A young man with a wife and infant baby joined the Army when he couldn’t find decent work withy benefits in his hometown. He was stationed at Fort Jackson in Columbia, South Carolina, to receive his basic training. They planned was his wife and baby to live with his parents until he finished boot camp, but his wife unexpectedly got pregnant with their second child,prolonging their separation. After boot camp the soldier recieved orders for AIT, advanced individual training, at Ft. Jackson to become an MP.  After the birth of their second child, he found an off-base apartment so his wife and two boys could join him.

It was a struggle making ends meet on his meager Army pay but struggle they did looking forward to a better future. At least his family had TriCare medical coverage so his family could receive regular medical care. They were poor but happy and healthy. Little could they imagine just how fragile their world would turn out to be.

Several months after the family reunited, the two-year-old caught a bad upper respiratory infection. About the time he was getting over it, he gave it to his mother and baby brother who was just shy of six months old. One morning, sick as a dog herself and exhausted after feeding the two-year-old breakfast, the mother fell asleep on the sofa in the living room with the baby cradled in her arms. The next thing she knew, she awoke suddenly with the two-year-old standing at the other end of the sofa and her baby lying on the floor between the sofa and coffee table. She jumped up and snatched her baby off the floor as she realized he wasn’t breathing. She ran to the phone in the kitchen and dialed 911 for help. When the operator told her to stay on the line, she dropped the phone but could still be heard in the background frantically trying to revive her baby. Tragically, it was too late .

An examination revealed the baby had a fractured skull and subdural hematoma which the doctor concluded could not have been caused by falling off the couch. The mother still in shock was arrested and charged with homicide by child abuse. A DSS caseworker, concerned the father couldn’t care for the older child by himself, convinced a police officer to take him into emergency protective custody triggering a South Carolina law requiring an emergency removal hearing before a Family Court judge.

The serviceman husband didn’t have enough money to bail his wife out of jail, never mind enough money to retain a partner in the law firm where I was working to represent his wife on the murder charge. All the father could scrape together was enough to hire me, the newest associate in the firm, to represent him for the Family Court removal hearing. The father’s parents, where the mother and the children had lived before moving to South Carolina, were already driving to South Carolina to take custody of their grandson. I thought that would resolve the need for a hearing but the DSS attorney informed me DSS policy prevented her from agreeing to an out of state placement without a complete home study investigation. The best she could offer was, if the mother and father would consent to a finding of probable cause to keep the surviving child in DSS custody, DSS would consider the grandparents for temporary and permanent placement.

Neither the husband nor mother would agree they had done anything to harm or endanger either child and I figured DSS would have to consider placement with the grandparents no matter what happened at the hearing, so we rejected the plea offer. That’s how I found myself representing the family at the removal hearing. Little did I know it was the beginning of my first murder case.

At the hearing the DSS attorney called the doctor who diagnosed child abuse as her first witness thinking to make short shrift of the hearing. His credentials were impressive. He was a distinguished looking doctor in his mid-to-late forties who had been trained in pediatrics at our Medical University of South Carolina. The Judge readily qualified him as an expert witness entitling him to give opinion testimony. He testified x-rays revealed the infant had a minimally displaced fracture on the back of his skull but he went on to explain, it wasn’t the fracture, it was the increased intracranial pressure caused by a subdural hematoma or bleeding on the brain, that caused the infant’s death. When asked if a fall from the sofa could have caused the baby’s injuries, the doctor emphatically said no and launched into a long speech about how infant’s skulls remain pliable after birth when they have to have squeeze through the birth canal and that the medical literature has established the amount of force generated by falling off a couch is insufficient to cause a fracture like the one found in this case.  Did he have an opinion based on a reasonable degree of medical certainty what caused the infant’s injuries in this case? Why, yes he did and said it was most probably child abuse as if it was an irrefutable fact. Thank you, doctor, please answer any questions this young lawyer in way over his head may have.

I timidly asked the doctor, so it’s your opinion there wouldn’t be enough physical force generated from falling off the sofa to have caused this infant’s  fractured skull? That’s correct, he answered confidently, before gratuitously adding, a standing baby’s head is higher off the ground than a sofa and they fall all the time without fracturing their skulls as if to say case closed. But something didn’t sit right with me, so I asked, what if the baby was standing up on the couch, that would put his head, what four or five feet off the floor, wouldn’t that be sufficient to cause a fractured skull. No, the doctor again said again without hesitation, there has been no description in the medical literature of children fracturing their skullds falling off furniture period, end of discussion. I detected condescension in his voice like I wasn’t smart enough to understand simple physics, so I pressed on. What if he struck the back of his head on the edge of the coffee table as he fell, couldn’t that concentrate enough force to have caused the fracture? The doctor had obviously been down this road before and dismissed my question with a wave of his hand explaining yes that could happen, but added if that were the case I would have found localized tissue damage where the head struck the table edge and I didn’t find any of that in this case. Okay, but what if his older two-year-older brother pushed him forcibly backwards off the couch onto the hard floor, could that cause enough force to cause the fracture and hematoma? For the first time I noticed the doctor hesitate, thinking hard whether he had ever read any medical articles addressing such a scenario. Deciding he hadn’t, he apparently felt secure enough to express his unsupported opinion on the subject. No, in my opinion that still wouldn’t be enough force to cause the injuries I observed. Doctor, I noticed you didn’t say anything about the medical literature supporting your opinion, do you know of any articles you can refer us to to support your opinion that being pushed aggressively by an older sibling off a sofa couldn’t be sufficient? Not off the top of my head, counselor, he said slightly miffed, my opinion is based on my education and training in pediatrics, and my years of treating thousands of abused babies hoping that would be the end of it. But somehow his answer wasn’t as convincing as his earlier testimony. I could sense his façade of infallibility weakening and him beginninng to worry he was skating on thin ice. So I pressed on, trying as best I could, to reenact the scene in the family’s apartment that morning with my own body movements. What if the baby’s mother, sick herself with the flu, exhausted, and disoriented having just woken up on the couch to find her baby lying on the floor. She jumps and grabs her baby panicking when she realizes he’s not breathing. She runs to the kitchen and frantically calls 911. When the operator says to stay on the phone, she drops the phone but can still be heard forcibly placing her baby on a hard kitchen floor as she tried to revive him. Do you think that could have caused the baby’s fractured skull? The doctor to his credit thought carefully before answering and suddenly he wasn’t quite so sure of himself. And neither was the judge when the doctor finally admitted reluctantly that was possible.

The DSS attorney still wasn’t oveerly concerned because the burden of proof in a Family Court removal hearing is probable cause, not proof beyond a reasonable doubt like in a criminal case. She called the DSS case worker to testify. Her opinions were two-fold, first, based on the medical testimony, she had reason to believe the younger child died as a result of child abuse and, second, the active-duty father was unable to care for the older child by himself. When it was my turn to question the caseworker, I asked her where the older child lived for the first year and a half of his life. She admitted he lived with his grandparents, the father’s parents. And, when the baby was born, where were he and his mother living? Again, she admitted with the grandparents. And when the children moved here was the family covered by TriCare health insurance? Yes. Did they receive regular medical checkups? Yes. And did any of those checkups report any signs of child abuse ever having been suffered by either child? Er, no. And the reason you told me the grandparents couldn’t take custody of the boy again, was because DSS policy prohibits out of state placements without a full investigation, isn’t that right? Yes, that is correct. So, is it your testimony it would be in the child’s best interest to be traumatized further by being placed with strangers in foster care while DSS investigates to determine what it already knows to be true, that his willing and able grandparents can provide a safe home? No, er, yes, that’s that’s what the policy is. So, I asked, if the judge doesn’t find probable cause, and custody reverts back to his father, would DSS have any objection if he consented to his parents taking custody of his son? She said she didn’t know but the judge did and that’s exactly what he did.

Not only did I win the hearing, but, when the grandparents raised about half the amount of money the partner had quoted for a fee, they said they wanted to hire  me for the murder case. While this created somewhat of a stir at the firm because associates aren’t supposed to run cases out from under partners, it was also a feather in my cap I probably wasn’t ready for. The senior partner in the firm decided I could represent the mother but only under supervision. The lawyer he assigned to help me was a very experienced medical malpractice and products liability litigator. With this being my first murder case, I was glad to have all the help I could get.

I wish I could write everything turned out with the jury finding the mother not guilty, she reunited with her family, and they all lived happily ever after but the practice of law rarely turns out like a fairy tale. More often, even on a good day, it turns out to be more of a tragedy. We didn’t have money to hire our own forensic medical witness, so I carefully constructed our defense around the doctor’s family court testimony it was possible the mother accidentally caused the skull fracture when she panicked. That is by definition reasonable doubt. And the trial was going well, with all the prosecution witnesses admitting  there was no evidence of any abuse or neglect of either child before this incident. There was no confession, no eyewitness, and no physical evidence of abuse, and the DSS caseworker and police were relying solely on the doctor’s opinion as to the cause of death. The jury was receptive to my description of the families’ struggles, the mother having panicked when her baby stopped breathing, and they appeared visibly moved as they listened to the recording of the 911 call. All that was needed was the doctor’s admission it was possible the death was accidental. This is when the more experienced medical malpractice lawyer was supposed to step in and show me how it’s done.

And his cross examination of the doctor began masterfully. He was also in his mid-to-late forties, and every bit as distinguished looking as the doctor. His understanding of the medical terminology was so impressive before long the jury couldn’t distinguish who was the medical expert and who was the lawyer. But somewhere during the examination, the lawyer donned his medical malpractice hat and started sounding more as if he was accusing the doctor of causing the infant’s death. The more he pressed, the harder the doctor dug his heels in and the more absolute his opinions became. By the time he got to the critical question about the mother panicking, the doctor was adamant, no, that couldn’t explain the injuries he found. He could impeach the docter withbhis prior Family Court testimony but the problem was the jury liked the kindly doctor and didn’t appreciate the lawyer attacking him. I was demoralized thinking we’d lost the jury and the case.

Fortunately, all was not lost, and the mother made a very believable and sympathetic witness. Her testimony touched some of the juror’s hearts. They acquitted her of the murder by child abuse charge but convicted her of the lesser included offense of involuntary manslaughter, causing the death of another while engaged in conduct showing a reckless disregard for the safety of others, and the judge imposed the maximum sentence of five years. I was devastated but the lawyers in the firm celebrated the “Kid’s” first victory in a murder case. I took some solace learning the mother was eligible for parole after serving one-third of her sentence. I last heard from her when she was up for parole and she told me she’d was serving her sentence as a trustee doing housekeeping at the Governor’s mansion. She was granted vparole but never reunited with her husband or son.

They call it practicing law because you’re supposed to learn something from every trial. The lesson I learned from this trial was cross examination isn’t a blood sport. Never go after a witness aggressively unless you absolutely have to and can nail them dead to rights. Most witnesses want to do the right thing, even though they may sometimes get things wrong. Genty suggesting a witness has made a mistake can avoid alienating the jury and still leave the door open for the witness to make helpful admissions like the doctor did in the Family Court.