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5th District Court judge has scheduled a Jan. 16 evidentiary hearing in a child abuse homicide case to get proceedings “off center” and moving nearly six and a half years after the charge was filed.
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4-month-old victim would be approaching his 7th birthday if he were still alive, and the court case is the oldest criminal prosecution still awaiting a trial
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Gregory Todd Fullerton, 37, a local man, is accused of causing the death of the baby while trying to stop the infant from crying during an incident July 23, 2008. He could face up to life in prison if he is found guilty by a jury
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Defense attorney Gary Pendleton has steadfastly challenged testimony Utah Deputy Chief Medical Examiner Edwin Leis gave at a November 2009 hearing, and twice since then, that the infant died after suffering “abusive head trauma,” a term preferred by Leis as more appropriate than the traditional “shaken baby syndrome.”
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the term abusive head trauma has been used by forensic experts for more than a decade because it does not limit itself to a physical shaking action as a cause of brain injury, but instead describes injury as a result of the rapid acceleration and deceleration, or rotation, of a young child’s head, regardless of the force causing the motion.
Leis described the physical damage that occurred inside the victim’s head, ascribing it to a force similar to a car accident or a drop from a great height rather than a simple fall. No history of a severe accident was reported by the infant’s mother, Fullerton’s fiancee at the time.
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argues abusive head trauma is not a scientifically tested or court-recognized medical diagnosis, and asked Judge Jeffrey Wilcox for an opportunity to again call the Salt Lake City-based Leis to St. George in order to determine whether the abusive head trauma diagnosis is a reliable method of finding the victim’s injuries may not have been the result of an accident.
“He might as well have testified that monkeys can fly. There’s just nothing to back that up,” Pendleton said
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“There is absolutely no evidence of trauma to this child (on the outside of his body). ... There is nothing in the medical literature, there’s no peer-review studies on this issue (of abusive head trauma).”
Wilcox agreed to recall Leis after a hearing last week, acknowledging that a diagnosis of shaken baby syndrome has passed the court’s muster in numerous instances despite the disagreement of some opponents, but as far as the term abusive head trauma, “I don’t think there’s sufficient evidence for me to make a ruling simply based on … prior arguments
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Deputy County Attorney Ryan Shaum had opposed Pendleton’s motion, telling the court Leis is likely to provide the same information that has comprised his testimony at three previous hearings.
“The idea that abusive head trauma is not a medical diagnosis – there are cases across the country where this is tried and abusive head trauma is used as the diagnosis. That is common,”
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Shaum also opposed delaying the new hearing until April, which Pendleton requested so he could also bring a medical expert from Minnesota to challenge Leis’ testimony.
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expert has been called to testify in court cases around the country because she is among a minority of people who defend an alternative theory, and the local case should not be delayed for months until she is available to be flown to Utah at the expense of taxpayers
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“At this point, the medical community understands that there are multiple types of specific acts that may cause a child to receive those types of injuries. Mr. Pendleton wants the state to actually prove what specific act the defendant did that caused these injuries. That’s absolutely ridiculous,”
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“That’s like saying we’ve got to prove in a case where … some adult died from a blunt force trauma injury to the head … (that) it was a rock, or a baseball bat, or a club, or what, to be able to prove that this person died of blunt force trauma,”
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“That’s what he’s trying to say, we have to prove the mechanism is a specific act. That’s baloney. There’s no precedent for that whatsoever. … You can’t take a little child and press on his back or flip-flop him just to see how much injury it’s going to cause.”
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Police report indicated Fullerton told detectives he had tried to quiet the crying baby by grabbing him by an arm, flipping him from side to side on a bed and pressing on his back until Fullerton heard a snap and the boy stopped crying.
Pendleton has argued Fullerton’s statements during the investigation were made under pressure and were not specific admissions of shaking the baby violently but were instead inappropriately interpreted by detectives to that end.
“What caused (the injuries) specifically, I don’t know,” Leis said
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“(But) a child is incapable of inflicting these types of injury upon itself.”
