respondent’s post-hearing brief - medill …€™s post-hearing brief pursuant to this court’s...

IN THEUNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION______________________________________________________________________________

United States of America ex rel. ) JENNIFER DEL PRETE, )

)Petitioner, )

)v. ) No. 10 C 5070

)MELODY HULETT, Warden, ) Lincoln Correctional Center, ) The Honorable

) Matthew F. Kennelly,Respondent. ) Judge Presiding.

______________________________________________________________________________

RESPONDENT’S POST-HEARING BRIEF

Pursuant to this Court’s January 18, 2003 order, Doc. 97, respondent submits

this post-hearing brief in support of the denial of petitioner’ s28 U.S.C. § 2254

petition for a writ of habeas corpus.

I. Background

The State convicted and sentenced petitioner for the murder of a three-

month-old baby girl, Isabella Zielinski. Ans. 1. State experts opined that the baby’s

death resulted from “shaken baby syndrome” (“SBS”). Id. Petitioner raised two

grounds for relief in this Court: (1) insufficiency of the evidence; and (2) ineffective

assistance of trial counsel for (a) failing to call a better expert; or (b) failing to move

to exclude the State’s expert testimony regarding SBS. Id.; see also Doc. 26 at 5.

This Court noted that the latter half of petitioner’s second claim—that trial

counsel was ineffective for not seeking to exclude evidence—was defaulted and

Case: 1:10-cv-05070 Document #: 101 Filed: 02/04/13 of 55 PageID #:2359

- 2 -

ordered an evidentiary hearing to determine whether to reach that claim. Doc. 26

at 7. To reach the merits of the defaulted claim, petitioner “must establish that, in

light of new evidence, ‘it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518,

536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This standard

“ensures that petitioner’s case is truly ‘extraordinary,’ while still providing

petitioner a meaningful avenue by which to avoid a manifest injustice.” Schlup,

513 U.S. at 327.

Respondent argued that such a hearing was unnecessary because petitioner

could not hope to demonstrate that she could have prevailed in a state court hearing

that sought to exclude the State’s medical evidence under the standard announced

in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Doc. 49 at 2. This Court

disagreed and proceeded with the hearing. Doc. 55. In a hearing conducted

December 17 through December 21, 2012, and continued January 14 to January 16,

2013, the parties presented testimony and reports from a number of experts to

determine whether petitioner could demonstrate her case was “extraordinary”

under the Schlup standard.

II. As An Initial Matter, This Court Need Not Address WhetherPetitioner Met The Schlup Standard.

While this Court previously held that petitioner might be able to demonstrate

that counsel’s failure to request a Frye hearing in state court was prejudicial, Doc.

55, it is now certain that such a claim would fail. Accordingly, there is no need to


- 3 -

spend judicial resources to adjudicate the facts disputed in the evidentiary hearing.

This Court should simply hold that petitioner’s unexhausted claim lacks merit.

To succeed on this claim, petitioner would need to demonstrate that it was

objectively unreasonable for counsel to make a motion that has never been

successfully argued in Illinois: that the State is barred from presenting SBS

evidence. But counsel cannot be ineffective for failing to raise an argument that

was “doomed to fail.” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009). Under

Illinois law, a court faced with a request for a Frye hearing would determine

whether “the methodology or scientific principle upon which the opinion is based is

sufficiently established to have gained general acceptance in the particular field in

which it belongs.” People v. Swart, 860 N.E.2d 1142, 1157 (Ill. App. 2006). And

general acceptance “does not require that the methodology be accepted by

unanimity, consensus, or even a majority of experts.” Id. “If the novel scientific

evidence has gained general acceptance in the particular field in which it belongs,

then the evidence is presumed reliable and will be deemed admissible[.]” Id. at

1158.

The State presented testimony at this hearing from numerous medical

experts, all of whom concluded that petitioner was responsible for Isabella’s death.

These experts explained that their diagnoses were based on research and

methodologies that were generally accepted in the medical field, and petitioner

never attempted to present any evidence to the contrary. See, e.g., Tr. 303-04


- 4 -

(Hedlund, methods commonly accepted); Tr. 539 (Forbes, references relied upon

generally accepted); Tr. 570 (Forbes, methods generally accepted); Tr. 1076-77

(Jenny, studies relied upon generally accepted); Tr. 1049-52 (Jenny, explaining how

physicians diagnose abusive head trauma). One of petitioner’s experts admitted

that the methodologies used and the diagnosis of shaking alone were commonly

relied upon. Tr. 179 (Barnes, retinal hemorrhages commonly used to diagnose

abusive head trauma); Tr. 186-87 (CDC recommended definition of abusive head

trauma includes “impact and/or violent shaking”).

To sustain her burden at a Frye hearing in state court, it would not be

enough for petitioner to produce experts who disagree with the State’s experts, she

must demonstrate under Illinois law that the State’s experts’ methods were not

“sufficiently established” to be admissible. Swart, 860 N.E.2d at 1157. Petitioner

has made no attempt at this showing; indeed, some of her experts admitted that

Isabella’s injuries could have been caused by abusive head trauma, though they

ultimately disagreed with the diagnosis. Tr. 78, 102, 182-8

At least one Illinois court has already signaled that such a Frye motion would

be futile. People v. Armstrong, 919 N.E.2d 57, 74 (Ill. App. 2009). Armstrong sent a

strong signal that petitioner’s claim lacks merit, noting that “[t]he American

Academy of Pediatrics and the United States Centers for Disease Control recognize

that shaking a baby can result in death or permanent neurological disability[,]” and

that there is “no conflicting Illinois judicial decision on the admissibility of Shaken

Baby Syndrome” evidence that might justify a Frye hearing. Id. at 74-75. Given


- 5 -

that at least one Illinois court has signaled that it would reject such a claim, and

that petitioner presented no evidence to support her claim, counsel cannot be

deemed ineffective for refusing to bring a futile motion. Mirzayance, 556 U.S. at

124. And that should be the end of the matter: even if this Court excused

petitioner’s default, the forfeited claim lacks merit.

III. Legal Standards For Evaluating The Evidence Presented At TheHearing

If this Court elects to review the evidentiary hearing, the Schlup standard

governs. As discussed above, petitioner bears the burden of demonstrating that her

case is “extraordinary.” She must show that it is “more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

Schlup, 513 U.S. at 327. In determining whether petitioner has met this burden,

this Court must consider “‘all the evidence, old and new, incriminating and

exculpatory, without regard” to whether it would have been admissible at trial.

House, 547 U.S. at 537-38 (quoting Schlup, 513 U.S. at 327-28). “The court’s

function is not to make an independent factual determination about what likely

occurred, but rather to assess the likely impact of the evidence on reasonable

jurors.” House, 547 U.S. at 538.

Here, “all the evidence” consists of the original trial record, medical records,

police reports, and “new” evidence in the form of expert reports and testimony.

Unsurprisingly, the parties’ experts disagree on why Isabella suffered a collapse

that eventually proved fatal. Fact-finders are frequently called upon to adjudicate


- 6 -

factual disputes between medical experts with directly conflicting views. See, e.g.,

Moberly ex rel. Moberly v. Sec. Health & Human Services, 592 F.3d 1315, 1324 (Fed.

Cir. 2010). In federal court, fact-finders may use the same factors to weigh expert

testimony that are normally used to evaluate admissibility under Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993). Moberly, 592 F.3d at 1324; see also

Elliott v. Commodity Futures Trading Comm., 202 F.3d 926, 934 (7th Cir. 2000)

(“Daubert and [Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)] were

decided in the context of admissibility, but the principle for which they stand—that

all expert testimony must be reliable—should apply with equal force to the weight a

factfinder accords expert testimony.”). Among other factors that arise in any

particular case, four important factors for evaluating expert testimony are: “(1) the

testability of the hypothesis; (2) whether the theory or technique has been subject to

peer review and publication; (3) the known or potential rate of error; and (4)

whether the technique is generally accepted.” Libas, Ltd. v. United States, 193 F.3d

1361, 1366-67 (7th Cir. 1999) (citing Daubert, 509 U.S. at 593-94).

Any unreliable testimony should receive “little if any weight.” Elliott, 202

F.3d at 934; see also Muzzey v. Kerr-McGee Chemical Corp., 921 F. Supp. 511, 521

(N.D. Ill. 1996) (finding two doctors unqualified to testify as to hematology). The

weight to be given to medical journals discussed by the experts, or used in cross-

examining the experts, should also be evaluated for reliability and the weight

afforded any one article depends upon its contents. See, e.g., Woods v. United


- 7 -

States, 200 Fed. Appx. 848, 855 (11th Cir. 2006) (unreported) (not crediting medical

journal articles for a proposition they did not directly support and that experts had

criticized in testimony). The admissibility of such journals should not be an issue in

a Schlup hearing because the court should consider “all the evidence.” The

reliability, acceptance in the field, and relevance of those journals goes to their

weight. As discussed below, petitioner has failed in her burden to muster

sufficiently reliable medical evidence to meet the Schlup standards.

IV. List of Respondent’s Exhibits

Respondent has submitted the following exhibits to assist the Court in

reviewing records presented, or relied upon, at the evidentiary hearing:

Doc. 16, Resp. Exh. Q (3 files): original trial transcripts, including testimony

from:

State’s witnesses:

Barbara Zielinski (victim’s mother), Q1 at 213;

Gleanne Kehr (daycare operator), Q1 at 266;

Detective Kenneth Kroll, Q1 at 287;

Dr. Adrian Nica (physician), Q1 at 348;

Dr. Jeff Harkey (pathologist), Q1 at 376;

Dr. Howard Hast (pediatric physician), Q1 at 423;

Dr. Emalee Flaherty (pediatrician), Q1 at 470; and

Petitioner’s witnesses:

Andrea Ashmus (friend of petitioner), Q1 at 525;


Since not all of the prepared exhibits were used at the evidentiary hearing, the1

numbering of exhibits is not always sequential.

- 8 -

Joann Gailus-Brotsch (friend), Q1 at 537;

Julie Morlock (client), Q1 at 545;

Douglas Fulmer (youth pastor), Q1 at 550;

Gleanne Kehr (daycare operator), Q1 at 555;

Erin Rose Prunty (library board), Q1 at 589;

Karli Hinton (coworker), Q1 at 599;

Steve Blake (client), Q2 at 5;

Megan Heligas (librarian), Q2 at 21;

James Beckiring (pastor), Q2 at 29;

Christine Lee Murphy (client, nurse), Q2 at 43;

Brennan Murphy (client), Q2 at 75; and

Dr. Wayne Tucker (pathologist), Q2 at 94.

Respondent’s Hearing Exhibits

Exh. 1 Barnes June 2012 report;

Exh. 2 Barnes testimony list;

Exh. 3 Chapter from Diagnostic Imaging;

Exh. 4 Barnes article, CT Findings in Hyperacute Nonaccidental BrainInjury;

Exh. 5 Barnes report from People v. Reim;

Exh. 7 Pediatric Abusive Head Trauma;1


- 9 -

Exh. 10 Hedlund report;

Exh. 11 Hedlund CV;

Exh. 12 Abusive Head Trauma, Adamsbaum & Rambaud;

Exh. 13 Retroclival Epidural Hematomas, Tubbs et al.;

Exh. 14 Traumatic Retroclival Epidural Hematoma in a Child, Kwon etal.;

Exh. 15 Does Intracranial Venous Thrombosis Cause SubduralHemorrhage in the Pediatric Population? McLean, Frasier, &Hedlund;

Exh. 16 Confessed abuse versus witnessed accidents in infants, Vinchonet al.;

Exh. 17 Hedlund powerpoint presentation;

Exh. 31 Current Concepts: Nonaccidental Head Injury in Infants,Duhaime, et al.;

Exh. 32 Letters to the Editor, Journal of Neurosurgery (March 2004);

Exh. 33 Anthromorphic simulations of falls, shakes, and inflictedimpacts in infants, Prange et al.;

Exh. 34 Abusive head injuries in infants and young children, Mary E.Case;

Exh. 35 Forensic Pathology of Child Brain Trauma, Case, et al.;

Exh. 36 Abusive Head Trauma: Judicial Admissions Highlight Violentand Repetitive Shaking, Adamsbaum, et al.;

Exh. 37 Analysis of Perpetrator Admissions to Inflicted Traumatic BrainInjury in Children, Starling et al.;

Exh. 38 Confessed abuse versus witnessed accidents in infants, Vinchon,et al.;

Exh. 39 Leetsma report of August 20, 2012;


At the evidentiary hearing, respondent inadvertently labeled two exhibits number 432

and two exhibits number 53.

- 10 -

Exh. 40 Forbes CV;

Exh. 41 Forbes report;

Exh. 42 Forbes references;

Exh. 43a Forbes powerpoint;

Exh. 43b Rorke-Adams report;2

Exh. 44 Rorke-Adams slides;

Exh. 45 Rorke-Adams slides;

Exh. 46 Rorke-Adams CV;

Exh. 48 Scheller testimony;

Exh. 49 Scheller CV;

Exh. 50 medical record excerpt, Pediatrician 12;

Exh. 51 medical record excerpt, Provena 24-27, Provena 45;

Exh. 52 medical record excerpt, UIC 5, 6, 94-96, 105;

Exh. 53a medical record excerpt, UIC 98-100;

Exh. 53b Teas report;

Exh. 54 medical record excerpt, AG312;

Exh. 70 Teas CV;

Exh. 72 medical record excerpt, Hinsdale BZ 14, 17, 18, 23;

Exh. 73 medical record excerpt, Hinsdale IZ 2, 3, 7, 8, 15;

Exh. 74 medical record excerpt, Pediatrician 1-4, 12, 21, 23-37;


- 11 -

Exh. 75 medical record excerpt, UIC 94-96;

Exh. 76 medical record excerpt, Provena 24-27, 31, 45;

Exh. 77 medical record excerpt, UIC 5, 6, 105;

Exh. 78 medical record excerpt, Provena films 1, 2;

Exh. 79 medical record excerpt, UIC films 1, 5, 6;

Exh. 80 Leestma report August 20, 2012;

Exh. 81 Leestma report December 14, 2012;

Exh. 82 medical record excerpt, Provena 11, 14, 28;

Exh. 83 medical record excerpt, Provena 42, 45, 48, 50, 52;

Exh. 84 medical record excerpt, Provena 22;

Exh. 85 Teas testimony ;

Exh. 86 Teas report;

Exh. 100 medical record excerpt, AG234, 236;

Exh. 102 medical record excerpt, UIC films 1;

Exh. 103 Thrombocytosis in neonates an young infants, Wiedmeier, et al.;

Exh. 104 The Infant Whiplash-Shake Injury Syndrome, Hadley, et al.;

Exh. 105 The pathophysiology does no denote the mechanism, Slovis &Chapman;

Exh. Jenny 1 Jenny CV;

Exh. Jenny 2 Jenny Report;

Exh. Jenny 3 Rationale and Technique for Examination of Nervous System inSuspected Infant Victims of Abuse, Judkins, et al.;


- 12 -

Exh. Jenny 4 Neck injuries in young pediatric homicide victims, Brennan, etal.;

Exh. Jenny 5 Prevalence of Retinal Hemorrhages in Critically Ill Children,Agrawal et al.;

Exh. Jenny 6 Abusive Head Trauma: Judicial Admissions Highlight Violentand Repetitive Shaking, Adamsbaum, et al.;

Exh. Jenny 7 Confessed abuse versus witnessed accidents in infants, Vinchon,et al.;

Exh. Jenny 8 Thrombocytosis and Thrombosis;

Exh. Jenny 9 Medical record excerpt;

Exh. Jenny 10 Retinal haemorrhages and related findings in abusive and non-abusive head trauma, Maguire, et al.;

Exh. Jenny 11 Growth charts, Hinsdale IZ 24, Ped 3, 4, Prov 45, UIC 98-99;

Exh. Jenny 12 Analysis of Perpetrator Admissions to Inflicted Traumatic BrainInjury in Children;

Exh. Jenny 13 Medical record excerpt, Provena 11, 22;

Exh. Jenny 14 Medical record excerpt, Provena 19, UIC 35-36, UIC 104-109,CM 300-301;

Exh. Jenny 15 Medical record excerpt, UIC 95-97;

Exh. Jenny 16 Medical record excerpt, Provena 24-26, UIC 5-6, 34, 181;

Exh. Jenny 17 Medical record excerpt, CM 343, 422, AG recs;

Exh. Jenny 18 Medical record excerpt, Hinsdale 3, UIC 85-88, Ped 32, Prov 42-46;

Exh. Jenny 19 Medical record excerpt, Ped 1, 3, 21, 4;

Exh. Jenny 20 Thrombocytosis and Infections in Childhood, Cecinati, et al.;

Exh. Jenny 21 Teas report;


- 13 -

Exh. Ranga 1 Rangarajan CV; and

Exh. Ranga 2 Rangarajan report.

V. Background Facts

Petitioner has presented medical and scientific evidence she claims

demonstrates that Isabella either died of natural causes or removes petitioner as

the only possible caretaker who could be responsible for Isabella’s collapse.

Petitioner has not contested any of the other background facts submitted at her

criminal trial or discussed by the state appellate court. Accordingly, respondent

begins with a summary of facts not in dispute:

A. Isabella’s First Three Months

In the summer of 2002, Gleanne Kehr started offering unlicensed daycare

services out of her home. Doc. 16, Resp. Exh. Q1 at 267-70. Kehr hired petitioner

to work for her in late September or early October 2002. Id.

Isabella was born on September 6, 2002, after six hours of labor and an

uneventful delivery. Resp. Exhs. Q1 at 215; Jenny 2 at 1. During labor, Isabella

experienced some variable decelerations. Jenny 2 at 1 & Tr. 781, 898, 1087-88.

After birth, the amniotic fluid was stained with meconium (baby stool), but a

neonatologist determined that no meconium was noted below her vocal cords.

Jenny 2 at 1; Tr. 819, 897-88, 1089. Isabella’s immediate post-birth evaluations

(Apgar scores) were excellent. Jenny 2 at 1; Tr. 820, 1088-89. Isabella had an

occipital capput and a cephalohematoma, both of which are common in healthy

newborns delivered naturally through a spontaneous vaginal birth. Jenny 2 at 2;


- 14 -

Tr. 781, 936-37. Isabella and her mother were discharged on September 8, 2002.

Jenny 2 at 2. It was a “wonderful birth.” Tr. 898.

On September 13, 2002, Isabella had a well-baby visit to her pediatrician and

the pediatrician found her to be healthy. Jenny 2 at 2; Tr. 903-04. She fixed her

eyes on objects and follow it as it moved. Tr. 904. On October 8, 2002, Isabella had

another well-baby visit and was found healthy. Jenny 2 at 2; Tr. 904-05 (Isabella

checked out “perfectly”).

Around seven weeks of age, on October 23, 2002, Isabella developed a fever

and was admitted to the hospital for treatment with IV antibiotics. Q2 at 241;

Jenny 2 at 2; Tr. 905. Her chest x-ray, urinalysis, white blood cell count, and

hemoglobin levels were normal. Jenny 2 at 2; Tr. 907. Her platelet count was

elevated. Jenny 2 at 2; Tr. 905-06. While in the hospital, Isabella continued to feed

well and produced normal wet diapers. Jenny 2 at 2. Her anterior fontanelle was

open and not bulging. Tr. 905. She was discharged once the blood and urine

cultures were negative. Jenny 2 at 2; Tr. 907.

Kehr testified that she met Barbara Zielinski at a Halloween party in 2002

and that she began caring for Isabella about three weeks later. Q1 at 561. Barbara

Zielinski testified that she started dropping Isabella off with Kehr and petitioner on

December 6, 2002. Q1 at 247. Karli Hinton also worked for Kehr and watched

Isabella on a few occasions when petitioner was not working. Q2 at 1, 4. Hinton

generally worked for Kehr on days petitioner was not working, and she worked with

petitioner on only one day in November. Id.


- 15 -

By late December 2002, Isabella was developing normally. Q1 at 222. She

was smiling, learning to hold her head up, and trying to roll over. Q1 at 223. On

December 18, 2002, she became sick with an ear infection and started taking

amoxicillin, which she was to continue taking through December 27. Q1 at 223;

Jenny 2 at 2; Tr. 874. Barbara Zielinski supplied the day care with gas drops to

help her feeding if she was fussy, but she personally only gave them to Isabella

perhaps one time. Q1 at 222, 244, 259; Tr. 1160.

B. Dropoff at Day Care

On December 27, Isabella fed at home around 6:00 a.m. Q1 at 251.

Petitioner called Barbara Zielinski at 6:30 a.m. and said she was late because of car

trouble. Q1 at 218. Petitioner called back at 7:00 a.m., and Ms. Zielinski dropped

her four-year-old son Richie and three-month-old baby girl Isabella in petitioner’s

care at Kehr’s home around 7:15 a.m. Doc. 16, Resp. Exhs. C at 1-2; Q1 at 215.

Kehr testified that petitioner was caring for six children that day: Isabella, Richie

(her older brother), and also a six-month-old girl, a three-year-old girl, and two five-

year-old boys. Q1 at 565-66. Petitioner was the only adult present at the facility

that day because Kehr was on vacation. Q1 at 263, 267, 273, 294.

C. Isabella’s Collapse

Barbara Zielinski called petitioner at 11:30 a.m. to check on her children, and

petitioner told her that she had just fed Isabella a bottle, changed her, and then she

fell asleep in the swing. Q1 at 224.


- 16 -

At some point between that phone call and petitioner’s call to 911, Isabella

collapsed. Petitioner later told Detective Kroll that Isabella had an “extremely

dirty diaper” at about noon and she changed her, then set her on the couch. Q1 at

292, 295; Tr. 1105. Petitioner went to get a bottle for Isabella and returned to find

her limp, making a labored-breathing sound. Q1 at 295-96. At some point

thereafter, petitioner tried to give Isabella the bottle, but the milk just ran out of

Isabella’s mouth. Q1 at 297. Petitioner told Detective Kroll that she picked up

Isabella under the arms, spoke to her, and “gave her a very slight shake.” Q1 at

296. Petitioner said that she then turned Isabella over and patted her on the back

three to five times to dislodge anything in her throat, then called 911. Q1 at 296.

Petitioner said that with each tactic she tried she became increasingly

panicked and therefore could not remember each event. Q1 at 299. She said that

Isabella’s head flopped more violently when she was patting her on the back than

when she had shaken her to try and elicit a response. Q1 at 302. Later in her

interview, Detective Kroll confronted petitioner and accused her of harming

Isabella. Q1 at 303. Petitioner began crying and said she could not remember

exactly what had taken place, and that she could have shaken Isabella harder than

she thought. Q1 at 303. Later, petitioner said, “But even if I did panic, aren’t I

responsible? Am I going to jail?” Q1 at 304.

D. Emergency Care

Emergency medical services (EMS) received a call about Isabella at 13:38 on

December 27, 2002. Jenny 2 at 2; Tr. 1107-08, 1145; Resp. Exh. 100. They arrived


A temperature of 95.1 was recorded at 14:02, a temperature of 93.7 was noted at3

14:35. Resp. Exh. 83 at 5.

- 17 -

at the home at 13:45. Jenny 2 at 2. They found Isabella in full arrest, with no

pulse, and found petitioner performing CPR. Jenny 2 at 2; Tr. 1107; Resp. Exh. 100

at 1 (“found infant on floor; cyanotic; i [no] respiratory effort; i [no] palpable

pulse”). EMS took over CPR, transferred Isabella to an ambulance, and intubated

her. Jenny 2 at 2. EMS noted no tremors or seizure activity. Tr. 1483-84. EMS

gave Isabella two doses of epinephrine through her endotracheal tube before

Isabella’s pulse returned and color improved. Jenny 2 at 3; Tr. 1107. She arrived

at Provena St. Joseph Medical Center at 13:58. Jenny 2 at 3; Tr. 1107-08.

E. Treatment at Provena

Isabella’s initial diagnosis was to “rule out sepsis.” Jenny 2 at 3. Isabella’s

body temperature upon admission at 14:02 was shown as 95.1 degrees Fahrenheit. 3

Tr. 1108-09; Jenny 2 at 3; Jenny 13 at 1. Isabella’s serum pH, a measurement of

acidity in the blood, upon admission at 14:02 was 7.18. Tr. 1109-10.

Treating physicians found Isabella’s pupils fixed and unresponsive, her

extremities were cold, she was hyperglycemic, and an initial chest X-ray showed no

pathology of the heart, lungs, pleura, or mediastinum. Jenny 2 at 3.

Initial laboratory study results showed that Isabella had an elevated white

blood cell count (38.6 K/CMM) with a normal differential, a high platelet count

(768,000/CMM), an elevated serum glucose, elevated creatinine, abnormal

electrolytes, a low albumin level, mildly elevated liver function studies, and a low


- 18 -

serum pH (7.18). Jenny 2 at 3. The doctors also tested for infections, including

bacterial antigen latex agglutination tests for Group B Streptococcus, Hemophilus

influenzae, Neisseria meningititis, and Streptococcus pneumoniae. Jenny 2 at 3;

Tr. 1111. Provena administered a spinal tap that contained many red blood cells

and no white blood cells. Jenny 2 at 3; Tr. 1111. There were no organisms seen on

Gram stain. Jenny 2 at 3. Cultures of the blood, cerebral spinal fluid (CSF), and

urine were negative for bacteria. Jenny 2 at 3; Tr. 1111. A viral culture of the CSF

was also negative. Jenny 2 at 3; Tr. 1111.

Provena performed an initial CT scan that showed widened extracerebral

space in the frontoparietal regions. Jenny 2 at 3. The records note that the space

contained mixed density fluid. Id. Based on the initial CT findings, the police and

child protective services agency were contacted. Id. Provena started Isabella on

antibiotics (vancomycin and ceftriaxone) and admitted her to the pediatric intensive

care unit (PICU). Id. Their differential diagnoses for Isabella upon admission to

the PICU were: (1) cardiopulmonary arrest; (2) rule out sepsis; (3) hyothermia; and

(4) rule out child abuse. Id.

At the PICU on the evening of December 27, Provena administered an EEG.

Jenny 2 at 3; Tr. 1119. The results were very abnormal, with severely suppressed

waves with low amplitude and frequency, which indicated possibly severe diffuse

encephalopathy but no seizure foci were identified. Jenny 2 at 3; Tr. 1119-20.


- 19 -

F. Treatment at UIC-Chicago Medical Center

Isabella was transferred to UIC-Chicago Medical Center after the EEG at

Provena; she arrived early on the morning of December 28, 2002. Jenny 2 at 4. The

admission record notes a family history of diabetes, seizures, and thyroid disorders.

Id. Isabella’s immunizations were up to date. Id. Isabella initially opened her eyes

spontaneously, and her pupils were equal, round, and reactive to light and

accommodation. Id. Isabella remained intubated, and coughed and gagged when

suctioned. Id.

Isabella developed apparent tonic-clonic seizures and was given Ativan and

Dilantin. Jenny 2 at 4. She could not blink or track with her eyes. Id. No external

bruising was noted, and a skeletal survey performed later that day revealed nothing

abnormal. Id.

The afternoon of December 28, a retina fellow and an ophthalmology resident

examined Isabella’s eyes, and she was later evaluated that same day by the

attending retina specialist. Jenny 2 at 4; Resp. Exh. 41 at 2. The exam identified

multi-layered retinal hemorrhages throughout both eyes and smaller areas of

pre-retinal hemorrhage in the posterior poles of both eyes. Jenny 2 at 4; Exh. 41 at

2. Another head CT was done, and then another eye exam was performed. Jenny 2

at 4. In this examination, vitreous hemorrhage was also noted, but this was

reported by no other examiner, including the retina specialist. Id. On December

29, 2002, another head CT showed no new hemorrhage. Id.


- 20 -

Isabella was extubated on January 2, 2003. Jenny 2 at 4. Her cough was

weak and she had thick, copious pulmonary secretions. Id. Her EEG that day

showed a moderate to marked degree of diffuse slow wave abnormalities indicating

significant generalized cerebral involvement. Id. The presence of fast activity in

the right posterior temporal area indicated that region was less likely to be

involved. Id. There were no clear focal findings and no epileptiform discharges

were seen. Id.

On January 3, 2003, drainage from one of Isabella’s eyes grew Pseudomonas

Aeruginosa (an infection). Jenny 2 at 4. This infection, commonly acquired in the

hospital, resolved without treatment. Jenny 2 at 4; Tr. 1123.

That day Isabella was also evaluated by a pediatric hematologist. Jenny 2 at

4; Tr. 1123. He noted that in the past, Isabella had never had a bruise and had

never bled from her mouth or umbilicus. Jenny 2 at 4. She had no history of blood

in her stool or urine. Id. She had no signs of stretchy skin or joints that might

indicate a collagen disorder. Jenny 2 at 4; Tr. 1123. UIC performed clotting tests.

Jenny 2 at 5. Conducting a physical exam, the doctor did not see signs of trauma to

the scalp or oral lesions, but did find that Isabella’s anterior fontanelle was full and

tense. Id. At venipuncture sites, there was minimal bruising and no hematomas.

Id.

The hematologist doubted Isabella had a bleeding disorder given her benign

family history and absent past history for bleeding. Jenny 2 at 5; Tr. 1123. The


- 21 -

physical exam did not show excessive bruising or petechiae, and the normal PT and

PTT argued against coagulopathy. Jenny 2 at 5. He recommended that a factor

XIII assay and a von Willebrand profile should be obtained. Jenny 2 at 5; Tr. 1123.

He stated that platelet function studies were not indicated because the clinical

picture was not typical for those conditions. Jenny 2 at 5.

Metabolic and genetic tests were also conducted that day, including tests for

ammonia, lactate, pyruvate, acyl carnitine profile, biotinidase levels, urinalysis, and

urine reducing substances. Id. All of these tests were negative. Id.

On January 7, 2003, UIC conducted an MRI of the head. Jenny 2 at 5-6. The

MRI showed large subdural hematomas along the right aspect of the falx from the

anterior to the posterior falx and at the tentorium bilaterally. Jenny 2 at 5.

Isabella had increased CSF spaces at the bilateral frontal lobes. Id. Restricted

diffusion was seen within the posterior limbs of the internal capsules and the

posterior corpus callosum, indicating ischemia. Id. This was also seen within the

posterior occipital lobes bilaterally. Id. She was developing laminar necrosis of the

cortex. Id. A radiologist reported that the MRI showed a mastoid disease and

middle ear effusions. Jenny 2 at 5; Tr. 1131.

On January 10, UIC performed surgery to release pressure on Isabella’s

brain. Jenny 2 at 5; Tr. 1130. The fluid removed from her head had a high white

blood cell count (47/CMM), a high red blood cell count (8,250/CMM), a normal

glucose level, and a very high protein level. Jenny 2 at 6; Tr. 1130. The fluid was

cultured and revealed no evidence of infection. Jenny 2 at 6; Tr. 1130. The surgeon


- 22 -

described the presence of the bluish outer membrane of the chronic subdural.

Jenny 2 at 6. When the dura was opened, the fluid came out under pressure. Id.

Thirty-five to 40 cc of dark, xanthochromic, liquefied hematoma were evacuated.

Id. It was “hemorrhagic yellowish” in color. Id.

UIC recommended that Isabella have a gastric tube inserted into her

abdomen for feeding and a permanent tracheostomy for airway management.

Jenny 2 at 6; Tr. 1132. Isabella’s parents seemed hesitant, so Isabella was

transferred to Children’s Memorial hospital on January 16, 2003, for another

opinion. Jenny 2 at 6; Tr. 1132-33.

G. Treatment at Children’s Memorial Hospital

Children’s Memorial conducted video-taped long-term testing to determine

whether Isabella was suffering from seizures. Jenny 2 at 7; Tr. 1133. The staff

performed constant EEG monitoring with contemporaneous physical observation.

Jenny 2 at 7. On three occasions the staff noted possible seizure-related movements

from Isabella, but the EEG for the same time period did not show seizure activity.

Jenny 2 at 7; Tr. 1133.

On January 20, 2003, Isabella was diagnosed with a respiratory syncytial

virus infection. Jenny 2 at 7. At Children’s Memorial, Isabella received the gastric

tube insert and permanent tracheostomy that UIC had recommended. Jenny 2 at 7-

8; Tr. 1136. Isabella had normal platelet count results on January 23, February 5,

February 6, and February 8. Jenny 2 at 8. She also had normal blood chemistries,

several negative cultures, and nonspecific “mixed flora” grew from her tracheostomy


- 23 -

tube. Id. The staff taught the parents how to properly care for Isabella in this state

and she was discharged on February 18, 2003. Jenny 2 at 8; Tr. 1137.

H. Subsequent Medical Treatment

Isabella had increased seizure-like activity on February 28, 2003, and was

taken to Rush-Copley Medical Center. Jenny 2 at 9; Tr. 1141-42. Her fontanelle

was soft, and she was treated with ceftriaxone, albuterol, and Ativan. Jenny 2 at 9.

Her platelet count was 949,000/CMM, and urine and blood cultures were negative.

Jenny 2 at 9; Tr. 1142. She was diagnosed with “status epilepticus” and transferred

to Children’s Memorial Hospital. Jenny 2 at 9; Tr. 1143. At Children’s Memorial,

no seizures were noted, she was treated with Valium, Topamax, and Robinul, and

doctors recommended extensive rehabilitation. Jenny 2 at 9. Isabella spent most of

March 2003 at Rehabilitation Institute of Chicago until she returned home. Jenny

2 at 9; Tr. 1143-44. Isabella was severely brain damaged and required extensive

home nursing. Jenny 2 at 9. Isabella died on November 9, 2003. Jenny 2 at 9; Tr.

1146-47.

I. Autopsy

Dr. Harkey performed an autopsy of Isabella on November 10, 2003. Doc. 16,

Resp. Exh. Q1 at 378. Dr. Harkey x-rayed the body but found no evidence of

trauma. Q1 at 382. Dr. Harkey’s examination of the brain was not an optimal

because encephalomalcia had softened the brain and because Isabella had been

brain dead for a day before her death, which causes autolysis. Q1 at 384. Dr.

Harkey noted that the brain was soft, and that he did not see any evidence of bleeds


- 24 -

or asymmetry. Q1 at 385. Dr. Harkey weighed the brain at 930 grams and then

placed it in formalin, a fixative. Q1 at 386-87. Dr. Harkey did not remove the eyes

to examine for retinal hemorrhages because the only indication of abuse was from

December 2002, and such hemorrhages resolve over time. Q1 at 390-91. Petitioner

was charged with murder. See generally Doc. 16, Resp. Exhs. Q1, Q2, Q3.

J. Murder Trial

At a bench trial, both the State and petitioner called expert witnesses who

testified about the cause of Isabella’s death. Doc. 16, Resp. Exh. C at 2. The State’s

expert, Dr. Flaherty, testified that Isabella’s injuries were the result of shaken baby

syndrome (abusive head trauma), “and that the victim’s condition on December

27th was the immediate result of an injury that had been inflicted upon the victim

just prior thereto.” Id. Dr. Flaherty also stated that the force used would be “so

severe that anyone shaking a child like that would know that the child would suffer

severe injury.” Id. Petitioner’s expert, Dr. Tucker, disagreed, opining that the

injuries were not caused by shaking and had instead occurred between eighteen and

twenty-four hours prior to the incident at the daycare center. Id. Petitioner’s

expert testified that “the injuries could have been caused by seizures, chronic

subdural hematomas, or gastric reflux,” that they occurred before the incident at

the daycare, and that the lack of external injuries was not typical of shaken baby

syndrome. Resp. Exh. L at 10.

After hearing closing arguments, the trial court found petitioner guilty of

first degree murder. Q2 at 244.


- 25 -

K. Slides Taken Of Brain Tissue

On July 17, 2012, after this Court ordered this hearing, Drs. Jan Leetsma,

Shaku S. Teas, and Warren Tourtelotte re-examined the brain and took samples for

further evaluation. Tr. 479-80; Resp. Exh. 43b at 3.

VI. Facts In Dispute

Petitioner requested an evidentiary hearing, alleging that her trial counsel

should have called her preferred experts who could have countered the State’s

expert, shown that a period of lucidity may occur after an injury, and could have

shown the possibility that no crime occurred at all. Doc. 1 at 52-55. Based on

opening statements, petitioner’s theories appear to be that: (1) shaking that does

not result in a neck injury can never be severe enough to cause a brain injury

similar to the one Isabella experienced; (2) Isabella died of natural causes; and (3)

the trial judge never heard about the chronic subdural collection and thus did not

consider the possibility of earlier abuse. See Tr. 15-18. All three theories fail for

the reasons discussed below.

A. Dr. Prange’s Theory That A Person Cannot Seriously Injure ABaby Through Shaking Alone Is Not Founded On ReliableScientific Methodology.

Petitioner presented the report and testimony of Dr. Michael Prange, a

biomechanical engineer, espousing the theory that “[t]here is no biomechanical data

showing that the head accelerations associated with shaking alone are sufficient to

cause the acute subdural hemorrhages in a normal infant” and “[s]haking provides


- 26 -

a possible mechanism for cervical spine injury to an infant, but it does not provide a

mechanism for subdural hemorrhage.” Pet. Prange Rep. at 6.

Dr. Prange’s theory requires specific knowledge of both the injury exposure

and the injury threshold, neither of which can be reliably demonstrated when

discussing a human infant. Tr. 398. Dr. Prange constructed a rudimentary

mechanism to measure the acceleration forces experienced by a shaken baby and

attempted to overcorrect for any errors in order to estimate the injury exposure. Tr.

403-404. For the second part of his analysis, he attempted to determine whether

the acceleration forces exceed the injury threshold. He concluded that the threshold

for causing a neck injury is lower that the threshold for causing intracranial brain

injuries, and thus in a case where neck injuries were not observed, there could not

have been shaking sufficient to cause brain damage. Tr. 409-13.

The rudimentary measurement of acceleration forces aside, Dr. Prange’s

models for determining the injury threshold of a human baby’s brain are unreliable

and, thus, this Court should find his testimony and theories equally unreliable. Dr.

Prange conceded that no accurate measurement of the injury thresholds for a baby’s

brain or to cause bridging veins to tear exists. Tr. 435. Instead, he looked to other

acceleration forces that cause similar injuries. Tr. 437. Specifically, some of Dr.

Prange’s research relied on measuring the acceleration force experienced by a

cadaver that is not shaken, but is dropped, once. Id. Another data set consisted of

adult male primates put into a sled and then exposed to a single violent


- 27 -

acceleration-deceleration event. Tr. 439-440. Dr. Prange attempted to apply that

data to a human infant through scaling. Tr. 440-41; Tr. 969-70.

The obvious shortcomings with Dr. Prange’s scaling and data are that (1) any

errors made when accounting for the differences between the human infant

anatomy and the test subject result in errors to the injury threshold calculation,

and (2) the forces applied through one deceleration event may differ greatly from

those experienced by a baby shaken repeatedly. Tr. 439-41. Dr. Prange admitted

this in a 2003 paper he authored, where he noted that “[r]egional tissue thresholds

specific to the infant would be required to predict injury on the basis of local

intracranial stresses or strains produced by rapid rotations like shaking[.]” Tr. 443.

Dr. Prange also conceded that there are differences between a human adult brain

and a baby’s brain that would need to be accounted for, such as differences in water

content and the developmental maturity of cells and brain axons. Tr. 443-44.

Dr. Nagarajan Rangarajan, a biomechanical engineer, explained that the key

failing of Dr. Prange’s theory is that the true injury threshold for a baby’s brain,

and for a baby’s neck, are unknown. Resp. Ranga 2 at 2; Tr. 984-85. The structure

of an infant’s skull is much different than an adult, and there are differences

between human and animal anatomy that must be accounted for. Tr. 970-71. Dr.

Rangarajan explained that the injury threshold data “needs to be age and loading

specific.” Ranga 2 at 2. And he further explained that current data cannot answer

these questions without doing experiments on humans. Tr. 973. The scaling

methods used by Dr. Prange “are not adequate to develop an injury threshold for [a]


- 28 -

pediatric brain because of unique anatomical features of the child skull and

material properties of the pediatric brain.” Ranga 2 at 2. Also, animal experiments

involving one whiplash motion are different than shaking a test subject, or an

infant, many times. Tr. 976.

Dr. Rangarajan explains that clinical data suggest a neck injury is not a

necessary prerequisite for a subdural hematoma in a child that has been shaken,

and that recent animal experiments suggest shaking alone can cause animal

fatalities. Ranga 2 at 2. Dr. Prange’s reliance upon a neck injury threshold for

infants is unreliable because it is based on research with gross calculation

inaccuracies. Tr. 985-86. And a recent study involving piglets demonstrated that a

repeated shaking might have more negative effects than shaking once, Tr. 981-82;

another study involving the repeated shaking of newborn lambs shows that some

subjects died within hours of shaking, Tr. 982-83.

Dr. Rangarajan concludes that current biomechanical research cannot

answer the questions of injury threshold for a human baby’s brain. Ranga 2 at 3;

Tr. 963-64, 973-76. And, as recently as 2004, Dr. Prange agreed when he wrote that

more research was needed and that “we cannot yet answer if shaking can cause

intracranial injury in infants.” Tr. 445. Indeed, Dr. Prange testified that, even

today, he could not “answer yes or no” in response to the question of whether he

believes that biomechanical engineering disproves that shaking alone could have

caused Isabella’s brain injuries. Tr. 467-68.


- 29 -

Also, studies published in peer-reviewed journals and generally relied upon

in the field undermine Dr. Prange’s theory. One study of 112 cases of abusive head

traumas that resulted in criminal convictions found that head impacts were present

in only seven of twenty-nine cases where the perpetrator had confessed to the

abuse. Resp. Exh. Jenny 6 at 9. A second study compared 81 cases of admitted

inflicted head trauma with 90 cases where no admission of guilt was made and

found that thirty-two of the perpetrators admitted to only shaking the infant, and

only four of those showed any sign of impact. Resp. Exh. Jenny 12 at 3. These

studies suggest that shaking alone is able to produce symptoms consistent with

Isabella’s injuries. Id. at 1 (concluding that shaking alone can produce the

symptoms seen in children with inflicted traumatic brain injury).

Moreover, consistent with petitioner’s statement to police—that she had set

Isabella on a couch and the lack of physical evidence of impact—Dr. Prange

admitted that in an impact with a soft surface the force is “widely dissipated and

may not be associated with visible signs of surface trauma even though the brain

itself decelerates rapidly.” Prange Tr. 427, 428-29. Dr. Prange also admitted that

Isabella could have impacted a soft surface as part of a shaking incident and that

this, in turn, could have caused intracranial injuries. Prange Tr. 428-29.

Specifically, Isabella’s head could have impacted the couch while she was shaken

and left no visible external sign of the impact. Prange Tr. 429. This is consistent

with the State’s original theory at trial, where Dr. Flaherty testified that abusive


- 30 -

head trauma can result from actions “other than shaking,” but that shaking is the

most common mechanism. Doc. 16, Resp. Exh. Q1 at 503.

In sum, petitioner provided no reliable evidence to support her theory that

shaking alone could not have caused Isabella’s brain injuries. Moreover, while the

State’s experts agreed that shaking was the likely mechanism of Isabella’s injuries,

soft impact events may also have caused her injuries, and Dr. Prange’s research

failed to account for such forces. Thus, Dr. Prange’s theory cannot help petitioner

meet her burden under Schlup.

B. The Constellation of Medical Evidence Supports A DiagnosisOf Abusive Head Trauma And Shows That Petitioner CausedIsabella’s December 27, 2002, Collapse From Severe BrainInjuries.

The primary factual disagreement between the experts centers on Isabella’s

cause of death. The State’s experts concluded that abusive head trauma inflicted by

petitioner on December 27, 2002 caused Isabella’s collapse that afternoon and that

those injuries eventually resulted in her death. Petitioner’s experts speculated that

something caused Isabella to suffer from cortical veinous thrombosis (CVT) and a

related seizure, resulting in her massive brain injuries and eventual death. This

Court should find that the constellation of medical evidence conclusively supports

the State’s experts’ diagnoses, and that petitioner’s experts reach conclusions that

are either based on speculation, bias, unreliable data, or all three.

At trial, the State’s expert, Dr. Flaherty, testified that Isabella’s death was

caused by “abusive head trauma or also known to many people as shaken baby


- 31 -

syndrome.” Q1 at 477. After the Court ordered this evidentiary hearing,

respondent requested assistance from diverse, well-qualified experts to review the

medical data and provide their diagnoses. They all agreed: Isabella died because

petitioner inflicted abusive head trauma upon her on December 27, 2002.

A constellation of medical evidence supports the State’s experts’ conclusions:

(1) Isabella drank a full bottle of formula after being left in the sole care of

petitioner—something Isabella could not have done after suffering her severe brain

injuries—and thus petitioner was the only adult who could have inflicted abusive

head trauma upon Isabella; (2) Isabella was found to have severe bilateral retinal

hemorrhages that are a high-frequency marker of abusive head trauma; (3) Isabella

had very recent (acute/subacute) bleeding in multiple parts of her brain, including

subdural hemorrhages in extensive areas of the brain, a high-frequency marker of

abusive head trauma through shaking; (4) Isabella had bleeding at the base of her

neck (a retroclival epidural hematoma) that suggests whiplash-like trauma; and (5)

Isabella had damage to the deep tissue of her brain that was consistent with

abusive head trauma. Moreover, the medical evidence suggests that Isabella had

stopped breathing for longer than petitioner’s version of events could account for,

thus providing additional evidence of consciousness of guilt.

1. Petitioner Is The Only Person Who Could Have InflictedThe Abusive Head Trauma.

At trial, Dr. Flaherty testified that she knew that Isabella had not been

injured by anyone other than petitioner because she had fed from a bottle that


- 32 -

morning in petitioner’s care, and petitioner had reported that Isabella had woken

from her nap smiling but fussy. Doc. 16, Resp. Exh. Q1 at 490. Also, Dr. Flaherty

stated that the effects of this severe abusive head trauma would be immediate. Q1

at 491.

Dr. Jenny agreed, explaining that given the severity of the brain injury that

Isabella suffered upon her collapse, she could not have fed from a bottle that

morning after having suffered the abusive head trauma that must have caused it.

Tr. 1307. As Dr. Jenny explained, a baby who had suffered that type of injury

would not be neurologically intact to retain the coordination needed to suck and

swallow a full bottle feeding. Tr. 1307, 1318. And it is uncontroverted that

petitioner fed Isabella a full bottle that morning. Id.; Q1 at 224. Accordingly, the

medical evidence demonstrates that petitioner is the only person who could have

inflicted the abusive head trauma.

2. The Severe Bilateral Retinal Hemorrhages IndicateAbusive Head Trauma.

The treating physicians found that Isabella had bilateral, extensive,

preretinal and intraretinal hemorrhages that extended from the back to the front of

the eye, and this condition is a high-frequency marker of abusive head trauma. At

the evidentiary hearing, petitioner’s counsel has suggested that Dr. Flaherty

testified that retinal hemorrhages could only be caused by abusive head trauma,

when in fact there are other causes for retinal hemorrhages. Tr. 14. Indeed, at first

Dr. Flaherty described the extensive retinal hemorrhages found in this case and


- 33 -

testified that “those kinds of extensive hemorrhages are only caused by these

acceleration/deceleration forces or seen in shaken baby syndrome.” Q1 at 485-86,

489-90. However, on cross-examination Dr. Flaherty explained that while CPR

could also cause retinal hemorrhages, Isabella’s retinal hemorrhages were too

extensive and severe to have resulted from CPR. Q1 at 497. And while it is true

that some genetic disorders or severe car crashes might cause similarly-severe

retinal hemorrhages, see e.g., Tr. 665-67 (Dr. Lantz’s examples included birth defect

blood vessel malformation, anemia, low platelets, or lymphocytic

meningoencephalitis, broken ribs through CPR, and reperfusion injuries), there is

no medical evidence that Isabella suffered from any such diseases, nor was she

involved in a car crash.

Dr. Brian Forbes—a pediatric ophthalmologist, and the only ophthalmologist

to testify—explained the significance of the hemorrhages observed in Isabella’s

retinas after she collapsed on December 27, 2002. Tr. 531. Where severe retinal

hemorrhages are seen in the absence of severe accidental trauma or severe

coagulopathy, child abuse must be considered. Tr. 561; see also Resp. Exh. Jenny 5

at 5 (victims of child abuse demonstrate severe multilayered retinal hemorrhages in

around 85 percent of abusive head trauma cases); Resp. Exh. Jenny 10 at 7

(“rigorous systematic review” confirmed that retinal hemorrhages are common in

abusive head trauma cases).

Treating doctors took photographs of the retina on December 30, 2002. Tr.

548. The photographs showed retinal hemorrhages too numerous to count and


- 34 -

located in many different layers of the retina. Tr. 551. Dark spotted hemorrhages

were on top of the retina (termed preretinal hemorrhages), and then flame- and dot-

shaped hemorrhages were within the retinal layers (intraretinal). Id. A diagram of

the hemorrhages observed in a December 28, 2002 exam showed that they extended

from the back of the eye into the far periphery of the eyes. Tr. 555-56. Imaging

taken later showed that most of Isabella’s retinal hemorrhages resolved relatively

quickly, while her preretinal hemorrages remained. Tr. 556. Preretinal

hemorrhages take longer to heal. Id. The doctors who examined Isabella made a

primary diagnosis of trauma. Tr. 558.

Dr. Forbes agreed with the trauma diagnosis, and explained that his

differential diagnosis was, in order of likelihood: child abuse, abusive head trauma;

severe accidental injury; birth trauma; coagulopathy, vasculitis, leukemia; Terson

syndrome; extended CPR pressures; retinopathy; epidural hematomas; meningitis;

or metabolic diseases. Tr. 559; Resp. Exh. 41. But, Dr. Forbes explained, with the

extent and types of bilateral hemorrhages seen here, the only diagnoses other than

abusive head trauma might be (a) significant accidental injury, or (b) leukemia. Tr.

561. See also Resp. Exh. Jenny 5 (explaining that severe retinal hemorrhages

identified only in patients with fatal accidental trauma, severe coagulopathy, sepsis

with myeloid leukemia, or a combination of these factors). Dr. Forbes opined that

Isabella’s injuries were caused by abusive head trauma. Tr. 570.


- 35 -

Put another way, the only ophthalmologist to testify at the evidentiary

hearing confirms Dr. Flaherty’s original testimony: the only possible cause of such

extensive retinal hemorrhages in Isabella’s case is abusive head trauma.

3. Radiology Reports After Isabella’s Death IndicateAbusive Head Trauma.

Dr. Nica, one of the emergency room doctors who initially treated Isabella on

December 27, 2002, testified that her initial CT scan showed “acute and chronic

changes secondary to bleeds in different [subdural] levels,” indicating possible

abuse. Doc. 16, Resp. Exh. Q1 at 355-56, 366. Dr. Hast testified that he treated

Isabella at UIC Medical Center on December 30, 2012. Q1 at 430-31. Isabella’s CT

scans showed bifrontal subdural hematomas. Q1 at 438. Dr. Hast ordered tests to

rule out other potential causes for the hematomas, including metabolic diseases or

bleeding tendencies. Q1 at 441. Upon finding none, Dr. Hast concluded that

Isabella’s injuries were the result of abuse. Q1 at 448. Dr. Flaherty testified that

the extensive subdural hematomas “like Isabella had over extensive areas of the

head, those are only caused by acceleration and deceleration forces.” Q1 at 487.

Dr. Gary Hedlund, a pediatric neuroradiologist, testifed for respondent at the

evidentiary hearing. Tr. 211. Dr. Hedlund explained that medical imaging could

display acute, subacute, and chronic bleeding. Tr. 229. Acute bleeding ranges from

two hours to three days in age, subacute from three to seven days, and chronic

would be older than two to three weeks. Tr. 229-30. Dr. Hedlund explained that

when medical imaging showed an observable membrane forming in the subdural


- 36 -

space, this was an indicator of an older, or chronic, hemorrhage that could be

detected about two to four weeks after the bleeding occurred. Tr. 232.

After reviewing the imaging, Dr. Hedlund observed: subdural hemorrhages

(acute/subacute and chronic); multiple focal cerebral convexity extraaxial

hemorrhages; hemorrhage at the junction of the skull and spine (retroclival

epidural hematoma); posterior cerebral hemispheric edema; and bilateral retinal

hemorrhages. Resp. Exh. 10 at 1. Dr. Hedlund concluded that the varied locations

and ages of the subdural hemorrhages and absence of reported accidental trauma

“raises a significant concern” of abusive head trauma. Exh. 10 at 4; Tr. 248-250.

Dr. Hedlund was concerned that the chronic subdural hemorrhages could have been

caused by an earlier incident of abuse. Tr. 249-50. Dr. Hedlund also concluded that

the different hemorrhages observed near the top of the brain indicated torn bridging

veins. Tr. 250-52.

Moreover, Dr. Hedlund also first noticed bleeding in the neck area in an MRI

taken January 7, 2003. Tr. 260-62. He concluded that this was a retroclival

epidural hemorrhage, which he explained is bleeding in an area of the neck where

the cervical spine and skull meet. Tr. 259. Based on the MRI image of January 7,

Dr. Hedlund estimated that this bleeding was about one to two weeks old. Tr. 263.

After noticing it on the MRI, Dr. Hedlund revisited the December 27, 2002 CT scan

and noticed that what should have been all black CSF in the cervical spine area had

a gray shade to it, and he concluded that this imaging also showed a retroclival

epidural hemorrhage. Tr. 260-62.


- 37 -

In sum, the medical imaging taken after Isabella’s collapse on December 27,

2002 shows both old and new bleeding in multiple areas of her brain and shows

bleeding that Dr. Hedlund concluded was consistent with torn bridging veins. The

imaging strongly supports a diagnosis of abusive head trauma in the absence of

other medical problems associated with such bleeding. Moreover, the chronic

subdural hemorrhage aside, all of the hemorrhages identified in the images were

consistent with abuse inflicted at the time of Isabella’s collapse. And Dr. Barnes,

petitioner’s radiologist, admitted that the bleeding shown in these images could

have been caused by trauma, though he disagreed with the diagnosis. Tr. 78, 102,

182-83 (imaging cannot rule out non-accidental trauma), 185-87 (non-accidental

injury is one of the differential diagnoses that should be considered in Isabella’s

case).

4. Deep-tissue Brain Damage Indicates Abusive HeadTrauma.

Forensic neuropathologist Dr. Lucy Rorke-Adams reviewed slides taken from

Isabella’s brain in 2012 and found, among other things, damage to the corpus

callosum. Resp. Exh. 43b at 4; Tr. 698. While many portions of the brain were soft,

and taking samples was difficult, the corpus callosum was much more intact. Tr.

698. The slide of the corpus callosum showed glia, or scarring, that indicated

previous damage to that part of the brain. Tr. 709-10. She explained that the most

typical cause of such damage is abuse and that this deeper part of the brain is less

prone to damage from a lack of blood flow or oxygen. Tr. 710.


- 38 -

Dr. Rorke-Adams also identified evidence of trauma in “slide 16,” which was

labeled as having been taken from the back part of the brain, but she

believed—based on her experience and the anatomy of the slide—actually came

from the front and bottom portion of the brain (the gyrus rectus). Tr. 718. Dr.

Rorke-Adams identified—using special staining techniques—severe damage to this

tissue, and that iron deposits indicated that the damage was older. Tr. 719-20. Dr.

Rorke-Adams explained that injuries to that portion of the brain are common in

abusive head trauma because a bone injures the soft tissue of the brain in that

region when it is pushed over the bone surface in a shaking incident. Tr. 721.

While Drs. Teas and Leetsma disagreed that this slide could have been

mislabeled, it does not change the fact that both the slides of the corpus callosum

and “slide 16” exhibit evidence of earlier abuse that was consistent with petitioner

shaking Isabella on December 27, 2002. And while this deep tissue pathology

evidence cannot be so precisely dated, it is compelling evidence of abusive head

trauma on December 27 when considered with the other medical evidence. Resp.

Exh. 43b at 6.

5. Medical Evidence Further Demonstrates Petitioner’sConciousness of Guilt.

The evidentiary hearing also brought to light medical evidence corroborating

that petitioner may have delayed calling 911 while she panicked after shaking

Isabella. When Isabella was admitted to the hospital at 2:00 p.m., her serum pH

was 7.18, which meant that she had far too much acid in her blood. Tr. 1109-10.


- 39 -

This acid is caused by respiratory arrest, and a number of this magnitude is

generally only seen in a child who has not been breathing “for a substantial period

of time.” Tr. 1110. Children who come into the emergency room after a car accident

generally present with a serum pH of 7.37 or 7.25. Id. Isabella’s admission serum

pH of 7.18, combined with her cold temperature upon admission, indicates that

petitioner may have delayed in seeking immediate care for Isabella after her

collapse. Tr. 1232-33.

This medical evidence bolsters other evidence that petitioner was conscious of

her guilt after the incident: petitioner’s statement to police that she “slightly shook”

Isabella but panicked and did not remember exactly what she did evinces a desire

to acknowledge but downplay her role, Doc. 16 Resp. Exh. Q1 at 296, 299. And

when accused of harming Isabella, petitioner broke down and cried, then asked if

she was responsible even if she had acted while in a panic. Q1 at 304. Petitioner

knew that Isabella did not collapse because of an accident, Tr. 1106, and the

medical evidence that she likely delayed calling 911 only bolsters prior evidence

that she was conscious of her guilt.

C. Petitioner’s Evidence Consists Of Unreliable SpeculationUnsupported By The Medical Record, Is Similar To ThatAlready Presented In State Court, And Cannot Meet TheSchlup Standard; Indeed, Calling These Experts Bolstered TheState’s Evidence Of Guilt.

Petitioner’s evidence in support of her theory that either Isabella died of

natural causes or was abused prior to being in her exclusive care lacks sufficient

reliability to meet the Schlup standard. Her evidentiary hearing experts largely


- 40 -

echo her trial expert’s theories, and new evidence presented at this hearing only

bolsters the State’s evidence of guilt.

1. Defense Testimony at Trial

At trial, petitioner called Dr. Wayne Tucker, a Department of Defense

medical officer, physician, and board-certified pathologist. Resp. Exh. Q2 at 94-95.

Dr. Tucker had performed about 7,000 autopsies in his career at the time he

testified and had previously served as a family practitioner. Q2 at 98-99. Dr.

Tucker concluded that Isabella had been injured 18 to 24 hours before her collapse

based, in part, on the presence of chronic subdural bleeding. Q2 at 130-31, 135-36.

Dr. Tucker felt that Isabella’s collapse could have been caused by something that

was causing her to have trouble feeding, perhaps seizures or an allergic toxicity to

the antibiotics she was taking, or a “apparent life threatening event” (ALTE). Q2 at

132-34, 145-46. Dr. Tucker also concluded that shaking could not have occurred

because Isabella had no brain stem injuries. Q2 at 134-35. And Dr. Tucker

explained that retinal hemorrhages in a child under six months of age could have

been caused by anything that increased pressure on the eyes, such as turning over,

coughing, sneezing, the child having a tantrum, or by CPR. Q2 at 137-140. Dr.

Tucker also opined that the newer subdural bleeding could have been rebleeding

from the chronic subdural. Q2 at 149-50. On cross-examination, Dr. Tucker

admitted that he could not state with a reasonable degree of medical certainty that

a seizure caused the December 27, 2012 collapse. Q2 at 173.


- 41 -

2. Petitioner’s Current Expert Testimony

At the evidentiary hearing, petitioner presented a number of medical experts

all of whom provided speculative testimony similar to that of Dr. Tucker.

Specifically, petitioner called Dr. Shaku Teas, a forensic pathologist, Tr. 1326; Dr.

Patrick Barnes, a neuroradiologist and pediatric neuroradiologist, Tr. 28; Dr. Jan

Leestma, a neuropathologist, Tr. 474; Dr. Patrick Lantz, a professor of pathology,

Tr. 619; and Dr. Joseph Scheller, a pediatric neurologist, Tr. 839. Petitioner’s

experts concluded that Isabella collapsed from natural causes. This Court should

find their testimony unreliable and insufficiently persuasive to meet petitioner’s

Schlup burden because their conclusions are based on speculation similar to that

already rejected by the state trial court’s verdict.

a. Many of Petitioner’s Experts Have A DemonstratedBias.

Dr. Teas concludes that Isabella had chronic subdural collections that

expanded during her childhood, and that she “developed seizure, cortical venous

thrombosis and/or small bleeds/rebleeds” that caused her collapse on December 27,

2002. Resp. Exh. 86 at 11. Dr. Teas states that “[t]here is no medical, radiological

or pathological evidence that Isabella was subjected to any trauma on [December

27].” Id.

Dr. Teas’s conclusion that there is no evidence of any trauma demonstrates

her bias. It is one thing to acknowledge the possibility of abuse and disagree with it

for other reasons, as Dr. Barnes testified. It is quite another to conclude that there


- 42 -

is no medical evidence of abuse when a three-month old is admitted to the

emergency room following a catastrophic collapse and is found to have extensive

bleeding in her brain along with severe bilateral retinal hemorrhages. For years,

Dr. Teas has only testified for the defense in criminal cases involving allegations of

child abuse. Tr. 1440-1444. Based on Dr. Teas’s demonstrated bias, this Court

should find her unreliable.

Dr. Scheller’s report also demonstrates his bias. Pet. Scheller Rep. at 1. The

report begins by stating Dr. Scheller’s fundamental belief: “First, child abuse is a

terrible problem in our country, and in order to combat it pediatricians must be

wary when dealing with difficult to explain childhood diseases. However, it is one

thing to be suspicious, and another to be certain, without witnesses, that someone

has harmed a child.” Id. (emphasis added). In other words, Dr. Scheller will only

diagnose child abuse with certainty if there were witnesses to the abuse. See id.

And, as with Dr. Teas, Dr. Scheller concludes that “[t]here is no reason to believe

that Isabella was a victim of abusive head injury.” Id. at 2; Tr. 843 (“there was no

evidence that she suffered any kind of abuse”). As with Dr. Teas, Dr. Scheller’s

refusal to acknowledge the possibility of abuse demonstrates his bias.

Dr. Leestma’s bias is plain based on belated changes he made to his report.

Dr. Leestma originally reported in August 2012 that he was “not able to detect any

vessels that appeared to contain thrombi.” Tr. 518. When Dr. Leestma filed a

supplemental report on December 14, 2012, long after Dr. Teas had suggested a

CVT diagnosis, he changed his opinion completely to announce that “[s]everal small


- 43 -

cortical veins in a section of cerebrum show recent fibrin platelet thrombi, but none

were found in sections of the dura.” Tr. 519. He also changed his previous sentence

to read that he was “not able to discover any vessels that appeared to contain

thrombi “(in the sections of the dura), and then added, “but some small cortical

veins had fibrin platelet thrombi.” Id. Dr. Leestma explained that he first noticed

the thrombi in August, but “forgot” to put that in his original report. Tr. 520.

While it may be understandable for an expert to leave out a detail in his older

report, it is quite another thing to include contrary information in an initial report

and then change it on the eve of the hearing to be consistent with other retained

experts. Dr. Leestma’s willingness to so alter his opinion to conform with the

suggested CVT diagnosis undermines his credibility and renders his opinion

unreliable.

Moreover, and perhaps most telling, petitioner relies on numerous experts

who either only testify for the defense, or who previously made a dramatic career

shift and now only testify for the defense. Tr. 97-99 (Barnes); Tr. 512 (Leestma); Tr.

888-890 (Scheller); Tr. 1440-44 (Teas). As Dr. Scheller’s letter makes clear, most of

petitioner’s experts are not offering independent evaluations, but are participating

in what they see as a crusade to fight prosecutions of child abuse in cases where

there are no eyewitnesses. Their demonstrated bias renders their opinions

unreliable, and their testimony insufficient for petitioner to meet the Schlup

standard.


- 44 -

b. Petitioner’s Experts Offer Only Speculation

Petitioner’s experts offer many reasons why Isabella could have suffered

acute brain hemorrhages on December 27, 2002: rebleeding of the chronic subdural,

seizures, CVT, or some combination of blood or genetic disorders. Indeed, the

State’s experts similarly discuss some of those potential causes in their differential

diagnoses. But these other potential causes were ruled out by the hospitals that

treated Isabella. In fact, no evidence exists of any cause for the hemorrhages other

than abusive head trauma.

Petitioner’s experts also offer reasons why Isabella could have suffered from

the retinal hemorrhages on December 27, 2002: blood disorders, lymphocytic

meningoencephalitis, or excessive CPR. But these potential causes may result in

small, unilateral, or peripheral hemorrhages, and only a small subset could cause

massive retinal hemorrhages, and no evidence supports those potential causes here.

Tr. 665-67. Thus, abusive head trauma is the only diagnosis supported by the facts

of this case.

Petitioner’s speculations as to potential causes both for the subdural

hemorrhages and for the severe retinal hemorrhages are further undercut by the

coincidence needed to explain them: some rare unidentified condition caused CVT

and seizures and led to her brain hemorrhages, while at the same time some rare

unidentified condition also caused the severe bilateral retinal hemorrhages.

Moreover, unlike at trial, petitioner now must also explain why medical imaging

shows that Isabella had bleeding in her neck—the retroclival epidural


- 45 -

hemorrhage—and damage to her corpus callosum. Petitioner’s experts have not

and cannot explain what unidentified disease Isabella contracted that led to this

multitude of internal injuries at the same time. The only medical diagnosis that

explains all of the injuries arising at the same time is that Isabella suffered from

abusive head trauma at peititoner’s hands. At the very least, petitioner’s experts’

speculations are insufficient to meet the Schlup standard.

1. Petitioner’s CVT/Seizure Theory Of CausationIs Based On Ungrounded Speculation Of AMassive Sinus Or Ear Infection That NoTreating Physician Ever Identified.

Petitioner’s experts opine that Isabella contracted CVT because of a sinus

infection and abnormal platelets in her blood that predisposed her blood to clot too

much. Dr. Scheller gives perhaps the clearest explanation of this theory of

causation in his report: he opines that her December 27 collapse was caused by

seizures, that the seizures were caused by CVT and fresh (acute) subdural bleeding,

and that the CVT was caused by infection and a high platelet count. Pet. Exh.

Scheller Rep. at 1; Tr. 849. In other words, according to Dr. Scheller, Isabella had

an infection that triggered CVT because of high platelet counts, the CVT and the

bleeding it caused triggered a seizure, and the seizure caused Isabella to collapse.

Id.; Tr. 868-70.

But Dr. Scheller’s theory requires that he identify an infection that could

have acted as a trigger. His report states that a sinus and mastoid infection was

identified on medical imaging from December 27 and 28. Pet. Exh. Scheller Rep. at


- 46 -

1. But he acknowledges that doctors checked Isabella’s ears for infection when she

was admitted on December 27 and did not identify any inflammation or drainage

that would be associated with an infection. Tr. 874-76. No treating physician ever

identified a sinus infection. Tr. 923; Tr. 1489. Treating doctors at Provena

examined Isabella’s ears with an otoscope and did not note any sign of infection. Tr.

874-77; Resp. Exh. 51. Dr. Scheller testified that he does not rely on radiologists to

review medical imaging for him, Tr. 891, but no radiologist or treating physician

identified the mastoid and ear inflammations he claims were present on December

27 and December 28.

And Dr. Scheller concedes that bacterial tests revealed no infection. Pet Exh.

Scheller Rep. at 1. And latex agglutination tests for meningitis would not have

been effected by the fact that Isabella was taking antibiotics, as Dr. Teas conceded.

Jenny 2 at 16; Tr. 1485-88. There is no medical evidence that Isabella was

suffering from an infection on December 27, Tr. 1492-93, Without any medical

evidence of an infection on December 27, Dr. Scheller and petitioner’s CVT/

seizures/platelets theory falls apart because there is no medical evidence of a

triggering condition.

While some of Isabella’s lab work indicated high white blood cell

counts—possible indicators of infection—such high counts also signify normal

reactions from the human body when it is stressed from trauma or fever. Tr. 1112.

As Dr. Scheller admits, Isabella was tested for and did not have meningitis. Tr.


- 47 -

919. Cultures were drawn that did not grow any bacterial sign of infection. Tr.

1112, 1485-86.

Petitioner’s CVT theory also lacks merit because treating physicians,

including hematology experts, tested Isabella’s blood to rule out coagulopathy. As

Dr. Scheller admits, the hematology consult did not identify any clotting problems

or disorders with Isabella’s blood. Tr. 926, 928. Indeed, tests showed that Isabella’s

platelets had normal morphology. Tr. 1136. Dr. Teas opines that the hematology

tests were insufficient, but she is not a hematologist, Tr. 1495, and her opinions on

hematology are not reliable, see, e.g., Muzzey v. Kerr-McGee Chemical Corp., 921 F.

Supp. 511, 521 (1996) (doctor not a hematologist thus not qualified as expert on

topic). And she admits that there was no abnormal clotting seen despite Isabella’s

many IVs or catheters. Tr. 1498. Isabella’s high platelets on admission show that

Isabella was “very stressed and her body was responding vigorously.” Tr. 1112.

And, as Dr. Forbes explained, no association has been identified between retinal

hemorrhages and CVT. Tr. 560, 1026.

Moreover, petitioner’s experts—none of them experts in hematology—

unreliably refer to clotting disorders in order to try to explain why they diagnose

CVT. As Dr. Jenny explained, there is a rare bone marrow disorder called primary

thrombocytosis where the child makes too many platelets, but far more common is a

condition called reactive thrombocytosis where platelets go up when kids are sick or

injured. Tr. 1080. Thrombocytosis can be defined as a platelet count over 450,000

per microlitre. Resp. Exh. Jenny 20 at 1. Reactive thrombocytosis, which can be


- 48 -

identified by platelet counts returning to normal when the body is under less stress,

does not result in abnormal clotting and does not require treatment. Tr. 1124-25.

One study, for example, looked to the most extremely high platelet counts where

platelets were over 1,000,000, and identified only twenty-five of over 40,000 infants

with such extremely high platelet counts. Resp. Exh. 103 at 1. All twenty-five

cases were reactive thrombocytosis and none had thrombotic or hemorrhagic events.

Id. at 4. The study concluded that infants with such high platelet counts were not

at any risk of thrombotic or hemorrhagic problems. Id. at 1. No treatment is

required. Resp. Exhs. 103 at 4; Jenny 20 at 2.

Because Isabella’s platelet counts returned to normal when under less stress,

her platelet counts were consistent, at worst, with reactive thrombosis and did not

lead to CVT. Tr. 1124-25. The hematology consult ruled out coagulopathy, a

diagnosis supported by the fact that Isabella’s platelets returned to normal at times

when her body was not under as much stress. Tr. 928-29, 1124-26, 1134-35.

Moreover, Dr. Barnes did not diagnose CVT in the December 28 imaging. Tr.

1514. But even if a child had CVT, it is generally not a serious condition, many

children with it are put on blood thinner medication and recover normally. Tr.

1150. In sum, petitioner’s theory that infection and a clotting disorder led to her

collapse lacks merit because there is no medical evidence that she had any

infection—serious or otherwise—on the day she collapsed.


- 49 -

2. Petitioner’s Remaining Theories AreUngrounded Speculations That Grasp AtStraws.

a. Birth Trauma

One of the things that petitioner points to in explaining the brain

hemorrhages is the allegation that Isabella’s birth was traumatic. But even Dr.

Scheller concedes the birth was “wonderful.” Tr. 898. And while it is true that

there were variable decelerations during labor, there were no late decelerations that

may be problematic for a baby’s health. Tr. 1087-88; Resp. Exh. 72 at 4 (“Late

decels” box not checked). Isabella’s discharge diagnosis following delivery—and she

and her mother were discharged after only two days in the hospital—was “normal

newborn.” Tr. 1091. In short, it is wildly speculative to suggest that something

about Isabella’s birth led to her collapse three months later.

b. Common Childhood Illnesses

Petitioner also points to Isabella’s fever around seven weeks of age and her

ear infection a week before her collapse as potential causes for her collapse on

December 27, 2002. But Dr. Jenny testified that a child with a high fever will

routinely be admitted to the hospital to check for bacterial infections. Tr. 1093.

This was routine care, her fever was already down by the time she was admitted to

the hospital, and all cultures were normal. Tr. 1093-94. Regarding the possible ear

infection in December 2002, a nurse practitioner observed only a mild redness on

Isabella’s left eardrum and they treated her with amoxicillin. Tr. 1095. Both the

fever and the possible ear infection were common early childhood maladies. Tr.


- 50 -

1096. These common illnesses provide no explanation for why Isabella collapsed on

December 27, 2002.

c. Normal Growth Milestones With NoIndication Of Cranial Pressure

Petitioner also makes much of Isabella’s head circumference changes. Two

common sense observations are noteworthy to begin this discussion (1) any small

variation in how a baby’s head is measured, measurement technique, or how

carefully the nurse measures the baby, can lead to small inaccuracies in reporting

the data; and (2) small inaccuracies can make big percentile differences in charting

a newborn’s head circumference in her first few months of life. See generally Tr.

1097. Moreover, newborns commonly experience molding of the unfused skull

bones through a natural childbirth, and this can impact the initial birth head

circumference measurement. Id. Thus, an apparent increase in head circumference

percentile (measured to the norm) can be explained by either molding, small

measurement inaccuracies, or both.

As Dr. Jenny explained, Isabella’s head circumference both tracked along a

normal percentile growth until her December 27 collapse, and also her weight at

birth fell within the fiftieth percentile. Tr. 1097-98, 1090. Thus, her head

circumference measurements were consistent with her height and weight

measurements during her first months of life prior to the collapse. During

Isabella’s early childhood visits, doctors and nurses checked her anterior fontanelle

and found no signs of increased cranial pressure or swelling. Tr. 1172, 1278-80.


- 51 -

Her anterior fontanelle did not show signs of bulging until December 28, 2012, the

day after he collapse and after she experienced the extensive subdural bleeding. Tr.

1275. These findings demonstrate the flaw in petitioner’s focus on head

circumference growth charts: if Isabella’s head circumference was growing because

of increased intracranial pressures, those increased pressures would have caused a

bulging anterior fontanelle. See id. Indeed, after pressures caused by the

December 27, 2012 trauma built up her fontanelle started bulging the next day, and

eventually she required surgery to release the pressure. Tr. 1282.

In sum, petitioner’s experts offer many speculations on what might have

caused isolated symptoms, but offer no explanation for how these unidentified

diseases all happened to occur on December 27, 2012, leading to severe bilateral

retinal hemorrhages and extensive subdural bleeding. Their speculations, in fact,

simply echo the testimony of petitioner’s trial counsel, except that now they are also

forced to explain additional medical evidence that bolsters the evidence of guilt: a

retroclival epidural hemorrhage (bleeding in the neck), deep tissue brain damage,

and unusually high levels of acid in Isabella’s blood when she was admitted to the

hospital. Petitioner’s experts’ testimony is insufficient to meet Schlup’s high

burden.


- 52 -

VII. The Chronic Subdural Collection Identified By Most Experts IsLegally Irrelevant: It Did Not Cause Isabella’s Death, ProbablyOccurred In The Time Frame When Isabella Was Under Petitioner’sCare, And Was Benign.

This Court asked the parties to address the legal significance of the chronic

subdural collection identified by many, but not all, experts. But the chronic

collection, assuming it existed, did not cause Isabella’s December 27, 2002 collapse

and thus has no relevance. Moreover, petitioner’s expert testified regarding the

chronic subdural collection at petitioner’s trial.

Neither Dr. Flaherty nor Dr. Rorke-Adams identified a chronic subdural

collection, though the treating doctors and Dr. Hedlund identified part of the blood

in the December 27 and December 28 medical imaging as chronic. Dr. Jenny

deferred to the radiologists and was concerned it may have been caused by abuse.

Dr. Scheller felt it was benign and was there from birth. But in any event, it was

not legally relevant.

First, it did not cause Isabella’s collapse. Bleeding from a chronic subdural is

not significant, and saying that bleeding from it was serious would be akin to

arguing that someone died from picking a scab. Tr. 1118, 1283. Because the

chronic subdural blood collection did not cause Isabella’s collapse, it is not legally

relevant. See, e.g., State v. Barrow, 718 S.E.2d 673, 676 (N.C. App. 2011) (defense

argued that subdural hematoma rebled). The chronic injury might be a marker for

prior abuse or prior accidental injury, Tr. 1315, but it did not cause Isabella’s death.

The prosecution is not tasked with showing that every old bruise or scab on a


- 53 -

murder victim was caused by a defendant accused of beating the victim to death,

though of course older injuries may sometimes be relevant to show a pattern of

abuse. See, e.g., People v. Oaks, 662 N.E.2d 1328, 1348 (Ill. 1996), abrogated on

other grounds, In re G.O., 191 Ill. 2d 37 (2000). Moreover, Dr. Hedlund’s definition

of a chronic bleed still dates the subdural collection as having originated within the

timeframe when petitioner was caring for Isabella.

And petitioner’s opening statement suggested that the chronic subdural’s

benign nature indicates a “lucid period interval” was a possibility, but that ignores

that different levels of abuse will have different consequences; some minor injury

may lead to a subdural bleed without causing a massive collapse. As Dr. Jenny

explained, the abuse inflicted on December 27, 2002 was severe and led to an

immediate and catastrophic collapse, Tr. 1318, and as Dr. Teas admitted, the

chronic subdural had been present for some time and caused no symptoms, Tr.

1400-02. Isabella could not have completely fed from a bottle on the morning of

December 27 unless she was neurologically intact. Tr. 1307. Accordingly, this

Court should find that the chronic subdural collection has no legal relevance to

whether petitioner inflicted the abuse that led to the December 27, 2002 collapse.


- 54 -

VIII. Conclusion

This Court should hold that petitioner cannot prevail on her defaulted claim

and thus there is no need to adjudicate whether she could meet the Schlup

standard.

In the alternative, this Court should find that petitioner has not met her

burden under that standard for the reasons discussed above, and thus this Court

should not reach the defaulted claim.

This Court has yet to decide whether petitioner’s preserved claims overcome

the 28 U.S.C. § 2254(d) bar to relitigating her claims in federal court.

February 4, 2013 Respectfully submitted,

LISA MADIGAN

Attorney General of Illinois

By: s/ Karl R. Triebel KARL R. TRIEBEL, Bar # 6285222Assistant Attorney General100 West Randolph Street, 12th FloorChicago, Illinois 60601-3218PHONE: (312) 814-2391FAX: (312) 814-5166EMAIL: [email protected]


CERTIFICATE OF SERVICE

I hereby certify that on February 4, 2013, I electronically filed respondent’sPost-Hearing Brief with the Clerk of the United States District Court for theNorthern District, Eastern Division, using the CM/ECF system, which will provideservice to:

Blegen & Garvey53 W. Jackson Blvd., Suite 1437Chicago, IL 60604

s/ Karl R. Triebel___________KARL R. TRIEBEL, Bar No. 6285222Assistant Attorney General100 West Randolph Street, 12th FloorChicago, Illinois 60601-3218PHONE: (312) 814-2391FAX: (312) 814-5166E-MAIL: [email protected]


respondent’s post-hearing brief - medill …€™s post-hearing brief pursuant to this court’s...

Documents