Wednesday, October 22, 2014

Prosecution, defense proceed in shaken baby trial


By Pat Cooper

The opening days of the felony murder case against a Fayette County man demonstrated diametric differences in the approach both prosecution and defense are taking and showed that terminology might be the most pivotal element of the case.
According to assistant district attorney Warren Sellers, in February 2012, nine-week old Zaiyre Thomas died when his father, Jamal Rashad Thomas, 21, shook him too hard in effort to get him to stop crying. Thomas is facing felony murder charges, aggravated assault and cruelty to children.
It’s the state’s contention that the boy died as a direct result of that shaking event and that the defendant admitted to shaking the baby too hard. All evidence, Sellers noted, was that the baby was fine and healthy - particularly for a child that was born eight weeks prematurely- at his last pediatric visit on January 31, 2012.
According to Thomas’ attorneys, the facts just don’t fit the claim of shaken baby syndrome. Due to his premature birth, defense attorney Jason Sheffield pointed out that the baby already suffered from breathing problems and other medical issues and that Zaiyre death was caused by a blood clot.
Thomas and the baby’s mother Kameisha Gabbrian didn’t live together: Thomas lived at home with his parents in Fayetteville and they were helping care for the Zaiyre. The mother lived in Clayton County where she attended school and worked as a waitress as night.
The crucial wording of the charges was exemplified when in a conference with Superior Court Judge Christopher C. Edwards, Sheffield and co-legal counsel Robert J. Rubin. Rubin pointed out that documentation in a testimony given by one of the state’s expert witnesses indicated the doctor had broadened his initial opinion.
Dr. Stephen Messner, a pediatric specialist in abuse cases, had elaborated in his opinion that the baby had been violently shaken to say that he believed Zaiyre Thomas’ death was the result of abusive head trauma. Rubin said that the defense that had been formulated for the past two years was based on Messner’s finding of violent shaking.
“It’s my understanding that phrase is a much broader term that can include impact in various forms, from dropping the baby intentionally to shaking. He can’t say to a reasonable certainty. We’re not asking for a continuance,” said Rubin. “We have an expert flying from England tonight, but I think it’s patently unfair to put us on notice that we were to defend a violent shaking case, which is very complicated, but now we have a witness who said it could be violent shaking but is calling it abusive head trauma.”
Rubin and Sheffield asked that the court move to keep experts from giving an opinion that the baby died from any way other than violent shaking, since that was the basis of the state’s case since inception. Messner said that, in part, his opinion was based on information from Detective Wendy Mulder who said that Thomas admitted to shaking the Zaiyre.
It’s creating a tall order for the district attorney’s office which, with the wording of the indictment against Thomas, based the murder and cruelty charges on the fact that they believed the only manner Zaiyre could receive those injuries was from a violent shaking episode.
Detective Wendy Mulder testified that she had been apprised by Messner that the baby’s injuries weren’t consistent with the story that the child’s family had related, showing ‘non-accidental trauma to the head and brain,’
According to Mulder, she spoke with Thomas at the Children’s Health Care Hospital in Atlanta, after being informed through the hospital’s social worker of the doctor’s opinion. She said that Thomas appeared calm, collected, cooperative and respectful when they spoke. In his opening, Sheffield said that Thomas made the statements under duress.
During the conversation with Mulder, Thomas explained how he was moving the baby around ‘dancing’ to help the child go back to sleep and demonstrated the motions to her, saying he had been rocking and shaking the child for a few minutes.
(On Wednesday, there will be further coverage from the opening day of the trial, including further testimony from Mulder and expert testimony from a variety of doctors involved in the case. The state rested its case on Friday afternoon and the defense had called their first witness. Court will not be in session on Monday.)


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