DuPage judge considers overturning 2004 murder conviction on flawed evidence

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DuPage courthouse

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DuPage County courthouse

 

Update (9/14/18): DuPage County Judge John J. Kinsella ruled Friday to upend the murder conviction that has left Randy Liebich in prison the last 14 years for the death of a toddler in his care. Read the update

Update (9/13/18):  The medical examiner, whose testimony was at the center of DuPage County post-trial proceedings on whether convicted murderer Randy Liebich should be granted a new trial, told Injustice Watch on Thursday that she is concerned the investigation into the death of toddler Steven Quinn was inadequate. Read the update.

Randy Liebich of Willowbrook was convicted in 2004 of beating to death his girlfriend’s two-year-old son. More than a decade later, a DuPage County judge will soon decide whether Liebich should receive a new trial because of his attorneys’ poor understanding of available medical evidence.

Liebich’s new attorneys have presented the court with a slew of affidavits and testimony from pathologists, medical experts, attorneys and witnesses, casting doubts that the injuries causing toddler Steven Quinn’s death could have occurred on the day the toddler was alone with Liebich.

That new evidence, much of it technical, includes the affidavit of the medical examiner who conducted Steven’s autopsy, who said she only learned since the trial of evidence that has caused her, like other experts, to conclude the toddler’s fatal injuries occurred before Feb. 8, 2002.

Judge John J. Kinsella

DuPage County Circuit Judge John J. Kinsella dismissed Liebich’s claim in 2013 that his attorney had failed to properly represent him. But in 2016, a three-judge panel of the Illinois Appellate Court reversed that ruling and sent the case back to Kinsella for a hearing. The opinion states that if the new evidence is true, the original attorneys “failed to either investigate, comprehend, or present” critical evidence that, as a result, “undermines our confidence in the outcome of the trial.”

After a series of hearings scattered over six weeks this summer, Kinsella is now expected to rule Friday on whether to overturn the conviction.

Tara Thompson, an Exoneration Project attorney representing Liebich, said the medical evidence provides her client with “the equivalent of an alibi.”

In closing arguments last week, Thompson argued that Liebich’s attorneys failure to understand the medical evidence fell below the standard for fair representation. There was no strategy in not understanding evidence that indicated the injuries to Steven occurred before he was in Liebich’s care, she said.

The justice system wants finality in cases, she said, and it can be difficult to revisit a case in which a child has died. “Sometimes justice requires us to turn back,” Thompson said.

Mike Pawl, a DuPage County assistant state’s attorney, vehemently argued that the conviction was still valid, noting that the medical examiner testified on cross examination at the post-conviction hearing that she stood by her trial testimony that Steven Quinn died of blunt force trauma to the head and abdomen.

“This child was murdered, and it was at the hands of the defendant,” Pawl said, adding of his representation, “You can not find that it was ineffective.”

The case raises anew questions about the reliability of medical evidence commonly used until recent years to convict defendants in child abuse cases involving brain injuries. Sixteen defendants across the country have been exonerated in abuse or child death cases related to “shaken baby syndrome,” according to the National Registry of Exonerations. The case of Steven, who appeared the victim of trauma rather than shaking, similarly relied on now-discredited assumptions about brain injuries.

Dr. Patrick Barnes, a pediatric neurologist at Stanford University Medical Center, wrote in an affidavit that since 2000 pediatric research has identified many possible causes of brain injury that previously were believed to be caused by abuse.

Randy Liebich

Randy Liebich

Liebich, who maintains he is innocent, said in a phone call from the Stateville Correctional Center that it has been a long 16 1/2 years spent in custody, away from his daughter, who was a newborn when he was arrested. He said he cannot accept serving 65 years in prison for something he did not do.

“I embraced him like Steven was my son,” Liebich said from the DuPage County Jail this August. “That was like, my little buddy.”

Doctors at hospital suspect abuse

When Kenyatta Brown returned home from work on Feb. 8, 2002, she found Steven lying unresponsive. The toddler had been watched that day by Brown’s boyfriend, Liebich; the two drove her son to Mount Sinai Hospital in Chicago.

Liebich later said the day had had been mostly normal, aside from when Steven choked on a hot dog in the afternoon. He said he had cleared the boy’s throat, and then they watched a movie and fell asleep.

Two emergency room doctors suspected child abuse as bruises and marks started appearing on Steven’s body, and a scan indicated serious bleeding in the brain. “It doesn’t look like Stevie choked on a hot dog at all, it looks like [you] had been sitting at home beating him all day,” Dr. Tracy Boykin recalled saying to Liebich in the emergency room, according to court records.

Steven was transferred to a second hospital for emergency brain surgery that proved unsuccessful. Doctors discovered he was also suffering from a serious abdominal injury. Three days after Liebich and Brown brought Steven to the hospital, the toddler was declared brain dead was taken off life support.

Liebich was charged with murder.

Physicians, cousin and conviction

At the non-jury trial before Judge Ann B. Jorgensen, the state’s case was primarily based on medical testimony, as well as testimony from Liebich’s cousin that the defendant told him he had not hit the toddler “that hard,” as he tried to get the hot dog from Steven’s mouth, court records show.

Four doctors who had taken care of Steven all testified that they found Liebich’s statement that Steven ate and choked on a hot dog in the afternoon before his hospitalization unbelievable or inconsistent in light of his traumatic injuries, court records show.

Two of the physicians who cared for Steven, Dr. Lorenzo Munoz and Dr. Paul Severin, timed the child’s injuries as having occurred no earlier than six hours before his admission to the hospital.

The Cook County assistant medical examiner who performed the autopsy, Dr. Darinka Mileusnic-Polchan, testified that Steven’s fatal injuries were caused by blunt force. She testified that the brain injury could have been caused on the day the child was in Liebich’s care, or could have occurred earlier, and testified that she disagreed that it was possible to time the injury to within six hours, as the emergency room doctors had.

Mileusnic-Polchan would later write in an affidavit that she told the prosecutor, before trial, that she considered it likely the fatal injuries occurred days before Steven was taken to the hospital. “The prosecutor understood my position and did not question me on the timing of the injuries,” Mileusnic-Polchan wrote.

The defense attorneys called witnesses at trial who said they had seen Brown, the child’s mother, strike Steven on occasion. The defense also called Dr. Shaku Teas, a forensic pathologist, who testified that she believed Steven’s death was caused by a combination of brain and abdominal injuries, and that the abdominal injuries were the result of force. Teas testified that it was likely the abdominal injuries were from days before Steven was being watched by Liebich.

Teas, unlike the doctors who treated Steven at the hospital, testified in court that she believed it was possible the toddler would have been able to eat and function for a period of time after the abdominal injury was inflicted.

After hearing the evidence, Jorgensen said she gave “great weight” to the emergency room doctors’ testimony. “Extreme opinions, very strong opinions,” Jorgensen said of the emergency care doctors’ statements. “A child could not have eaten after receiving this injury to the abdomen and to the head. It had to have happened after he last ate, or he did not eat a hot dog in the afternoon.”

She found Liebich guilty and sentenced him to 65 years’ imprisonment in the Illinois Department of Corrections.

An unconvinced expert

Almost immediately after Liebich was found guilty, his conviction was challenged.

Teas, the forensic pathologist who testified on Liebich’s behalf, submitted a letter to the judge, writing that she was “saddened” to hear that Liebich had been found guilty, and concerned that the verdict was based on testimony that the toddler’s injuries were inflicted the day Liebich was alone with him. That testimony, she wrote, was inconsistent with her findings.

What was consistent with her opinion on timing, Teas wrote in the letter, was the autopsy finding by the state’s pathologist, Mileusnic-Polchan. And those findings, which were developed by looking at the injuries at a cellular level, were noted three times throughout Steven’s autopsy report, she wrote.

Teas also raised concerns about evidence not brought up at trial that Steven had been ill.

“Why did Steven Quinn have acetaminophen (Tylenol) and salicylates (aspirin) in his blood if he had been feeling well until the morning or afternoon of February 8th?” Teas wrote in the letter. “Why was his weight more than four pounds less on February 8, 2002 than it was on November 6, 2001?”

She also noted that Steven’s brain bleed, the reason doctors had decided to undergo an emergency operation, was over-exaggerated in reports.

Jorgensen, however, would never read Teas’ letter. Both defense attorneys and the state agreed that the letter was improper. Alternate medical explanations for Steven’s death would not be reviewed by the court again for eight years.

Old lawyers, new lawyers

After Liebich’s conviction was upheld in 2007, Exoneration Project attorneys filed a post-conviction petition contending that Liebich is innocent and had been badly represented.

It is that petition that finally prompted the hearings this summer, following the Appellate Court reversal.

Liebich’s account of the choking incident, which “appeared at trial to be a less-than-credible attempt to cover up the real cause of Steven’s injuries,” was actually consistent with expert affidavits suggesting the brain injury was secondary to the abdominal injury, the appellate opinion states.

“Had such testimony been admitted at trial, the trial court may have concluded that defendant’s statement that Steven had choked on a hot dog actually weighed in favor of his innocence,” the opinion states.

The appellate judges ordered the case back to Kinsella.

Back in the trial court, Liebich’s attorneys cited flaws in his defense at trial, such as their failure to investigate signs of illness the toddler displayed before he was alone with Liebich.

Attorneys also presented an affidavit from longtime criminal defense attorney Jed Stone, who reviewed the public defender file in Liebich’s case. Stone noted the original lawyers’ failure to fully investigate medical examiner Mileusnic-Polchan’s conclusion that Steven’s injuries had occurred earlier than the prosecution maintained. The public defender file shows Teas had repeatedly told Liebich’s lawyers to contact Mileusnic-Polchan about her findings, but they made little attempt to find her, and did not have her review her autopsy slides before testifying, according to Stone.

In her own affidavit in advance of the post-conviction hearings, Mileusnic-Polchan said she did not receive slides or medical records to review before the trial. She wrote that those records allowed her to more precisely determine the timing of Steven’s injuries, and that she found no evidence of trauma on the day Liebich was alone with the child.

She also cited medical records showing the surgeons found a small bleed in Steven’s brain – not the large bleed they anticipated. That, Mileusnic-Polchan testified in court this July, “changed everything,” and made clear that the brain injury was “not as important as originally indicated.”

In her testimony, Mileusnic-Polchan said that her findings from the 2002, that Steven had died from  multiple injuries caused by blunt force trauma to the brain and abdomen, were still accurate. She later added that the head trauma, however, “was part of the spectrum of the injury, but by itself would not have killed Steven.”

The prosecutors and defense attorneys disagreed sharply in court last week on how those two portions of Mileusnic-Polchan’s testimony should be interpreted.

Several medical experts submitted extensive statements last month about Steven’s condition, stating their conclusion that the child’s medical troubles started not in the head but in the abdomen, where an injury and infection developed over the course of many days and led to internal bleeding and low oxygen in the brain.

“He was chronically sick when he came in the door” to the hospital, Dr. Roland Auer, an expert in pathology and brain damage, testified.

Several doctors, including Mileusnic-Polchan and Teas, contend the apparent bruising seen on Steven was the result of a serious blood clotting condition throughout his body, pancreatitis, and medical intervention.

Inept attorneys, or cause for confusion

In a filing submitted a week before closing arguments, prosecutors asked Kinsella to uphold Liebich’s conviction, writing that the choices made by the inmate’s attorney were strategic, not ineffective. Assistant State’s Attorney Lisa Anne Hoffman wrote that Liebich’s case was fully litigated at trial, and that the new experts and witnesses presented would not change the outcome, but rather “create confusion and a smack of disingenuity.”

Hoffman wrote that of the many experts called to testify over the six weeks, several had varying explanations of what had caused the toddler’s injuries. These explanations included trauma, an accident, or natural causes. The state also noted that the timing of injuries by the forensic pathologists for both the state and defense had not changed.

“These multiple explanations regarding Steven’s death only serve to ensure that the trial would have devolved into a messy battle of the experts,” Hoffman wrote.

Thompson, in a summary filing submitted by the defense, wrote that the six medical experts called testify were in agreement that Steven’s abdominal injury occurred before the day he was in Liebich’s care, that the brain injury was a result of that abdominal injury, that head trauma did not cause the toddler’s death, and that the bruising seen on the child was not caused by abuse. Those findings, she wrote, are supported by the medical evidence, and the state had not presented any experts to discredit the consistent testimony.

“All of this evidence was available before trial but almost none of it was presented,” Thompson wrote. “Indeed, in some instances — including the essential issue of timing — counsel argued, wrongly, the exact opposite, claiming the findings could have occurred on February 8.”

The errors by the trial counsel “torpedoed” Liebich’s defense, Thompson wrote.

“The hearing testimony was crystal clear: whatever their origin, the abdominal injuries that caused Steven’s death were present days before Randy Liebich cared for him,” she wrote.

Injustice Watch reporter Jeanne Kuang contributed reporting for this article.