.jpg) Krystal Voss (Photo: Alan Prendergast/Westword)
Kyran was not breathing and had no pulse. While emergency personnel began attending to the toddler, Dr. Elizabeth Kinney questioned Voss and Ramirez after noticing bruises on the boy’s abdomen, which the physician immediately suspected were the result of abuse.
Ramirez said that he went for a walk and was carrying Kyran on his shoulders. The boy fell off and hit his head on “hard-packed dirt.” Because that account did not explain the abdominal bruises, Kinney notified the Alamosa County Department of Social Services as well as law enforcement.
When Alamosa County Sheriff’s Sgt. Harry Alejo arrived, Ramirez had already left to return to Denver, where he lived. Voss told Alejo that Kyran had fallen off Ramirez’s shoulders. Voss then boarded a flight with Kyran and medical personnel to transfer Kyran to Children’s Hospital in Denver.
Alejo called Ramirez, who returned to Alamosa where Alejo questioned him for about 45 minutes. The interview was tape-recorded. Ramirez said that Kyran fell backward off his shoulders and hit his head. Ramirez said that he lost his balance and fell backward as well. His elbow struck Kyran’s side or abdomen, he said.
Ramirez said the boy cried for a bit and then had trouble standing. He said he put the boy into a bath and that Kyran slipped out of his hands a couple of times. He then shook Kyran to try to revive him, but when the boy did not respond, he called Voss and they took him to the hospital.
At Children’s Hospital, Dr. Kathryn Wells, the head of the Denver Family Crisis Center, was called in because of the concern of abuse. She interviewed Voss, who said that Kyran had not slept well the night prior to the accident, but ultimately had fallen asleep after midnight and slept later than usual. She said that Kyran was already down for a nap when Ramirez arrived. Voss said she had not seen any bruises on Kyran before the accident.
When Wells suggested to Voss that her story didn’t account for all of Kyran’s injuries, Voss said that Kyran might have fallen off his bed and hit his head the night before. And two weeks earlier, their dog had knocked the boy down, causing a goose egg to form on his head.
Wells and the medical team concluded that Kyran had a subdural hematoma and that his injuries were the result of violent shaking—in other words, that he was a victim of Shaken Baby Syndrome.
Shaken Baby Syndrome (SBS) is a term coined to describe a condition first articulated in 1971. SBS is said to arise when 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 telltale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms indicates that the child has been violently shaken. According to prevailing medical wisdom at the time of the incident, no other injuries or pathologies could cause these three symptoms to occur at the same time. Moreover, it was thought that a victim of SBS became unresponsive immediately, and therefore the last person to have physical care of the baby must have caused the injuries.
On Sunday, February 2, 2003, Sgt. Alejo interviewed Ramirez again. He again said the boy fell off his shoulders and that he fell on top of him. Ramirez also admitted that he drank beer and smoked marijuana that morning. He said that he was in a sexual relationship with Voss—a relationship that her husband, Damien, was aware of and allowed. He said that he and Voss were cutting back on their sexual relationship. However, on the day of the incident, Voss intended to return home from work and then she and Ramirez were going to spend the weekend in Denver while Damien cared for Kyran.
At the end of the interview, Alejo arrested Ramirez for child abuse causing serious bodily injury and reckless endangerment. Alejo would later say that he did not believe Ramirez’s story of what happened and thought that Ramirez was covering for Voss.
On Tuesday, February 4, 2003, Sgt. Alejo interviewed Damien and Voss at Children’s Hospital. Unlike his other interviews, these were not recorded. According to Alejo, during this interview, Voss stopped talking and looked down. Her eyes brimming with tears, she said, “You know, things happen.”
At that point, Alejo said that Voss told him that the day before the incident, Kyran, who had battled stomach problems for much of his life, had been up almost all night. Alejo said Voss admitted that she grabbed the boy, shook him violently two or three times, and then swiftly laid him on the bed. She rubbed his abdomen and sang to him. Alejo said he believed that Voss had confessed, so, at his request, she wrote a statement.
Alejo and Voss then met with Marcia Tuggle, a child social worker, to discuss putting Kyran into the state’s custody. According to Tuggle, Voss admitted to her that she shook and slammed Kyran onto the bed.
That same day, Ramirez, who was in the Alamosa County Jail, got a phone call from his wife, who said that Kyran might not recover.
One day later, on February 5, 2003, Alejo interviewed Ramirez again and this time, he told a different story. Ramirez said that when he arrived at Voss’s home, she told him that she had had a difficult night and was up very late with Kyran, who had a stomachache. According to Ramirez, Voss said that “she got upset and had it not been for Damien, she would have killed him.” Ramirez added that she said she had shaken the toddler.
Ramirez said the story about Kyran falling off his shoulders was false and had been concocted by Voss. He said Voss told him to tell the story so she would not lose custody of the boy. Ramirez said he had initially lied because he was in love with Voss and that he changed his account after learning that Kyran’s condition had worsened.
Later that day, Voss was charged with felony child abuse causing serious bodily injury. She was arrested on February 6, 2003, at Children’s Hospital.
On March 24, 2003, Kyran died. Dr. Robert Bux performed an autopsy and concluded that the boy died from complications of a closed head injury when he was struck by a blunt object or hurled against a blunt object.
On April 14, 2003, Voss was charged with first-degree murder and child abuse resulting in death.
Voss went to trial in the fall of 2004 in Alamosa County District Court. The prosecution’s theory was that Voss shook Kyran and slammed him into the mattress the night before he was hospitalized, causing his injuries and ultimately, his death.
Dr. Wells testified that Kyran had the triad of symptoms that were evidence that the boy had been violently shaken and slammed down. She cited numerous bruises on his neck and abdomen, and near his groin that were “very concerning for child abuse because kids don’t normally bruise there.”
Wells said the bruises appeared to be in different stages of healing, indicating that some were older. In addition, she said Kyran had extensive brain injuries, eye injuries, and a fracture of his right tibia.
She concluded that a fall could not have caused the “constellation of injuries.” Rather, she said, his head injuries were consistent with Shaken Baby Syndrome. In addition, the tibia fracture—known as a “bucket” fracture—was the result of being yanked with great force and could only be the result of abuse.
Ramirez had pled guilty to child endangerment and tampering with evidence, and was sentenced to one year in prison. He testified that his final statement—that he was covering for Voss—was the truth.
The defense did not challenge Wells’s diagnosis of SBS, but instead attempted to show, through cross-examination, that the timing of the toddler’s injuries was consistent with them having occurred when the boy was in Ramirez’s care and not the night before.
Voss testified that her sexual relationship with Ramirez had ended prior to the date of the incident. She said Kyran was fine and had no bruises when she left for work at about 1 p.m. She said Ramirez called an hour later, saying something was wrong with Kyran and she should come home. She said they left immediately for the hospital. On the way, Ramirez said he had been walking with Kyran, stumbled and fell, and possibly landed on the boy.
She said he apologized repeatedly. Voss also testified that the following day, February 1, 2003, she told Ramirez that Kyran’s injuries appeared to be the result of SBS. Ramirez said he probably had hurt Kyran—that he shook him and then attempted CPR to try to revive him.
Voss said her interview with Sgt. Alejo, during which she wrote out the statement, were “a very, very horrible, horrible 90 minutes of my life.” She said she was exhausted, feared Kyran was going to be taken away from her, and was “not capable of logical thought.” She told the jury she wrote down what Sgt. Alejo told her to write. Voss also said she never asked Ramirez to lie about a fall to cover for her.
On November 9, 2004, the jury convicted Voss only of the charge of child abuse resulting in death. She was sentenced to 20 years in prison.
In 2007, the Colorado Court of Appeals upheld her conviction and the Colorado Supreme Court refused to hear a further appeal.
In July 2008, Voss, acting without a lawyer, filed a post-conviction petition seeking a new trial. Seven months later, attorney Jeffrey Walsh was appointed to represent her. In 2013, Voss was released to a half-way house where she spent seven months. After that, she was required to wear an ankle monitor for nearly four years.
In 2014, Walsh filed a supplemental motion for new trial, citing medical advances that had shown that the same triad of symptoms said to be SBS could be caused by a fall. The motion also presented medical evidence that even if Voss had done what her statement indicated, those acts were not sufficient to cause the injuries Kyran sustained.
Alamosa County District Judge Pattie Swift held a series of hearings in late 2016 and early 2017. The defense presented several experts who contradicted the prosecution’s evidence at trial.
Dr. Jan Ophoven, an expert in forensic pediatric pathology and pediatrics, testified, “It’s entirely consistent with the facts of the case that the child fell from the shoulders of his caregiver and became sick with hypoxic brain damage and died.” Ophoven said that the prosecution’s trial expert, Dr. Wells, “dismissed the original history of this being from a fall and testified that the most consistent mechanism would be shaking and slam, and that’s not correct.” Rather, Ophoven explained, “the most consistent mechanism would be a fall.”
Ophoven dismissed the fracture of the tibia as insignificant because it could be present in “an otherwise normal child who might have twisted his ankle or jumped off the bed and caused a little damage.”
Dr. Mark Borchert, a pediatric neuro-ophthalmologist, testified that retinal hemorrhages found in Kyran were not, as Dr. Wells asserted, diagnostic of SBS. Physicians who testify that retinal hemorrhages are proof of SBS are “relying upon literature that is now more than 30 years old.” He said that the brain swelling in Kyran’s head was so advanced by the time he was examined that it was impossible to discern what caused the retinal hemorrhages.
Borchert said that the idea that Wells merely could look at the hemorrhages and conclude that absent a history of a definite accident it was non-accidental trauma “is absurd.”
Dr. Patrick Barnes, a pediatric radiologist and longtime expert in the field of child abuse, testified that a fall from Ramirez’s shoulder was the far more plausible cause of Kyran’s injuries.
Dr. Bux, the pathologist who performed the autopsy on Kyran’s body, testified that although he characterized the cause of death at the time as “homicide,” based on what he had come to know, he would have changed the cause to “undetermined.” He said he ruled out accidental fall at the time of his initial findings because police told him that they had ruled out a fall from Ramirez’s shoulders.
Bux said he disagreed with Wells’s conclusion that Kyran was a victim of SBS. He said he believed it was impossible to shake a 26-pound toddler hard enough to generate the force necessary to cause the brain damage that the boy had.
He also testified that a month prior to Voss’s trial, the prosecution sent him a copy of Dr. Wells’s testimony at the preliminary hearing in the case. He said that he read the testimony and informed the prosecution that he did not agree with Wells. Bux could not remember with whom he discussed his disagreement. The prosecution did not call him to testify—the first and only time he was not called to testify among hundreds of first-degree murder cases in which he performed the autopsy.
Dr. Kenneth Monson, a mechanical engineer, testified that he had evaluated the two scenarios—Voss shaking and putting Kyran down hard on the mattress and a fall from Ramirez’s shoulders. He said that shaking alone produces accelerations of the head that are far below thresholds at which he would expect injury.
Dr. Wells testified at the hearing and remained steadfast in her original diagnosis—that Kyran had died from injuries sustained when Voss shook him and slammed him to the mattress.
Ernest Marquez, Voss’s trial defense attorney, testified that he had never before handled a case of felony child abuse. He said that he decided to challenge the prosecution on the basis that Ramirez had caused the injuries. He said he contacted several medical experts, but only to discuss whether he could establish a timeline to show that the injury occurred when Kyran was in Ramirez’s care. He said he believed Dr. Wells’s testimony that the fall did not cause the injuries, but sought to show that Ramirez—not Voss—shook the toddler. Marquez said he talked to Dr. Bux, who performed the autopsy, but did not ask him whether a fall caused the injuries because that was not his theory of the defense.
In August 2017, Judge Swift granted the petition to vacate Voss’s conviction and ordered a new trial. The judge concluded that Voss’s trial attorney had provided an inadequate legal defense by failing to adequately investigate medical defenses.
“They made this mistake because they did not retain a general, consulting medical expert but instead relied on their own understanding of shaken baby syndrome theory and failed to question Dr. Wells’s testimony,” Judge Swift ruled.
The judge ruled that the evidence was unclear and speculative on whether the prosecution was aware of Dr. Bux’s pre-trial disagreement with Dr. Wells and failed to inform Voss’s defense team.
On September 8, 2017, District Attorney Crista Newmyer-Olsen dismissed the charge.
In June 2018, Voss, who had since remarried and changed her name to O'Connell, filed a federal lawsuit seeking damages for her wrongful conviction.
The lawsuit was settled in 2022 for $1 million.
– Maurice Possley
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