 Donna Conley (right) embraces her daughter after being acquitted at second trial. (Photo: Trevor Jones/The Times Recorder)
Thirty minutes elapsed before emergency personnel arrived from Zanesville, Ohio and Brandi finally arrived at Bethesda Hospital in Zanesville an hour after Conley first called 911. Four and a half hours later, Brandi was transferred to Children’s Hospital in Columbus, Ohio.
While Brandi was being treated, a sheriff’s deputy and Roger Baughman, an investigator from Perry County Children’s Services, interviewed Conley at the hospital. She said she heard a noise and then found Brandi at the bottom of the stairs. She said Brandi cried at first and became unconscious. The home where the accident occurred was an old hotel that had been converted into two living units. The building was more than 200 years old, three stories tall, and had very high ceilings. The stairways to the second and third floors were steep and thinly carpeted. Photographs of the steps showed that the distance from the top of the stair railing to the bottom of the steps was about 20 feet.
On December 18, 1996, Brandi died. Her body was taken to the Franklin County Coroner’s Office where Dr. Keith Norton, a pathologist, performed an autopsy. He said Brandi had bruised nerves within the skull, bruising of the olfactory bulb, subdural hematoma, and various bruises on her body. He said the cause of death was blunt trauma to the head and that the manner of death was accidental.
At the time, Conley was living with her second husband, Brian Conley, who was Brandi’s father. Also living with them were Conley’s children from her previous marriage, Heather and Shawn Byrnes. The day that Brandi died, Baughman interviewed Heather and Shawn and did not observe any bruises or injuries on them.
Eight months later, Dr. Norton changed the manner of death to homicide. He would later testify that he changed his opinion after reading literature and conferring with Dr. Charles Johnson, who was a member of the child abuse diagnostic team at Children’s Hospital.
During interviews with police, Brandi’s father, Bryan, said that he disciplined Brandi by spanking her with a spatula.
No charges were brought for nearly six years. During that time, Brian Conley was charged with child abuse for spanking Brandi with the spatula. That charge was later dismissed.
Meanwhile, Donald Byrnes, who was Donna Conley’s ex-husband, lobbied an organization called Parents of Murdered Children to pressure Perry County prosecutors to charge Donna Conley with a crime.
Ultimately, on December 13, 2002, a Perry County grand jury indicted Donna Conley on charges of involuntary manslaughter and child endangering. She went to trial in July 2003 in Perry County Court of Common Pleas.
Dr. Norton testified to the injuries he documented during the autopsy. He testified that in his opinion the cause of death was blunt trauma to the head. He said blunt trauma meant a trauma that was either caused by shaking or by some type of impact or hitting of the head. Dr. Norton testified that he changed his initial finding of accidental death after conferring with Dr. Johnson. Dr. Norton said the injuries Brandi suffered would not have been sustained from a fall down steps or by an accidental means. He said it was unlikely that such injuries would be sustained from a twenty foot fall.
Dr. Robert Aranosian from Pontiac, Michigan, a director of a trauma center, said Brandi's injuries would not have been sustained from a fall down steps or from a fall off of the banister at the top of the steps. He described her injuries as being consistent with being beaten. Further, he expressed the opinion that the injuries that resulted in her pupils being fixed and dilated and her posturing would have been inflicted no less than thirty minutes to no more than four hours before this began. It was undisputed that Conley was the only person home with Brandi at the time.
Dr. Henry Bartkowski, a pediatric neurosurgeon at Children's Hospital when Brandi was admitted, testified that he saw retinal hemorrhages in Brandi's eyes. He said the retinal hemorrhages were not caused by any means other than shaken impact injury. Such injuries were commonly referred to as Shaken Baby Syndrome (SBS), a diagnosis that is based in part on retinal hemorrhages. Dr. Bartkowski also noted that the subdural blood in Brandi's skull was a few minutes to a few hours old at the time of doing the CAT scan on her admission. Dr. Bartkowski also opined that Brandi's fatal injuries would not have been sustained from a fall down the stairs or from a fall off of the banister above the stairs.
Dr. Johnson testified that the injuries were not consistent with a fall down the stairs or a fall from the banister above the steps. He pointed out that there was no swelling of Brandi’s head, which would be present if the injury was from some type of impact with a blunt object.
Shawn Byrnes testified to seeing Brandi before she went to bed on December 16, 1996—the night before she was reported to have fallen down the stairs—and Brandi did not have any of the bruises shown in the autopsy photographs.
On July 16, 2003, the jury convicted Donna Conley of involuntary manslaughter and child endangering. She was sentenced to 13 years in prison. Her ex-husband, Byrnes, learned of the verdict while at the Perry County Sheriff’s office because a court order barred him from coming within 500 feet of Conley. Byrnes denied that his motivation for lobbying for Conley’s prosecution was to regain custody of Shawn and Heather, though he said he would seek to get a custody order.
On appeal, her appellate attorneys, Paula Brown, Max Kravitz, and Kort Gatterdam, raised several arguments. They contended that Conley’s trial defense attorney had provided an inadequate legal defense by failing to file pretrial motions, permitting hearsay evidence to be admitted, failing to interview any of the prosecution witnesses, and failing to consult with any medical experts.
The defense noted that the bruises on Brandi’s body that the prosecution pointed to as evidence of child abuse were not reported by physicians who initially examined the girl at Bethesda Hospital. The attorneys suggested this was evidence that the bruises were the result of efforts to treat Brandi before she died.
The attorneys also argued—and the prosecution conceded—that the indictment and jury instructions failed to include an essential element of the offense: intent.
The attorneys contended that absent a requirement that the prosecution show intent by Conley, “the indictment read as if it were a strict liability offense; the jury was permitted to find Conley guilty based merely upon the fact that Brandi was in her care when the accident occurred.”
On June 14, 2005, the Fifth District Ohio Court of Appeals vacated Conley’s conviction and ordered a new trial. The appeals court ruled on the issue of the failure of the indictment and jury instructions to include the element of intent. On June 16, 2005, Conley was released from prison pending a retrial.
In September 2006, the charges were dismissed after the prosecutor, Joseph Flautt, failed to provide the defense team with a transcript of the grand jury testimony that had resulted in Conley’s indictment.
Flautt returned to the grand jury and in February 2007, Conley was reindicted on a charge of involuntary manslaughter.
Conley went to trial a second time in May 2007. At this trial, Kravitz and Brown presented testimony from Dr. Edmund Donoghue, the former chief medical examiner in Cook County, Illinois, and Dr. Robert Pfalzgraf, a pathologist from Fort Myers, Florida. Both testified that Brandi’s injuries were such that a fall down the steep stairs was very possible as the cause.
Pfalzgraf testified that after reviewing the medical charts, autopsy reports, photographs of the stairs, and visiting the home where the Conley family lived in 1996, he concluded that Brandi died from a fall.
"She didn't die from a blow to the head," Pfalzgraf testified.
The most significant finding, Pfalzgraf told jurors, was that the damage to her brain showed him the impact to the head was from Brandi 's head striking something, not anything striking her head.
"Her head moved and hit something solid," Pfalzgraf said.
Pfalzgraf also testified Brandi 's injuries were consistent with a fall down a flight of stairs and children can die from falling off an object or down a flight of stairs. He said Brandi 's death was accidental, not a homicide.
The defense also noted that although Dr. Bartkowski had testified that Brandi had retinal hemorrhaging in both eyes, the medical records showed the hemorrhaging was visible only in one eye, casting doubt on Bartkowski’s claim that Brandi had been shaken to death.
Conley testified and denied abusing Brandi. She said that on that morning, they were going to a dentist appointment. She said she helped Brandi pick out an outfit to wear and that was the last time she saw her stepdaughter conscious.
"I went back to my painting a T-shirt in the family room and heard a noise," Conley told the jury. "She had told me she was making me something to eat with the dishes. I told her to get dressed and then I heard a noise and a moan."
Conley said she discovered Brandi unconscious on the stairs, picked her up and laid her on the couch.
"She was breathing," Conley testified. "I slapped her face trying to wake her up."
Conley said the girl did not respond, so she got some smelling salts, but Brandi did not wake up.
"I called my mom," Conley said, shaking. "I asked her what to do and she said to call an ambulance."
On May 18, 2007, the jury acquitted Conley.
– Maurice Possley
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