On December 5, 1985, Michelle Deem took her five-month-old son, Luther, to her pediatrician in Midvale, Utah, with bruises on the child’s face, ears and head. She and her live-in boyfriend, Warren Hales, said the boy had been flung from his car seat into the dashboard when Hales slammed on the brakes of his truck while driving to a babysitter.
The boy was examined and an ear infection was diagnosed. He was sent home with a prescription for antibiotics. That night, Deem went to the grocery store, leaving the sleeping baby with Hales. Not long after, Hales, 25, said he heard a strange sound coming from the baby’s room and found Luther limp with his eyes half-open.
A neighbor called emergency personnel and the baby was taken to a hospital. Hales remained there, waiting for Deem. When she arrived minutes later, Hales ran to her car saying he was sorry and they both drove to the hospital.
At the hospital, physicians noted bruising on the baby’s face, but no evidence of impact injury, no neck injury, no injuries to the body and no healed fractures or other evidence of prior abuse. The cause of death was diagnosed as Shaken Baby Syndrome.
Shaken Baby Syndrome (SBS), a term later coined for a condition first articulated in 1971, is said to describe a situation in which an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a tell-tale “triad” of symptoms – brain swelling, brain hemorrhaging and retinal hemorrhaging – which, when present in an infant who has no outward signs of abuse, indicate that the child has been violently shaken. According to received medical wisdom in the 1980s, no other injuries or pathologies could cause these three symptoms to occur at the same time, and – because it was believed that a victim of SBS became unresponsive immediately – the last person to have physical care of the baby must have caused the injuries.
Luther was paralyzed and brain-damaged by his injuries, but remained alive.
Interviewed by police, Hales said, “I slapped his face three or four times just to get his attention. Then I turned him over and held his legs and kind of shook him…to kind of get him breathing. I pulled him onto my hand and I hit him three or four times on his back.”
When detectives sought to have Hales charged, Salt Lake County prosecutors refused to seek an indictment, saying there was a lack of evidence of intent.
Twelve years later, on December 12, 1997, Luther Deem, by then 12 years old, blind and mute, died of aspiration pneumonia.
In 1998, county prosecutors again declined to bring charges. A note was put in the file saying that “the evidence considered at the original declination has not improved with age, and negligent homicide has a statute [of limitations] of only 4 years.”
The case was turned over to the Utah Attorney General’s Office, which filed charges of first-degree murder against Hales on February 29, 2000. Hales was arrested in March of that year.
Hales went on trial on July 6, 2004 in Salt Lake County Third District Court.
Deem had defended Hales the night the boy was hospitalized, saying that he had never harmed Luther, that he loved the boy and that on the way to the hospital, he had apologized, saying he didn’t know what to do.
At trial, however, Deem said that Hales felt inconvenienced by the boy, that they had argued three nights before the boy was hospitalized because she would not let Hales and a friend take acid in the apartment. She said Hales left the apartment, saying he was going to hurt her.
She also changed her story about what Hales said on the way to the hospital. She told the jury that he said “he was sorry he did it.”
The state’s expert, a pediatric neurosurgeon, testified based on a combination of CT scans and the evidence of retinal hemorrhaging that Luther suffered from SBS.
Hales’ trial attorneys did not have an expert look at the CT scans until the morning of trial and the expert who examined them was found by the court to be unqualified to interpret them.
John Plunkett, a Minnesota forensic pathologist, did testify for the defense, saying that shaking can cause neck injury, but not brain injury and that the child’s injuries were likely caused by the accident in Hales’ truck two days earlier.
Hales testified in his own behalf and denied ever saying that he had done anything to the child. He said he “tried everything I could for him.” He denied using acid or threatening the boy’s mother.
Hales was convicted by the jury and afterward retained new lawyers who moved for a new trial, arguing that the trial defense attorneys had provided inadequate legal assistance by failing to investigate the CT scans.
In support of that motion, the lawyers provided an affidavit from Dr. Patrick Barnes, a pediatric neurologist at Stanford University. Barnes said that the initial CT scan taken at the hospital on the night Luther was brought in showed a change in cell structure that would not be visible for at least six to 12 hours after the injury—a period when Hales was at work.
In February 2005, the motion for a new trial was denied. Judge Dennis Frederick ruled that Hales’ lawyers had made a tactical decision not to investigate the CT scans and that the decision fell within the range of reasonable professional judgment.
Hales was then sentenced to five years to life in prison.
The decision was appealed and on July 15, 2005, Hales was granted bond and was released pending the appeal. The Utah Supreme Court reversed the conviction on January 30, 2007. The high court held that it was likely that if Hales’ attorneys had done an effective job of representing him they would have hired a qualified expert to read the CT scans prior to trial, and that expert would found compelling evidence contradicting the state’s theory on the timing of the injuries.
On June 15, 2007, the Utah Attorney General’s office dismissed the charges, saying there was insufficient evidence to take the case to trial a second time.
– Maurice Possley