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Judge recommends overturning murder conviction in baby’s death

By Chuck Lindell, Austin American-Statesman –

AUSTIN, Texas—Texas’ highest criminal court should overturn the capital murder conviction of Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, a Travis County judge has recommended.

District Judge Jon Wisser said scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh — and a change of heart from the prosecution’s star witness, former medical examiner Roberto Bayardo — mean no reasonable juror would convict Henderson if presented with the new evidence at trial.

“Testimony of the state’s chief experts was, at bottom, scientifically flawed,” Wisser wrote in findings dated May 14 and delivered Tuesday to the Court of Criminal Appeals.

After reviewing evidence via testimony and briefs, Wisser recommended that the appeals court dismiss Henderson’s conviction and return her case to Travis County, where she may face “any indictment or charges” that prosecutors choose to pursue in the child’s death.

The appeals court will determine whether to accept Wisser’s recommendation. It can rule on his submission, request further briefing or schedule oral arguments. A decision on Henderson’s fate is likely to be months away.

The child’s parents said Wisser’s ruling left them feeling betrayed by the legal system.“We’re shocked and angry and frustrated,” Melissa Baugh said. “It doesn’t matter what came out of this. She murdered him. Those facts don’t change,” Eryn Baugh said. “This woman has stolen so much from our lives. Nobody could ever imagine the amount of damage she’s done and she is continuing to do from this screwed up legal system we’ve got.”

Eryn Baugh dismissed the defense experts as hacks whose “junk science” conclusions were debunked by prosecution experts, including a pathologist who noted three separate impacts on his son’s head. “He was not dropped,” he said.

Henderson, 55, had claimed that Brandon died after slipping from her arms and falling about four feet to the concrete floor of her Pflugerville-area home. She said she panicked, then buried the boy’s body in a Bell County field before fleeing to Missouri, where she was found and arrested 11 days later.

The search for the boy’s body and hunt for Henderson dominated headlines in February 1994. At Henderson’s trial a year later, Bayardo testified that it was “impossible” to attribute the boy’s extensive head injury to an accidental fall. The only explanation, he said, was a deliberate and forceful blow struck by Henderson, adding that Brandon would have had to fall from “higher than a two-story building” to sustain a similar injury.

But in an affidavit included in Henderson’s 2007 appeal, Bayardo said advancements in the understanding of pediatric head injuries indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon’s 1994 autopsy.

“I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh’s injuries resulted from an intentional act or an accidental fall,” Bayardo said.

Dr. John Plunkett, one of five defense experts to testify before Wisser, said doctors were commonly taught that short falls could not cause serious injury or death in infants. However, scientific studies since 2001 have shown that falls of less than four feet can be lethal, producing complex skull fractures and other damage, said Plunkett, a Minnesota forensic pathologist who studied fatal playground accidents.

Plunkett concluded that no expert could prove that Brandon’s death was an accident. “However, because of the new scientific information and analysis now available … neither may anyone prove that Ms. Henderson intentionally caused it,” he said in an affidavit to Wisser.

Prosecutors also presented five rebuttal experts that Wisser’s findings labeled credible, though he did not elaborate on their testimony.

Instead, Wisser found that Henderson established a legal right to relief by showing that Bayardo’s recantation was based on credible new scientific evidence that was not available during her first appeal in 1998. Texas death row inmates are allowed one application for a writ of habeas corpus unless they can show that key evidence wasn’t available the first time around. Henderson was two days from a June 13, 2007 execution date when the Court of Criminal Appeals ruled 5-3 to halt proceedings — directing Wisser, who had presided over Henderson’s trial, to examine testimony from defense experts and Bayardo’s recantation.

It is unclear how Wisser’s conclusions will be received by the appeals court, an all-Republican nine-member body known as a tough venue for defense lawyers.

Three judges would not have delayed Henderson’s execution in 2007— Sharon Keller, Barbara Hervey and Michael Keasler — saying defense lawyers did not meet criteria for a second appeal. Keasler’s dissent, however, went further, deriding Henderson’s innocence claim and saying her actions pointed toward guilt: “What is an innocent man or woman’s reaction when a baby has a serious accident? Is it to bury the baby and flee the state? Of course not.”

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