Why prosecutors in child deaths shy away from the murder rap 
Some go for murder, while other prosecutors file lesser charges

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Byline: Warren Cornwall     2/15/98

Whether a child's death is prosecuted as murder in Idaho depends on geography, not just evidence.
In recent years, child killers in some parts of the state faced murder charges and stiff sentences. Elsewhere they encountered lesser charges and spent as little as a year in prison for similar deaths.
Prosecutors aren't pressing the most severe charges because they think it's unwarranted, because they have murky medical evidence and because they fear Idaho juries won't believe someone could murder a child.
Others say those prosecutors are applying outdated reasoning, are too conservative or may lack experience with child abuse deaths.

Sometimes it's called murder

Prosecutors in some counties have taken a tough stance on child deaths, emboldened by a recent Idaho law that makes it easier to charge alleged child killers with murder.
In 1991, the state Legislature expanded the felony murder law so that anyone suspected of committing aggravated battery in the death of a child under 12 could be charged with first-degree murder. The legislation is part of a national trend. In the 1990s, 21 states passed laws that treat child homicides differently than other killings.
The change means Idaho prosecutors don't need to prove someone meant to kill a child, just that they abused the child badly enough to cause death.
That's a big switch, said Julianne Meehan, who prosecuted child abuse cases for Ada County for 10 years. Prosecutors in earlier cases had to fight claims the defendant accidentally killed the child, not realizing how little force was fatal, Meehan said.
Now children get special protection, a recognition of their frailty and vulnerability.
Someone who gets angry and violently shakes or hits a child should be held to a tough standard, Meehan said.
The new law also helps prosecutors win over juries reluctant to think people intentionally kill children, said Madison County Prosecutor Sid Brown. Brown, who sits on a child abuse task force appointed by the governor, is using the law to prosecute a 20-year-old Rexburg man for allegedly killing his 9-week-old son, William Genther.
"People just don't want to believe that people abuse children," he said.

Sometimes it's called manslaughter

Some prosecutors, however, are reluctant to use the law, opting instead for charges of manslaughter or child abuse, which carry mandatory sentences of as little as one year.
Jerome County Prosecutor John Lothspeich said he doesn't think it's fair to charge someone with murder unless it can be shown they meant to kill someone. He charged a 23-year-old man, Michael Elison, with involuntary manslaughter in the 1997 shaking death of his girlfriend's 22-month-old son. He added an enhancement to the manslaughter charge, which raises the maximum possible sentence from 10 to 30 years.
Police say the man violently shook the child two different times. The first time, the boy was flown to a Boise hospital with head injuries. The second time he died from severe brain damage.
"I think people have difficulty on a neglect case, where people didn't intend to kill, attributing that to out-and-out murder," said Lothspeich, who won a conviction in the case in early December.
Meehan expressed disbelief at Lothspeich's manslaughter decision, particularly since the man allegedly hurt the child twice.
"I think here it would be no question (that it would be a murder charge)," she said.
In Blaine County, just 60 miles from Jerome County, a woman faces murder charges for allegedly shaking a baby to death.
On New Year's Day 1997, Michelle Baldwin, a 23-year-old woman, walked into a Hailey hospital holding Anthony Northrup, a 11/2-year-old boy she was baby-sitting. The child was suffering from hypothermia and trademark signs of violent shaking - severe brain damage and bleeding in the retinas of the eyes. He died two days later.
Baldwin told police and a Health and Welfare worker the boy had fallen in the bathtub, according to a Health and Welfare report. Her defense attorney has maintained the boy could also have suffered the injuries from a fall several days before his death.
Based on the evidence of violent shaking, Blaine County Prosecutor Doug Werth said the death fell well within the realm of aggravated battery and murder. The first trial recently ended with a deadlocked jury, and Werth has refiled first-degree murder charges.


Sometimes it's
called child abuse

Faced with unfriendly juries and a case relying largely on medical evidence, other Idaho prosecutors turn to child abuse rather than murder charges, because abuse is easier to prove.
Kootenai County Deputy Prosecutor Lansing Haynes handled two of those abuse cases. A jury convicted 24-year-old Kevin Merwin for the 1995 shaking death of Alexander Buss, his girlfriend's son. Merwin has insisted the child fell off a bed, but doctors who autopsied the boy said he died from inflicted head injuries.
A jury also convicted 35-year-old Federico Cortez in the 1995 shaking and beating of his girlfriend's 2-year-old daughter, Christina Campanelli. She died four days after she was hospitalized for her injuries. Cortez maintained he was innocent.
Both are now free. Cortez spent one year in jail, the minimum for his one to five year sentence. Merwin spent two years in jail, after being sentenced to serve two to five years.
That angers Donald Buss, Alexander's father.
"My son's gone, and he (Merwin) gets two years. It's hard to put faith in a system that works like this," Buss said.
Haynes said he didn't press murder charges because he couldn't prove exactly how the men killed the children. He was certain each of them had done it, because their stories didn't match the injuries, and because each was the only adult with the child when the child was hurt. But he had no witnesses, no confession and no physical evidence showing exactly how the children got hurt.
"If you're going to charge someone with murder, you should be able to show what they did to cause that death," he said.
Robert Parrish, the lead child abuse prosecutor for Utah's Attorney General's office, calls that reasoning behind the times.
"If we hold out for that, we will never file a case. That's the old traditional thinking in prosecutor's offices," said Parrish, who has a reputation across Utah for winning child murder cases other prosecutors considered unwinnable - often because they had only circumstantial evidence. He is currently rewriting part of a child abuse prosecution training guide for the National Center for Prosecution of Child Abuse.
Child abuse murder cases often hinge on medical evidence, without the benefit of witnesses or confessions. In those cases, Parrish said, the key is testimony from medical and child abuse experts. They can help narrow the reasons why a child died, and say whether certain injuries come from abuse or accidents, or whether the stories offered by defendants really explain the injuries.
The lack of evidence, however, makes Haynes leery of facing a jury. Child abuse murder cases are notoriously difficult to win. Idaho prosecutors who do file murder charges in child deaths often fare poorly in court. Of five child murder cases that went before juries in the last four years, only one resulted in a conviction.
"You have to base your charging decisions on what you are likely to get a conviction on," said Kootenai County deputy prosecutor Haynes, who did file first-degree murder charges in a child death earlier this year. The father, John Franzatti, confessed to shaking his girlfriend's 4-month-old son. A jury acquitted Franzatti.

Sometimes it's
called an accident

The reliance on experts can pose problems for prosecutors unfamiliar with the technical side of child abuse. They must sift through conflicting claims of how a child got hurt, and medical evidence figures prominently in those decisions.
Prosecutors in Bingham County opted not to file a murder charge against 23-year-old Canuto Molina in the 1996 death of his son, Cedric, partly because doctors gave conflicting opinions about whether the child's death could have been an accident. Molina pleaded guilty to child abuse charges, and is serving a minimum of two years in prison.
But questions surround the conclusions of the doctor who said the death might have been an accident.
Dr. Kerry Patterson, then a forensic pathologist in Burley, conducted the first autopsy. Forensic pathologists are doctors trained to decipher the medical evidence surrounding a possible homicide.
Patterson found a skull fracture, bleeding in parts of the child's brain and into the child's retinas, a recently broken rib and an aging rib fracture. He concluded the child died from the head injuries. Those findings have gone unchallenged.
But Patterson, who had limited experience with autopsies on children, also told prosecutors he couldn't say whether the child's death was an accident or a homicide.
That, said a veteran forensic pathologist, is just plain wrong.
"It is scary that this pathologist doesn't recognize the fact that this is obviously a Shaken Baby Syndrome. It's more than Shaken Baby, it's a badly beaten child," said Dr. Robert Kirschner, who reviewed the autopsy report for the Post Register.
Kirschner, a forensic pathologist and associate in the Department of Pathology and Pediatrics at the University of Chicago Medical School, worked for 17 years as a deputy chief medical examiner in Cook County, which encompasses Chicago. During that time, he said, he performed hundreds of autopsies on children.
He said Patterson's findings were marred by serious inaccuracies.
Patterson had stated that retinal bleeding, though associated with shaken baby syndrome, was also seen in accidents causing brain injuries or deaths where people tried to resuscitate the person. Patterson also said a healing rib fracture probably happened when the child was resuscitated at birth. And he offered no explanation for the recently fractured rib.
The Chicago doctor, however, said other than violent shaking, such bleeding occurs only from high-speed car crashes or long falls. He dismissed the claim the healing rib was inadvertently broken. Resuscitation almost never produces rib fractures, he said. If it had been broken at birth, the fracture would have virtually disappeared by the time the child died, he said. He also noted rib fractures often accompany abusive shaking.
"It's just not possible that this could be accidental," the former Chicago deputy medical examiner said.
Patterson, who said he quit working as a pathologist after 10 years and rejoined the Air Force as a medic, declined to respond to Kirschner's criticism.
"That's his opinion, he's entitled to it, but I have no comment on that," he said. Patterson estimated he performed autopsies on a total of 20 to 30 children while in Burley.
Carter Mackley, the Bingham County deputy prosecutor who handled the case, had been told the 31/2-month-old's death was a homicide. Dr. Maureen Frikke, a Utah assistant medical examiner, reviewed the case and concluded Cedric was battered to death. But Mackley said he has doubts about experts who label injuries as abuse with such certainty.
Those doubts were heightened by Patterson's conclusions.
"He came up with ambiguous findings, and I respected his opinion," Mackley said.
Canuto Molina first told police and physicians that he didn't know how his son got hurt. After failing a lie detector test, Molina told police the baby had slipped from his arms while he was standing in a bathtub, and had cracked his head on the side of the tub.
Mackley said it also would have been hard to convince a jury it was murder, particularly when the case relied on disputed medical conclusions.
"The probability that you're going to get one person who can say, 'We can't convict this guy on this evidence,' is pretty high," he said.
Sifting through different medical findings can be difficult, particularly for attorneys who don't specialize in child abuse cases, said Parrish, the Utah prosecutor.
"The very best prosecutors in the world may not know anything about child abuse homicides, and they are a very unique kind of thing," he said.
To counter that, Utah's Attorney General's office now has a special division that advises counties on child abuse investigations and prosecutions, or takes over cases counties won't pursue.
Idaho's Attorney General's office created a scaled back version of the Utah team in 1992. However, Attorney General Al Lance dismantled the team in 1996 when federal funding dried up, said LaMont Anderson, the team's chief.
Madison County Prosecutor Sid Brown said training for prosecutors is critical, particularly in smaller counties where attorneys handle a wide range of crimes. Idaho now uses a federal grant to send prosecuting attorneys to training seminars about child abuse prosecution. But Brown said he was still sorry to see the task force disbanded.
"I think it was a good idea to have that team in the Attorney General's office," he said.
Successful prosecutions of child killers also depend on public education, said Charles Phipps, an attorney at the Children's Law Office at the University of South Carolina Law School who has studied child murder prosecutions around the country.
States with high conviction rates on such cases often are reaping the benefits of public awareness campaigns that reach potential jurors, he said. That's particularly true with Shaken Baby Syndrome.
"You have to make people aware that acts like Shaken Baby Syndrome are violent acts. You don't just accidentally shake a baby to death," Phipps said.
Parrish echoed Phipps' advice. But he also said prosecutors can help shift public attitudes, and improve their chances of winning, by getting tough in the courtroom.
"You've got to start taking risks," Parrish said.