Tag: murder by child abuse

MY FIRST MURDER CASE

August 7th, 2025

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.
PSEUDO MUNCHAUSEN BY PROXY

June 3rd, 2025

Assistant Solicitor Debbie-Herring Lash

Judge Daniel E. Martin, Jr.

There is so little thanks for lawyers who take on the fight against child abuse, there must be a special place for them in heaven. Most lawyers shy away from the heartbreaking work because they know, no matter how good a job they do, families will be torn apart, and scars will be left the legal system cannot possibly heal. Thankfully, there are a few lawyers who become committed to the necessary work, both as advocates and judges. Two such lawyers I worked with over my career were Assistant Solicitor Debbie Herring Lash and Family Court Judge Danny E. Martin, Jr. I worked with them on a protracted murder by child abuse case that started out in the Court of General Sessions criminal court as a murder case and ending up as a removal action in the Family Court. Despite the charge of homicide by child abuse, both Ms, Herring-Lash and Judge Martin kept an open mind and treated everyone caught up in the tragedy with dignity and respect. I call this my Pseudo Munchhausen-by-Proxy murder case because of the pseudo-science offered to support the charge of murder at trial. Families were torn apart, and scars were left that will never heal left, but because of Ms. Herring-Lash and Judge Martin’s dedication, justice was finally done.

It happened twice. Her son, still a toddler, stopped breathing and turned a deathly shade of gray. Alone and unable to speak English, his mother dialed 911 and frantically ran to the neighbors to speak for her. Thankfully, both times, the toddler recovered before EMS arrived. The second time, however, EMS took the mother and child to the hospital where the mother thought they were trying to find out what was wrong with her son. But the suspicion of child abuse had been planted and what they were actually doing was watching the interaction between the mother and child to see if the mother was making the child sick to gain attention for herself, a rare medical diagnosis called Munchausen by Proxy.

Nothing untoward was observed during the hospitalization, except for the mother telling the nurses her son slipped her grip while she took him with her to the bathroom, stumbled, and hit his head on the tiled bathroom wall leaving a small red bruise requiring no treatment. Observing no other questionable conduct, the hospital discharged the mother and her son with a home heart monitor for him to wear. Whether the mother couldn’t figure out how to put the monitor on properly, or the toddler figured out how to wiggle out of it, or the monitor never worked properly to begin with, the monitor either showed a normal heart rhythm or complete gibberish. That’s when the unthinkable happened and the toddler died one night in his crib. An overzealous DSS case worker, determined to make up for not acting sooner, urged the police to file the homicide by child abuse charge. The detective went along and swore out the warrant naming the case worker as his sole source for probable cause. The terrified mother was arrested, I was retained by her family, and the case was assigned to Assistant Solicitor Debbie Herring-Lash.

The specter of the crime alleged was enough to cause a sky-high bail bond neither the mother nor her family could afford. Ms. Herring-Lash, who was head of the child protective services unit, had more active cases than any lawyer could be expected to handle, so it’s hardly surprising the mother languished in jail for a long time before the case came to Ms. Herring-Lash’s attention. Once it did, it didn’t take long for Ms. Herring-Lash to notice the complete lack of corroborating physical evidence supporting the charge, no broken bones, scars, bruises, or forensic signs of abuse or neglect. The cause of death listed on the autopsy report was asphyxiation, but Ms. Herring-Lash was familiar with crib death and wasn’t persuaded it was murder. When she read the file and saw the mother didn’t have any criminal record, no history of substance abuse or mental illness, and both the child and his older brother had been seen for regular medical check-ups and were always found to be in perfect health, she instructed her investigator to dig deeper into the case.

When interviewed by the investigatyor, the detective said he was relying on the DSS caseworker. The case worker, in turn, said she was relying on the toddler’s breathing problems only occurring when he was alone with his mother and no medical condition having been found to explain his symptoms. To the DSS worker’s way of thinking the absence of evidence proved it was Munchausen-by-Proxy. The investigator reported back to Ms. Herring-Lash and added neither the caseworker nor the detective had interviewed any member of the mother’s family because they didn’t speak Spanish.

She didn’t have to, but Ms. Herring-Lash called me as the mother’s attorney to ask if I objected to her interviewing my client’s family. Now a lot of lawyers would have refused fearing some ruse to gather evidence against their client, but I knew Ms. Herring-Lash from prior dealings and not only agreed but offered to bring the family down her office to be interviewed. Ms. Herring-Lash wisely said no, she’d rather interview them in their home. I knew she was right and agreed to set it up.

The mother’s family lived in an old trailer park in the Hannahan area. The outside of the trailer looked run down, but the father and son had completely renovated the inside. It was immaculate, comfortably furnished, and nicely decorated. The mother’s room had been left undisturbed while she was in custody and, although cramped with beds for the mother and her two children, it too was organized, neat and clean. The whole family gathered for the visit. None of them spoke English but anyone with eyes could tell immediately how honored they felt by the busy prosecutor visiting their home. Ms. Herring-Lash’s investigator translated when the grandmother spoke for the family thanking Ms. Herring-Lash for coming and welcoming her into their home. After formal introductions all around and a proud tour of the trailer by the grandfather, Ms. Herring-Lash sat down in the living room with the family and started asking questions about the toddler. When she asked if they had ever witnessed the child stop breathing like the mother described they all shook their heads and replied no. I was worried by their response but Ms. Herring-Lash was experienced and asked a follow-up question, had they ever witnessed the toddler having any breathing problems at all? The family all started talking at once. The grandfather said he thought the boy had asthma. The grandmother thought he got overexcited and hyperventilated. An uncle who had done a lot of renovations on the trailer thought he might be allergic to the mold that permeated the old trailer. They all agreed he was allergic to something but couldn’t agree on what. Ms. Herring-Lash asked one final question, had the boy experienced any of his attacks when his mother wasn’t around. An aunt said she remembered he once had an attack when all the children were watching tv while the mother was out and everyone nodded their heads in agreement.

Ms. Herring-Lash spent a good hour in the family’s home. She’d seen and heard enough, thanked the family for meeting with her, and left with her investigator. I remained behind and told the family I didn’t know what she would do but felt good about the meeting. What she did was to dismiss the Murder by Child Abuse charge outright later that afternoon. The mother was released from the county jail that evening. I can’t say I did much more than believe in my client’s innocence in getting the charge dismissed and gladly give credit to Ms. Herring-Lash. I can say, however, I have had very few clients in my career who were ever so thankful. Ms. Herring-Lash is well known for her success in prosecuting child abuse offenders. She deserves to as well known for protecting innocents caught up in the system. Unfortunately, it wasn’t long after her release, we learned the mother’s ordeal was far from over.

The DSS caseworker was incensed the criminal charge had been dismissed without her agreement and brought a removal action on the theory the mother killing her younger son meant there was a risk of harm to his older brother. At the initial hearing DSS was willing to allow the child to remain in the mother’s home only on condition the mother was never left alone with the child and agreed to attend and successfully complete child abuse counseling. I knew from experience such a plea would leave my Spanish speaking mother at the whim of a therapist handpicked by DSS. She’d ultimately be caught in a catch 22; in order to successfully complete counseling, she’d have to admit killing her son which she adamantly denied. We agreed to mother and child would not be left alone to avoid temporary removal but rejected the plea and requested a trial. The temporary hearing judge accepted my alternative proposal and ordered the case to be placed on the trial docket.

The trial finally came to be heard before the Honorable Danny E. Martin, Jr., who I had never appeared before but, had practiced with his father, Daniel E. Martin, Sr., both when he was a Deputy Solicitor and later when he became a Circuit Court Judge. I figured if Judge Martin was anything like his father, my client would get a fair trial. My client wasn’t just unable to speak English; she was emotional being both Hispanic and a mother afraid of losing her remaining child in a legal system she neither understood nor trusted. The greatest lawyer that ever lived couldn’t have explained the reasons to her why this legal nightmare was back in court for trial. All I had was her trust in me as her lawyer until we appeared before Judge Martin. I don’t know if he sensed her apprehension or it was just his judicial temperament, but he took his time explaining the proceedings through an interpreter and that helped calm my client.

The Department of Social Services sent an attorney all the way from headquarters in Columbia to prosecute the case. The first thing he did was try to impress the judge saying the case had special importance to the South Carolina Department of Social Services because it involved Munchausen-by-Proxy. Judge Martin quickly disposed of any notion the lawyer may have had he would treat the case any different than any other. The DSS lawyer thought he’d lead off with his big gun, a Munchausen-by-Proxy expert whose rather threadbare credentials he laid out before offering her as an expert witness in the field of psychology. Many young lawyers have forgotten, when an opponent offers an expert, you can request to vior dire the expert about their qualifications before the judge admits their opinion testimony. Being able to raise doubts about expert’s qualifications before they testify is a valuable tool in a litigator’s toolbox. Apparently our expert wasn’t aware of the rule and, as I began my questioning, she avoided my questions and puffed herself up repeating her testimony about having a psychology degree from an Atlanta university. I wasn’t familiar with her university, so I looked it up. I asked her if her university was located on the third floor of an office building located off the interstate? She bristled when I produced copies of the school’s webpage, but reluctantly admitted the students took classes online. To fight back against my suggestion the school was less than accredited, she shot back that, in addition to her degree, she was licensed by the State of Georgia. I thanked her for her non-responsive answer but then forced her to admit she was only a licensed clinical psychologist, not a licensed psychologist allowed to administer psychological tests or assess psychological illnesses under Georgia law. She started squirming and lost eye contact with the DSS lawyer when I said I’d reviewed the school’s curriculum and hadn’t found any courses on Munchausen-By-Proxy. True to form, she chose not to answer my question and launched into a diatribe on how the basic knowledge she received from her university psychology classes qualified her to address the issue. Which only made it worse when she then admitted no such courses were offered. So, I asked, “Where did you get the education and training to qualify you as an expert in Munchausen-By-Proxy?” She replied smugly, “I attended a seminar on the topic and chose to focus my career on helping children affected by the disorder.” Upon objection, I withdrew my final question, “So you appointed yourself an expert in the field?” I concluded my vior dire and could see Judge Martin was concerned but, the legal bar for qualifying an expert being so low, he qualified her while reserving his right to rule on the admissibility of her opinions when she offered them. It wasn’t the ruling I’d hoped for, but I knew the damage to her credibility had been done.

The problem with sending a DSS lawyer from department headquarters to try a case is they’re probably a desk jockey and not a litigator. I just sat back and watched as the DSS lawyer fumbled his case. I don’t think he knew what a leading question was because, he asked so many of them, I gave up objecting, The reason I stopped objecting was because he wasn’t having any more luck getting the so-called expert witness to answer his questions than I had. She thought she could just give practiced textbook sounding answers to whatever questions she was asked much to the DSS lawyer and Judge Martin’s dismay. The DSS lawyer finally gave up out of frustration. Since I’ve danced with recalcitrant expert witnesses before, I kept my cross examination short and to the point. Her opinions set forth in her written report were based on facts provided by the case worker that had been investigated and rejected by the solicitor. In the end, when she wouldn’t concede, if her facts were wrong, then her opinions were probably wrong too, I knew I was done with her and so was Judge Martin.

The harder witness for me by far was the doctor from the Medical University of South Carolina who testified next for DSS. I accepted her qualifications as an expert without hesitation. Young lawyers too often think cross examination is a blood sport and don’t understand not all opposing witnesses are incompetent, uncaring liars. A lawyer should always ask themselves what the witnesses’ motive is for giving their testimony. The good doctor from the Med U was a highly skilled, intelligent, and caring physician. Her motive was solely a desire to prevent children from being abused or neglected in any form. She appreciated my acknowledging that fact in my opening cross examination. I stopped being a black hearted criminal defense attorney in her mind and she became much more willing to truthfully answer my direct questions. Like admitting she had no training or experience diagnosing or treating Munchausen-By-Proxy. She sheepishly admitted she was relying on the discredited Munchausen-By-Proxy expert for that opinion. She readily admitted doctors involved in child abuse purposefully cast a wide net to protect children but understood a judge’s job is more confined than that, as it should be. She tossed the causation issue right back into the lap of the so-called expert. I thought the good doctor was going to shake my hand on the way out of the courtroom.

The DSS lawyer didn’t understand the case was over already and his calling the case worker just made things go from bad to worse when I questioned her about how much money DSS had spent for the pseudo-Munchausen-By-Proxy expert’s testimony. Her hourly rate, even for driving time, her hotel room and expenses, added up to nothing short of outrageous. I noticed the detective who swore out the warrant had been waiting outside the courtroom to testify but was never called. Normally, a judge will take a case under advisement before issuing a decision, but Judge Martin had heard enough and dismissed the case from the bench finally ending my client’s nightmare.

I am often surprised when people comment on my trial stories wanting to know what happened to the people who caused so much hurt to my client. I explain that’s not my job, my job is help extricate my client from the nightmare. Those same people may wonder why I would praise Ms. Herring Lash and Judge Martin for doing their jobs. I praise them because their job is so hard and so often gut wrenching. So much so, too often judges, prosecutors, and others involved in the system can get jaundiced toward anybody charged with child abuse. I praise them because they didn’t let the murder charge prejudice them against my client and kept an open mind. It took a long time, and left deep scars, but both Assistant Solicitor Debbie Herring-Lash and Judge Daniel E. Martin, Jr. helped me do my job and helped free an innocent mother from being unjustly punished for a crime she did not commit.

Tag: murder by child abuse

MY FIRST MURDER CASE

PSEUDO MUNCHAUSEN BY PROXY