi investigative journalist Jerry Mitchell reacts to a new study by the National Registry of Exonerations which shows that Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes - and provides The Pine Belt News with riveting examples - many involving flawed forensic 'science' which found their way into the pages of this Blog..."Eddie Lee Howard Jr. and Sherwood Brown each spent 26 years on Mississippi’s death row for murders they did not commit — only to walk free last year. They are far from alone. They are two of 23 Black Mississippians who have been exonerated in recent decades. Four other exonerees were white A new study by the National Registry of Exonerations shows that Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes Howard’s lawyer, Chris Fabricant, said police picked up his client “because he was Black and because he had a record.”Howard and Brown were the fifth and sixth exonerated Mississippians who were convicted as a result of the work of forensic odontologist Michael West of Hattiesburg, who has repeatedly testified he found bite marks on victims and then linked those marks to suspects identified by law enforcement. Those wrongfully convicted in those cases served a combined 107 years in prison — more than half of them on death row."
PUBLISHER'S NOTE: I am delighted to have been invited by The International Wrongful Conviction Day Committee, to participate in a 'Zoom' interview conducted by Charlotte Taylor-Baer - to be held on Tuesday October 25, at 6.00 PM EST, in which we will be discussing, 'Wrongful Convictions and The Goudge Inquiry," with reference to some of the cases of disgraced pathologist, Charles Smith."
Charlotte graduated from Simon Fraser University with a BA (Hons) in Criminology and Archaeology and is currently enrolled in the BCL/JD Program at McGill's Faculty of Law. She is a Lead Caseworker at Innocence McGill, the Fundraising Project Manager for the International Wrongful Conviction Day Committee, and the Co-Founder and Outreach Director for the Wrongful Convictions Collective. Her research interests include criminal procedure and evidence, judicial gatekeeping, wrongful convictions, and forensic science.
"I am particularly gratified to have the opportunity to vent my wrath and draw attention to the fact that there are several outstanding cases (mainly shaken baby syndrome cases - in which some of Charles Smith's all-too-many innocent victims - are still seeking exoneration, some 14 years after Justice Stephen Goudge released his report on his public inquiry into many of Smith's cases, on October 1, 2008.
Moreover, this interview will allow me to question why the media has largely moved away from the Charles Smith story, leaving the public in the dark on the important question as to whether Justice Goudge's many thoughtful recommendations have been heeded - or whether all the promises which flooded out from the individuals and institutions who empowered Charles Smith were little more than words.
This will also be an opportunity for me to share with viewers the story of how Charles Smith came into my life as a Toronto Star reporter - and some of the intriguing twists and turns that the story took.
I hope you will join us.
Harold Levy:
Publisher: The Charles Smith Blog.
---------------------------------------------------
Click on the following link to access the Zoom connection
---------------------------------------------------
PASSAGE OF THE DAY: "In examining more than 350 DNA exonerations across the U.S., the Innocence Project found that 45% of these cases involved the misapplication of forensic science through such unreliable methods as bite marks. “With notable exceptions, prosecutors and law enforcement are not going out of their way to convict innocent people,” said Fabricant, the author of Junk Science and the American Criminal Justice System. What happens instead, he said, is once authorities have a target, the prosecutor tells forensic experts something like, “Here’s the guy. We really need the match to tighten this up.” Experts in that situation are going to make the match because “our minds are programmed to match patterns,” he said. “And once you suggest a pattern, it’s easy to match. Junk science is hardly alone in leading to wrongful convictions. Mistaken eyewitness identifications make up about 70% of DNA exonerations. And 18% of these cases involve false or misleading testimony by informants."
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STORY: "MCIR: (Mississippi): Mississippi Center for Investigative Reporting: Black Americans seven times more likely to bee wrongfully convicted," by Reporter Jerry Mitchell, a consumate reporter on America's criminal justice system, published by The Pine Belt News, on October 19, 2022.
SUB-HEADING: "Black Americans seven times more likely to be wrongfully convicted."
PHOTO CAPTION: "Sherwood Brown has been exonerated of the charges that sent him to death row in Mississippi in 1995 for a triple murder he did not commit. On August 24, 2021, DeSoto County Circuit Court Judge Jimmy McClure granbted a prosecution motion to dismiss charges against Brown (pictured after his release), who was released later that day after having spent 26 years on the state’s death row or facing the prospects of a capital retrial."
GIST: "Eddie Lee Howard Jr. and Sherwood Brown each spent 26 years on Mississippi’s death row for murders they did not commit — only to walk free last year.
They are far from alone. They are two of 23 Black Mississippians who have been exonerated in recent decades. Four other exonerees were white
A new study by the National Registry of Exonerations shows that Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes
Howard’s lawyer, Chris Fabricant, said police picked up his client “because he was Black and because he had a record.”Howard and Brown were the fifth and sixth exonerated Mississippians who were convicted as a result of the work of forensic odontologist Michael West of Hattiesburg, who has repeatedly testified he found bite marks on victims and then linked those marks to suspects identified by law enforcement.
Those wrongfully convicted in those cases served a combined 107 years in prison — more than half of them on death row.
In examining more than 350 DNA exonerations across the U.S., the Innocence Project found that 45% of these cases involved the misapplication of forensic science through such unreliable methods as bite marks.
“With notable exceptions, prosecutors and law enforcement are not going out of their way to convict innocent people,” said Fabricant, the author of Junk Science and the American Criminal Justice System.
What happens instead, he said, is once authorities have a target, the prosecutor tells forensic experts something like, “Here’s the guy. We really need the match to tighten this up.”
Experts in that situation are going to make the match because “our minds are programmed to match patterns,” he said. “And once you suggest a pattern, it’s easy to match.”
Junk science is hardly alone in leading to wrongful convictions. Mistaken eyewitness identifications make up about 70% of DNA exonerations. And 18% of these cases involve false or misleading testimony by informants.
‘IT REALLY CONSTITUTED DELIBERATE INDIFFERENCE’
Kennedy Brewer and Lavon Brooks each spent more than 15 years behind bars for murders of toddler girls they never committed.
Mississippi pathologist Dr. Steven Hayne performed autopsies on the two slain 3-year-olds in Noxubee County. He saw marks on the bodies and called in his friend, West, who identified 19 marks that Brewer “indeed and without a doubt” inflicted on the body of the victim he was charged with killing. He gave almost identical testimony in Brooks’ case.
The trial judge permitted West’s expert testimony in Brewer's 1995 trial, despite the fact West had been the first member ever suspended by the American Board of Forensic Odontology. In 1994, an American Academy of Forensic Sciences committee suspended West, who was forced to resign in 2006.
DNA later cleared the two men and fingered the real killer, Justin Albert Johnson, who confessed that he raped and killed the two girls before throwing their bodies into ponds. Experts said what West identified as bite marks were actually insect bites.
“Michael West was so reckless with his pronouncements that non-human marks on people’s skins came from innocent people’s teeth that it really constituted deliberate indifference, which in many states you could be prosecuted for,” said Peter Neufeld, co-founder of the Innocence Project, which represented Brewer and Brooks.
On the day the pair were exonerated in 2008, Neufeld spoke to the Black Mississippians gathered in the courthouse in Macon. “They told us that was the first day in their lives they felt they had a presence in the courthouse, and they felt the courthouse was theirs,” he said.
That was revelatory, he said. “Steven Hayne was part of the machine that sent poor people of color to prison without due process.”
Even after their exonerations, West insisted Brooks and Brewer had bitten the girls.
West has made his mark as a self-proclaimed expert in many fields. In courts, judges in at least 10 states have permitted him to testify as an expert in shoes, footprints, fingernail scratches, trace metals, gunshot residue, crime scene reconstruction, blood spatters, wound patterns, and “liquid splash patterns.”
He believed so strongly in his expertise that he once bragged to a lawyer that his error rate was “something less than my Savior, Jesus Christ.”
He claimed to have matched a footprint on a slain child’s face to an athletic shoe found in a neighbor’s apartment, according to the ABA Journal. He claimed to have matched a bruise on a slain child’s abdomen to a suspect’s shoe.
He claimed to have matched the bite marks in a half-eaten bologna sandwich to the primary suspect. He also claimed to have found bite marks on bodies using ultraviolet light — something no other expert was able to replicate.
100TH BLACK AMERICAN SINCE 1973 EXONERATED FROM A DEATH SENTENCE
In Brown’s triple homicide case, West wrote prosecutors: “The wound on the left wrist of Sherwood Brown is a human bitemark. It is a bitemark of great severity and is consistant [sic] with the time of the attack. The bitemark pattern is highly consistant [sic] with the dentition of Evanlie [sic] Boyd.”
The prosecution used West’s conclusion as evidence against Brown as well as the testimony of a jailhouse informant who claimed Brown confessed to the murders. At trial, prosecutors told jurors the blood found on the sole of Brown’s shoe came from the victims.
A jury sentenced Brown to death for the murder of 13-year-old Evangela Boyd. He also received two life sentences for the murders of her mother and grandmother.
But DNA tests eventually done told a different story: the bloody footprints in and around the murder scene contained only female DNA and the blood spot on Brown’s shoe contained only male DNA. No evidence, including hair and DNA, connected Brown to the crime scene or the body. None of his fingerprints was found at the scene.
On Aug. 24, 2021, a circuit judge freed Brown at the request of the district attorney, who said his office lacked the evidence to prosecute. Brown was the 100th Black American since 1973 to be exonerated from a wrongful conviction and death sentence.
As for Howard, he was convicted of the 1992 rape and stabbing death of 84-year-old Georgia Kemp of Columbus. She had been beaten and stabbed to death, and the trauma to her body suggested she had been sexually assaulted. A rape kit found no semen.
Six days later, authorities charged Howard, a sex offender just released from prison, with the crime.
The judge allowed Howard to represent himself at trial, even though he suffered from mental illness, and the Mississippi Supreme Court ordered a new trial.
At the second trial, his former girlfriend testified that he sometimes bit her during sex.
The only evidence that linked Howard to the crime? West’s testimony that he found three bite marks on the victim’s body that matched Howard’s teeth.
But West didn’t stop there. He even claimed he could tell from the bite marks that Kemp was “fighting for her life” when she was bitten.
In his closing statement, then-District Attorney Forrest Allgood praised West as a visionary.
“The progress of mankind has been carried forward on the backs of people like Michael West,” he said. “The church threatened to burn Copernicus (actually Galileo) because he dared to say that the planets didn’t revolve around the earth. So it was with Michael West.”
The jury convicted Howard, and once again, an innocent man was sentenced to death.
In a 2016 hearing, Howard’s attorneys showed that none of his DNA had been found at the crime scene or on the murder weapon. (Another man’s DNA was found there.) There was also no DNA on the claimed bite marks or on the victim’s clothing, body or bed sheets.
Three forensic odontologists found the three bite marks West claimed to have found aren’t visible in autopsy photographs, “nor were the alleged bite marks visible by the naked eye or noted in the autopsy report.”
After winning a new trial, Howard saw all his charges thrown out on Jan. 8, 2021, after the district attorney concluded there wasn’t enough evidence to prosecute.
In 2009, Brewer sued Hayne and West for $18 million, but a federal judge dismissed the lawsuit, saying qualified immunity protected the pair. The 5th U.S. Circuit Court of Appeals upheld the decision in 2017.
For his wrongful conviction, Brewer received $500,000 from the state of Mississippi.
Tucker Carrington, co-author of a book about Hayne and West, The Cadaver King and the Country Dentist, said he believes there are other innocent people behind bars because of the pair’s testimony.
“After Brooks and Brewer were exonerated, we tried to identify as many cases as we could,” he said.
In addition to Brown and Howard, “we found a host of other cases that were problematic,” he said. “They were cases where I thought the facts were egregious involving Hayne or West or both, but we were unable to win, because the cases had lingered too long or the merits weren’t sufficient to prevail.”
Jimmie Duncan remains on Louisiana’s death row for the 1993 death of 3-year-old Haley Oliveaux. West claims he found bite marks on the child’s cheek, but a video shows no marks on her cheek until after West jammed a mold of teeth into the child’s cheek.
In 2009, the National Academy of Sciences reported that “imprecise or exaggerated expert testimony has sometimes contributed to the admission or erroneous or misleading evidence.”
The report concluded there was no basis in science for forensic odontologists to conclude someone is “the biter,” excluding all other suspects. The American Board of Forensic Odontology changed its guidelines to bar such testimony.
In 2011, West admitted the very methods he used to put so many behind bars were invalid. “I no longer believe in bite-mark analysis,” he said. “I don’t think it should be used in court. I think you should use DNA. Throw bite marks out.”
As for Hayne, there have been six Mississippians exonerated from prison related to his testimony.
In 2018, Jeffrey Havard was removed from death row after Hayne reversed himself, saying shaken baby syndrome wasn’t the cause of death as he originally ruled.
At Havard’s original trial, Hayne went along with the district attorney’s suggestion that there had been a sexual assault, but Hayne reversed himself on that issue, too, saying he didn’t believe such an assault took place.
Despite those reversals, Havard remains behind bars. Hayne has since died."
The entire story can read at
https://www.hubcityspokes.com/state-features/mcir-black-americans-seven-times-more-likely-be-wrongfully-convicted-634eca3c1331d
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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;
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Sunday, October 23, 2022
Queensland DNA lab: (Australia): An inquiry has heard that this beleaguered lab uses 'inferior' rape lab tests, The Australian, Reporter Lydia Lynch) reports..."In Queensland, rape kits used to collect evidence left on victims bodies in the hours after an attack “do not contain enough swabs, are not DNA-free, have wooden stems and do not contain a DNA decontamination kit”, counsel assisting Josh Jones said. The swabs arrive at hospitals in unsealed plastic bags, and doctors have sent “deeply concerning” photos to the inquiry of unused kits with foreign hairs stuck underneath labels. Associate Professor Kathy Kramer, a forensic sexual assault expert at the University of NSW, warned the wooden-stemmed swabs used in Queensland could snap inside of victims and plastic stems should be used instead. “I worry a good deal about having a wooden swab when you are inserting it into something like a rectum or a vagina,” she told the inquiry on Tuesday. “Although it is not very likely it will break, if it does break, it is going to have sharp edges and if you were to perforate the rectum, you are leaking faecal material into the abdomen and that is a life-threatening situation.”
PUBLISHER'S NOTE: I am delighted to have been invited by The International Wrongful Conviction Day Committee, to participate in a 'Zoom' interview conducted by Charlotte Taylor-Baer - to be held on Tuesday October 25, at 6.00 PM EST, in which we will be discussing, 'Wrongful Convictions and The Goudge Inquiry," with reference to some of the cases of disgraced pathologist, Charles Smith."
Charlotte graduated from Simon Fraser University with a BA (Hons) in Criminology and Archaeology and is currently enrolled in the BCL/JD Program at McGill's Faculty of Law. She is a Lead Caseworker at Innocence McGill, the Fundraising Project Manager for the International Wrongful Conviction Day Committee, and the Co-Founder and Outreach Director for the Wrongful Convictions Collective. Her research interests include criminal procedure and evidence, judicial gatekeeping, wrongful convictions, and forensic science.
"I am particularly gratified to have the opportunity to vent my wrath and draw attention to the fact that there are several outstanding cases (mainly shaken baby syndrome cases - in which some of Charles Smith's all-too-many innocent victims - are still seeking exoneration, some 14 years after Justice Stephen Goudge released his report on his public inquiry into many of Smith's cases, on October 1, 2008.
Moreover, this interview will allow me to question why the media has largely moved away from the Charles Smith story, leaving the public in the dark on the important question as to whether Justice Goudge's many thoughtful recommendations have been heeded - or whether all the promises which flooded out from the individuals and institutions who empowered Charles Smith were little more than words.
This will also be an opportunity for me to share with viewers the story of how Charles Smith came into my life as a Toronto Star reporter - and some of the intriguing twists and turns that the story took.
I hope you will join us.
Harold Levy:
Publisher: The Charles Smith Blog.
---------------------------------------------------
Click on the following link to access the Zoom connection
---------------------------------------------------
PASSAGE OF THE DAY: "In June, a separate review led by former Court of Appeal president Margaret McMurdo found that sexual-assault investigation kits used in Queensland “were of significantly inferior quality to those used in other states and territories” and could risk contaminating results. “Queensland should cease using inferior kits and procure best-standard investigation kits in line with those used in NSW and Victoria as a matter of urgency,” Ms McMurdo recommended. Premier Annastacia Palaszczuk’s cabinet is yet to consider the report, four months after receiving it. Ms McMurdo also delivered a scathing assessment of the way Queensland Health delivers forensic services, and recommended more doctors and nurses be hired and trained to ensure statewide access to care. Her inquiry found sexual-assault victims, including children, had been turned away from regional hospitals because there were no medical staff available to conduct forensic medical exams and large hospitals had kept patients waiting for up to 12 hours. Many victims are required to sit for hours in cold, isolated rooms, with no food, water or clean clothing." Professor Kramer told the DNA inquiry on Tuesday training offered to doctors and nurses in Queensland “does not enable the collection of high-quality samples for forensic DNA testing”. “Patients deserve better than that,” she said."
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STORY: “Queensland DNA lab uses ‘inferior’ rape-test kits, Inquiry hears,” by Queensland Political Reporter Lydia Lynch, published by The Australian, on October 18, 2022. (Lydia Lynch covers state and federal politics for The Australian in Queensland. She previously covered politics at Brisbane Times and has worked as a reporter at the North West Star in Mount Isa.)
GIST: Queensland uses “significantly inferior” equipment to other Australian states when collecting vital DNA evidence from rape victims during invasive and often re-traumatising medical examinations.
A public inquiry investigating collection and testing of Queensland crime-scene samples has heard rape kits used in the state risked DNA contamination and could “break” inside victims.
In Queensland, rape kits used to collect evidence left on victims bodies in the hours after an attack “do not contain enough swabs, are not DNA-free, have wooden stems and do not contain a DNA decontamination kit”, counsel assisting Josh Jones said.
The swabs arrive at hospitals in unsealed plastic bags, and doctors have sent “deeply concerning” photos to the inquiry of unused kits with foreign hairs stuck underneath labels.
Associate Professor Kathy Kramer, a forensic sexual assault expert at the University of NSW, warned the wooden-stemmed swabs used in Queensland could snap inside of victims and plastic stems should be used instead.
“I worry a good deal about having a wooden swab when you are inserting it into something like a rectum or a vagina,” she told the inquiry on Tuesday.
“Although it is not very likely it will break, if it does break, it is going to have sharp edges and if you were to perforate the rectum, you are leaking faecal material into the abdomen and that is a life-threatening situation.”
In June, a separate review led by former Court of Appeal president Margaret McMurdo found that sexual-assault investigation kits used in Queensland “were of significantly inferior quality to those used in other states and territories” and could risk contaminating results. “Queensland should cease using inferior kits and procure best-standard investigation kits in line with those used in NSW and Victoria as a matter of urgency,” Ms McMurdo recommended.
Premier Annastacia Palaszczuk’s cabinet is yet to consider the report, four months after receiving it. Ms McMurdo also delivered a scathing assessment of the way Queensland Health delivers forensic services, and recommended more doctors and nurses be hired and trained to ensure statewide access to care.
Her inquiry found sexual-assault victims, including children, had been turned away from regional hospitals because there were no medical staff available to conduct forensic medical exams and large hospitals had kept patients waiting for up to 12 hours.
Many victims are required to sit for hours in cold, isolated rooms, with no food, water or clean clothing.
Professor Kramer told the DNA inquiry on Tuesday training offered to doctors and nurses in Queensland “does not enable the collection of high-quality samples for forensic DNA testing”.
“Patients deserve better than that,” she said.
Professor Kramer said NSW was able to dramatically increase the number of health staff able to conduct forensic exams about a decade ago because of “political willpower” and more funding.
Queensland Health has trained about 60 extra nurses to conduct rape kits since 2019 and invested an extra $1.39m.
The inquiry is also probing how cultural issues at the health department’s DNA lab affected a series of forensic failures dating back to 2008.
Therese O’Connor, who gave HR support to the forensics lab until 2019, told the inquiry on Tuesday that a number of scientists were “fearful” of managing scientist Cathie Allen and were afraid to voice concern about testing problems.
“It would be what we would describe as a toxic workplace,” Ms O’Connor said.
“It is a very unhappy, very stressful, dysfunctional workplace.
“They may be good with the science or the expertise that they do, but actually working together and the management of issues was never appropriate, timely.””
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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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Saturday, October 22, 2022
Jennifer Del Prete: Illinois: Shaken Baby Syndrome: Major (Unexpected) Development: She has been cleared by a finalized expert report, and is 'finally, finally, finally' free, The Chicago Tribune (Reporters Shazeh Ahmad and Rosemary Sobol) reports..."On Wednesday morning, Del Prete, 51, with her father by her side, was in the Will County courthouse for yet another court date to find out if the trial would in fact start on Nov. 29, or if the state needed more time to build its case. Neither she or her attorney could have predicted what happened next: Her criminal case was dismissed Wednesday after the state was no longer able to make a case against her with a new expert opinion, according to a court order, and all of the charges against her were dropped. “We both burst into tears,” Del Prete said of her and her father’s immediate reactions. “I was screaming, ‘Finally, finally, finally,’ and we were crying.” “The People have received and tendered the finalized expert report of Dr. Thomas Bennett,” the dismissal order said. “After careful consideration of the newly obtained expert opinion in conjunction with all of the other physical and opinion evidence in this case, the People no longer believe they can sustain their burden of proof beyond a reasonable doubt.” “The matter was dismissed,” was all Carole Cheney, a spokesperson for the Will County state’s attorney’s office, said in an email. Del Prete had been found guilty of first-degree murder in the 2003 death of 14-month-old Isabella Zielinski. Authorities accused Del Prete of shaking the 4-month-old at the day care facility where Del Prete served as a caretaker."
PUBLISHER'S NOTE: I am delighted to have been invited by The International Wrongful Conviction Day Committee, to participate in a 'Zoom' interview conducted by Charlotte Taylor-Baer - to be held on Tuesday October 25, at 6.00 PM EST, in which we will be discussing, 'Wrongful Convictions and The Goudge Inquiry," with reference to some of the cases of disgraced pathologist, Charles Smith."
Charlotte graduated from Simon Fraser University with a BA (Hons) in Criminology and Archaeology and is currently enrolled in the BCL/JD Program at McGill's Faculty of Law. She is a Lead Caseworker at Innocence McGill, the Fundraising Project Manager for the International Wrongful Conviction Day Committee, and the Co-Founder and Outreach Director for the Wrongful Convictions Collective. Her research interests include criminal procedure and evidence, judicial gatekeeping, wrongful convictions, and forensic science.
"I am particularly gratified to have the opportunity to vent my wrath and draw attention to the fact that there are several outstanding cases (mainly shaken baby syndrome cases - in which some of Charles Smith's all-too-many innocent victims - are still seeking exoneration, some 14 years after Justice Stephen Goudge released his report on his public inquiry into many of Smith's cases, on October 1, 2008.
Moreover, this interview will allow me to question why the media has largely moved away from the Charles Smith story, leaving the public in the dark on the important question as to whether Justice Goudge's many thoughtful recommendations have been heeded - or whether all the promises which flooded out from the individuals and institutions who empowered Charles Smith were little more than words.
This will also be an opportunity for me to share with viewers the story of how Charles Smith came into my life as a Toronto Star reporter - and some of the intriguing twists and turns that the story took.
I hope you will join us.
Harold Levy:
Publisher: The Charles Smith Blog.
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Click on the following link to access the Zoom connection
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PASSAGE OF THE DAY: "During her trial, a state medical expert testified that Isabella’s injuries could have been inflicted only on the day she became unresponsive, ignoring evidence that the baby had suffered an unexplained brain injury days earlier. Del Prete was released from prison after new evidence came to light, including a memo uncovered by journalism students at Northwestern University’s Medill Justice Project that was written by the lead Romeoville detective, who worried that the pathologist who conducted the autopsy did not agree with the shaken baby syndrome theory."
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PASSAGE TWO OF THE DAY: "After she was released from prison, Del Prete filed a lawsuit against several investigators in her case, including officers from Romeoville and Plainfield police, accusing them of withholding evidence and fabricating scientific findings. When her retrial was scheduled, the lawsuits were put on hold. Now, Del Prete said she is ready to “fight this to the end, no matter what.” “I’ve been through hell with Will County, and I will say that 100 times,” she said."
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STORY: 'Finally, finally, finally,' Jennifer Del Prete is free after retrial in Will County is dismissed," The Chicago Tribune (Reporters Shanzeh Ahmad and Rosemary Sobol) reports, on October 18, 2022.
Jennifer Del Prete said she spent nine years, one month and 26 days in prison after her wrongful conviction in 2005 for the death of a 14-month-old girl in Will County.
While she was released from prison on April 30, 2014, and her conviction was overturned in August 2016, she was set to face the Will County state’s attorney’s office again in court in November for a retrial.
On Wednesday morning, Del Prete, 51, with her father by her side, was in the Will County courthouse for yet another court date to find out if the trial would in fact start on Nov. 29, or if the state needed more time to build its case. Neither she or her attorney could have predicted what happened next: Her criminal case was dismissed Wednesday after the state was no longer able to make a case against her with a new expert opinion, according to a court order, and all of the charges against her were dropped.
“We both burst into tears,” Del Prete said of her and her father’s immediate reactions. “I was screaming, ‘Finally, finally, finally,’ and we were crying.”
“The People have received and tendered the finalized expert report of Dr. Thomas Bennett,” the dismissal order said. “After careful consideration of the newly obtained expert opinion in conjunction with all of the other physical and opinion evidence in this case, the People no longer believe they can sustain their burden of proof beyond a reasonable doubt.”
“The matter was dismissed,” was all Carole Cheney, a spokesperson for the Will County state’s attorney’s office, said in an email.
Del Prete had been found guilty of first-degree murder in the 2003 death of 14-month-old Isabella Zielinski. Authorities accused Del Prete of shaking the 4-month-old at the day care facility where Del Prete served as a caretaker.
The baby died about 10 months later.
During her trial, a state medical expert testified that Isabella’s injuries could have been inflicted only on the day she became unresponsive, ignoring evidence that the baby had suffered an unexplained brain injury days earlier.
Del Prete was released from prison after new evidence came to light, including a memo uncovered by journalism students at Northwestern University’s Medill Justice Project that was written by the lead Romeoville detective, who worried that the pathologist who conducted the autopsy did not agree with the shaken baby syndrome theory.
Pat Blegen, the lead attorney on her case with local law firm Blegen & Garvey, said Wednesday’s hearing was supposed to be a status update. Blegen said he was given the dismissal order and the news 10 minutes before the hearing began. He said nobody expected anything like it to happen that day, but that it was “a long time coming.”
“She literally said ‘Hallelujah!’” Blegen said. “It was great. She was overwhelmed with emotion and happiness.”
He said she cried, and Will County Judge Carmen Goodman gave her tissues in the courtroom as Del Prete heard the judge say to her, “Congratulations, and good luck.”
“The criminal case is over — it’s done. ... She has been an innocent person for a long time, and now there are no charges,” Blegen said.
“She’s ecstatic,” Joel Murphy, another one of her attorneys, said Thursday afternoon. “Of course ... we’re all very thrilled. This should have happened a long time ago.”
Del Prete said she hasn’t spoken to Isabella’s family in nearly 20 years but said, “All our hearts go out to the Zielinski family, and we wish them peace.”
After she was released from prison, Del Prete filed a lawsuit against several investigators in her case, including officers from Romeoville and Plainfield police, accusing them of withholding evidence and fabricating scientific findings. When her retrial was scheduled, the lawsuits were put on hold. Now, Del Prete said she is ready to “fight this to the end, no matter what.”
“I’ve been through hell with Will County, and I will say that 100 times,” she said.
The Chicago-based law firm Loevy & Loevy is handling Del Prete’s civil case.
Del Prete said the lawsuit is “not about the money at this point,” but about the time she lost.
“They can’t replace anything,” she said. “They took all three of my siblings’ weddings from me. They took all but two of the births of my nieces and nephews from me. I’ve missed my grandpa’s death, my grandma’s death. I’ve missed so many milestones with my children, and nothing I win will ever compensate.”
She said it was a “blessing” she got out “just in time” for the wedding of her daughter, who is now 33, and to help her son, now 25, “officially become an adult.”
Del Prete is currently living in Hanover, Illinois, and working as a night auditor for a hotel in Galena. She said she was planning to travel with her family ahead of the trial next month but now wants to plan bigger, longer trips to truly celebrate.
She also said she wants to keep sharing her story and educate people on shaken baby syndrome and what happened to her during her trial.
“It’s been a rough journey for all of us, my whole family, friends, so many other people affected that no one realizes,” she said. “But my parents raised a very strong person, and I’ve always spoken up and fought for what is right. Now, I’m a free woman.""
The entire story can be read at:
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PASSAGE OF THE DAY: (National Registry of Exonerations): "Kroll's memo to Dr. Flaherty stated: “If you haven't already heard, [Isabella] died 11-09-03. I'm writing to inform you of a ‘twist’ in our case presented by the DuPage County Medical Examiner. On 11-09-03, I received a phone call from an Attorney who notified me that Isabella would undergo a ‘post’ medical exam on 11-10-03. This Attorney specifically called to inform me that the pathologist scheduled to perform the autopsy does not agree with SBS [shaken baby syndrome], and has testified for the defense in two DuPage County SBS cases. “On 11-10-03, I spoke to a Plainfield Police Evidence Tech (ET) who was present at the autopsy. The ET advised that Dr. Jeff Harky [sic] did in fact question the diagnosis of SBS. I was told that Dr. Harky specifically looked for fractures in the rib cage (adult grabbing point) and found none. Dr. Harky intends to summon all of [Isabella’s] medical records to see who determined this was SBS, and why they reached that diagnosis." “I have great confidence in your findings, and our investigation. This correspondence is FYI. However, I anticipate having to answer several questions for my prosecuting Attorney. Please call me when you have a few minutes to discuss the case.”
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ENTRY: "Jennifer Del Prete; Illinois; Shaken Baby Syndrome case, by Maurice Possley, published by The National Registry of Exonerations, on October 13, 2022. Contributing factors: misleading forensic evidence; Official Misconduct, and Inadequate legal defence.
GIST: On December 27, 2002, Barbara Zielinski dropped off her two children at a home-based day center in Romeoville, Illinois where 31-year-old Jennifer Del Prete took care of them. Later that day, Del Prete called 911 and reported that the younger child, three-month-old Isabella, was not breathing and did not have a pulse. Paramedics managed to restart the child’s heart.
When Isabella arrived at Provena St. Joseph Medical Center in Elgin, Illinois, she was unconscious. A CAT scan documented abnormalities in the infant’s brain. Isabella was transferred to the University of Illinois at Chicago Hospital.
Detective Kenneth Kroll later testified that he interviewed Del Prete on December 29, 2002. Kroll said that Del Prete said she was the only one working on December 27, 2002 because the other day-care provider was out of town. Kroll said Del Prete told him that Isabella took a bottle between 8 and 9 a.m. and then slept in a swing until around noon. At that time, she changed Isabella’s diaper and put her on a couch. Del Prete said she stepped away briefly to prepare a bottle. When she returned, Isabella “was making a snoring, labored breathing sound,” and her body was “totally limp.”
Kroll said Del Prete said she picked up the child and Isabella’s head flopped forward. She said she gave the baby a “very slight shake” while saying her name several times. Del Prete said she tried to feed Isabella, but the milk ran out of her mouth down the side of her face. Del Prete said she put Isabella face down and gave her three to five pats on the back in an attempt to dislodge anything that might have been choking the baby. Del Prete then called 911.
Del Prete told Kroll that Isabella did not fall or get knocked over that day. She said that Isabella’s head moved more vigorously when she was patting the infant on the back than when she gave the baby a slight shake.
Kroll later testified that he took a break during his questioning, and when he returned he told Del Prete that her statements were not consistent with the medical evidence. Kroll said he told Del Prete that Isabella suffered from Shaken Baby Syndrome (SBS) and had subdural hematomas. Kroll told her that he believed Del Prete was responsible for Isabella’s injuries. He said Del Prete began to cry. She said she could not remember exactly what happened and that it was a very stressful, panicked situation. Kroll said Del Prete said “she could have shaken [Isabella] a little harder than she thought.” However, Del Prete insisted that she did not shake Isabella violently, and she did not intentionally hurt the infant. Kroll’s report said that Del Prete never actually confessed to shaking the baby.
Physicians who initially treated Isabella concluded that the infant’s injuries were the result of shaking by Del Prete. On February 11, 2003, Del Prete was charged with aggravated battery to a child.
Meanwhile, Isabella had been transferred to Children’s Memorial Hospital. On March 23, 2003, Isabella returned home where she was cared for by her mother and visiting nurses. On November 8, 2003, a nurse called 911 because Isabella’s lips were blue. Isabella was taken to the hospital and died the following day, November 9, 2003.
On April 8, 2004, a Will County grand jury indicted Del Prete on a charge of first-degree murder.
In February 2005, Del Prete went to trial in Will County Circuit Court. She chose to have her case heard by Judge Carla Alessio Policandriotes without a jury.
Dr. Adrian Nica, a physician at Provena, testified that he treated Isabella in the emergency room on December 27, 2002. Dr. Nica ordered a CAT scan of Isabella’s brain, which showed that she had “acute and chronic changes secondary to bleeds in different levels.” Dr. Nica said that the chronic bleeding could have been days or a week old. He testified that because Isabella had not been involved in a car accident, “you have to assume that it was a child abuse or baby shaking.”
Dr. Howard Hast was certified as an expert in the field of pediatric critical care medicine and testified that he treated Isabella from December 30, 2002 through January 16, 2003. A retinal scan showed that there was blood in the infant’s retinas. Dr. Hast also testified that Isabella also had bifrontal subdural hematomas, and that the most likely cause was that Isabella “was shaken or had some other accelerating/decelerating injury occur such as being dropped or thrown or something like that.”
Dr. Jeff Harkey, a forensic pathologist for the DuPage County coroner’s office, testified that he conducted an autopsy on Isabella on November 10, 2003. Dr. Harkey took X-rays, which showed no evidence of trauma. Dr. Harkey did not observe any bleeding or acute trauma. He reviewed some of Isabella’s medical records including a physician’s report from Dr. Emalee Flaherty. Dr. Harkey concluded Isabella’s death was the result of “multiple system organ failure due to anoxic-ischemic injuries…due to abusive head trauma [(AHT)].” Dr. Harkey said that an anoxic-ischemic injury occurred when there was not enough blood flow and oxygen to bodily tissue. Dr. Harkey testified that the AHT occurred 10 or 11 months prior to the infant’s death.
Dr. Flaherty testified that she had been a pediatrician at Children’s Memorial Hospital for over 30 years. Flaherty testified that she reviewed Isabella’s medical records from the University of Illinois Hospital. She also spoke with Dr. Hast, reviewed the police reports, reviewed the paramedic reports, interviewed Isabella’s parents, and examined Isabella.
Dr. Flaherty concluded that Isabella “had suffered [AHT] or also known to many people as [SBS].” Flaherty said: “[AHT] is a form of child abuse where a child suffers some kind of acceleration/deceleration injuries to the brain” which included shaking. Flaherty stated that AHT could be caused by “violent sustained shaking and sometimes impact” to infants or young children.
Dr. Flaherty said that of the spectrum of injuries in AHT or SBS, Isabella had subdural hemorrhages, subarachnoid hemorrhages, diffusing injury, and parenchyma lacerations and contusions. Dr. Flaherty also said that Isabella had dead brain tissue as a result of her injuries. Dr. Flaherty stated that acceleration/deceleration forces like violent shaking can also cause retinal hemorrhages. Dr. Flaherty opined that the hemorrhages present in Isabella are only caused by these acceleration/deceleration forces or seen in [SBS].”
Asked by the prosecutor what level of force would be needed for violent shaking to cause these injuries, Dr. Flaherty said: “Forces would be so severe that if anyone witnessed that shaking occurring or someone shaking a child like that, they would know that that child would suffer severe injury.”
Dr. Flaherty said the abuse occurred while Isabella was in Del Prete’s care and that the injuries could not have been caused by someone performing cardiopulmonary resuscitation (CPR) poorly on her, from a fall, or by a young child. She said, “It would take someone of adult strength shaking this child violently to cause these kinds of injuries.”
Dr. Flaherty acknowledged that Isabella did not have any bruises, but said it was “pretty uncommon” to find bruising in a case of SBS.
Dr. Wayne Tucker, an expert in pathology and pediatrics, testified that he reviewed medical records, Dr. Flaherty’s report, police reports, paramedics’ reports, an autopsy report, and autopsy pictures. Based on his review of these documents, Tucker concluded that Isabella’s injuries occurred approximately 18 to 24 hours before she collapsed at the daycare. Tucker testified that Isabella’s CAT scan “reflected that there was an acute situation and there was a chronicity to the situation of the frontal hematomas, subdural.”
Dr. Tucker stated that “chronic” meant that it had been there for “at least 7 to 10 days.” Dr. Tucker said that almost anything that will cause an increase in intracranial pressure could cause a chronic subdural hematoma to rebleed, such as coughing, sneezing, holding breath, movement, turning the head quickly, or falling.
Dr. Tucker stated that bruising was part of the definition of SBS. He said that “to do this even on a three-month-old or a one-month-old or any age group…whoever is doing it has to pick up into the arms, say hold arms or the shoulders and grab and hold on tightly to give the shaking.” Dr. Tucker said he had never seen a shaken baby without bruising.
Dr. Tucker said that Isabella had been given antibiotics for nine days and that combined with gas drops being given to help the infant take a bottle could have caused a seizure.
The defense called several witnesses who testified that Del Prete had a reputation as an honest, law-abiding, dependable, well-respected, and peaceful person. These witnesses included parents who had children in activities with Del Prete's children and whose children Del Prete had babysat in daycare or otherwise; a pastor who hired her as a supervising nursery attendant for services and events at his church; and persons who had worked with Del Prete at the children's room of the local public library. Gleanne Kehr, the daycare center operator, testified that she hired Del Prete because Del Prete was honest, trustworthy, caring, and good with children. She said that she had never observed Del Prete as anything other than "calm and patient" with children at the daycare.
Kehr also testified that when Isabella took a bottle, she "tended to tense up and to arch her back." Kehr testified that Isabella seemed very uncomfortable during and after eating and had to be burped more frequently than most babies. Kehr testified that she had spoken with Isabella’s mother about the possibility that Isabella had excess gas, although she conceded that she did not know whether Isabella was ever diagnosed with a problem relating to gassiness.
Kehr also testified that in early December, she saw Isabella’s father physically discipline her brother, who also was a daycare resident. Kehr said that when the boy was uncooperative in putting his shoes on, the father grabbed him by the foot and dragged him to where the shoes were kept.
Karli Hinton, who worked at the daycare center with Del Prete and Kehr, testified that Isabella was colicky and cried frequently. She recalled being given "gas drops" for the colic to add to Isabella’s bottle to help relieve her gas. Hinton said Isabella was "phlegmy" and that she frequently had a runny nose and a cough. Another witness, Steve Blake, whose son also attended the daycare, testified that Isabella "didn't seem well." He said that Isabella was frequently crying during the short periods of time that he spent at the daycare.
Christine Murphy, a pediatric intensive care nurse and the mother of three children who attended the daycare, testified that she knew Isabella's family and had seen both parents physically discipline Isabella’s older brother. Murphy testified that she had seen the boy’s father physically discipline him on at least ten prior occasions, typically by grabbing the boy's arm and tossing him onto the couch.
On March 4, 2005, Judge Policandriotes convicted Del Prete of first-degree murder. In November 2005, Judge Policandriotes sentenced Del Prete to 20 years in prison.
Del Prete appealed her conviction, arguing that there was insufficient evidence to find her guilty beyond a reasonable doubt. The Illinois Appellate Court denied her appeal in 2007. Del Prete filed a petition for post-conviction relief in March 2008, arguing that her trial defense lawyer had provided an inadequate legal defense by not retaining more medical experts and for failing to disclose that he had previously been temporarily suspended from the practice of law because of unethical behavior as a prosecutor in Will County. The Will County Circuit Court dismissed her petition. In 2009, the Illinois Appellate Court denied Del Prete's appeal.
In 2010, the law firm of Blegen & Garvey filed a federal petition for a writ of habeas corpus. The petition contended the evidence at trial was insufficient to sustain a conviction. The petition also claimed that her trial defense attorney had failed to challenge the admission of expert testimony on the theory of SBS and also failed to present appropriate expert testimony to dispute the prosecution's theory of SBS.
Del Prete’s lawyers conceded that the claim related to failing to challenge the admission of the expert testimony had procedurally defaulted because the claim had not been raised in state court. However, the petition said that the default should be excused and the claim addressed because evidence showed that Del Prete was innocent.
U.S. District Judge Matthew Kennelly ordered a hearing which was conducted over nine days in December 2012 and January 2013.
The witnesses included:
--Dr. Patrick Barnes, a neuropathologist, testified for Del Prete. Dr. Barnes said that the imaging studies of Isabella’s brain showed chronic collections of fluid that appeared between her brain and her skull which could have been several weeks to months old or could even have dated back to Isabella’s birth in September 2002. Barnes noted that Isabella had brain injuries due to a lack of oxygen or blood flow to the brain. He also said there were no signs of direct traumatic injury to Isabella’s head, skull, brain, or neck. Barnes stated that Isabella’s first CT scan, taken on December 27 approximately six hours after Del Prete called 911, depicted a dark band between the infant’s skull and the frontal lobe of her brain, which he said constituted old collections of fluid. He stated that those chronic collections were at least two to three weeks old but could have existed since birth. Barnes said that cortical venous thrombosis (CVT) was a likely cause of Isabella’s brain abnormalities.
-- Dr. Gary Hedlund, a neuroradiologist, testified for the prosecution that the imaging studies indicated that Isabella had both acute and chronic subdural hemorrhages in various locations. Although he concurred with Dr. Barnes that there were chronic subdural hemorrhages that already existed as of December 27, 2002 and that they were at least two weeks and perhaps as much as three weeks old, or older, Dr. Hedlund testified that the acute hemorrhages ranged in age from a few hours to three days old. He stated that the imaging studies showed a number of hemorrhages of varying ages throughout Isabella’s head, which he said indicated AHT.
--Dr. Michael Prange, a biomechanical engineer, testified for Del Prete that based on his research and studies, the mechanism of shaking itself was insufficient to produce brain injury without first causing catastrophic neck injury to a victim. Isabella had no such neck injuries.
--Dr. Nagarajan Rangarajan, a biomechanical engineer, testified for the prosecution that the science of biomechanics could not determine the cause of Isabella’s injuries and that the science was unable to determine the threshold necessary to produce head injuries in infants. Dr. Rangarajan also testified that Dr. Flaherty was wrong when she testified at Del Prete’s trial that a fall could not produce levels of acceleration as great as shaking alone.
--Dr. Patrick Lantz, a pathologist, testified for Del Prete that he studied Isabella’s retinal scans and retinal hemorrhages. He said that retinal hemorrhages were associated with a wide variety of conditions, both traumatic and non-traumatic. Dr. Lantz said that Dr. Flaherty’s testimony that retinal hemorrhages are only caused by shaking was not true. He said that such hemorrhages can be the result of resuscitation efforts such as those performed by Del Prete and paramedics.
--Dr. Brian Forbes, a pediatric ophthalmologist testified for the prosecution that the retinal hemorrhages were not the result of resuscitation efforts or a CVT, as Dr. Barnes suggested. Forbes dismissed alternative causes for the hemorrhages that were non-traumatic.
--Dr. Joseph Sheller, a pediatric neurologist, testified for Del Prete that after examining all of Isabella’s medical records and her brain imaging studies, he concluded there was no evidence that Isabella had suffered an abusive head injury. He said there was no evidence of brain swelling as would be expected as a result of an abusive head injury. Dr. Sheller said there was evidence of a blood clot on Isabella’s brain, supporting Dr. Barnes’s CVT testimony. Dr. Sheller said that Isabella’s head had grown extraordinarily fast—from under the 50th percentile for infants at birth to the 90th percentile at 10 weeks. He said that indicated that “something must be going on inside her skull,” and that likely was chronic subdural fluid collection.
--Dr. Carole Jenny, a child abuse pediatric physician, testified for the prosecution that based on her examination of the records, Isabella suffered AHT caused by Del Prete that led to cardiac arrest and severe brain damage, and eventually to Isabella’s death. She conceded during cross-examination that no one has put forth a coherent argument to support that shaking alone can cause AHT.
--Dr. Lucy Rorke-Adams, a pediatric neuropathologist, testified for the prosecution that there was evidence of contusion to a portion of the brain called “gyrus rectus,” which she said was on the front of the brain, and was a common site of injury in infants who suffer AHT.
--Dr. Jan Leetsma, a neuropathologist, testified for Del Prete that he examined Isabella’s brain and found evidence of subdural hemorrhages that were largely resolved and that he found no evidence of contusions or lacerations of the brain. Dr. Leetsma testified that what Rorke-Adams said was the gyrus rectus was part of the cerebral cortex in the back of the brain.
--Dr. Shaku Teas, a forensic pathologist, testified for Del Prete. She said that even if Dr. Rorke-Adams correctly identified the section of brain she assessed from the photographs, the photograph did not depict a brain contusion. Dr. Teas concluded, based on her review of the medical records and autopsy photographs, together with her own neuropathological examination of the brain, that Isabella’ collapse resulted from CVT.
On June 21, 2013, Del Prete called four additional witnesses to testify regarding a recently-discovered November 2003 memo from Detective Kroll to Dr. Flaherty. The hearing was reopened after Del Prete’s lawyers received a memo from the Northwestern University School of Journalism Medill Innocence Project. The memo had been obtained through a Freedom of Information Act request to the Romeoville Police Department.
Kroll's memo to Dr. Flaherty stated:
“If you haven't already heard, [Isabella] died 11-09-03. I'm writing to inform you of a ‘twist’ in our case presented by the DuPage County Medical Examiner. On 11-09-03, I received a phone call from an Attorney who notified me that Isabella would undergo a ‘post’ medical exam on 11-10-03. This Attorney specifically called to inform me that the pathologist scheduled to perform the autopsy does not agree with SBS [shaken baby syndrome], and has testified for the defense in two DuPage County SBS cases. “On 11-10-03, I spoke to a Plainfield Police Evidence Tech (ET) who was present at the autopsy. The ET advised that Dr. Jeff Harky [sic] did in fact question the diagnosis of SBS. I was told that Dr. Harky specifically looked for fractures in the rib cage (adult grabbing point) and found none. Dr. Harky intends to summon all of [Isabella’s] medical records to see who determined this was SBS, and why they reached that diagnosis.
“I have great confidence in your findings, and our investigation. This correspondence is FYI. However, I anticipate having to answer several questions for my prosecuting Attorney. Please call me when you have a few minutes to discuss the case.”
Detective Kroll testified that he did not specifically remember being told that Harkey questioned the diagnosis of SBS, but he assumed his memo was accurate. He agreed that the medical examiner's questioning of the diagnosis of SBS would be unfavorable to the prosecution. Kroll said he did not specifically recall discussing Harkey's views with anyone and did not recall if he gave his memo to Will County prosecutors. He did recall, however, that he spoke with the prosecutors about the subject of his memo one to two months before the trial in February 2005. Finally, Kroll testified that he did not specifically recall discussing Harkey's views with Dr. Flaherty. He stated, however, that he most likely had done so, because she was punctual about returning phone calls related to the case. He did not know if his memo had been given to Del Prete's defense attorney.
Plainfield police officer Tracy Caliendo testified that she was present at the autopsy. She recalled only that Harkey noted no fractures or external injuries. She stated that she did not recall that Dr. Harkey questioned the diagnosis of SBS and did not recall discussing the autopsy with Kroll.
Dr. Flaherty testified that she did not recall receiving the memo from Detective Kroll. She likewise did not recall whether she spoke to Kroll or anyone else regarding the memo's contents.
Dr. Harkey testified that he did not recall telling anyone at the autopsy that he had found no evidence of fractures at the "adult grabbing point," but that this was something he would have looked for at the time. Dr. Harkey stated that he did not specifically recall whether he had spoken to anyone about doubting the diagnosis of SBS for Isabella’s death. He stated, however, that he had concerns with a diagnosis of SBS because he did not believe there was any finding that could distinguish injuries caused by blunt force trauma from those caused by shaking alone. In other words, Dr. Harkey said, "When I am looking at pathology in an autopsy, I don't believe that I can say this child was shaken rather than this child was hit."
Harkey also testified that he had a problem with a diagnosis of SBS or AHT pointing to a particular perpetrator. He stated that a child may have a lucid interval after an incident of AHT and may "go unresponsive" only much later. Therefore, the onset of unresponsiveness did not necessarily indicate that the caretaker present at the time was responsible for inflicting the injury.
Harkey noted that his job as medical examiner was not to identify a perpetrator, but only to determine the cause of death. He reaffirmed his testimony at trial that Isabella died as a result of AHT, and he said this was not based on his autopsy findings, because "[t]hat trial had gone cold" by the time Isabella died. He said his testimony on this point was based on other doctors' conclusions.
Harkey also reaffirmed his testimony that Isabella's brain showed no contusions or lacerations, either in the front or the back. He stated that this was something he had specifically looked for while conducting the autopsy.
On January 27, 2014, Judge Kennelly concluded that Del Prete had “established by a preponderance of the evidence that based on all of the relevant evidence, no reasonable jury would find her guilty beyond a reasonable doubt.”
Judge Kennelly ruled: “In sum, this evidence, considered as a whole, undercuts Dr. Flaherty's testimony that Del Prete was the perpetrator of abusive head trauma. And Dr. Flaherty aside, the testimony of [the prosecution's] own experts at the hearing points away from Del Prete as having criminal responsibility for [Isabella’s] death.”
Judge Kennelly noted that the evidence “gives rise to abundant doubt, not merely reasonable doubt, regarding Del Prete's guilt. Finally, even if one were to disregard all of this, the testimony indicating that even minor trauma could have caused bleeding from [Isabella’s] chronic subdural hemorrhage and further injury would undermine a claim of criminal responsibility on Del Prete's part and further give rise to reasonable doubt regarding her guilt.”
Judge Kennelly noted that the defense had argued that there was evidence of Del Prete’s innocence. “There is plenty of it here,” the judge said. “A good deal of it involves the medical approach to claimed shaken baby cases.” Judge Kennelly pointed to the testimony of the prosecution expert Dr. Rangarajan, who testified that the science of biomechanics was not yet able to establish an injury threshold in this area. “If true, this statement provides a newfound basis for skepticism about causation and mechanism testimony offered at Del Prete's trial as well as similar testimony offered by respondent at the hearing before this Court,” Judge Kennelly declared.
On April 30, 2014, Del Prete was released on bond. In Will County Court, Del Prete’s lawyers filed a successive post-conviction petition based on the Kroll letter unearthed by Northwestern students. The petition was denied. However, the Illinois Appellate Court reversed that ruling and ordered that a hearing be held on the petition. Following the hearing, in May 2016, Judge Policandriotes granted the petition, vacated Del Prete’s conviction, and ordered a new trial.
The prosecution appealed. In November 2017, the Illinois Appellate Court upheld the ruling granting a new trial. The appeals court noted that the Kroll letter was favorable evidence for the defense, that it was never disclosed to Del Prete’s trial defense attorney, and that Harkey’s testimony, as outlined in the Kroll letter, could have resulted in an acquittal at Del Prete’s trial.
“We re-emphasize that [Del Prete] did not confess to the offense and there were no eyewitnesses to the alleged abuse in this case,” the appeals court ruled. “The State’s theory that the defendant was the perpetrator was based almost entirely on Flaherty’s expert testimony that [Isabella’s] injuries were caused by someone of adult strength shaking her and that the injuries were immediate. Under these circumstances, we find that Harkey’s testimony concerning his disagreement with SBS, which contradicts significant aspects of Flaherty’s testimony, ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ”
The case was continued month after month while the prosecution investigated and sought out experts to support its case at a retrial. Finally, on October 5, 2022, when Del Prete appeared in Will County Circuit Court, the prosecution asked the case be dismissed because a new expert opinion did not support the prosecution’s case.
Judge Carmen Goodman signed an order of dismissal saying, “The People have received and tendered the finalized expert report of Dr. Thomas Bennett. After careful consideration of the newly obtained expert opinion in conjunction with all of the other physical and opinion evidence in this case, the People no longer believe they can sustain their burden of proof beyond a reasonable doubt.”
Del Prete wept in the courtroom as she heard the news. Pat Blegen, the lead defense attorney for Del Prete, later said, “The criminal case is over — it’s done. ... She has been an innocent person for a long time, and now there are no charges.”
The dismissal of the case meant that Del Prete could push forward with a federal civil rights lawsuit that had been filed by the law firm of Loevy & Loevy after she was granted a new trial. The lawsuit, which accused police of withholding evidence, had been put on hold until the criminal case was resolved."
When Isabella arrived at Provena St. Joseph Medical Center in Elgin, Illinois, she was unconscious. A CAT scan documented abnormalities in the infant’s brain. Isabella was transferred to the University of Illinois at Chicago Hospital.
Detective Kenneth Kroll later testified that he interviewed Del Prete on December 29, 2002. Kroll said that Del Prete said she was the only one working on December 27, 2002 because the other day-care provider was out of town. Kroll said Del Prete told him that Isabella took a bottle between 8 and 9 a.m. and then slept in a swing until around noon. At that time, she changed Isabella’s diaper and put her on a couch. Del Prete said she stepped away briefly to prepare a bottle. When she returned, Isabella “was making a snoring, labored breathing sound,” and her body was “totally limp.”
Kroll said Del Prete said she picked up the child and Isabella’s head flopped forward. She said she gave the baby a “very slight shake” while saying her name several times. Del Prete said she tried to feed Isabella, but the milk ran out of her mouth down the side of her face. Del Prete said she put Isabella face down and gave her three to five pats on the back in an attempt to dislodge anything that might have been choking the baby. Del Prete then called 911.
Del Prete told Kroll that Isabella did not fall or get knocked over that day. She said that Isabella’s head moved more vigorously when she was patting the infant on the back than when she gave the baby a slight shake.
Kroll later testified that he took a break during his questioning, and when he returned he told Del Prete that her statements were not consistent with the medical evidence. Kroll said he told Del Prete that Isabella suffered from Shaken Baby Syndrome (SBS) and had subdural hematomas. Kroll told her that he believed Del Prete was responsible for Isabella’s injuries. He said Del Prete began to cry. She said she could not remember exactly what happened and that it was a very stressful, panicked situation. Kroll said Del Prete said “she could have shaken [Isabella] a little harder than she thought.” However, Del Prete insisted that she did not shake Isabella violently, and she did not intentionally hurt the infant. Kroll’s report said that Del Prete never actually confessed to shaking the baby.
Physicians who initially treated Isabella concluded that the infant’s injuries were the result of shaking by Del Prete. On February 11, 2003, Del Prete was charged with aggravated battery to a child.
Meanwhile, Isabella had been transferred to Children’s Memorial Hospital. On March 23, 2003, Isabella returned home where she was cared for by her mother and visiting nurses. On November 8, 2003, a nurse called 911 because Isabella’s lips were blue. Isabella was taken to the hospital and died the following day, November 9, 2003.
On April 8, 2004, a Will County grand jury indicted Del Prete on a charge of first-degree murder.
In February 2005, Del Prete went to trial in Will County Circuit Court. She chose to have her case heard by Judge Carla Alessio Policandriotes without a jury.
Dr. Adrian Nica, a physician at Provena, testified that he treated Isabella in the emergency room on December 27, 2002. Dr. Nica ordered a CAT scan of Isabella’s brain, which showed that she had “acute and chronic changes secondary to bleeds in different levels.” Dr. Nica said that the chronic bleeding could have been days or a week old. He testified that because Isabella had not been involved in a car accident, “you have to assume that it was a child abuse or baby shaking.”
Dr. Howard Hast was certified as an expert in the field of pediatric critical care medicine and testified that he treated Isabella from December 30, 2002 through January 16, 2003. A retinal scan showed that there was blood in the infant’s retinas. Dr. Hast also testified that Isabella also had bifrontal subdural hematomas, and that the most likely cause was that Isabella “was shaken or had some other accelerating/decelerating injury occur such as being dropped or thrown or something like that.”
Dr. Jeff Harkey, a forensic pathologist for the DuPage County coroner’s office, testified that he conducted an autopsy on Isabella on November 10, 2003. Dr. Harkey took X-rays, which showed no evidence of trauma. Dr. Harkey did not observe any bleeding or acute trauma. He reviewed some of Isabella’s medical records including a physician’s report from Dr. Emalee Flaherty. Dr. Harkey concluded Isabella’s death was the result of “multiple system organ failure due to anoxic-ischemic injuries…due to abusive head trauma [(AHT)].” Dr. Harkey said that an anoxic-ischemic injury occurred when there was not enough blood flow and oxygen to bodily tissue. Dr. Harkey testified that the AHT occurred 10 or 11 months prior to the infant’s death.
Dr. Flaherty testified that she had been a pediatrician at Children’s Memorial Hospital for over 30 years. Flaherty testified that she reviewed Isabella’s medical records from the University of Illinois Hospital. She also spoke with Dr. Hast, reviewed the police reports, reviewed the paramedic reports, interviewed Isabella’s parents, and examined Isabella.
Dr. Flaherty concluded that Isabella “had suffered [AHT] or also known to many people as [SBS].” Flaherty said: “[AHT] is a form of child abuse where a child suffers some kind of acceleration/deceleration injuries to the brain” which included shaking. Flaherty stated that AHT could be caused by “violent sustained shaking and sometimes impact” to infants or young children.
Dr. Flaherty said that of the spectrum of injuries in AHT or SBS, Isabella had subdural hemorrhages, subarachnoid hemorrhages, diffusing injury, and parenchyma lacerations and contusions. Dr. Flaherty also said that Isabella had dead brain tissue as a result of her injuries. Dr. Flaherty stated that acceleration/deceleration forces like violent shaking can also cause retinal hemorrhages. Dr. Flaherty opined that the hemorrhages present in Isabella are only caused by these acceleration/deceleration forces or seen in [SBS].”
Asked by the prosecutor what level of force would be needed for violent shaking to cause these injuries, Dr. Flaherty said: “Forces would be so severe that if anyone witnessed that shaking occurring or someone shaking a child like that, they would know that that child would suffer severe injury.”
Dr. Flaherty said the abuse occurred while Isabella was in Del Prete’s care and that the injuries could not have been caused by someone performing cardiopulmonary resuscitation (CPR) poorly on her, from a fall, or by a young child. She said, “It would take someone of adult strength shaking this child violently to cause these kinds of injuries.”
Dr. Flaherty acknowledged that Isabella did not have any bruises, but said it was “pretty uncommon” to find bruising in a case of SBS.
Dr. Wayne Tucker, an expert in pathology and pediatrics, testified that he reviewed medical records, Dr. Flaherty’s report, police reports, paramedics’ reports, an autopsy report, and autopsy pictures. Based on his review of these documents, Tucker concluded that Isabella’s injuries occurred approximately 18 to 24 hours before she collapsed at the daycare. Tucker testified that Isabella’s CAT scan “reflected that there was an acute situation and there was a chronicity to the situation of the frontal hematomas, subdural.”
Dr. Tucker stated that “chronic” meant that it had been there for “at least 7 to 10 days.” Dr. Tucker said that almost anything that will cause an increase in intracranial pressure could cause a chronic subdural hematoma to rebleed, such as coughing, sneezing, holding breath, movement, turning the head quickly, or falling.
Dr. Tucker stated that bruising was part of the definition of SBS. He said that “to do this even on a three-month-old or a one-month-old or any age group…whoever is doing it has to pick up into the arms, say hold arms or the shoulders and grab and hold on tightly to give the shaking.” Dr. Tucker said he had never seen a shaken baby without bruising.
Dr. Tucker said that Isabella had been given antibiotics for nine days and that combined with gas drops being given to help the infant take a bottle could have caused a seizure.
The defense called several witnesses who testified that Del Prete had a reputation as an honest, law-abiding, dependable, well-respected, and peaceful person. These witnesses included parents who had children in activities with Del Prete's children and whose children Del Prete had babysat in daycare or otherwise; a pastor who hired her as a supervising nursery attendant for services and events at his church; and persons who had worked with Del Prete at the children's room of the local public library. Gleanne Kehr, the daycare center operator, testified that she hired Del Prete because Del Prete was honest, trustworthy, caring, and good with children. She said that she had never observed Del Prete as anything other than "calm and patient" with children at the daycare.
Kehr also testified that when Isabella took a bottle, she "tended to tense up and to arch her back." Kehr testified that Isabella seemed very uncomfortable during and after eating and had to be burped more frequently than most babies. Kehr testified that she had spoken with Isabella’s mother about the possibility that Isabella had excess gas, although she conceded that she did not know whether Isabella was ever diagnosed with a problem relating to gassiness.
Kehr also testified that in early December, she saw Isabella’s father physically discipline her brother, who also was a daycare resident. Kehr said that when the boy was uncooperative in putting his shoes on, the father grabbed him by the foot and dragged him to where the shoes were kept.
Karli Hinton, who worked at the daycare center with Del Prete and Kehr, testified that Isabella was colicky and cried frequently. She recalled being given "gas drops" for the colic to add to Isabella’s bottle to help relieve her gas. Hinton said Isabella was "phlegmy" and that she frequently had a runny nose and a cough. Another witness, Steve Blake, whose son also attended the daycare, testified that Isabella "didn't seem well." He said that Isabella was frequently crying during the short periods of time that he spent at the daycare.
Christine Murphy, a pediatric intensive care nurse and the mother of three children who attended the daycare, testified that she knew Isabella's family and had seen both parents physically discipline Isabella’s older brother. Murphy testified that she had seen the boy’s father physically discipline him on at least ten prior occasions, typically by grabbing the boy's arm and tossing him onto the couch.
On March 4, 2005, Judge Policandriotes convicted Del Prete of first-degree murder. In November 2005, Judge Policandriotes sentenced Del Prete to 20 years in prison.
Del Prete appealed her conviction, arguing that there was insufficient evidence to find her guilty beyond a reasonable doubt. The Illinois Appellate Court denied her appeal in 2007. Del Prete filed a petition for post-conviction relief in March 2008, arguing that her trial defense lawyer had provided an inadequate legal defense by not retaining more medical experts and for failing to disclose that he had previously been temporarily suspended from the practice of law because of unethical behavior as a prosecutor in Will County. The Will County Circuit Court dismissed her petition. In 2009, the Illinois Appellate Court denied Del Prete's appeal.
In 2010, the law firm of Blegen & Garvey filed a federal petition for a writ of habeas corpus. The petition contended the evidence at trial was insufficient to sustain a conviction. The petition also claimed that her trial defense attorney had failed to challenge the admission of expert testimony on the theory of SBS and also failed to present appropriate expert testimony to dispute the prosecution's theory of SBS.
Del Prete’s lawyers conceded that the claim related to failing to challenge the admission of the expert testimony had procedurally defaulted because the claim had not been raised in state court. However, the petition said that the default should be excused and the claim addressed because evidence showed that Del Prete was innocent.
U.S. District Judge Matthew Kennelly ordered a hearing which was conducted over nine days in December 2012 and January 2013.
The witnesses included:
--Dr. Patrick Barnes, a neuropathologist, testified for Del Prete. Dr. Barnes said that the imaging studies of Isabella’s brain showed chronic collections of fluid that appeared between her brain and her skull which could have been several weeks to months old or could even have dated back to Isabella’s birth in September 2002. Barnes noted that Isabella had brain injuries due to a lack of oxygen or blood flow to the brain. He also said there were no signs of direct traumatic injury to Isabella’s head, skull, brain, or neck. Barnes stated that Isabella’s first CT scan, taken on December 27 approximately six hours after Del Prete called 911, depicted a dark band between the infant’s skull and the frontal lobe of her brain, which he said constituted old collections of fluid. He stated that those chronic collections were at least two to three weeks old but could have existed since birth. Barnes said that cortical venous thrombosis (CVT) was a likely cause of Isabella’s brain abnormalities.
-- Dr. Gary Hedlund, a neuroradiologist, testified for the prosecution that the imaging studies indicated that Isabella had both acute and chronic subdural hemorrhages in various locations. Although he concurred with Dr. Barnes that there were chronic subdural hemorrhages that already existed as of December 27, 2002 and that they were at least two weeks and perhaps as much as three weeks old, or older, Dr. Hedlund testified that the acute hemorrhages ranged in age from a few hours to three days old. He stated that the imaging studies showed a number of hemorrhages of varying ages throughout Isabella’s head, which he said indicated AHT.
--Dr. Michael Prange, a biomechanical engineer, testified for Del Prete that based on his research and studies, the mechanism of shaking itself was insufficient to produce brain injury without first causing catastrophic neck injury to a victim. Isabella had no such neck injuries.
--Dr. Nagarajan Rangarajan, a biomechanical engineer, testified for the prosecution that the science of biomechanics could not determine the cause of Isabella’s injuries and that the science was unable to determine the threshold necessary to produce head injuries in infants. Dr. Rangarajan also testified that Dr. Flaherty was wrong when she testified at Del Prete’s trial that a fall could not produce levels of acceleration as great as shaking alone.
--Dr. Patrick Lantz, a pathologist, testified for Del Prete that he studied Isabella’s retinal scans and retinal hemorrhages. He said that retinal hemorrhages were associated with a wide variety of conditions, both traumatic and non-traumatic. Dr. Lantz said that Dr. Flaherty’s testimony that retinal hemorrhages are only caused by shaking was not true. He said that such hemorrhages can be the result of resuscitation efforts such as those performed by Del Prete and paramedics.
--Dr. Brian Forbes, a pediatric ophthalmologist testified for the prosecution that the retinal hemorrhages were not the result of resuscitation efforts or a CVT, as Dr. Barnes suggested. Forbes dismissed alternative causes for the hemorrhages that were non-traumatic.
--Dr. Joseph Sheller, a pediatric neurologist, testified for Del Prete that after examining all of Isabella’s medical records and her brain imaging studies, he concluded there was no evidence that Isabella had suffered an abusive head injury. He said there was no evidence of brain swelling as would be expected as a result of an abusive head injury. Dr. Sheller said there was evidence of a blood clot on Isabella’s brain, supporting Dr. Barnes’s CVT testimony. Dr. Sheller said that Isabella’s head had grown extraordinarily fast—from under the 50th percentile for infants at birth to the 90th percentile at 10 weeks. He said that indicated that “something must be going on inside her skull,” and that likely was chronic subdural fluid collection.
--Dr. Carole Jenny, a child abuse pediatric physician, testified for the prosecution that based on her examination of the records, Isabella suffered AHT caused by Del Prete that led to cardiac arrest and severe brain damage, and eventually to Isabella’s death. She conceded during cross-examination that no one has put forth a coherent argument to support that shaking alone can cause AHT.
--Dr. Lucy Rorke-Adams, a pediatric neuropathologist, testified for the prosecution that there was evidence of contusion to a portion of the brain called “gyrus rectus,” which she said was on the front of the brain, and was a common site of injury in infants who suffer AHT.
--Dr. Jan Leetsma, a neuropathologist, testified for Del Prete that he examined Isabella’s brain and found evidence of subdural hemorrhages that were largely resolved and that he found no evidence of contusions or lacerations of the brain. Dr. Leetsma testified that what Rorke-Adams said was the gyrus rectus was part of the cerebral cortex in the back of the brain.
--Dr. Shaku Teas, a forensic pathologist, testified for Del Prete. She said that even if Dr. Rorke-Adams correctly identified the section of brain she assessed from the photographs, the photograph did not depict a brain contusion. Dr. Teas concluded, based on her review of the medical records and autopsy photographs, together with her own neuropathological examination of the brain, that Isabella’ collapse resulted from CVT.
On June 21, 2013, Del Prete called four additional witnesses to testify regarding a recently-discovered November 2003 memo from Detective Kroll to Dr. Flaherty. The hearing was reopened after Del Prete’s lawyers received a memo from the Northwestern University School of Journalism Medill Innocence Project. The memo had been obtained through a Freedom of Information Act request to the Romeoville Police Department.
Kroll's memo to Dr. Flaherty stated:
“If you haven't already heard, [Isabella] died 11-09-03. I'm writing to inform you of a ‘twist’ in our case presented by the DuPage County Medical Examiner. On 11-09-03, I received a phone call from an Attorney who notified me that Isabella would undergo a ‘post’ medical exam on 11-10-03. This Attorney specifically called to inform me that the pathologist scheduled to perform the autopsy does not agree with SBS [shaken baby syndrome], and has testified for the defense in two DuPage County SBS cases. “On 11-10-03, I spoke to a Plainfield Police Evidence Tech (ET) who was present at the autopsy. The ET advised that Dr. Jeff Harky [sic] did in fact question the diagnosis of SBS. I was told that Dr. Harky specifically looked for fractures in the rib cage (adult grabbing point) and found none. Dr. Harky intends to summon all of [Isabella’s] medical records to see who determined this was SBS, and why they reached that diagnosis.
“I have great confidence in your findings, and our investigation. This correspondence is FYI. However, I anticipate having to answer several questions for my prosecuting Attorney. Please call me when you have a few minutes to discuss the case.”
Detective Kroll testified that he did not specifically remember being told that Harkey questioned the diagnosis of SBS, but he assumed his memo was accurate. He agreed that the medical examiner's questioning of the diagnosis of SBS would be unfavorable to the prosecution. Kroll said he did not specifically recall discussing Harkey's views with anyone and did not recall if he gave his memo to Will County prosecutors. He did recall, however, that he spoke with the prosecutors about the subject of his memo one to two months before the trial in February 2005. Finally, Kroll testified that he did not specifically recall discussing Harkey's views with Dr. Flaherty. He stated, however, that he most likely had done so, because she was punctual about returning phone calls related to the case. He did not know if his memo had been given to Del Prete's defense attorney.
Plainfield police officer Tracy Caliendo testified that she was present at the autopsy. She recalled only that Harkey noted no fractures or external injuries. She stated that she did not recall that Dr. Harkey questioned the diagnosis of SBS and did not recall discussing the autopsy with Kroll.
Dr. Flaherty testified that she did not recall receiving the memo from Detective Kroll. She likewise did not recall whether she spoke to Kroll or anyone else regarding the memo's contents.
Dr. Harkey testified that he did not recall telling anyone at the autopsy that he had found no evidence of fractures at the "adult grabbing point," but that this was something he would have looked for at the time. Dr. Harkey stated that he did not specifically recall whether he had spoken to anyone about doubting the diagnosis of SBS for Isabella’s death. He stated, however, that he had concerns with a diagnosis of SBS because he did not believe there was any finding that could distinguish injuries caused by blunt force trauma from those caused by shaking alone. In other words, Dr. Harkey said, "When I am looking at pathology in an autopsy, I don't believe that I can say this child was shaken rather than this child was hit."
Harkey also testified that he had a problem with a diagnosis of SBS or AHT pointing to a particular perpetrator. He stated that a child may have a lucid interval after an incident of AHT and may "go unresponsive" only much later. Therefore, the onset of unresponsiveness did not necessarily indicate that the caretaker present at the time was responsible for inflicting the injury.
Harkey noted that his job as medical examiner was not to identify a perpetrator, but only to determine the cause of death. He reaffirmed his testimony at trial that Isabella died as a result of AHT, and he said this was not based on his autopsy findings, because "[t]hat trial had gone cold" by the time Isabella died. He said his testimony on this point was based on other doctors' conclusions.
Harkey also reaffirmed his testimony that Isabella's brain showed no contusions or lacerations, either in the front or the back. He stated that this was something he had specifically looked for while conducting the autopsy.
On January 27, 2014, Judge Kennelly concluded that Del Prete had “established by a preponderance of the evidence that based on all of the relevant evidence, no reasonable jury would find her guilty beyond a reasonable doubt.”
Judge Kennelly ruled: “In sum, this evidence, considered as a whole, undercuts Dr. Flaherty's testimony that Del Prete was the perpetrator of abusive head trauma. And Dr. Flaherty aside, the testimony of [the prosecution's] own experts at the hearing points away from Del Prete as having criminal responsibility for [Isabella’s] death.”
Judge Kennelly noted that the evidence “gives rise to abundant doubt, not merely reasonable doubt, regarding Del Prete's guilt. Finally, even if one were to disregard all of this, the testimony indicating that even minor trauma could have caused bleeding from [Isabella’s] chronic subdural hemorrhage and further injury would undermine a claim of criminal responsibility on Del Prete's part and further give rise to reasonable doubt regarding her guilt.”
Judge Kennelly noted that the defense had argued that there was evidence of Del Prete’s innocence. “There is plenty of it here,” the judge said. “A good deal of it involves the medical approach to claimed shaken baby cases.” Judge Kennelly pointed to the testimony of the prosecution expert Dr. Rangarajan, who testified that the science of biomechanics was not yet able to establish an injury threshold in this area. “If true, this statement provides a newfound basis for skepticism about causation and mechanism testimony offered at Del Prete's trial as well as similar testimony offered by respondent at the hearing before this Court,” Judge Kennelly declared.
On April 30, 2014, Del Prete was released on bond. In Will County Court, Del Prete’s lawyers filed a successive post-conviction petition based on the Kroll letter unearthed by Northwestern students. The petition was denied. However, the Illinois Appellate Court reversed that ruling and ordered that a hearing be held on the petition. Following the hearing, in May 2016, Judge Policandriotes granted the petition, vacated Del Prete’s conviction, and ordered a new trial.
The prosecution appealed. In November 2017, the Illinois Appellate Court upheld the ruling granting a new trial. The appeals court noted that the Kroll letter was favorable evidence for the defense, that it was never disclosed to Del Prete’s trial defense attorney, and that Harkey’s testimony, as outlined in the Kroll letter, could have resulted in an acquittal at Del Prete’s trial.
“We re-emphasize that [Del Prete] did not confess to the offense and there were no eyewitnesses to the alleged abuse in this case,” the appeals court ruled. “The State’s theory that the defendant was the perpetrator was based almost entirely on Flaherty’s expert testimony that [Isabella’s] injuries were caused by someone of adult strength shaking her and that the injuries were immediate. Under these circumstances, we find that Harkey’s testimony concerning his disagreement with SBS, which contradicts significant aspects of Flaherty’s testimony, ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ”
The case was continued month after month while the prosecution investigated and sought out experts to support its case at a retrial. Finally, on October 5, 2022, when Del Prete appeared in Will County Circuit Court, the prosecution asked the case be dismissed because a new expert opinion did not support the prosecution’s case.
Judge Carmen Goodman signed an order of dismissal saying, “The People have received and tendered the finalized expert report of Dr. Thomas Bennett. After careful consideration of the newly obtained expert opinion in conjunction with all of the other physical and opinion evidence in this case, the People no longer believe they can sustain their burden of proof beyond a reasonable doubt.”
Del Prete wept in the courtroom as she heard the news. Pat Blegen, the lead defense attorney for Del Prete, later said, “The criminal case is over — it’s done. ... She has been an innocent person for a long time, and now there are no charges.”
The dismissal of the case meant that Del Prete could push forward with a federal civil rights lawsuit that had been filed by the law firm of Loevy & Loevy after she was granted a new trial. The lawsuit, which accused police of withholding evidence, had been put on hold until the criminal case was resolved."
There entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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;
--------------------------------------------------------------------------------------------------------------------------
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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;
-----------------------------------------------------------
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