Cases Face Medical and Legal Blocks Flimsy Excuses Often Accepted in Baby Deaths; Sentences in Child Deaths Are Unpredictable, Varied, Lenient

Cases Face Medical and Legal Blocks Flimsy Excuses Often Accepted in Baby Deaths; Sentences in Child Deaths Are Unpredictable, Varied, Lenient
Concluding article by Nancy Lewis, Washington Post Staff Writer
From the Washington Post, September 21, 1998.

Samantha Greene, a bright-eyed inquisitive toddler, was dead on arrival at Laurel Hospital in January 1996. Her mother's boyfriend, Troy Brookman, then 22, said he had found the girl on the floor of her bedroom after she had had a seizure. His 911 call was filled with panic.
Doctors questioned his story immediately. They saw a fresh bruise on Samantha's face in the shape of an open hand and bruises on her buttocks and later found small hemorrhages under her scalp and a mark on her head.
Laurel police had questions, too: What about the $50,000 life insurance policy that Brookman, a cash-strapped construction worker, had taken out on the healthy little girl just two days before she died?
Over several days, Brookman gave police six different accounts of what had befallen the 2-year-old. In one, she stumbled down steps; in another, she wrapped herself tightly in a blanket, fell and hit her head against a radiator.
None of the stories, the doctors said, explained her injuries. None of them persuaded a Prince George's County jury, either, and last year a judge sent Brookman to jail.
But not for murder.
Brookman is serving 15 years for child abuse.
A review of recent child death cases in the Washington area found few that were followed by murder convictions.
The forensic challenges in distinguishing accident from malice are one hurdle in the vigorous pursuit of child killers. The leniency of some judges enters in, as does the difficulty of proving an intent to kill.
In Samantha's death, the assistant Maryland medical examiner who handled the case said he simply couldn't tell what killed her. None of her injuries would have been fatal, yet because of them, he said, it would be "foolhardy" to say Samantha died of natural causes.
He wouldn't call her death homicide, and without that ruling, under Maryland law, Brookman couldn't be tried for murder.
It was an obstacle Laura Martin, the assistant state's attorney on the case, could not overcome, even after an expert testified that blood and saliva stains on a pillowcase in Samantha's room showed that the pillowcase likely was used to smother her.
Child killers can go undetected or accused killers can draw light penalties for a variety of reasons. Doctors and medical examiners may lack expertise in spotting telltale childhood injuries. Investigative resources are thin, with too few people and too little coordination. There are shortcomings in the laws covering such killings and in their sentencing. Family members often resist the idea a child killer may be among them. And, even among the most passionate advocates for a dead child, there is an emotional strain in developing case after horrible case.
Alone and in combination, those factors explain why area children too young to know they were in danger -- and too young to fend off attack -- have been killed, and little notice paid to their deaths.
The Forensic Puzzle
Savvy doctors call it the "killer couch" excuse.
A small child is beaten or shaken to death by an adult who then claims the injury came in a fall from a couch.
Never mind that young children rarely suffer serious, much less fatal, injuries in falls from low heights. The killer couch excuse endures because there is too little training in the distinctive nature of childhood injury and too little suspicion about motives, experts say.
"We get a lot of very, very well made-up excuses," said Craig Futterman, associate director of pediatric intensive care at Inova Hospital for Children
Falls from sofas or tables or counter tops are offered as the cause of perhaps 20,000 deaths and injuries a year nationwide, according to Robert Kirschner, former Cook County, Ill., deputy medical examiner, who was one of the first pathologists in the nation to focus primarily on children's deaths from abuse and neglect. Probably none of the explanations is true, in his view. Many doctors "buy into" ludicrous explanations. "Minor falls cause minor injuries," Kirschner said, "not life-threatening ones."
Deaths of children from abuse and neglect have been the subject of medical investigation for about 50 years, a relatively short period. The rise of specialists in forensic pathology for children -- doctors trained to read the clues that lie in a child's body -- is even more recent, dating from 1990, according to the American Board of Pathology.
When the weapon is not a gun or a knife, but a pillow or a hand, the challenge in finding the cause of death soars.
"What's distinctive about children's deaths? Everything," said Jonathan L. Arden, the new D.C. chief medical examiner.
Children's bones do not break in the same manner, their quick healing masks old injuries, and they don't show the same bruising as adults. They also cannot react to violence as adults would. Adults who are smothered, for example, are usually strong enough to fight back, a defensive act that leaves physical evidence. Infants are weak and do not know how to fight off a smothering, leaving so few clues it would be hard to distinguish a homicide from sudden infant death syndrome.
All jurisdictions have their own rules governing when an autopsy is required in a child's death. Maryland, Virginia and the District do not require autopsies in every child death, even when abuse is suspected.
An autopsy does not guarantee a solid answer to what happened to a child, however. At times, the quality of completed autopsies has been so much in dispute that local prosecutors have brought in outside experts to shore up their cases. That problem has occurred in several places but was particularly acute in the District before Arden's arrival.
In the 1997 death of Robert C. Williams Jr., the D.C. medical examiner's office first said the 11-year-old died from an irregular heartbeat after being punched in the chest by his father, then changed the cause of death finding to strangulation. In less than a week's time, the office reversed itself after medical experts called in by prosecutors questioned the validity of the finding of strangulation.
In Samantha Greene's death, the prosecutor hired an expert in blood stains to supplement what the medical examiner reported. That expert testimony cost Prince George's County $10,000 -- an expense that can be prohibitive in most cases.
National protocols for autopsying children suspected of dying of child abuse or neglect dictate extensive X-rays and toxicological testing. To be further confident a doctor feels secure testifying that abuse caused a death, "we have to run strange and unusual lab tests," to rule out everything from rickets to failure-to-thrive syndrome that might otherwise explain broken bones or stunted development, said Donna Seelye, coordinator of Shady Grove Adventist Hospital's sexual abuse and assault center.
Absent those tests or testimony from a high-priced medical expert, a defense attorney will offer every alternative explanation for a death, confounding a jury or a judge.
The vicious nature of a fatal baby shaking, for example, comes through only with a medical report that shows how fierce the motion is, how it pops blood vessels behind a child's eyes, literally scrambling the brain and causing it to swell until it can swell no more inside the skull.
Said Sandra Sylvester, a prosecutor in Prince William County: "Shaking doesn't sound that terrible unless you can show that its effects are like what would happen if an 18-wheeler rear-ended your car. And then did it again. And again."
Investigating Suspicious Cases
No local police department has a specially trained unit that exclusively investigates child killings. And despite a web of laws, regulations and procedures to encourage teachers, social workers, hospital staffs, police and prosecutors to work together against suspected child abuse, there are glaring breakdowns and noncompliance.
To get crucial information -- which helps before an autopsy and as a case unfolds -- police need to get quickly to a death scene. Delay, and scalding water can cool, witnesses can flee or a house can be scrubbed clean.
Determining the true cause of every child's death demands examining a home as thoroughly as any other crime scene, said Bill Hammond, who conducts training sessions nationally for the U.S. Justice Department in how to investigate children's deaths.
"You have to jump on these cases quick," said George Taylor, a detective and 21-year veteran of the D.C. police force. A day or two later, "the cooperation has faded away."
Taylor has spent a half-dozen years chasing the meanest gang members in the city. Now he is assigned to the "naturals squad," the homicide unit charged with investigating bodies that suddenly float to the surface of the Potomac River, old people who die at home in their sleep, people who jump off bridges to commit suicide and most of the city's baby deaths.
A former seminarian with a grown son and daughter whose childhoods he concedes he missed by being a workaholic, Taylor said investigating child deaths is his "way of giving something back to the children."
Imposing at 6 feet 2, street-smart but unfailingly polite, Taylor has become the department's point man for child abuse and neglect deaths. He's signed up for every training session possible, paid his own way to many, put himself on call 24 hours a day, seven days a week and is supposed to be notified and briefed on all child deaths.
Taped inside his notebook is a laminated card of about a dozen questions that a D.C. police detective is expected to ask concerning any child death. It's the same list detectives have been using for at least two decades. A new multi-page protocol has been under development for more than a year, but in the meantime, detectives rely on that short list.
The tools D.C. homicide detectives have to help them investigate child deaths are just as old and out of date as the laminated card. There is no computerized directory of child deaths, no quick way to check whether other children in the same family have died. There is no list of families with histories of child abuse reports. There is no easy way to obtain medical histories of children whose deaths are suspicious, nor are there cooperative agreements among area hospitals for routine sharing of medical records.
Such sharing could help counter the "hospital hopping" that several national studies have found precedes some child abuse deaths. The studies show that parents who eventually kill their children often make several failed attempts and usually take the children to different hospitals for treatment to escape detection.
Federal prosecutors are reviewing the suspicious deaths of two children -- one in 1984 and another in 1988 -- of a District woman, Tracey McPherson, who pleaded guilty last year to cruelty to children after another child, Tre, fell out of a third-story window. Three days after the fall, according to a police report, a nurse found McPherson holding a plastic bag over Tre's head in a hospital bathroom. He survived that, too.
Prosecutors later uncovered that during a 30-month period, Tre had been to various emergency rooms 16 times -- mostly for unexplained breathing difficulties.
Laws in the District, Maryland and Virginia require health professionals, school officials and social service workers to report suspected child abuse. But those laws are rarely followed, in letter or in spirit.
The focus should be not only on "the pain of knowing that children are dying needlessly but on the knowledge that what we do determines whether children live or die," said Deanne Tilton Durfee, past chairman of the U.S. Advisory Board on Child Abuse and Neglect.
Thousands of children in the Washington area visit emergency rooms, private physicians and health maintenance organization offices, yet most reports of child abuse and neglect made by hospitals to area jurisdictions come from only two centers: Children's Hospital in the District -- about 400 referrals a year -- and Inova Hospital for Children in Fairfax County -- about 200 referrals a year. Those hospitals are the main trauma centers for children in the area.
There are virtually no reports from private practices or HMOs, and several other area hospitals require that abuse and neglect suspicions first be "vetted," or reviewed and screened, before they are reported.
Suburban jurisdictions make it easier for hospitals to report suspected abuse and neglect cases because they maintain special hot lines. Reporting cases to the District is tougher, hospital officials say, because there is no central number to call, leaving hospitals to contact one of four agencies.
Neither Children's Hospital nor Inova Hospital for Children has a full-fledged child protection team of the sort common in children's hospitals operated by teaching institutions across the country.
As a final backstop on some children's deaths -- suspicious and not -- the District, Maryland and Virginia each has a child fatality review committee to study the details and suggest ways to prevent similar deaths. The reviews, which involve looking at official records and causes of death, however, routinely trail a death by weeks, occasionally years, and not every child death comes before the committees. The jurisdictions vary on the circumstances that prompt a review.
All three committees also lack reliable public funding and operate with borrowed employees, donated computer space, volunteer members and few grants.
And they have little clout.
None can order a criminal investigation and only the District and Maryland committees may challenge an original finding on a cause of death. Only the District's committee has done that, and it has done so only once and not in a child homicide case.
The Fairfax County committee, a separate group, has issued general recommendations about preventing child deaths, focusing on car safety seats and seat belts. The Virginia state committee deals with no active child fatality cases, instead conducting themed campaigns, such as last year's on preventing gun-related injuries.
The Maryland child fatality committee, operating since 1993, has never issued a report of any kind.
The Questions Before the Court
Between 1992 and April, a Washington Post review found, 72 cases resolved in area courts in which the dead victims were children younger than 5 whom police said were homicide victims.
A handful of defendants were found not guilty. One killing brought a life term. But in the rest of the deaths, the defendants received widely varying terms, from decades to several instances of fully suspended sentences or probation. And their sentences in the killings were not always for a form of murder but for charges down to cruelty to children.
Throughout the region, prosecutors have often found it hard to obtain first- or second-degree murder convictions in child abuse cases because they must show that the accused meant to kill the child or should have known that the abuse could cause fatal injuries. Defendants, however, often testify that they did not mean to kill, or did not expect that a child could die as the result of their actions.
Those explanations can prove persuasive to a judge or jury, a truth that confounds Assistant U.S. Attorney June M. Jeffries, the prosecutor assigned to some of the District's most awful child death cases.
"Why do people get away with saying that they didn't know that punching a child or hitting a child in the head would kill him, when if you did the same thing to an adult it would kill them . . . and this is a person of tender years and body?" Jeffries wonders.
"These children are dead and most of them, all they were doing was being a child," she said, "crying, throwing down a bottle, wetting the bed, running around."
In August 1996, Tabitha Meekins would not stop crying, and so, her mother told police, she shoved a rag into the 4-month-old's mouth. Tabitha suffocated.
Her mother, Lisa Ruby, was put on probation after Carroll County Circuit Judge Luke K. Burns Jr. found her guilty of manslaughter and child abuse but suspended her jail time, ruling that the prosecution failed to show she intended to kill Tabitha. Burns, who at the time said he expected criticism for the sentence, called it "proper" and "fair."
In May, though, Burns reimposed Ruby's nine-year sentence after finding she had violated virtually all the conditions of her probation.
When he was a D.C. Superior Court judge, Deputy U.S. Attorney General Eric H. Holder Jr. heard dozens of cases involving children. But he said he had no real sense of the overall number of children who face abuse and neglect daily, in part because neglect and abuse proceedings are conducted behind closed doors.
It was only after Holder became U.S. attorney for the District, he said, that he began to understand how few child homicide and severe child abuse cases were prosecuted criminally. Holder helped push for a change in D.C. law -- adopted last year -- that elevates killing a child by torture or beating to the level of first-degree murder. There are no similar felony murder statutes in Maryland or Virginia, and the District law applies only when there has been prolonged or brutal abuse, and likely not in shaken baby cases, where the killing comes in a single violent outburst.
The absence of those added provisions makes it harder to overcome the disbelief a person would intentionally kill a child, particularly their own.
But they do.
Testimony in local cases reviewed by The Post are a compilation of horrors -- that much is consistent. But the sentences in the past few years are a bewildering array.
In Prince George's, a Glenarden man shook to death a 3-year-old girl and got 12 years in jail. Yet in Loudoun, an au pair shook a 2-month-old -- who later died -- and was returned to Holland with an order to spend 12 months on probation.
A Charles County father squeezed the breath out of his month-old son, received a 10-year sentence for involuntary manslaughter and had eight of those years suspended. Yet a Montgomery County mother who suffocated her day-old baby got no jail time. She pleaded guilty to voluntary manslaughter and got an eight-year jail term -- every day of it suspended.
Even in cases of ongoing abuse and torture, there is no predictable outcome. When a man and his girlfriend starved, beat and suffocated a 1-year-old in the District, before dumping her body in the trash, they received 20 years apiece in prison for murder. Yet when a Takoma Park man beat his girlfriend's 2-year-old daughter and delivered a final, fatal blow to the stomach, he was charged with murder but pleaded guilty to involuntary manslaughter. His sentence: 10 years in jail with all but two years suspended.
The differences may stem from "trying to pigeonhole crimes directed towards kids into adult statutes," and from the attitudes of juries and judges who react "to the fact a parent has lost a child, without focusing on why that loss is there," said Brian Holmgren, executive director of the National Center for Prosecution of Child Abuse, based in Alexandria.
Police, prosecutors and medical experts who testify often in court say their ultimate frustration comes when sentencing judges mete out punishment less severe than they had hoped.
Adrian Gabriel Escoto's father punched and shook him so hard that the 7-week-old lapsed into a coma. Doctors at Shady Grove Hospital alerted police when they recognized the baby's injuries didn't match his parents' explanations.
"That man came in and cried and cried in the hearing, saying how sorry he was and carried on, yet everyone involved knew that baby was going to die. It was a real tragedy," said Frank Young, who retired recently as head of the unit that investigates physical and sexual child abuse cases in Montgomery County. Adrian's father, Julio, received a five-year suspended sentence for battery and reckless endangerment after pleading guilty in Montgomery County in 1996, while his son was still in a vegetative state.
Adrian did die, weeks later, without ever wakening. But by that time, his father's case already was wrapped up.
The Grip of Family Ties
When Tracy A. Gilmore went to training courses on how to prosecute child killers, she said she was told, "'The only two people who care about that dead baby are you and your lead detective.' They were right."
Gilmore, deputy state's attorney in Carroll County, said having even one relative aligned with the prosecution is unusual. Loyalties shift to the family member who remains -- the accused -- and away from the dead child, and affects investigations, trials and sentences.
Samantha Greene's mother believed for weeks that Brookman, her boyfriend of only a month and the man who said he wanted to make a better life for Samantha, could never have harmed her baby.
"It was right under my nose and I didn't see it," said Stephanie Moomau, who has since married and is the mother of another young daughter.
Brookman never collected on the insurance policy he'd taken on the little girl. The money eventually went to Samantha's mother -- and the first thing she paid for was a headstone for her daughter's grave.
The "saddest cases are ones where the mother shows up for the trial pregnant with the defendant's child. It's like she's given up on the child who was killed and doesn't care anymore," said Sylvester, the prosecutor from Prince William.
It was she who helped prosecute Marty Patrick Underwood for the 1992 killing of 17-month-old Hayli Jackson in Manassas.
Hayli's mother, Kelly, has never swayed from her belief in the innocence of Underwood, her then 23-year-old boyfriend. Of Hayli's family, only her grandmother, Carol (Kelly's mother) testified against him during his trial. Kelly, who became pregnant with Underwood's child while he was awaiting trial, testified on his behalf. She also married him.
Underwood said Hayli had lapsed into unconsciousness after falling down steps. A jury took less than five hours to convict Underwood of first-degree murder for shaking her to death. They recommended a 50-year sentence. The judge imposed 30 years.
Deysi Quijada was pregnant with the child of Vikman Rios Vargas when he shook her baby, Beatriz Andrea, 16 months old. The baby girl died.
Vargas later told Fairfax County police that he shook Andrea, as she was called, because she was "overreacting" -- screaming and crying -- to her mother's leaving the room.
Days before Andrea's death, Quijada told a nurse that Vargas had kicked her despite her pregnancy. Nonetheless, Quijada wrote an emotional letter to the judge presiding over Vargas's case, saying the altercation was a misunderstanding and adding, "I know that he is incapable of hurting a child."
Vargas, originally charged with first-degree murder, entered an Alford plea -- similar to no contest -- to involuntary manslaughter. Under Virginia's recommended sentencing guidelines, he faced a minimum of probation and a maximum of just six months in jail. Instead, Fairfax County Judge Dennis J. Smith sentenced Vargas to 7 1/2 years with 4 1/2 years suspended, leaving Vargas with three years to serve.
Social service agencies and courts have traditionally shown deference to preserving families, but that can come at great cost to children, said Holder. As U.S. attorney, Holder hired additional staff to focus on identifying and prosecuting child killing cases in the District.
"If I had just one thing I would change that would bring fewer children to me, I would change the emphasis from preserving pathologic homes to protecting children," said Marcella Fierro, state medical examiner for Virginia. "You cannot send a newborn home with a junkie mother and father who is a bum and expect a good outcome."
When the outcome turns its worst, though, it is sympathy, not suspicion, that descends on a family.
"You've got to be able to deal with some family members seeing you as a real louse when you come in to ask questions right after a child has passed away," said Young, the retired Montgomery County detective.
Resentment, resistance and stress can be particularly strong when authorities seek testimony from siblings, who can often provide vital information in these investigations.
Rose Young was charged with first-degree murder in the death of her son Devonta. When he died at the age of 2, he weighed 20 pounds. According to medical records introduced in court, he had gained no weight for a year, and his short life had been filled with beatings and abuse.
His 8-year-old sister told police, and later described under oath to a grand jury, a beating she said her mother inflicted on Devonta the day he died. She told police she hoped her mother would never see their taped interview with her.
After her testimony to the grand jury, the girl went to live with her maternal great-grandmother, who began to say that the criminal case was stressful for the child, according to documents filed in D.C. Superior Court.
Soon after, Devonta's sister recanted her statements to police, and her great-grandmother put her into a residential counseling program.
Devonta's sister was not called as a witness at the trial, and her mother did not take the stand.
At trial in June 1997, Rose Young was acquitted of first-degree and second-degree murder charges. She was sentenced to 40 months to 10 years in prison for cruelty to children. She has appealed her conviction on that charge.
The Emotional Toll
The investigators and prosecutors who work on child abuse deaths face a process that is emotionally exhausting, heart-wrenching, inexorably sad. Tiny bodies laid out on cold, steel, adult-size autopsy tables.
The skin on little arms peeled back to show deep bruises barely visible on the surface. Miniature-size organs exposed, with damage so obvious it requires no professional explanation.
The sight of Devonta lying dead in the emergency room was the saddest thing he'd ever seen, D.C. homicide detective Taylor recalled. "In his eyes, he had the look of a Holocaust victim. He had a look that he could just take no more."
Just talking about their cases tightens the throats of veteran police officers, brings tears to the eyes of experienced prosecutors.
When very young children are killed, "those cases aren't the ones you jump for as a homicide detective because they're complicated and hard, and hard on you as a person," Young said.
Even for doctors, "there are incentives to turn your head," said Carole Jenny, director of the Child Protection Team at Hasbro Children's Hospital of Brown University in Providence, R.I., who has worked as a consultant to review autopsy results and medical reports in several child death cases locally.
"To make the diagnosis [of fatal child abuse or neglect] is a time-consuming, resource-consuming process" and ultimately a "major hassle," she said. "You get involved with the criminal justice system, which is a lot of bureaucracy. Then you have to deal with a furious family, and despite the safeguards that are supposedly in place for reporting suspected child abuse, we have all been through lawsuits. It is incredibly difficult for a physician who makes that call."
Many times, silence and denial win out, even among professionals, said Tilton Durfee, the past chairman of the national child abuse advisory board.
The children who die of abuse and neglect are too often "invisible victims. They are the children whom some doctor or nurse, neighbor or teacher saw was being abused or neglected and did nothing," Tilton Durfee said. "If someone had noticed, they might not have died."
ABOUT THIS REPORT
As part of its reporting for this series, The Washington Post undertook a broad analysis of child deaths in the Washington area.
The analysis was conducted based on information from death certificates of 4,598 District, Maryland and Virginia children younger than 5 who died from 1992 through 1995. The information is collected by each jurisdiction and forwarded by law to the National Center for Health Statistics. It does not contain names of individuals but does group deaths by a person's age, home county or city, and cause.
Maryland declined to provide The Post with all of its data. Both Virginia and the District released data, although in the case of the District, the raw information is recoded by the center before being used in national studies. The Post acquired the Maryland statistics using public information posted on the National Center for Health Statistics site on the Internet. As a result of this process, the most up-to-date, comparable data that could be obtained for all three jurisdictions was from 1995.
The data were submitted to Bernard Ewigman, who with his wife, Coleen Kivlahan, and Garland Land, have studied child deaths that are attributed to accidents. Their six-year study, conducted in Missouri, has become the hallmark of child death investigations. In it, the researchers compared information extracted from death certificates, autopsies and medical records with reports kept by child protective services, courts, police and schools, and discovered abuse cases that had gone undetected.
From that study, Ewigman and national epidemiologists developed formulas that can be applied to raw data to unmask abuse deaths amid the deaths that officially are attributed to accidents such as falls or drownings. They applied these formulas to the death data for the Washington area provided by The Post.
In addition, The Post interviewed other specialists -- including Michael Durfee of the Los Angeles Department of Health -- about the patterns of child deaths in the Washington area. Interviews also were done with numerous doctors, forensic specialists, police officers, social service workers and others involved in child death investigations.
Suspicious Explanations
Medical experts say doctors sometimes accept as fact clearly unrealistic explanations of how a child was injured or killed. Robert Kirschner, former deputy medical examiner for Cook County, Ill., compiled a list of 12 common suspicious stories used by adults.

Child fell from a low height (less than four feet), such as a couch, crib, bed or chair.

Child fell and struck head on floor or furniture, or hard object fell on child.

Child unexpectantly found dead (when age and/or circumstances were not appropriate for sudden infant death syndrome).

Child choked while eating and was therefore shaken or struck on chest or back.

Child suddenly turned blue or stopped breathing and then was shaken.

Sudden seizure activity occurred.

Aggressive or inexperienced resuscitation efforts were used on a child who suddenly stopped breathing.

Alleged traumatic event happened one day or more before death.

Caretaker tripped or slipped while carrying child.

Injury inflicted by sibling.

Child left alone in dangerous situation (e.g. a bathtub) for just a few minutes.

Child fell down stairs.

SOURCE: Robert Kirschner, former Cook County (Ill.) deputy medical examiner
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