New results of autopsy spur plea
Woman sent to prison in baby’s death based on doctor’s
report is seeking release
By LISE OLSEN
HOUSTON CHRONICLE
Sept. 14, 2009, 7:18AM
The Harris County Medical Examiner's office has quietly rewritten the
results of a 1998 autopsy, prompting renewed innocence claims on behalf
of a baby sitter sent to prison nearly a decade ago for allegedly
shaking a 4-month-old infant hard enough to cause fatal injuries.
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MOORE AUTOPSY PROBLEMS:
Dr. Patricia Moore, a former associate medical examiner in Harris
County, was repeatedly disciplined for failing to follow procedures and
for favoring the prosecution in 1998 and 1999, Harris County personnel
records show. She left Harris County in 2002 for personal reasons, but
her work on children's autopsies here continues to be challenged:
• New innocence claim: After a baby's 1998 death was reclassified from
homicide to undermined causes last year, family and an attorney for
53-year-old former baby-sitter Cynthia Cash recently filed an appeal
claiming innocence and seeking her release.
• Mother freed in 2005: Moore's original autopsy called 2-month-old
Brandon Lemons' 1999 death a homicide, but it was reclassified years
later as “undetermined.” The new report suggested that the baby may
have died from lack of oxygen because of a medical error. Lemons'
mother, Brandy Briggs, was subsequently freed.
• Mother cleared in 2004: Prosecutors dropped charges against another
woman originally accused of reckless injury to her newborn after
Moore's autopsy was challenged and the baby's cause of death was
changed to undetermined.
• Other cases questioned: Trenda Kemmerer, a woman convicted in 1997 in
another child's death remains in prison, though the child's autopsy was
changed and Moore reprimanded for failing to show objectivity in the
case. And Moore herself changed the results of a Montgomery County
child's autopsy in 2007.
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The original autopsy
classified the baby's death as a homicide
and was used by prosecutors as a key piece of evidence against Cynthia
Cash, now 53, a former nurse convicted of fatal injury to a child after
4-month-old Abbey Clements died after being rushed to the hospital from
Cash's home.
But the modified autopsy report made public in a new
appeal calls the
cause of death “undetermined” and found no evidence of “trauma” in the
postmortem exam. Those changes came five years after local officials
announced a review of problematic autopsies conducted by a former
Harris County associate medical examiner, Dr. Patricia Moore. Moore,
who declined requests for comment, left Harris County in 2002 but still
works for Southeast Texas Forensic Center, a Conroe-based company that
provides forensic work for six counties.
It is at least the fourth time Harris County
officials have
reclassified a child's autopsy that Moore originally labeled as a
homicide. Two women have been cleared in other cases — including Brandy
Briggs, who was jailed at 19 after rushing her baby to the hospital and
who spent several years in a prison isolation cell before being freed
in 2005. Dr. Luis Sanchez, head of the medical examiner's office, did
not respond to Chronicle questions about Cash's case or whether he has
finished an audit he promised to conduct after finding problems in the
Briggs case.
After learning about the new autopsy results, Cash's
husband contacted
Briggs' attorney, Charles Portz, to file an innocence claim on her
behalf. The pending appeal asks for her release or a new hearing —
though Cash now has only six months left to serve on her seven-year
sentence for felony injury to a child. The case is being considered by
Harris County District Court Judge Mark Ellis, who oversaw the original
trial a decade ago.
Assistant District Attorney Lynn Hardaway said
prosecutors remain
confident about their case based on other “evidence presented at trial
from doctors who thought she was a victim of shaken baby syndrome.”
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Conflicting opinions
Abbey Clements received three vaccinations at a checkup a few hours
before Cash, her baby sitter, claimed to have found the baby blue in
her crib after a nap. Cash had kept Abbey and her brother along with
her own son and five other children.
Abbey died at Texas Children's Hospital. Doctors there later testified
that though she did not have any external injuries, she suffered
swelling of the brain and retinal hemorrhages — injuries they described
as consistent with so-called shaken baby syndrome.
A neurologist expert for the defense testified at trial that he found
none of the broken bones, external bruises or other injuries considered
to be classic signs of shaken baby syndrome and the girl likely
suffered an extremely rare fatal reaction to vaccines. Dr. Richard M.
Hirshberg also reviewed the new autopsy and repeated his argument for
Cash's appeal: “It's my firm belief now as it was during the Feb., 5,
1999, trial that this defendant is innocent.”
The modified autopsy issued in February 2008 says “a diagnosis of
trauma cannot be substantiated,” though no other cause of death was
determined. The report also says that doctors who testified in Cash's
trial made some “erroneous” conclusions, wrongly describing bleeding
patterns found in the examination of the child's brain as evidence of
trauma.
The revised autopsy, however, also says it could not substantiate
claims made by defense experts that the baby likely died from
anaphylactic shock — a severe allergic reaction to vaccines. Such rare
reactions are well documented in medical literature but generally occur
soon after a vaccination is administered.
Paul Clements, Abbey's father, said he had been briefed on the new
results but said “one ME changing an autopsy still doesn't change what
we think happened because of all the other evidence presented at the
trial.”
Clements said he also bases his conviction that Cash was guilty on his
experience of seeing his daughter “right after it happened and
discussing it with the doctors in the hospital. They had never seen a
baby shaken as badly as Abbey.”
Cash's husband, Ken Cash, and her attorney, Portz, both claim that Cash
never would have been indicted if the autopsy had been conducted
correctly in the first place.
“All I want for her is justice,” said Cash, who sold his house to help
pay legal fees and raised their young son on his own after his wife was
imprisoned. “They railroaded her in that autopsy report. She is
innocent.”
The Harris County District Attorney's office, however, opposes the
appeal.
“The Court of Criminal Appeals held that a claim of actual innocence
based upon newly discovered evidence should not be overturned lightly
and the burden on the defendant who has had error-free proceedings is
exceedingly heavy,” the prosecutor's answer in the case says, later
continuing: “There is considerable evidence in the record to support
the ... conviction.”
lise.olsen@chron.com
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