 Jennifer Del Prete with attorney Jon Loevy (photo: Chris Sweda/Chicago Tribune)
When Isabella arrived at Provena St. Joseph Medical Center in Elgin, Illinois, she was unconscious. A CAT scan documented abnormalities in the infant’s brain. Isabella was transferred to the University of Illinois at Chicago Hospital.
Detective Kenneth Kroll later testified that he interviewed Del Prete on December 29, 2002. Kroll said that Del Prete said she was the only one working on December 27, 2002 because the other day-care provider was out of town. Kroll said Del Prete told him that Isabella took a bottle between 8 and 9 a.m. and then slept in a swing until around noon. At that time, she changed Isabella’s diaper and put her on a couch. Del Prete said she stepped away briefly to prepare a bottle. When she returned, Isabella “was making a snoring, labored breathing sound,” and her body was “totally limp.”
Kroll said Del Prete said she picked up the child and Isabella’s head flopped forward. She said she gave the baby a “very slight shake” while saying her name several times. Del Prete said she tried to feed Isabella, but the milk ran out of her mouth down the side of her face. Del Prete said she put Isabella face down and gave her three to five pats on the back in an attempt to dislodge anything that might have been choking the baby. Del Prete then called 911.
Del Prete told Kroll that Isabella did not fall or get knocked over that day. She said that Isabella’s head moved more vigorously when she was patting the infant on the back than when she gave the baby a slight shake.
Kroll later testified that he took a break during his questioning, and when he returned he told Del Prete that her statements were not consistent with the medical evidence. Kroll said he told Del Prete that Isabella suffered from Shaken Baby Syndrome (SBS) and had subdural hematomas. Kroll told her that he believed Del Prete was responsible for Isabella’s injuries. He said Del Prete began to cry. She said she could not remember exactly what happened and that it was a very stressful, panicked situation. Kroll said Del Prete said “she could have shaken [Isabella] a little harder than she thought.” However, Del Prete insisted that she did not shake Isabella violently, and she did not intentionally hurt the infant. Kroll’s report said that Del Prete never actually confessed to shaking the baby.
Physicians who initially treated Isabella concluded that the infant’s injuries were the result of shaking by Del Prete. On February 11, 2003, Del Prete was charged with aggravated battery to a child.
Meanwhile, Isabella had been transferred to Children’s Memorial Hospital. On March 23, 2003, Isabella returned home where she was cared for by her mother and visiting nurses. On November 8, 2003, a nurse called 911 because Isabella’s lips were blue. Isabella was taken to the hospital and died the following day, November 9, 2003.
On April 8, 2004, a Will County grand jury indicted Del Prete on a charge of first-degree murder.
In February 2005, Del Prete went to trial in Will County Circuit Court. She chose to have her case heard by Judge Carla Alessio Policandriotes without a jury.
Dr. Adrian Nica, a physician at Provena, testified that he treated Isabella in the emergency
room on December 27, 2002. Dr. Nica ordered a CAT scan of Isabella’s brain, which showed that she had “acute and chronic changes secondary to bleeds in different levels.” Dr. Nica said that the chronic bleeding could have been days or a week old. He testified that because Isabella had not been involved in a car accident, “you have to assume that it was a child abuse or baby
shaking.”
Dr. Howard Hast was certified as an expert in the field of pediatric critical care medicine and testified that he treated Isabella from December 30, 2002 through January 16, 2003. A retinal scan showed that there was blood in the infant’s retinas. Dr. Hast also testified that Isabella also had bifrontal subdural hematomas, and that the most likely cause was that Isabella “was shaken or had some other accelerating/decelerating injury occur such as being dropped or thrown or something like that.”
Dr. Jeff Harkey, a forensic pathologist for the DuPage County coroner’s office, testified that he conducted an autopsy on Isabella on November 10, 2003. Dr. Harkey took X-rays, which showed no evidence of trauma. Dr. Harkey did not observe any bleeding or acute trauma. He reviewed some of Isabella’s medical records including a physician’s report from Dr. Emalee Flaherty. Dr. Harkey concluded Isabella’s death was the result of “multiple system organ failure due to anoxic-ischemic injuries…due to abusive head trauma [(AHT)].” Dr. Harkey said that an anoxic-ischemic injury occurred when there was not enough blood flow and oxygen to bodily tissue. Dr. Harkey testified that the AHT occurred 10 or 11 months prior to the infant’s death.
Dr. Flaherty testified that she had been a pediatrician at Children’s Memorial Hospital for
over 30 years. Flaherty testified that she reviewed Isabella’s medical records from the University of Illinois Hospital. She also spoke with Dr. Hast, reviewed the police reports, reviewed the paramedic reports, interviewed Isabella’s parents, and examined Isabella.
Dr. Flaherty concluded that Isabella “had suffered [AHT] or also known to many people as [SBS].” Flaherty said: “[AHT] is a form of child abuse where a child suffers some kind of acceleration/deceleration injuries to the brain” which included shaking. Flaherty stated that AHT could be caused by “violent sustained shaking and sometimes impact” to infants or young
children.
Dr. Flaherty said that of the spectrum of injuries in AHT or SBS, Isabella had subdural hemorrhages, subarachnoid hemorrhages, diffusing injury, and parenchyma lacerations and contusions. Dr. Flaherty also said that Isabella had dead brain tissue as a result of her injuries. Dr. Flaherty stated that acceleration/deceleration forces like violent shaking can also cause retinal hemorrhages. Dr. Flaherty opined that the hemorrhages present in Isabella are only caused by these acceleration/deceleration forces or seen in [SBS].”
Asked by the prosecutor what level of force would be needed for violent shaking to cause these injuries, Dr. Flaherty said: “Forces would be so severe that if anyone witnessed that shaking occurring or someone shaking a child like that, they would know that that child would suffer severe injury.”
Dr. Flaherty said the abuse occurred while Isabella was in Del Prete’s care and that the injuries could not have been caused by someone performing cardiopulmonary resuscitation (CPR) poorly on her, from a fall, or by a young child. She said, “It would take someone of adult strength shaking this child violently to cause these kinds of injuries.”
Dr. Flaherty acknowledged that Isabella did not have any bruises, but said it was “pretty uncommon” to find bruising in a case of SBS.
Dr. Wayne Tucker, an expert in pathology and pediatrics, testified that he reviewed medical records, Dr. Flaherty’s report, police reports, paramedics’ reports, an autopsy report, and autopsy pictures. Based on his review of these documents, Tucker concluded that Isabella’s injuries occurred approximately 18 to 24 hours before she collapsed at the daycare. Tucker testified that Isabella’s CAT scan “reflected that there was an acute situation and there was a chronicity to the situation of the frontal hematomas, subdural.”
Dr. Tucker stated that “chronic” meant that it had been there for “at least 7 to 10 days.” Dr. Tucker said that almost anything that will cause an increase in intracranial pressure could cause a chronic subdural hematoma to rebleed, such as coughing, sneezing, holding breath, movement, turning the head quickly, or falling.
Dr. Tucker stated that bruising was part of the definition of SBS. He said that “to do this even on a three-month-old or a one-month-old or any age group…whoever is doing it has to pick up into the arms, say hold arms or the shoulders and grab and hold on tightly to give the shaking.” Dr. Tucker said he had never seen a shaken baby without bruising.
Dr. Tucker said that Isabella had been given antibiotics for nine days and that combined with gas drops being given to help the infant take a bottle could have caused a seizure.
The defense called several witnesses who testified that Del Prete had a reputation as an honest, law-abiding, dependable, well-respected, and peaceful person. These witnesses included parents who had children in activities with Del Prete's children and whose children Del Prete had babysat in daycare or otherwise; a pastor who hired her as a supervising nursery attendant for services and events at his church; and persons who had worked with Del Prete at the children's room of the local public library.
Gleanne Kehr, the daycare center operator, testified that she hired Del Prete because Del Prete was honest, trustworthy, caring, and good with children. She said that she had never observed Del Prete as anything other than "calm and patient" with children at the daycare.
Kehr also testified that when Isabella took a bottle, she "tended to tense up and to arch her back." Kehr testified that Isabella seemed very uncomfortable during and after eating and had to be burped more frequently than most babies. Kehr testified that she had spoken with Isabella’s mother about the possibility that Isabella had excess gas, although she conceded that she did not know whether Isabella was ever diagnosed with a problem relating to gassiness.
Kehr also testified that in early December, she saw Isabella’s father physically discipline her brother, who also was a daycare resident. Kehr said that when the boy was uncooperative in putting his shoes on, the father grabbed him by the foot and dragged him to where the shoes were kept.
Karli Hinton, who worked at the daycare center with Del Prete and Kehr, testified that Isabella was colicky and cried frequently. She recalled being given "gas drops" for the colic to add to Isabella’s bottle to help relieve her gas. Hinton said Isabella was "phlegmy" and that she frequently had a runny nose and a cough.
Another witness, Steve Blake, whose son also attended the daycare, testified that Isabella "didn't seem well." He said that Isabella was frequently crying during the short periods of time that he spent at the daycare.
Christine Murphy, a pediatric intensive care nurse and the mother of three children who attended the daycare, testified that she knew Isabella's family and had seen both parents physically discipline Isabella’s older brother. Murphy testified that she had seen the boy’s father physically discipline him on at least ten prior occasions, typically by grabbing the boy's arm and tossing him onto the couch.
On March 4, 2005, Judge Policandriotes convicted Del Prete of first-degree murder. In November 2005, Judge Policandriotes sentenced Del Prete to 20 years in prison.
Del Prete appealed her conviction, arguing that there was insufficient evidence to find her guilty beyond a reasonable doubt. The Illinois Appellate Court denied her appeal in 2007. Del Prete filed a petition for post-conviction relief in March 2008, arguing that her trial defense lawyer had provided an inadequate legal defense by not retaining more medical experts and for failing to disclose that he had previously been temporarily suspended from the practice of law because of unethical behavior as a prosecutor in Will County. The Will County Circuit Court dismissed her petition. In 2009, the Illinois Appellate Court denied Del Prete's appeal.
In 2010, the law firm of Blegen & Garvey filed a federal petition for a writ of habeas corpus. The petition contended the evidence at trial was insufficient to sustain a conviction. The petition also claimed that her trial defense attorney had failed to challenge the admission of expert testimony on the theory of SBS and also failed to present appropriate expert testimony to dispute the prosecution's theory of SBS.
Del Prete’s lawyers conceded that the claim related to failing to challenge the admission of the expert testimony had procedurally defaulted because the claim had not been raised in state court. However, the petition said that the default should be excused and the claim addressed because evidence showed that Del Prete was innocent.
U.S. District Judge Matthew Kennelly ordered a hearing which was conducted over nine days in December 2012 and January 2013.
The witnesses included:
--Dr. Patrick Barnes, a neuropathologist, testified for Del Prete. Dr. Barnes said that the imaging studies of Isabella’s brain showed chronic collections of fluid that appeared between her brain and her skull which could have been several weeks to months old or could even have dated back to Isabella’s birth in September 2002. Barnes noted that Isabella had brain injuries due to a lack of oxygen or blood flow to the brain. He also said there were no signs of direct traumatic injury to Isabella’s head, skull, brain, or neck. Barnes stated that Isabella’s first CT scan, taken on December 27 approximately six hours after Del Prete called 911, depicted a dark band between the infant’s skull and the frontal lobe of her brain, which he said constituted old collections of fluid. He stated that those chronic collections were at least two to three weeks old but could have existed since birth. Barnes said that cortical venous thrombosis (CVT) was a likely cause of Isabella’s brain abnormalities.
-- Dr. Gary Hedlund, a neuroradiologist, testified for the prosecution that the imaging studies indicated that Isabella had both acute and chronic subdural hemorrhages in various locations. Although he concurred with Dr. Barnes that there were chronic subdural hemorrhages that already existed as of December 27, 2002 and that they were at least two weeks and perhaps as much as three weeks old, or older, Dr. Hedlund testified that the acute hemorrhages ranged in age from a few hours to three days old. He stated that the imaging studies showed a number of hemorrhages of varying ages throughout Isabella’s head, which he said indicated AHT.
--Dr. Michael Prange, a biomechanical engineer, testified for Del Prete that based on his research and studies, the mechanism of shaking itself was insufficient to produce brain injury without first causing catastrophic neck injury to a victim. Isabella had no such neck injuries.
--Dr. Nagarajan Rangarajan, a biomechanical engineer, testified for the prosecution that the science of biomechanics could not determine the cause of Isabella’s injuries and that the science was unable to determine the threshold necessary to produce head injuries in infants. Dr. Rangarajan also testified that Dr. Flaherty was wrong when she testified at Del Prete’s trial that a fall could not produce levels of acceleration as great as shaking alone.
--Dr. Patrick Lantz, a pathologist, testified for Del Prete that he studied Isabella’s retinal scans and retinal hemorrhages. He said that retinal hemorrhages were associated with a wide variety of conditions, both traumatic and non-traumatic. Dr. Lantz said that Dr. Flaherty’s testimony that retinal hemorrhages are only caused by shaking was not true. He said that such hemorrhages can be the result of resuscitation efforts such as those performed by Del Prete and paramedics.
--Dr. Brian Forbes, a pediatric ophthalmologist testified for the prosecution that the retinal hemorrhages were not the result of resuscitation efforts or a CVT, as Dr. Barnes suggested. Forbes dismissed alternative causes for the hemorrhages that were non-traumatic.
--Dr. Joseph Sheller, a pediatric neurologist, testified for Del Prete that after examining all of Isabella’s medical records and her brain imaging studies, he concluded there was no evidence that Isabella had suffered an abusive head injury. He said there was no evidence of brain swelling as would be expected as a result of an abusive head injury. Dr. Sheller said there was evidence of a blood clot on Isabella’s brain, supporting Dr. Barnes’s CVT testimony. Dr. Sheller said that Isabella’s head had grown extraordinarily fast—from under the 50th percentile for infants at birth to the 90th percentile at 10 weeks. He said that indicated that “something must be going on inside her skull,” and that likely was chronic subdural fluid collection.
--Dr. Carole Jenny, a child abuse pediatric physician, testified for the prosecution that based on her examination of the records, Isabella suffered AHT caused by Del Prete that led to cardiac arrest and severe brain damage, and eventually to Isabella’s death. She conceded during cross-examination that no one has put forth a coherent argument to support that shaking alone can cause AHT.
--Dr. Lucy Rorke-Adams, a pediatric neuropathologist, testified for the prosecution that there was evidence of contusion to a portion of the brain called “gyrus rectus,” which she said was on the front of the brain, and was a common site of injury in infants who suffer AHT.
--Dr. Jan Leetsma, a neuropathologist, testified for Del Prete that he examined Isabella’s brain and found evidence of subdural hemorrhages that were largely resolved and that he found no evidence of contusions or lacerations of the brain. Dr. Leetsma testified that what Rorke-Adams said was the gyrus rectus was part of the cerebral cortex in the back of the brain.
--Dr. Shaku Teas, a forensic pathologist, testified for Del Prete. She said that even if Dr. Rorke-Adams correctly identified the section of brain she assessed from the photographs, the photograph did not depict a brain contusion. Dr. Teas concluded, based on her review of the medical records and autopsy photographs, together with her own neuropathological examination of the brain, that Isabella’ collapse resulted from CVT.
On June 21, 2013, Del Prete called four additional witnesses to testify regarding a recently-discovered November 2003 memo from Detective Kroll to Dr. Flaherty. The hearing was reopened after Del Prete’s lawyers received a memo from the Northwestern University School of Journalism Medill Innocence Project. The memo had been obtained through a Freedom of Information Act request to the Romeoville Police Department.
Kroll's memo to Dr. Flaherty stated:
“If you haven't already heard, [Isabella] died 11-09-03. I'm writing to inform you of a ‘twist’ in our case presented by the DuPage County Medical Examiner. On 11-09-03, I received a phone call from an Attorney who notified me that Isabella would undergo a ‘post’ medical exam on 11-10-03. This Attorney specifically called to inform me that the pathologist scheduled to perform the autopsy does not agree with SBS [shaken baby syndrome], and has testified for the defense in two DuPage County SBS cases.
“On 11-10-03, I spoke to a Plainfield Police Evidence Tech (ET) who was present at the autopsy. The ET advised that Dr. Jeff Harky [sic] did in fact question the diagnosis of SBS. I was told that Dr. Harky specifically looked for fractures in the rib cage (adult grabbing point) and found none. Dr. Harky intends to summon all of [Isabella’s] medical records to see who determined this was SBS, and why they reached that diagnosis.
“I have great confidence in your findings, and our investigation. This correspondence is FYI. However, I anticipate having to answer several questions for my prosecuting Attorney. Please call me when you have a few minutes to discuss the case.”
Detective Kroll testified that he did not specifically remember being told that Harkey questioned the diagnosis of SBS, but he assumed his memo was accurate. He agreed that the medical examiner's questioning of the diagnosis of SBS would be unfavorable to the prosecution. Kroll said he did not specifically recall discussing Harkey's views with anyone and did not recall if he gave his memo to Will County prosecutors. He did recall, however, that he spoke with the prosecutors about the subject of his memo one to two months before the trial in February 2005. Finally, Kroll testified that he did not specifically recall discussing Harkey's views with Dr. Flaherty. He stated, however, that he most likely had done so, because she was punctual about returning phone calls related to the case. He did not know if his memo had been given to Del Prete's defense attorney.
Plainfield police officer Tracy Caliendo testified that she was present at the autopsy. She recalled only that Harkey noted no fractures or external injuries. She stated that she did not recall that Dr. Harkey questioned the diagnosis of SBS and did not recall discussing the autopsy with Kroll.
Dr. Flaherty testified that she did not recall receiving the memo from Detective Kroll. She likewise did not recall whether she spoke to Kroll or anyone else regarding the memo's contents.
Dr. Harkey testified that he did not recall telling anyone at the autopsy that he had found no evidence of fractures at the "adult grabbing point," but that this was something he would have looked for at the time. Dr. Harkey stated that he did not specifically recall whether he had spoken to anyone about doubting the diagnosis of SBS for Isabella’s death. He stated, however, that he had concerns with a diagnosis of SBS because he did not believe there was any finding that could distinguish injuries caused by blunt force trauma from those caused by shaking alone. In other words, Dr. Harkey said, "When I am looking at pathology in an autopsy, I don't believe that I can say this child was shaken rather than this child was hit."
Harkey also testified that he had a problem with a diagnosis of SBS or AHT pointing to a particular perpetrator. He stated that a child may have a lucid interval after an incident of AHT and may "go unresponsive" only much later. Therefore, the onset of unresponsiveness did not necessarily indicate that the caretaker present at the time was responsible for inflicting the injury.
Harkey noted that his job as medical examiner was not to identify a perpetrator, but only to determine the cause of death. He reaffirmed his testimony at trial that Isabella died as a result of AHT, and he said this was not based on his autopsy findings, because "[t]hat trial had gone cold" by the time Isabella died. He said his testimony on this point was based on other doctors' conclusions.
Harkey also reaffirmed his testimony that Isabella's brain showed no contusions or lacerations, either in the front or the back. He stated that this was something he had specifically looked for while conducting the autopsy.
On January 27, 2014, Judge Kennelly concluded that Del Prete had “established by a preponderance of the evidence that based on all of the relevant evidence, no reasonable jury would find her guilty beyond a reasonable doubt.”
Judge Kennelly ruled: “In sum, this evidence, considered as a whole, undercuts Dr. Flaherty's testimony that Del Prete was the perpetrator of abusive head trauma. And Dr. Flaherty aside, the testimony of [the prosecution's] own experts at the hearing points away from Del Prete as having criminal responsibility for [Isabella’s] death.”
Judge Kennelly noted that the evidence “gives rise to abundant doubt, not merely reasonable doubt, regarding Del Prete's guilt. Finally, even if one were to disregard all of this, the testimony indicating that even minor trauma could have caused bleeding from [Isabella’s] chronic subdural hemorrhage and further injury would undermine a claim of criminal responsibility on Del Prete's part and further give rise to reasonable doubt regarding her guilt.”
Judge Kennelly noted that the defense had argued that there was evidence of Del Prete’s innocence. “There is plenty of it here,” the judge said. “A good deal of it involves the medical approach to claimed shaken baby cases.” Judge Kennelly pointed to the testimony of the prosecution expert Dr. Rangarajan, who testified that the science of biomechanics was not yet able to establish an injury threshold in this area. “If true, this statement provides a newfound basis for skepticism about causation and mechanism testimony offered at Del Prete's trial as well as similar testimony offered by respondent at the hearing before this Court,” Judge Kennelly declared.
On April 30, 2014, Del Prete was released on bond. In Will County Court, Del Prete’s lawyers filed a successive post-conviction petition based on the Kroll letter unearthed by Northwestern students. The petition was denied. However, the Illinois Appellate Court reversed that ruling and ordered that a hearing be held on the petition. Following the hearing, in May 2016, Judge Policandriotes granted the petition, vacated Del Prete’s conviction, and ordered a new trial.
The prosecution appealed. In November 2017, the Illinois Appellate Court upheld the ruling granting a new trial. The appeals court noted that the Kroll letter was favorable evidence for the defense, that it was never disclosed to Del Prete’s trial defense attorney, and that Harkey’s testimony, as outlined in the Kroll letter, could have resulted in an acquittal at Del Prete’s trial.
“We re-emphasize that [Del Prete] did not confess to the offense and there were no eyewitnesses to the alleged abuse in this case,” the appeals court ruled. “The State’s theory that the defendant was the perpetrator was based almost entirely on Flaherty’s expert testimony that [Isabella’s] injuries were caused by someone of adult strength shaking her and that the injuries were immediate. Under these circumstances, we find that Harkey’s testimony concerning his disagreement with SBS, which contradicts significant aspects of Flaherty’s testimony, ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ”
The case was continued month after month while the prosecution investigated and sought out experts to support its case at a retrial. Finally, on October 5, 2022, when Del Prete appeared in Will County Circuit Court, the prosecution asked the case be dismissed because a new expert opinion did not support the prosecution’s case.
Judge Carmen Goodman signed an order of dismissal saying, “The People have received and tendered the finalized expert report of Dr. Thomas Bennett. After careful consideration of the newly obtained expert opinion in conjunction with all of the other physical and opinion evidence in this case, the People no longer believe they can sustain their burden of proof beyond a reasonable doubt.”
Del Prete wept in the courtroom as she heard the news. Pat Blegen, the lead defense attorney for Del Prete, later said, “The criminal case is over — it’s done. ... She has been an innocent person for a long time, and now there are no charges.”
The dismissal of the case meant that Del Prete could push forward with a federal civil rights lawsuit that had been filed by the law firm of Loevy & Loevy after she was granted a new trial. The lawsuit, which accused police of withholding evidence, had been put on hold until the criminal case was resolved.
– Maurice Possley
|