Carisa Ashe booking photo
Destiny Ashe was born in 1998, severely premature. She spent the first 4 weeks of her short life in the hospital and was returned home just two days before she died. Was it a single blow to the head or was it “shaken baby syndrome”. Was it an accident or murder and who was responsible. The fate of her mother and her large family rests with those responsible for answering those questions, the medical examiners, the police, child protective services, the prosecutors and the judges. The whole process was driven forward by what has become almost a religious faith in the dogma of “shaken baby syndrome”, complete with zealots, heretics and articles of faith.
Destiny lived with her mother and 5 siblings. Here is how the medical examiner’s investigator described the scene [1].
· “Upon arriving at the scene, the apartment is observed to be neat, clean and, in an orderly fashion. The decedent's home environment suggests that she was well cared for and treated. Carisa Ashe reports that the decedent was delivered by her at home at 26 weeks. She was then transported to GMH [2] The decedent would have been her sixth child and, would have been included in the last five that was born prematurely. She reports that the decedent had been healthy and fine since being released from the Hospital two days ago. The decedent slept on the living room sofa with her last night and, this is the regular routine. At approximately 0710 hrs. of today's date, she fed the decedent, changed her diaper, burped her and, then placed her back on the sofa to sleep. She reports that the decedent was fine at this time and, she placed her in a prone position back on the sofa. The decedent's head was turned on its right side, away from the sofa's back & pillows, Further, she states that there were no pillows or obstructions near the decedent's nose/mouth area [3]. Ms. Ashe states that she then began assisting her other children in getting off to school. At approximately 0815 hrs., she noticed that the decedent was not breathing and, called 911, She reports that she began CPR efforts until GMH, EMS, unit # 520 arrived.”
The emergency room doctor saw no external evidence of trauma and ascribed Destiny’s death to sudden infant death syndrome (SIDS).
The autopsy was performed by Dr. Joyce DeJong, who was a fellow in forensic pathology in the Fulton County Medical Examiner’s Office. She was supervised by Dr. Michael Heninger, Associate Medical Examiner.
At autopsy, Dr. DeJong found a single impact site, represented by a bruise underneath the scalp that was less than 1 inch in diameter and was located a little above the right ear (a 2 cm subgaleal hemorrhage in the right temporoparietal area) [4]. There was no skull fracture but there was bleeding on the surface of the brain (subdural hematoma) and some bruising of the brain itself (subarachnoid hemorrhage). There was also swelling of the brain (flattened gyri and narrow sulci).There was bleeding around the nerves leading to the eye (optic nerve sheath hemorrhages) but no hemorrhages within the eye (no retinal hemorrhages). There were no other bony or soft tissue injuries.
Dr. DeJong and Dr. Heninger agreed in their report that Destiny died from a recent closed head injury but Dr. DeJong told police and prosecutors that she had been violently shaken to death (Shaken Baby Syndrome) while Dr. Heninger disagreed. An article written in the Atlanta Journal Constitution described the disagreement as follows [5] ;
· 'Emergency room doctors at Hughes Spalding hospital [6] did not see signs of trauma and blamed the death on sudden infant death syndrome, police and prosecutors said.
· 'Atlanta police were notified of the child's death the next day, when a routine autopsy was performed.
· 'Police charged the mother with murder based on the autopsy findings of Dr. Joyce DeJong, who was in training. Although her supervisor, Dr. Michael Heninger, disagreed with her, prosecutors built their case on DeJong’s conclusions.
· '"She performed the autopsy and she strongly felt it was a shaken baby case," Howard [7] said. But he said Heninger "was not comfortable stating the cause of death" as shaken baby syndrome.
· 'Heninger wasn't alone.
· 'Atlanta police Det. Steve Walden, who has worked homicide cases for 22 years, had so many doubts he served Ashe with a citation charging her with murder at her home instead of taking her to jail.
· '"I have worked about any kind of murder, including shaken baby syndrome, and this does not fit that profile," Walden said.'
Carisa’s attorney filed a motion to overturn the verdict in 2006, when they discovered that Dr. Heninger disagreed with the diagnosis of SBS, which had not been disclosed to the defense [8].
Why was it important for Dr. DeJong and the prosecutor to believe she was violently shaken? The SBS dogma at that time, claimed that no one could shake a baby violently enough to cause these injuries and not expect the child to be seriously injured, which gives the prosecution intent to cause injury. The SBS dogma also said that a baby would lose consciousness or be seriously impaired immediately (known as a lack of lucid interval), which gives the prosecution proof that the last person who cared for the baby must be the perpetrator.
The classic “triad” of findings that proponents of SBS claim prove that the child was violently shaken is a subdural hematoma, brain swelling and retinal hemorrhages. Dr. DeJong did not find any retinal hemorrhages but claimed it was a case of SBS anyway. Even the proponents of the SBS theory agree that an impact can cause the same signs [9].
· “it is not possible to definitely characterize children’s head injuries as being caused by either pure impact or pure shaking because the pathologic changes in the brain are identical in cases in which either of these two mechanisms has been suggested. If there are focal injuries, such as skull fractures, scalp bruises, or subgaleal hemorrhage, an impact can be assumed, but coexistent shaking cannot be excluded.”
Thus, in this case there were neither the complete triad of findings nor was there any difficulty explaining these findings as being the result of an impact. There were also no injuries outside of the head that might show that the child was held tightly around the chest or arms (bruises or fractures of the ribs or arms).
The proponents of the SBS theory often testify that shaking is often triggered in an inexperienced parent or caregiver when faced with a baby that won’t stop crying. Carisa Ashe was an experienced parent and there were no reports from the 5 siblings of hearing the baby crying or Carisa yelling at the baby.
The bleeding under the scalp and on the brain did not show any signs of healing and so would be considered “fresh” but what exactly does “fresh” mean. Since Destiny was only home for two days one must ask what sort of incontrovertible signs of healing would be present if the bleeding was two days old. Despite the importance of determining the time of the injury, Dr. DeJong did not perform an iron stain on the microscopic sections to see if there were any early deposits of hemosiderin (iron pigment from the breakdown of hemoglobin), which would be an early sign of healing that could not happen in a matter of hours. In another case, Dr. DeJong testified that it was not possible to accurately date bruises in the skin.
Dr. DeJong described the subdural hematoma as being approximately 100 cc, which is not possible. A child that weighs 2.5 kg would have a total blood volume of about 175 cc. Thus, 100 cc would represent nearly 60% of her total blood volume. The baby would have gone into shock long before she could pump that much blood into her head. The blood would also have taken up about ¼ of the total space in her head, which would have squeezed the brain tissue and cause herniation of brain tissue, which was not found.
If the injuries found at autopsy could be explained as a single impact, one must ask if the impact could be the result of an accidental fall and was Carisa the only one who could have been responsible. One should keep in mind that this baby was born severely premature and was still quite small, 5 ½ pounds (2.5 kg) at 5 weeks.
One can imagine several scenarios where the baby could have sustained an accidental fall. The mother slept with the baby on the couch. She could have pushed the baby off the couch while sleeping and not wanted to admit it. There were also 5 other children, up to age 10, in the home. One of those children may have picked up the baby and accidentally dropped it and not told the mother. If the bleeding was two days old, the injury could have happened in the hospital.
The case was on hold for six years before coming to trial in 2005. Carisa Ashe, who was facing possible life in prison, took an “Alford plea”, which means that she never admitted to harming the baby but accepted the plea deal as in her best interest. She pled guilty to voluntary manslaughter and was sentenced to 5 years of probation and she agreed to have a tubal ligation. The judge cited post-partum depression as a mitigating factor in his sentencing.
The case became infamous because Fox television’s commentator Bill O’Reilly took up the case as an example of a liberal “activist” judge being too lenient with a murderer. Here are some of the statements made by O'Reilly and Fox’s legal analyst Judge Andrew Napolitano.
· O'Reilly (teaser for upcoming segment): America! AMERICA allows a baby to be killed and the killer to walk free!!
· O'Reilly: In the six years between the murder of the baby and the deal, Carisa Ashe gave birth to two more children, bringing the total to eight. One dead. One who apparently ran away - she's missing. Four who are wards of the state and two living with Ashe's mother. Apparently multiple fathers are involved. Authorities will not say how many - a radio report says seven ... D.A. Howard's hiding under his desk.
· Napolitano: She waives a jury. So, she's just before a judge. The D.A. cuts a deal with her defense lawyer. From the point of view of the defense lawyer, the deal is too good to be true. Agree to the tubal ligation, so that you can never again have children. Five years probation and you'll walk free. That's an abomination. That's a free pass on murder!!
· O'Reilly: This D.A. Howard - and by the way we're gonna give ya' his e-mail address, if you wanna get in touch with this guy because he's gotta pay a price for this. This guy. I don't think it's abortion with this guy. I think this is a case of inconvenience. He didn't like the case, he didn't want to deal with the case. He knew there was nobody to stick up for the little baby ..."
· Napolitano (incensed): That is HIS job to stand up for Baby Destiny.!!" ... (later) The people of Fulton County, Georgia need to know about this, because he is their elected chief law enforcement officer and he's not doin' his job!!
· O'Reilly: He's a Democrat. He's just got re-elected. He's got another four years. ... (later) the judge down there - we checked him out - he looks like a pretty solid guy. But he does OK 99% of what the prosecutors and defense attorneys bring him.
· Napolitano: In my own view she should get 20 years in jail ...
· O'Reilly: Is there any excuse that you can think of - to be fair to this Howard - who again was invited on this program and who's hiding - is there any excuse other than "I don't like this case, I want to get rid of it"? - because the woman's grossly irresponsible. You don't have eight children and I described the chaos those children are in - by eight different men - one radio station confirms that, confirms that .... this is a grossly irresponsible person who is getting a walk on it, a walk!
· Napolitano: It's either he doesn't care about life or he doesn't care about this case. It's just too difficult, too much of a hot potato to handle.
· O'Reilly: Why would it be a hot potato?!! It's a slam dunk conviction!! ... What can the woman say? She didn't do it?! She did it! They were throwin' out the post-partum nonsense!!
· Napolitano: There's no defense to what she did.
· O'Reilly: Right!
· Napolitano: It is a given that she murdered this child. Why shouldn't she be in jail for 20 years?
Here is a former judge saying “It is a given that she murdered this child” when he has absolutely no knowledge of the facts in the case. Even given her plea, she did not plead guilty to murder and never admitted to harming the baby.
Tragically, Judge Barnes was killed in a courtroom shooting just weeks after Carisa Ashe’s case [10].
The prosecutor, Ash Joshi, left the prosecutor’s office a few months after prosecuting Carisa Ashe and went into private practice as a defense attorney. He was later brought up on charges for possible disbarment for another case, where he called the mother of a man he had prosecuted for rape and told her that he knew that two of the main witnesses against her son had lied under oath in the case and if she hired his law partner as her attorney then he would disclosed the hidden evidence. For this, he received a reprimand for the Georgia Supreme Court [11]. Thus, he was not above putting a witness on the stand that he believed was not telling the truth.
The official report and Dr. Heninger stuck to what could be proven by the medical evidence that Destiny died after suffering a single blow to the head that caused bleeding and brain swelling that caused her to stop breathing and die. Dr. DeJong went beyond the medical evidence and claimed that she knew the baby was shaken, despite the fact there were no retinal hemorrhages, no injuries or bruises other than the head and the single blow was an adequate explanation for the injury. There were several children in the home, none of whom witnessed the accused shaking or beating the baby. The prosecutor chose the story told by Dr. DeJong rather than her teacher, Dr. Heninger.
Carisa Ashe may not have spent time in jail but this incident broke up her family. This goes to show the great harm that can be done by an unsubstantiated allegation of shaking.
[1] Ashe ME Inv Rpt
[2] Grady Memorial Hospital
[3] The investigator describes these things because of concern about suffocation hazards
[4] Ashe Autopsy Rpt
[5] By Beth Warren, Atlanta Journal Constitution, Feb. 18, 2005
[6] Hughes Spalding Hospital is the children’s hospital for the Grady Health System
[7] District Attorney for Fulton County, Paul Howard
[8] http://www.wsbtv.com/news/news/first-georgia-woman-sterilized-for-probation-back-/nJZhx/
[9] Case, ME, Graham, MA, Handy, TC, et al “Position Paper on Fatal Abusive Head Injuries in Infants and Young Children” Am J For Med Path 22(2):112–122, 2001
[10] http://usatoday30.usatoday.com/news/nation/2005-03-13-ga-courthouse_x.htm
[11] http://www.probono.net/deathpenalty/news/article.236462-ExADA_gets_reprimand_from_Supreme_Court_Ash_Joshi_prosecuted_defendant_then
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