Grandmother seeks to reopen shaken-baby case: Hershey

http://www.democratandchronicle.com/article/20090728/NEWS01/907280323/1002/NEWS
Grandmother seeks to reopen shaken-baby case
James Goodman • Staff writer • July 28, 2009

A 69-year-old Ontario County woman put behind bars for causing the death of her stepgrandson made clear at her sentencing in December 2007 that she would not take responsibility for what happened to 4-month-old Ethan Hershey.

Barbara Hershey shouted at her stepson, David Hershey, and his wife, Amanda, the parents of Ethan: "Why don't one of you admit that you did it?"

With a motion recently filed in Ontario County Court, Barbara Hershey hopes to reopen this emotionally charged case. She is serving a sentence of five to 15 years for second-degree manslaughter in the state's Albion Correctional Facility.

"David Hershey lied at trial. As a result, the conviction of Barbara Hershey was obtained by perjured testimony," says the court papers filed by J. Michael Chamblee, who is Barbara Hershey's lawyer. Traumatic brain injury caused by violently shaking the baby is the basis for Hershey's conviction.

Ontario County Court Judge Frederick Reed, who presided over the 2007 trial, will hold a hearing on this motion at the end of September. Hershey seeks to set aside the verdict, claiming that new evidence — not considered at trial — needs to be aired.

The Hershey case is part of a trend calling into question convictions based on shaken baby syndrome. Some say that injuries associated with the syndrome can have other causes.

Hershey's court papers contend that the 911 operator gave Barbara Hershey instructions for performing cardiopulmonary resuscitation on Ethan that were for an adult, rather than an infant, and suggest that the mistake could have killed him or led to a wrongful diagnosis of shaken baby syndrome.

Ontario County District Attorney Michael Tantillo, who prosecuted the Hershey case, calls her motion frivolous.

"The evidence presented at the trial overwhelmingly established Barbara Hershey's guilt of killing a little child. Many people testified at the trial that until the day he was killed, Ethan Hershey was a perfectly healthy kid," said Tantillo.

Tantillo also said that Barbara Hershey's emotional outburst at sentencing showed a "hair-trigger tendency" to lash out and "that this is what happened to Ethan."

Questions arise

On Oct. 25, 2005, David Hershey, who lived with his wife in Gorham, took their son and daughter Anna to Barbara Hershey's nearby home. While at the home, Ethan stopped breathing and, though resuscitated by emergency medical technicians, never recovered and died several weeks later.

David Hershey testified at the trial that there were no red flags about Ethan's health.

But a telephone conversation that Barbara Hershey's son, Gregory Donald Coston, 46, of Gorham, had with David Hershey in May 2008 and secretly taped puts a new focus on Ethan's health.

In that conversation Coston said, "David you're the one that told me 'the boy was a ticking time bomb.' You're the one that stopped and said, 'I'm going to need bail money by the time I get up there.'" David Hershey responded, "I did tell you that, yah, but I did not know that until he stopped breathing."

David Hershey also said: "I knew something was wrong with him."
Amanda and David Hershey now live in Ballston Spa, Saratoga County, and did not respond to telephone messages requesting comment.

Several weeks after Barbara Hershey's sentencing, Coston also secretly taped a conversation with Joan Colf, who is David Hershey's mother. According to the transcript, Colf said that Tantillo decided not to use her as a witness when he learned what she was going to say.

Later in the conversation, Colf told Coston, "I saw problems with my grandson, but there is not — I cannot say for sure she didn't do it."

Medical testimony at trial revealed that Ethan not only had new bleeding on the brain but also old bleeding.

The broader debate

The questions being raised in the Hershey and other shaken-baby cases are part of a debate about whether there has been a rush to judgment in some cases.

Deborah Tuerkheimer, a law professor at DePaul University College of Law in Chicago, has written an article, "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts," to be published in the Washington University Law Review.

Tuerkheimer said in an interview that the telltale signs of shaken baby syndrome — retinal bleeding, swelling of the brain and bleeding in the protective layer of the brain — might not be due to the syndrome.

She noted that there has been a shift in the debate. "There may be other causes of the injuries," she said.

That's also the contention of the defense in another shaken-baby case in Ontario County on appeal.

In that case, Clifton Springs resident Dexter Mastowski was sentenced to 17 years in prison in 2003 after being convicted of causing severe brain injuries to his infant daughter.

Mastowski, 33, maintained at his trial that he did not shake or injure his daughter, who was 2½ months old. He believes her injuries instead were caused by multiple vaccinations she received shortly before she was taken to the hospital in October 2002, according to family members.

An appellate court in May denied his request to set aside his assault conviction. Mastowski, who claims that there is new evidence about shaken-baby diagnoses not considered at his trial, is now asking the state Court of Appeals to consider the case.

The American Academy of Pediatrics recently adopted a new policy position that refers to shaken baby syndrome as "abusive head trauma."

Dr. Robert Block, a professor of pediatrics at the University of Oklahoma's School of Community Medicine, was co-author of the new policy position that makes the injuries more understandable to the general public.

He is skeptical of the criticism raised about shaken baby syndrome and said, "We need to look at the science."

JGOODMAN@DemocratandChronicle.com
Includes reporting by staff writer Steve Orr.