Maya Kowalski and Family:('Take Care of Maya'): On-going civil trial: The family's lead attorney is contesting the narrative the defense for Johns Hopkins All Children's Hospital has presented, arguing that the reason the family and hospital are in court is to support parents' rights in deciding the treatment of their children, the Sarasota Herald-Tribune (Reporter Gabriela Szymanowska) reports…"Greg Anderson, attorney for the Kowalski family who is suing the hospital for $220 million, said they were in court because Beata and Jack Kowalskis' ability to decide what treatment was best for their child was not only questioned but it was taken away from them. "I think the hospital's trying to portray this as saviors of the child abuse system," Anderson said. "And that's simply not the case. That's not what this case is about." The case is about individual freedom and the freedom of parents to make decisions that are in the best interest of their children based on information they've gathered and the advice from their own doctors, Anderson said."

PASSAGE OF THE DAY: "Beata acknowledged in one email that the procedure was high risk, especially as Maya had immunodeficiency, poor nutritious status, and severe adrenal insufficiency.  It also appeared Beata was aware that Maya was at high risk for complications like developing infection/sepsis during the coma, difficulty weaning off of the ventilator after the coma, needing blood transfusions, and going into total body failure/ death as a result of adrenal insufficiency. Despite the risk of complications, Beata wrote that Maya had several things working in her favor including her young age, being in the early stages of RSD/CRPS, and the "hundreds of angels watching over me, and GOD In another email, it's mentioned that the tube in Maya's throat began to irritate her, causing her to gag and vomit one morning. Luckily Beata was in the room and able to react, with nurses coming in to suction out Maya's mouth and lungs. Beata's email from the day Maya awoke from her coma detailed exactly what challenges Maya faced, including having difficulty breathing after having the tube taken out, nausea, hives breaking out, an elevated temperature, tremors, and coughing."

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STORY: "'Take Care of Maya': Parental rights, medical practices contested: by Reporter Gabriela Szymanowska, published by The Sarasota Herald-Tribune. (Gabriela Szymanowska covers the legal system for the Herald-Tribune in partnership with Report for America.)

SUB-HEADING: "Kowalski family attorney: Trial is about parents' rights to child's medical treatment."

GIST: "The lead attorney for the Kowalski family is contesting the narrative the defense for Johns Hopkins All Children's Hospital has presented, arguing that the reason the family and hospital are in court is to support parents' rights in deciding the treatment of their children.

Greg Anderson, attorney for the Kowalski family who is suing the hospital for $220 million, said they were in court because Beata and Jack Kowalskis' ability to decide what treatment was best for their child was not only questioned but it was taken away from them.

"I think the hospital's trying to portray this as saviors of the child abuse system," Anderson said. "And that's simply not the case. That's not what this case is about."

The case is about individual freedom and the freedom of parents to make decisions that are in the best interest of their children based on information they've gathered and the advice from their own doctors, Anderson said.

In the first few weeks of the trial, witnesses called by the family's attorneys, as well as Maya, Kyle and Jack Kowalski testified the hospital interfered with Maya's treatment for her Complex Regional Pain Syndrome, a disorder that impairs the central nervous system and heightens pain sensations, after they placed calls into an abuse hotline following suspicions of child abuse and that the hospital's staffs' actions led to Beata Kowalski taking her own life.

Defense attorney Ethen Shapiro told media Thursday that the hospital decided to pursue this case to stand up for mandatory reporters across the nation as there has been a "chilling effect" of decreased reporting on abuse cases.

 Shapiro added they were also standing up for their own hospital staff who he said did what they thought was the best course of action for Maya after inconsistencies in her behavior and diagnoses.

The defense has also previously stated that the actions taken by their staff were in direct line with court dependency orders and guidance from the Florida Department of Children and Families.

The Kowalski family sued All Children’s Hospital in 2018 for battery, intentional infliction of emotional distress, false imprisonment, and medical malpractice, among other claims, more than a year after the family matriarch, Beata Kowalski, took her life following allegations she was abusing her daughter. 

The family took 10-year-old Maya Kowalski to All Children’s Hospital in October 2016 after she complained of severe stomach pain, believed by the family to be a relapse of her CRPS.

Maya Kowalski was separated from her family, friends, and community following a Florida Department of Children and Families investigation and ordered by a judge to remain at the hospital. She remained separated for three months before reuniting with her father and brother shortly after her mother’s death.

Hospital executive director of revenue cycle speaks to fraudulent billing claim

The executive director of the revenue cycle for the hospital, Jason Bankert, reviewed the billing from the hospital to Kowalski's medical insurer, Aetna. 

He said there were 14 correspondences from the insurer from October 2016 through the beginning weeks of January 2017 asking for clinical documentation to ensure that the visitation was authorized.

As part of their complaints against the hospital, the Kowalskis filed a claim for fraudulent billing, stating the hospital billed for treatments for CRPS, while at the same time denying that Maya had the condition.

Bankert said if the hospital submitted claims for medical services that weren't being performed, the claims would most definitely have been denied either because there wasn't a medical necessity, or it hadn't been authorized.

It appeared there were 12 diagnosis codes, including for CRPS and child neglect, abuse, or abandonment, listed on a transaction report sent to the insurer as to services that were rendered.

On a Jan. 5, 2017, transaction document, CRPS, which had been listed as the first diagnosis, fell to the fifth spot and the child maltreatment diagnosis became the primary focus, indicating that most of the treatments rendered were towards that diagnosis, Bankert said.

When Nick Whitney, an attorney for the Kowalskis family, asked whether $500,000 was billed for CRPS treatment to Aetna, Bankert denied it.

“Johns Hopkins All Children’s Hospital billed $500,000 for a litany of services that were rendered, it wasn’t Complex Regional Pain Syndrome," Bankert said. "In fact, as I stated before, the vast majority of charges that we submit were tied to room and board, respiratory therapy, physical therapy, and occupational therapy.”

Jury views emails Beata Kowalski drafted to herself in Maya's voice

On Thursday, the defense presented the jury with several emails that Beata Kowalski had written and sent to herself while she and Maya were in Mexico for Maya's ketamine coma.

The Kowalskis took Maya to Mexico in mid-November 2015 after she was referred for treatment by pain management specialist Dr. Anthony Kirkpatrick, who diagnosed Maya with CRPS, after warm water therapy and the ketamine injections that Kirkpatrick gave Maya were not showing the results the doctor had hoped for.

The trip to Mexico came months after Maya first began experiencing her CRPS symptoms during a Fourth of July celebration and after the family visited Johns Hopkins All Children's Hospital, Lurie Children's Hospital of Chicago, and Tampa General Hospital in search of treatments to help then 9-year-old Maya, according to testimony from the courtroom.

The defense has pointed to the fact that the procedure was highly risky, with a 50% chance risk of death for Maya. Not only that, but the defense also in presenting their case, showed the jury that Maya had bacterial pneumonia due to being intubated for so long that had to be treated with antibiotics.

Attorneys for the family have argued that the ketamine coma helped to improve Maya's condition and following the procedure and the booster ketamine injections she received, Maya started getting stronger and was on the road to being able to walk again.

The emails, written to appear as though they were in Maya's voice, provide more insight into details about what occurred during the days Maya was receiving high doses of ketamine while in a coma.

The emails detailed the increasing doses of ketamine Maya received, how Maya's body was reacting while she was in the coma, and who came to visit her, as well as the first day after Maya awoke from the coma.

Multiple times in the letters, it was referenced that Maya had a "superpower" because her body was able to metabolize the ketamine and other sedatives quickly.

"I have very high tolerance for drugs; if I was a horse I would be comatosed or dead already … but things are totally different when it comes to a girl with RSD, my metabolism is super fast."

Beata acknowledged in one email that the procedure was high risk, especially as Maya had immunodeficiency, poor nutritious status, and severe adrenal insufficiency. 

It also appeared Beata was aware that Maya was at high risk for complications like developing infection/sepsis during the coma, difficulty weaning off of the ventilator after the coma, needing blood transfusions, and going into total body failure/ death as a result of adrenal insufficiency.

Despite the risk of complications, Beata wrote that Maya had several things working in her favor including her young age, being in the early stages of RSD/CRPS, and the "hundreds of angels watching over me, and GOD."

In another email, it's mentioned that the tube in Maya's throat began to irritate her, causing her to gag and vomit one morning. Luckily Beata was in the room and able to react, with nurses coming in to suction out Maya's mouth and lungs.

Beata's email from the day Maya awoke from her coma detailed exactly what challenges Maya faced, including having difficulty breathing after having the tube taken out, nausea, hives breaking out, an elevated temperature, tremors, and coughing.

Pain management specialist defends his actions through deposition

Dr. Ashraf Hanna, the anesthesiologist who gave Maya ketamine injections following her time in Mexico, defended his actions which the defense questioned during a deposition that was played for the jury Friday.

“She was screaming,” Hanna said, describing Maya's condition the day before he sent her to the hospital. “She was crying from pain. Her mother stated that I cannot live - you know she’s in so much pain, she’s screaming, she’s up all night.”

Hanna saw Maya from January to October 2016, giving her approximately 55 ketamine injections with the doses increasing until he reached the maximum amount that he would give her of 24 milligrams per kilogram per hour.

Following several treatments in October 2016, Maya was not responding to the treatments and Hanna sent her to All Children's Hospital telling the defense he "failed to help her."

"There was nothing I could do," Hanna said. "I told the mother, that's the maximum I can do. I cannot give her anymore. She has abdominal pain. I need her to go to a bigger place that can maybe do some continuous infusion.”

Hanna became defensive in his deposition, firmly stating that he believed the ketamine infusions he was giving Maya were successful because it improved her quality of life, she was able to spend more time with family and friends doing activities she loved and provided relief from pain. Hanna said that any CRPS expert could tell the defense that patients with the condition have ups and downs, and they can have flare-ups.

Hanna, who said he'd done ketamine infusions with thousands of patients, said plenty of them had good and bad days, but that didn't mean that the treatments weren’t working. In Maya’s case, he again said Maya’s quality of life was improving. 

Following Maya's stay at the hospital, Hanna saw her here once in January 2017 and again in June 2017, where he documented that Maya had improved by 60 to 70%. 

Hanna said there was a "good probability" that the ketamine he'd administered back in October 2016 could have been part of the reason for the improvement."

The entire story can be read at:
https://www.heraldtribune.com/story/news/courts/2023/10/30/take-care-of-maya-parental-rights-medical-practices-contested/71341447007/

PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/120008354894645705/47049136857587929

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;

------------------------------------------------------------------

YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/

———————————————

Beleaguered Queensland (Australia) DNA Lab: Project 13: A second Inquiry begins today into what David Murray, The Australian's National Crime Correspondent calls 'a massive scientific scandal' anywhere in the world, which, according to the government, has resulted in a staggering 7000 extra criminal cases being reviewed…"Project 13 tested a new, automated DNA extraction method on mock samples before it was let loose in 2007 on real Queensland crimes. DNA testing delays were at the time causing the then-Labor government of Peter Beattie to be pummelled by the courts, opposition and public. Millions of dollars of public money were thrown at the lab to deal with the crisis, and its answer was automation – introducing robots to rapidly extract DNA rather than relying on scientists laboriously doing it by hand. Independent forensic biologist Kirsty Wright describes it as the biggest change in the lab’s history. Obviously, it required the most thorough validation possible to ensure results were robust, and that victims and the criminal justice system weren’t let down. Instead, according to a Project 13 report, the lab’s own limited verification process showed the robots were catastrophically recovering up to 92 per cent less DNA from samples than a manual method. Despite this, the report falsely claimed in its abstract or executive summary that the automated and manual results were “comparable” and recommended it go ahead. You don’t have to be an esteemed scientist to see that the Project 13 report is fraudulent to its core, or to pick up on the method’s glaring failure to recover DNA."

PASSAGE OF THE DAY: "You don’t have to be an esteemed scientist to see that the Project 13 report is fraudulent to its core, or to pick up on the method’s glaring failure to recover DNA Graphs in the report make the vast differences between the results of the automated and manual methods blindingly apparent. As retired scientist Ron Grice has said, a high school student could have seen it. But the one senior scientist who was asked to examine the automated method for the Sofronoff inquiry, and who was provided the Project 13 report, Wilson-Wilde, didn’t mention any of this in her own expert report. Wilson-Wilde is now in charge of all forensic services in the state. She says she saw the issues but left them out of her report because she wasn’t asked to look at “yield”, or the recovery of DNA from samples It was left to Wright and this newspaper to raise questions about the effect on thousands of crimes. As a result, the government has said a staggering 7000 extra criminal cases are being reviewed, a development that would be a massive scientific scandal anywhere in the world. Now, a second inquiry begins Monday with all the powers, though not the time, of the previous inquiry."

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STORY: "Queensland DNA lab actions `a massive scientific scandal anywhere in the world, by National Crime Correspondent David Murray, published by The Australian, on October 29, 2023. (David Murray is The Australian's National Crime Correspondent. He was previously Crime Editor at The Courier-Mail and prior to that was News Corp's London-based Europe Correspondent. He is behind investigative podcasts The Lighthouse and Searching for Rachel Antonio and is the author of The Murder of Allison Baden-Clay."_

PHOTO CAPTION: "It was left to forensic scientist Dr Kirsty Wright and this newspaper to question the impact on thousands of cases. 

• GIST: "This is the inquiry we shouldn’t have needed but had to have.

  
  

  We shouldn’t have needed it, because retired judge Walter Sofronoff’s first inquiry into Queensland’s DNA lab last year appears to have done everything right.

  
  

  It hired a distinguished scientist to look into the introduction of an automated DNA extraction method.

  
  

  Yet that expert, Linzi Wilson-Wilde, failed in her report to the Sofronoff inquiry to detail glaring issues that had serious and obvious ramifications for many thousands of criminal cases.

  
  

  Project 13 tested a new, automated DNA extraction method on mock samples before it was let loose in 2007 on real Queensland crimes.

  
  

  DNA testing delays were at the time causing the then-Labor government of Peter Beattie to be pummelled by the courts, opposition and public.

  
  

  Millions of dollars of public money were thrown at the lab to deal with the crisis, and its answer was automation – introducing robots to rapidly extract DNA rather than relying on scientists laboriously doing it by hand.

  
  

  Independent forensic biologist Kirsty Wright describes it as the biggest change in the lab’s history.

  
  

  Obviously, it required the most thorough validation possible to ensure results were robust, and that victims and the criminal justice system weren’t let down.

  
  

  Instead, according to a Project 13 report, the lab’s own limited verification process showed the robots were catastrophically recovering up to 92 per cent less DNA from samples than a manual method.

  
  

  Despite this, the report falsely claimed in its abstract or executive summary that the automated and manual results were “comparable” and recommended it go ahead.

  
  

  You don’t have to be an esteemed scientist to see that the Project 13 report is fraudulent to its core, or to pick up on the method’s glaring failure to recover DNA.

  
  

  Graphs in the report make the vast differences between the results of the automated and manual methods blindingly apparent.

  
  

  As retired scientist Ron Grice has said, a high school student could have seen it.

  
  

  But the one senior scientist who was asked to examine the automated method for the Sofronoff inquiry, and who was provided the Project 13 report, Wilson-Wilde, didn’t mention any of this in her own expert report.

  
  

  Wilson-Wilde is now in charge of all forensic services in the state.

  
  

   She says she saw the issues but left them out of her report because she wasn’t asked to look at “yield”, or the recovery of DNA from samples.

  
  

  It was left to Wright and this newspaper to raise questions about the effect on thousands of crimes.

  
  

  As a result, the government has said a staggering 7000 extra criminal cases are being reviewed, a development that would be a massive scientific scandal anywhere in the world.

  
  

  Now, a second inquiry begins Monday with all the powers, though not the time, of the previous inquiry.

  
  

  Retired Federal Court judge Annabelle Bennett SC and her team will again demand documents and compel witnesses to give evidence, but will have only a lightning few weeks to provide a final report.

  
  

  There are many questions for the inquiry to consider. How could the method be introduced when its failure was inevitable, and what if anything was done to fix problems over the next nine years that variations of it were used?

  
  

  How could a senior scientist of Wilson-Wilde’s standing justify her expert report being silent on the biggest issue of the whole, horrible debacle?

  
  

  And exactly what has been done, and when was it done, since the end of the Sofronoff inquiry to address the impact of the DNA recovery issues that Wilson-Wilde insists she saw last year?"

  
  

  The entire story can be read at:

https://www.theaustralian.com.au/nation/queensland-dna-lab-actions-a-massive-scientific-scandal-anywhere-in-the-world/news-story/399f3984019e591e4f537635cabc5dbe

PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/120008354894645705/47049136857587929

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;

------------------------------------------------------------------

YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/

———————————————

Thomas Imschweiler: North Carolina: Shaken Baby Syndrome: From prison, this father claims innocence in the death of his 4-month-old son, News 3 (Reporter Margaret Kavanagh) reports…"Franklin was airlifted to CHKD in Norfolk, but died five days later at the hospital. The medical examiner ruled the manner of death as homicide from abusive head trauma, also known as Shaken Baby Syndrome. Thomas was blamed for his son's death and took a plea deal. He's currently serving time in a North Carolina prison, but he claims he didn't kill his son, and his family is fighting for his innocence after they say he was wrongly accused."…"His lawyer Rich Lomurro explained what he said happened that awful night. “Tom brought Franklin out onto this couch and went to make him a bottle. When he went to make him a bottle, Franklin turned his head into this pillow and began to suffocate,” said Lomurro. The family said Franklin suffered a severe case of hand, foot and mouth disease, a contagious viral infection common in young children, just before they left for vacation. They said the doctor cleared them to take the trip, but Franklin was not acting like himself. They said they got a second autopsy done by their own doctors which determined that Franklin died as a result of suffocation followed by cardiac arrest due to falling face down in the couch for several minutes. “You have two possible ways that these injuries could come," said Lomurro. "One of them is through what's called abusive head trauma, formally known as Shaken Baby Syndrome, and the other one is an accidental suffocation.” He said his client did not kill his child and the medical examiners and investigators got it wrong. “There's nothing ever, from day one, to point to a history of abuse, that night, the four months of Franklin's life and the 34 years of Tom's life to indicate that he was ever capable of abusing a child,” said Lomurro. Lomurro said he entered an Alford plea for voluntary manslaughter which allows a defendant to claim innocence without having to go to trial. Lomurro said the only reason he took the plea deal was because he was concerned if he were to lose the case, he'd be sent to prison for life."

-------------------------------------------------------

PETITION:

https://www.change.org/p/help-this-innocent-father-return-to-his-family

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PASSAGE OF THE DAY: "News 3 sent all the documentation available to us to Dr. William McClain, a forensic pathologist not connected to the case for his opinion. “The truth of the matter is, in this case, I would not be able to say either one of those," said McClain. "I am not convinced that this is a homicide and I'm not convinced that it is not a homicide." It's an extremely complex case, he said. “If this was my case and I had to sign Franklin's death certificate," said McClain. "I'd probably called this an undetermined cause of death and undetermined manner of death and I would have lost a lot of sleep about it.”

-------------------------------------------------------

STORY: "From prison, dad claims innocence in death of 4-month-old son after Outer Banks vacation," by Margaret Kavanagh, published by  News 3 on October 26, 2023. (Margaret comes to News 3 from Orlando where she worked as a reporter for Central Florida News 13 for six years, half the time spent in the Brevard County Bureau. She had the opportunity to cover high profile cases including the Casey Anthony Trial, George Zimmerman Trial and the end of the space shuttle program. Margaret also flew to Haiti n 2014 to report and produce a half hour segment on changes to the country since the massive earthquake five years ago.)

SUB-HEADING: "Thomas Imschweiler said he took a plea deal to avoid life in prison. Now he claims he's innocent."

GIST: "The Imschweiler family drove down from Pennsylvania to Corolla in the Outer Banks for a family vacation in the summer 2018.

Thomas Imschweiler, his wife Laura, and their 4-month old son Franklin were staying in a rented home with several other family members. 

Late one night after a day on the beach, Thomas said his son was being fussy and he went to tend to him.

He left Franklin on the couch while he went to go fix a bottle in the kitchen, he says. 

When he returned, he says Franklin was face down on the couch, not breathing. 

He says he woke up his wife in a panic, telling her something was wrong with their son and began CPR.

Franklin was airlifted to CHKD in Norfolk, but died five days later at the hospital. The medical examiner ruled the manner of death as homicide from abusive head trauma, also known as Shaken Baby Syndrome.

Thomas was blamed for his son's death and took a plea deal. 

He's currently serving time in a North Carolina prison, but he claims he didn't kill his son, and his family is fighting for his innocence after they say he was wrongly accused.

Laura Imschweiler recalled the horrible events of the night.

“I lost it. I didn't know what was going on. I see my son is lifeless,” she said, “I couldn't comprehend what was happening and I just fell apart.”

The doctors at the hospital told law enforcement Franklin had bleeding on the outside of his brain, bleeding on the right eye, and other injuries. The father was arrested for felony child abuse.

The family believes Franklin’s death was misdiagnosed.

The News 3 Investigative Team spoke to Thomas Imschweiler from the Sanford Correctional Center in North Carolina.

Thomas Imschweiler said he absolutely did not hurt Franklin in any way.

His wife and supporters created a Change.org campaign that now has about 24,700 signatures.

“It just makes me sick and blows my mind that you can put an innocent person into prison,” said Thomas.

His lawyer Rich Lomurro explained what he said happened that awful night.

“Tom brought Franklin out onto this couch and went to make him a bottle. When he went to make him a bottle, Franklin turned his head into this pillow and began to suffocate,” said Lomurro.

The family said Franklin suffered a severe case of hand, foot and mouth disease, a contagious viral infection common in young children, just before they left for vacation.

They said the doctor cleared them to take the trip, but Franklin was not acting like himself.

They said they got a second autopsy done by their own doctors which determined that Franklin died as a result of suffocation followed by cardiac arrest due to falling face down in the couch for several minutes.

“You have two possible ways that these injuries could come," said Lomurro. "One of them is through what's called abusive head trauma, formally known as Shaken Baby Syndrome, and the other one is an accidental suffocation.”

He said his client did not kill his child and the medical examiners and investigators got it wrong.

“There's nothing ever, from day one, to point to a history of abuse, that night, the four months of Franklin's life and the 34 years of Tom's life to indicate that he was ever capable of abusing a child,” said Lomurro.

Lomurro said he entered an Alford plea for voluntary manslaughter which allows a defendant to claim innocence without having to go to trial.

Lomurro said the only reason he took the plea deal was because he was concerned if he were to lose the case, he'd be sent to prison for life.

“Tom was facing life without parole for the charges in this case," said Lomurro. "He is a young man and he's looking at the rest of his life in jail without parole. The state offered him a plea agreement to five years.”

Thomas Imschweiler said he doesn’t regret taking the deal but does not feel like he was treated fairly. He and his wife said the authorities involved in the case seem to have their minds made up about what happened.

“They put you between a rock and a hard place and it’s just what I had to do,” said Thomas Imschweiler. “I could not have forgiven myself if we went to trial and I lost."

Lomurro said he accepted the plea because it was in his best interest but he is maintaining his innocence.

“Now he's in jail, maintaining his innocence so with his lawyer, so is his wife and so are the doctors who worked on his case, and that's why it's so important for us to keep fighting,” said Lomurro.

News 3 sent all the documentation available to us to Dr. William McClain, a forensic pathologist not connected to the case for his opinion.

“The truth of the matter is, in this case, I would not be able to say either one of those," said McClain. "I am not convinced that this is a homicide and I'm not convinced that it is not a homicide."

It's an extremely complex case, he said.

“If this was my case and I had to sign Franklin's death certificate," said McClain. "I'd probably called this an undetermined cause of death and undetermined manner of death and I would have lost a lot of sleep about it.”

Laura Imschweiler continues to fight for her husband.

“I want my husband to come home. I want this wrong to be righted but I also want to expose the fallacies that occur when a shaken baby is just accused at families,” she said.

We reached out to the office of the Chief Medical Examiner about this case. They issued the following statement:

The cause of death for Franklin Thomas Imschweiler is abusive head trauma and the manner of death is homicide.  Our office is always willing to review new information as it pertains to cases that our office conducted a death investigation.  However, we ask that any new information be shared with the investigating law enforcement agency and the law enforcement agency will share any pertinent information with our office to review.  This ensures that law enforcement is aware of all information that is being shared with our office as it could possibly impact and/or change their investigation.  Once the new information is shared with our office, we will review it to see if the manner and/or cause of death needs to be changed.  If any changes are made, we will provide copies of new reports to all law enforcement officials, including Commonwealth/District Attorneys.  Therefore, I am recommending that the family reach out to the Currituck County, NC Sheriff's Office to provide them with any new information that they have pertaining to the referenced case. 

The Currituck County Sheriff’s Office told News 3 they had a solid case against Thomas Imschweiler and they were ready to go to trial, but he took a plea deal. They said they had nothing else to say about the case.

The district attorney didn’t respond to our request for comment or an interview.

CHKD sent us the following statement regarding the case:

While medical privacy laws prevent us from commenting on the specifics of Franklin’s care, we can provide the following general statement.  The death of a child is a heartbreaking loss, and we empathize with the deep distress and pain that families experience when a child dies.   

CHKD is committed to the health and safety of children and to the highest standards of patient care and medical ethics. Whenever a child is admitted to our hospital with concerning injuries, we are legally obligated to report this to the appropriate authorities and to cooperate with the law enforcement and child protective agencies who conduct investigations to determine whether abuse has occurred.  

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The entire story can be read at:

https://www.wtkr.com/investigations/dad-claims-innocence-from-prison-of-the-death-of-his-4-month-old-infant-after-trip-to-outer-banks

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PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/120008354894645705/47049136857587929

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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YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/

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Robert Roberson: Texas: The Innocence Project sets out what we need to know about a man who is on Texas death row for a crime that never occurred - as it delves into the 'scientifically unsound' argument that led to his conviction and death sentence…"The overwhelming medical and scientific evidence now shows that Nikki died of accidental and natural causes. Mr. Roberson’s innocence case is attracting growing and widespread support from eminent scientists, doctors, faith leaders, innocence groups, former federal judges, best-selling novelist John Grisham, and the lead detective who testified for the prosecution, who now believes he contributed to an innocent person being sent to death row. The Innocence Project joined Mr. Roberson’s legal team because of the risk that an innocent man could be executed for a crime that never happened."

PASSAGE OF THE DAY:  "The jury was presented with unfounded claims of child abuse. At trial, one nurse claimed she saw signs of sexual abuse in Nikki’s case, though no doctors or other medical professionals involved in Nikki’s care observed any such signs and testing from a sexual assault kit produced no substantiating evidence. The nurse, who presented herself as a “Sexual Assault Nurse Examiner” (SANE), was, in fact, not SANE-certified and offered her personal views on pedophiles in her testimony, further stoking the unfounded claims of child abuse against Mr. Roberson."

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POST: "What to Know about Robert Roberson on Texas Death Row for a Crime that Never Occurred," by Innocence Projectt Staff, published on October 23, 2023.

SUB-HEADING: "Mr. Roberson’s case is riddled with unscientific evidence, inaccurate and misleading medical testimony, and prejudicial treatment."

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GIST: "In January 2002, Robert Roberson’s two-year old, chronically ill daughter, Nikki, was sick with a high fever and suffered a short fall from bed. Hospital staff did not know Mr. Roberson had autism and judged his response to his daughter’s grave condition as lacking emotion. Mr. Roberson was prosecuted, convicted, and sentenced to death under the now-discredited shaken baby syndrome (SBS) hypothesis.     

In 2002, Mr. Roberson’s 2-year-old daughter Nikki died from a combination of undiagnosed pneumonia, an accidental fall, and the impact of respiratory-suppressing medications that she had been prescribed. The devastating loss of his child then devolved into a decades-long injustice. Mr. Roberson was prosecuted and convicted of abusing his daughter and causing her death based on an unscientific version of “shaken baby syndrome” that even SBS adherents no longer endorse.

The overwhelming medical and scientific evidence now shows that Nikki died of accidental and natural causes. Mr. Roberson’s innocence case is attracting growing and widespread support from eminent scientists, doctors, faith leaders, innocence groups, former federal judges, best-selling novelist John Grisham, and the lead detective who testified for the prosecution, who now believes he contributed to an innocent person being sent to death row.

The Innocence Project joined Mr. Roberson’s legal team because of the risk that an innocent man could be executed for a crime that never happened. 

Here’s what you need to know about Mr. Roberson’s case and the scientifically unsound argument that led to his conviction and death sentence.  

1. The prosecution based its case against Mr. Roberson on the hypothesis that Nikki’s death was caused by SBS — a condition that was never scientifically validated and the premises of which have been discredited by actual science.

SBS was first hypothesized by radiologist Dr. John Caffey and neurosurgeon Dr. Norman Guthkelch in the 1970s. The pair proposed that shaking a baby could cause fatal brain bleeds. The “syndrome” came to be associated with a triad of symptoms: bleeding under the dura (the membrane that covers the brain), brain swelling, and retinal hemorrhaging (bleeding in the eyes) — symptoms we now know Nikki experienced due to her pneumonia, the medications she received, and her fall.

Although no evidence or testing ever supported the connection between these symptoms and supposed SBS, by 2001, the American Academy of Pediatrics (AAP) published a position paper — which is not a scientific, peer-reviewed study — stating that violent shaking and “shaken baby syndrome” should be presumed whenever these three symptoms are observed. Faced with what was then believed to be proof beyond dispute, Mr. Roberson’s own defense lawyer agreed with the State that Nikki must have died from SBS. When Mr. Roberson refused to accept a plea deal, his lawyer argued only that Mr. Roberson had not meant to kill Nikki and that he was mentally impaired. 

In 2009, however, six years after Mr. Roberson was sentenced to death, the AAP retreated from the version of SBS used in his trial. Dr. Guthkelch, the neurosurgeon whose paper first posited the SBS hypothesis, later reviewed a number of cases of people asserting innocence and was struck by the number of cases where children had a history of illnesses, indicating their injuries were the result of natural causes, not abuse. In 2015, shortly before his death, Guthkelch told the Washington Post, “I am doing what I can so long as I have a breath to correct a grossly unjust situation.”  Today, no credible science would endorse the SBS premises that Mr. Roberson’s jury was told were sound medical science.

To date, at least 32 parents and caregivers in 18 states have been exonerated after being wrongfully convicted under the shaken baby hypothesis.

Add your name before Texas makes a tragic, irreversible mistake.

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2. Nikki was suffering from myriad medical issues that contributed to her death.

However, no doctor at the time of her collapse took a holistic look at her medical history to rule out all the many possible cases of her symptoms, because it was believed at the time that SBS — and only SBS — could explain her condition.  

A differential diagnosis would have required considering, for instance, the facts that, days after her birth, Nikki had the first of many infections that proved resistant to multiple antibiotics, including chronic ear infections that persisted even after she had had tubes surgically implanted. She also had a history of unexplained “breathing apnea” that caused her to suddenly stop breathing, collapse, and turn blue.

The week before her death, Nikki had been vomiting, coughing, and having diarrhea. When her symptoms didn’t stop after five days, Mr. Roberson and his mother took Nikki to their local emergency room in Palestine, Texas, where a doctor prescribed Phenergan, a potent drug which now carries an FDA black-box warning against being prescribed to children of Nikki’s age and with her condition. Nikki was sent home. Her condition did not improve and, that night, her temperature rose to 103.1 degrees Fahrenheit. The next morning, Mr. Roberson took her to a pediatrician, who sent the toddler home, despite a fever of 104.5 degrees Fahrenheit, and prescribed more Phenergan, as well as cough syrup with codeine — an opioid now restricted from children under 18 by the FDA due to its risks of causing breathing difficulties and death. Nikki’s toxicology report showed lethal levels of the respiratory-suppressing Phenergan still in her system.

The next night, Nikki was at the home of her maternal grandparents where she was supposed to stay. Despite being in a bitter battle with Mr. Roberson over custody of Nikki, her grandparents called Mr. Roberson and insisted he drive out to the country and pick the child up, which he did.

At home, Mr. Roberson put Nikki into bed — a mattress and box springs propped up on cinder blocks. In the early morning, he awoke when Nikki cried out. He found her on the floor at the foot of the bed, stayed up, and talked to her until they both fell back to sleep.

Later that morning, when the alarm went off, Robert discovered that Nikki was unconscious and her lips were blue. He grabbed her face, not knowing how to revive her, and tried to wake her. When she didn’t respond, he brought Nikki to the emergency room where her heart was resuscitated and she was intubated. But by then, she had likely already experienced brain death, which occurs after 10-12 minutes of oxygen-deprivation.

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3. Symptoms of Mr. Roberson’s autism were used against him.

Mr. Roberson left school after completing 8th grade with undiagnosed autism spectrum disorder — which impacts how people communicate and interact with others. Symptoms of autism can include avoiding eye contact, “unusual” mood or emotional reactions, the appearance of indifference, fixation on details that strike others as “abnormal,” and difficulty expressing feelings.

Hospital staff, who did not know that Mr. Roberson has autism, were suspicious of his flat affect and interpreted his response to his daughter’s condition as lacking emotion. They viewed his inability to explain Nikki’s condition as a sign that he must be lying.

• “I am doing what I can so long as I have a breath to correct a grossly unjust situation.”

Dr. Guthkelch

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4. Misguided SBS diagnoses prevailed.

The same doctor in Palestine who had treated Nikki for vomiting, coughing, and diarrhea by prescribing Phenergan treated her again, when Mr. Roberson rushed her to the emergency room. After a CT scan on Nikki’s head showed bleeding under the dura and brain swelling (two of the alleged triad of SBS symptoms), the doctor concluded that it would be “basically impossible” for Nikki’s condition to be caused by a fall out of bed or anything other than abuse.
   
Because the local hospital in Palestine was not equipped to treat Nikki, she was transported on life support to Dallas Children’s Hospital, where her case was referred to a child abuse pediatrician. This doctor did not review Nikki’s medical history; she spoke only to law enforcement and the maternal grandparents who insisted Nikki had been “totally well.” Upon reviewing Nikki’s CT scans, she saw no fractures of any kind and no neck injuries, but she saw the triad of conditions she considered to be a certain indicator of SBS. The doctor “diagnosed” violent shaking as the one and only possible cause. She then gave an affidavit about her SBS diagnosis to law enforcement, who arrested Mr. Roberson before Nikki’s autopsy was even performed.

The medical examiner who conducted the autopsy did not have any information about Nikki’s extensive medical history. She was also not aware of the CT scans, which showed a single, minor impact on the back right of Nikki’s head (consistent with Mr. Roberson’s report of a fall), nor did she have Nikki’s toxicology results, which would have shown toxic levels of Phenergan.

 

Robert Roberson with his daughter Nikki before she passed away. (Image courtesy of the Roberson family)

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5. The jury was presented with unfounded claims of child abuse. 

At trial, one nurse claimed she saw signs of sexual abuse in Nikki’s case, though no doctors or other medical professionals involved in Nikki’s care observed any such signs and testing from a sexual assault kit produced no substantiating evidence. The nurse, who presented herself as a “Sexual Assault Nurse Examiner” (SANE), was, in fact, not SANE-certified and offered her personal views on pedophiles in her testimony, further stoking the unfounded claims of child abuse against Mr. Roberson.

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6. Top neuropathologists and forensic pathologists support that Nikki died of natural and accidental causes.

In 2016, a week before Mr. Roberson’s scheduled execution date, the Texas Court of Criminal Appeals stayed his execution based, in part, on a then new law permitting legal challenges based on changes in science used to obtain convictions. His case was sent back to the trial court, which conducted a nine-day evidentiary hearing in 2021. There, experts explained that SBS had been discredited and provided compelling evidence that Nikki died of natural and accidental causes. A pathologist testified that Nikki suffered from a severe form of undiagnosed viral pneumonia that has since been more widely studied due to COVID-19. Signs of Nikki’s advanced pneumonia were noted in her autopsy but, at the time, were unexplained. Tragically, unaware of Nikki’s pneumonia, her treating doctors prescribed her with high levels of prescription medication (found in autopsy toxicology results) that are now understood to be deadly in children of Nikki’s age and in her condition. And biomechanical evidence now shows that short falls like Nikki’s can cause severe injury and even death, an explanation for Nikki’s condition that was vehemently rejected by every medical witness who had testified at her trial.

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7. Mr. Roberson deserves a fair shot at justice before it’s too late. 

The trial court ignored new evidence from six expert witnesses and rubber-stamped the prosecution’s 17-page proposed findings of fact and conclusions of law, which relied almost exclusively on the outdated scientific evidence introduced at the 2003 trial and conducted when the medical establishment accepted unquestioningly that the triad of intracranial conditions observed in Nikki could be used to “diagnose” shaking and abuse.

While the State has not yet sought a new execution date, his life is still in jeopardy. Mr. Roberson has never had a true chance at justice in this case — his federal right to due process and a fair trial were violated by the State’s introduction of false and misleading forensic science. Actual science — supported by studies and empirical testing — has exposed that no crime occurred here. 

Mr. Roberson must have his actual innocence claim fairly considered by a state actor before Texas makes a tragic, irreversible mistake. Add your name to stop this injustice.

https://innocenceproject.org/what-to-know-about-robert-roberson-on-texas-death-row-for-a-crime-that-never-occurred/

PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/120008354894645705/47049136857587929

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;

------------------------------------------------------------------

YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/

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