People v. Campbell , 2022 IL App (4th) 200146-U ( 2022 )

NOTICE 2022 IL App (4th) 200146-UThis Order was filed under FILED
Supreme Court Rule 23 and is March 25, 2022
not precedent except in the NO. 4-20-0146
Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Respondent-Appellee, ) Circuit Court of
v. ) Macon County
JEREMIAH CAMPBELL, ) No. 06CF143
Petitioner-Appellant. )
) Honorable
) Jeffrey S. Geisler,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶1 Held: (1) Defendant failed to establish the trial court, after an evidentiary hearing, erred
in rejecting his postconviction claim of actual innocence.
(2) The trial court did not err in finding defendant failed to prove his
ineffective-assistance-of-counsel claim.
(3) The trial court did not err in dismissing defendant’s claim of a Brady violation
at the second stage of proceedings.
¶2 Defendant, Jeremiah Campbell, appeals the circuit court’s denial of his petition
for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) et seq. (West
2014)). On appeal, defendant argues the trial court erroneously (1) found the new evidence of
actual innocence, expert testimony, and supporting documentation showing the victim’s injuries
were consistent with those expected from untrained cardiopulmonary resuscitation (CPR) and
with witness statements defendant performed such efforts on the victim, was not of such
conclusive character as to change the result on retrial; (2) determined he was not denied the
effective assistance of counsel; and (3) denied, at the second stage of proceedings, his claim of a
violation of his due process rights under Brady v. Maryland, 373 U.S. 83 (1967). We affirm.
¶3 I. BACKGROUND
¶4 In January 2006, defendant was charged with five counts of first degree murder
(720 ILCS 5/9-1(a)(1) (West 2004)) of Galen (born May 23, 2004), the 19-month-old son of his
girlfriend, Ebony Brady. According to the State, the injuries causing Galen’s death occurred a
few hours before his death when Galen was alone with defendant. According to defendant,
Galen’s injuries occurred earlier, while in another’s care. Defendant’s first trial ended with a
hung jury and a mistrial.
¶5 In February 2011, after a jury trial, defendant was found guilty of first degree
murder. He was sentenced to 60 years’ imprisonment. Defendant appealed his conviction,
alleging the State failed to prove him guilty beyond a reasonable doubt as the only reasonable
expert testimony established Galen’s fatal injury could not have occurred when defendant was
alone with Galen. Defendant also alleged the trial court erroneously denied his posttrial motion
for an evidentiary hearing on the issue of a juror’s impartiality. We affirmed defendant’s
conviction. People v. Campbell, 2013 IL App (4th) 110517-U, ¶ 2. For purposes of resolving
defendant’s allegations of error in this appeal, we need not summarize the evidence in detail. A
more complete summary of the evidence at defendant’s trial is found in the disposition of his
direct appeal. See id. ¶¶ 6-106.
¶6 At defendant’s February 2011 trial, three forensic pathologists, Dr. Jessica
-2-
Bowman, Dr. John Ralston, and Dr. Mary Case, offered expert testimony on Galen’s cause of
death. All agreed injury to Galen’s liver caused or contributed to his death. They disagreed as to
the time the injury occurred. While Dr. Bowman and Dr. Case concluded the fatal injury
occurred within three hours of Galen’s death, Dr. Ralston concluded the liver injury was older,
occurring up to two days earlier. All agreed the injuries were not caused by resuscitation efforts.
¶7 The testimony of the Macon County coroner, Michael Day, explains how the
forensic pathologists were involved in the case. Dr. Bowman was hired as a coroner’s physician
for Macon County. She had worked with the retiring coroner’s physician but was not board
certified after having failed the certification exam multiple times. Coroner Day testified relations
appeared “strained” between Dr. Bowman, law enforcement, and the state’s attorney’s office.
Concerns had been voiced to him. When Dr. Ralston, a board-certified forensic pathologist,
stated he was moving to the area, Coroner Day replaced Dr. Bowman. Dr. Ralston had worked
for several counties and often testified as an expert for the State. Coroner Day had no “qualms
about Dr. Ralston’s quality of work or his professional demeanor.” After defendant secured an
expert opinion report by Dr. Ralston, who was not yet acting as the coroner’s physician when he
wrote the report, Dr. Case was hired to review the conclusions of Dr. Bowman and Dr. Ralston.
¶8 Dr. Bowman testified she was a forensic pathologist who obtained a permanent
license in 1998 or 1999. She graduated from Indiana University School of Medicine in 1993, and
her residency in pathology was completed at Methodist Hospital of Indiana in 1998. During her
residency, Dr. Bowman had a rotation in pediatric pathology. Dr. Bowman completed a
fellowship in forensic pathology at Indiana University School of Medicine. Dr. Bowman was
licensed to practice in four states, including Illinois. Dr. Bowman testified she averaged 250 to
-3-
300 autopsies per year. Although she was not board certified as a forensic pathologist, Dr.
Bowman was a board-certified anatomic and clinical pathologist.
¶9 According to Dr. Bowman, she conducted an autopsy of Galen one day after his
death, January 21, 2006. Bruising was scattered across Galen’s chest and abdominal region.
There was also bruising on Galen’s forehead and in the area below his eyebrows. Dr. Bowman
stated the abdomen and chest area exhibited “numerous circular bruises, some of which [were]
almost confluent of a pattern *** recognizable as that characteristically seen when caused by a
fist.” Galen’s right arm had “faintly demonstrated marks,” which could have been caused by a
fist or by the act of grabbing. Dr. Bowman’s internal examination revealed evidence of traumatic
injury. Damaged blood vessels hemorrhaged into Galen’s abdominal cavity, buttocks, back, and
lung. Galen suffered two broken ribs on each side. There was no evidence of healing, indicating
the ribs were recently injured. Dr. Bowman found subdural blood in the area surrounding the
brain. This blood, however, indicated an injury that was not lethal to Galen.
¶ 10 Regarding Galen’s liver, Dr. Bowman testified Galen suffered a hemorrhage in
the liver’s midregion. The liver was separated, causing bleeding. The capsule surrounding the
liver was torn: “[m]ostly intact with a little bit of tearing.” The capsule showed no indication of
healing, as the tear had “no piling up or evidence of distortion.” Most of the damage to the liver
was on the inside of the liver. Dr. Bowman believed the injury to the liver was recent.
¶ 11 Dr. Bowman opined Galen’s death was due to blunt-force injury that appeared to
be “contemporaneously inflicted” within, at most, a couple of hours. Dr. Bowman based her
opinion on the appearance of the injuries, as well as the microscopic appearance of the injuries.
Regarding her microscopic observations, Dr. Bowman explained blood contains inflammatory
-4-
cells that attempt to repair tissue. While inflammatory cells were present, those cells had not yet
begun to react with the tissue. This indicated Galen’s injuries were recent. Based on the extent of
Galen’s injuries, Dr. Bowman opined he would have lived “maybe a couple hours” after having
sustained them. She opined to the following: “Looking at the sum total of injuries that this child
has and the broken ribs, the lacerated liver, the hemorrhage in the mesentery, I would expect
things like respiratory difficulty and shock to take the life of this child within at least a couple of
hours and, perhaps, sooner.” Dr. Bowman doubted Galen could have walked around after having
suffered such injuries. Emphasizing Galen’s buttocks and head injuries, Dr. Bowman believed
Galen’s injuries could not have been caused during resuscitation efforts.
¶ 12 Dr. Bowman agreed a review of the tissue slides could reveal an injury occurring
12 hours before but stated such a conclusion would be made without consideration of the broken
ribs, the hemorrhage in the deep soft tissues, and evidence of shock.
¶ 13 Dr. Ralston testified he had been licensed in forensic pathology since 2003. He
graduated from medical school at East Tennessee State University. Dr. Ralston’s residency was
in anatomic and clinical pathology at Rush University, and his one-year pathology fellowship
was at Cook County Medical Examiner’s Office. Dr. Ralston was board certified in anatomic and
clinical pathology, as well as in forensic pathology. In July 2008, Dr. Ralston was hired as the
coroner’s physician for Macon County. Dr. Ralston occasionally accepted private autopsy cases
and reviewed the work of others. In his career, he had performed approximately 1100 autopsies.
In this case, Dr. Ralston was hired by defendant to review Dr. Bowman’s findings and render an
opinion.
¶ 14 According to Dr. Ralston, in October 2009, he received materials relating to
-5-
Galen’s death. These materials included Dr. Bowman’s autopsy report, photographs taken at the
hospital, and Dr. Bowman’s testimony at defendant’s first trial. Dr. Ralston also reviewed
microscopic slides from Galen’s autopsy.
¶ 15 Dr. Ralston opined Dr. Bowman failed to estimate or opine on the age of the
fracture or hemorrhage injuries. According to Dr. Ralston, it was useful, particularly in
subdural-hematoma cases, to take a microscopic section of the clotted blood to determine the age
of a hemorrhage. As a hemorrhage builds, the blood would pool and the body would attempt to
organize a clot by turning it into fibrous tissue and dispose of it. To determine the maturity of a
clot, one could examine the clot microscopically. Here, such a test was not done.
¶ 16 Dr. Ralston concluded the injury that caused Galen’s death more likely occurred a
couple of days before his death. Dr. Ralston agreed it was possible the injury was just two to
three hours old but the presence of dead tissue in the liver supported his conclusion the injury
was older—one to two days old at the time of Galen’s death. Dr. Ralston based this decision, in
part, on the photographs from Galen’s autopsy. Dr. Ralston stated one could see tissue damage
with a recent hemorrhage as well as an area of tissue that turned “yellow-tan,” indicating a loss
of blood supply to that area and necrosis. Dr. Ralston further observed microscopically a
prolonged immune response dealing with long-term consequences. A macrophage is a white
blood cell that responds to specific types of infections and tissue damage. The macrophage
response was predominant in the liver, further supporting his conclusion the damage to the liver
was one to two days old. In addition, some of the rib fractures also appeared to be a few days
old, while the others were a few hours or few minutes old.
¶ 17 Dr. Ralston opined the injury to Galen’s liver was the most serious injury to
-6-
Galen and blunt-force trauma from an assault was Galen’s cause of death. Dr. Ralston testified
the pain of the liver injury would have been “probably of a diffuse nature.” Galen would be tired
and not feeling well but could have remained mobile, even eating and drinking “somewhat.” Dr.
Ralston opined ibuprofen, which testimony established Galen had been taking, could have
masked Galen’s pain.
¶ 18 According to Dr. Ralston, Galen’s injuries were not like those typically seen from
CPR efforts. Galen’s injuries were more consistent with abuse.
¶ 19 Dr. Case, a pathologist, testified she attended medical school at St. Louis
University and had been licensed to practice medicine in Missouri since 1969. Dr. Case’s
residency, which she completed in 1973, was in pathology at St. Louis University hospitals. Dr.
Case completed a fellowship in neuropathology, the study of disease and injuries of the nervous
system. Dr. Case was board certified in anatomical pathology, neuropathology, and forensic
pathology. At the time of her testimony, Dr. Case served as a medical examiner for St. Charles
County, Jefferson County, and Franklin County, Missouri. Dr. Case worked directly for St. Louis
County as their chief medical examiner since 1988, and she traveled around the country giving
lectures and teaching regarding death investigations. Dr. Case personally performed “somewhere
around 11,000 autopsies,” including several hundred on children. She testified as an expert in
pathology several hundred times. Dr. Case was retained by the Macon County state’s attorney’s
office to review Galen’s death.
¶ 20 After reviewing the autopsy report, the autopsy photographs, the microscopic
sections, Dr. Ralston’s report, Dr. Bowman’s testimony from defendant’s first trial, police
department records, hospital records, and Galen’s other medical records, Dr. Case opined Galen
-7-
died from blunt-force trauma and was the victim of homicide. Based on the bruises on Galen’s
chest, Galen was struck by fists. Galen’s liver injury was the kind of injury seen in motor-vehicle
accidents. His injuries could not have been caused by another child or by resuscitation efforts.
¶ 21 Dr. Case disputed Dr. Ralston’s conclusions. Dr. Case testified, based on her
microscopic observations, the ages of the injuries were identical. She noted, however, not all of
Galen’s injuries were examined microscopically. According to Dr. Case, the type of injury
inflicted on Galen’s liver usually caused death within an hour. Dr. Case opined the injuries to the
liver, as well as the rib injuries, would have caused “very considerable pain.” Galen would have
been unable to eat. He would remain conscious but not be able to run around and play. Galen’s
pain would not have been decreased or masked by over-the-counter medication. Dr. Case
testified the bruises on Galen’s chest resembled knuckle marks.
¶ 22 Dr. Case testified the physical appearance of Galen’s liver in the photograph
revealed nothing about the injury’s age. She could not determine from the photograph whether
necrosis existed in the liver. While the liver injury appeared “fresh,” Dr. Case explained the only
way to determine the age of the liver injury was to examine it microscopically. When she
examined a slide containing liver tissue, Dr. Case observed individual liver cells and neutrophil
cells. Neutrophils, a type of white blood cell, aid in the inflammatory process. They cause a rise
in body temperature and are present in a liver within 20 minutes of an injury. The influx of
neutrophils is “one of the very earliest things to happen” after an injury. Dr. Case observed
neutrophils in small numbers. Macrophages, cells that engulf dead tissue and bacteria and
remove them, occur later in the inflammatory process, usually in the second or third day after an
injury. Dr. Case observed no macrophage cells in Galen’s liver. Dr. Case testified, if Galen’s
-8-
injury had been present for several days, there would have been “many more neutrophils” and an
influx of macrophages but Galen’s “liver does not show that.”
¶ 23 Additional testimony at trial included testimony from a police detective who
interviewed defendant at the hospital on the day of Galen’s death. Defendant reported having
attempted CPR on Galen after he was found unresponsive. The State also introduced defendant’s
testimony from the first trial, at which defendant testified he, with no medical training, attempted
CPR by giving Galen mouth-to-mouth resuscitation and pressing on Galen’s chest. He also
explained he drove to the hospital while attempting to revive Galen. Ebony testified, after she
discovered Galen was not breathing, defendant picked up Galen, began shaking him, and
attempted to give him CPR.
¶ 24 In April 2015, defendant filed his pro se petition for postconviction relief. After
90 days lapsed, the trial court docketed the petition for further postconviction proceedings. An
amended petition was filed in January 2018. In this petition, defendant asserted multiple claims.
After the State moved to dismiss defendant’s postconviction petition, the trial court ruled it
would advance to the third stage of proceedings defendant’s claims of actual innocence based on
new CPR evidence and of ineffective assistance of trial counsel. The trial court refused to
advance to the third stage defendant’s Brady claim, in which defendant asserted the State failed
to disclose information regarding Dr. Bowman’s competency.
¶ 25 At the evidentiary hearing, defendant called Thomas Young, a licensed forensic
pathology consultant. Dr. Young graduated from Loma Linda University School of Medicine in
Loma Linda, California. After medical school, Dr. Young completed a four-year residency in
pathology. He was board certified in anatomic, clinical, and forensic pathology. Dr. Young
-9-
worked for 11½ years as the chief medical officer in Jackson County, Missouri, the
“metropolitan Kansas City.” Dr. Young, in January 2007, began a consulting practice as a
forensic pathologist. Dr. Young had performed approximately 5600 autopsies and had testified
approximately 500 times.
¶ 26 For this case, Dr. Young testified he was hired by defendant to review Galen’s
death. Dr. Young reviewed Dr. Bowman’s autopsy report, the photographs of the autopsy, the
report by Dr. Ralston, the photo micrographs of the slides from the autopsy, police investigative
reports, photographs of the scene and the child, and the trial transcripts of the testimony of
Brady, defendant, Dr. Case, Dr. Ralston, and Dr. Bowman. Dr. Young did not recall seeing in the
expert reports or in the transcripts of the proceedings any mention of defendant’s performing
CPR on Galen. Regarding the autopsy report, it did not describe blood in the abdomen. The
photographs of the autopsy revealed only a tiny amount of blood. According to Dr. Young, if the
heart was active and there was blood pressure when the liver injury occurred, more blood would
have been found in the abdomen. Dr. Young testified the liver “is a very vascular organ.” For an
infant or small child, a child must lose 50 percent of his or her blood volume to die. If there was
a gaping laceration to the liver and the child died from blood loss, “there’s going to be copious
blood coming out of the belly.” If, however, the child had no blood pressure or very little blood
pressure due to chest compressions, a tiny amount of blood would likely end up in the same body
cavity. In the cases Dr. Young examined, in those circumstances, “maybe as much as 10 percent
but not more than that usually.” According to Dr. Young, the small amount of blood loss
indicates there was little to no blood circulation when the liver was lacerated.
¶ 27 Dr. Young did not form an opinion on Galen’s cause of death, but he concluded it
- 10 -
was possible, however, Galen’s injuries could be attributed to improperly performed CPR.
According to Dr. Young, the small amount of blood loss indicates there was little to no blood
circulation when the liver was lacerated. Dr. Young explained the difference between adult and
child CPR. For adults, CPR compressions are made by “placing the hand over the sternum and
*** pressing up and down about a hundred times a minute.” For children, one should not use
“the two-hand thing on the sternum” but use “two fingers.” The amount of pressure or vigor
differed. Dr. Young opined “forceful adult-style CPR improperly performed by an untrained
person on an 18-month child can lead to the injuries described in” Galen’s autopsy. The bruises
could have been caused by the heel of the hand being placed and shifting along the anterior
midline during CPR compressions. Dr. Young opined the liver lacerations on the midline could
have been “caused by rapid violent compressions that squeezed the liver repeatedly against the
spine.” Dr. Young testified the compressions of one hundred times per minute changes “the
shape of that body cavity and [presses] the liver there against the spine, which protrudes into that
abdominal cavity.” Vigorous compressions, that kind of squeezing, “can cause these serious
kinds of both external and internal liver lacerations” and “fracture ribs.”
¶ 28 Dr. Young was aware that the literature indicates CPR does not cause rib fractures
in children. Dr. Young described his concerns about that literature:
“Much of the literature that you’re talking about has what
you would call a circular[-]argument problem. That, basically,
means where you accept as a premise the thing that you’re trying
to conclude. So what ends up happening here is that in cases where
they, basically, say we haven’t seen any cases in children where
- 11 -
there are any rib fractures, or we haven’t seen any cases in children
where there are any liver tears, or we haven’t seen any cases in
children where there’s any significant damage from CPR, well the
problem with that is because those cases that do have the problems,
they’ve already termed those as child abuse and so they are
removed from consideration.
So all they have is, well, we haven’t seen any case where
CPR has caused any significant injury to a child. You can see how
if you’ve already called those out because you decided in advance
that those were caused by child abuse, that that would have a
profound and even disturbing impact there on—on the CPR
literature. In adults, seeing rib fractures and seeing liver tears from
adult-style CPR, these are commonly seen.
But it’s amazing here in that in the child or in the infant in
which they are very tiny, and not nearly as robust as an adult,
hardly anybody ever describes these things. They don’t say we
don’t see any rib fractures in children or we don’t see liver tears.
Okay. Well, it’s because the cases where there are rib fractures and
liver tears they’ve already determined them to be child abuse, and
they are taken out of the study.”
¶ 29 On cross-examination, Dr. Young testified he made no determination for Galen’s
cause of death as there was insufficient information to make that kind of determination. Dr.
- 12 -
Young testified, “The situation is that this was a sudden and unexpected death. The reason for
the sudden and unexpected death is unexplained.” Dr. Young mentioned in his report there was
not a sufficient explanation for Galen’s breathing issues before his death, which accompanied an
illness he had for three to seven days. There could have been inflammation of the heart muscles
as a result of a viral respiratory illness. The tonsils and adenoids, which had been described as
enlarged and possibly needing surgery, were not described in the autopsy. In such cases, it is
relatively common not to find anything at the autopsy. Dr. Young estimated he had experienced
such a situation in fewer than five cases.
¶ 30 Dr. Young testified CPR was described in the police reports as having taken
place. While Ebony called 9-1-1, defendant performed CPR. Someone observed this. As for
child abuse, no one observed it. It was something that was “theoretical and hypothetical.” Dr.
Young opined the following: “There are a lot of forensic pathologists who have very, very little
information from witnesses. They simply look at the autopsy report and they draw a conclusion
from what they see at the autopsy. If the injuries look really bad to them, they’re going to call it
child abuse. This happens frequently, and it is unfortunate that it does.” Dr. Young advised one
cannot look at autopsy findings and imagine a scenario. The appropriate approach “deductively
and logically and reasonably is to listen to the people who were there to see what happened and
test what they saw by the autopsy findings.”
¶ 31 Dr. Young testified he had one case in which he saw injuries like Galen’s that
were the result of CPR. Dr. Young testified the child was less than one year old. The child had
coin-shaped bruises on the chest and abdomen like those seen on Galen. There were numerous
rib fractures, the heart and lungs were “very bloody,” and the liver was “smashed.” The heart
- 13 -
appeared bruised, and there was “very, very little fluid blood in any of the body cavities.” Dr.
Young relayed to a detective that the small amount of blood made little sense as there was no
bleeding or hardly any bleeding. The detective mentioned the child was found in a crib and a
neighbor “who was so very, very upset took the—picked up the child, took the child outside, put
the child on the hood of the car in front of all these witnesses, and started just wailing on the
child with real, real severe adult-style CPR.” The woman had to be restrained. In these
circumstances, the suspect fled the scene. He denied harming the child. The person who followed
Dr. Young called it child abuse. The suspect was arrested.
¶ 32 Dr. Young re-emphasized his concerns about the literature on CPR studies, as
cases identified as “child abuse” are removed from consideration. Dr. Young stated “when you
have so many injuries that occur in adults from adult-style CPR, it shouldn’t be any stretch or
leap of the imagination to imagine that if you were to do the same kind of CPR on an infant or
small child, that you’d probably have even worse injuries than you would see in an adult. *** So
to have a situation where you have no injuries, that’s a red flag, that’s suggesting a problem with
the study itself.” What happens in these studies is the details are ignored. They jump to the
conclusion of child abuse without carefully looking at witness accounts.
¶ 33 According to Dr. Young, CPR takes into account that an infant or small child is
not as robust, as for an adult we are taught to “use two hands and really push, but not on the
infant.” Dr. Young was not told whether defendant performed adult-style CPR or CPR for a
child. Dr. Young concluded the witness account is consistent as if defendant “were to perform
adult-style CPR on that child, that would be the kind of finding that you would have.”
¶ 34 Regarding his opinion of Dr. Case, Dr. Young testified Dr. Case looks at autopsy
- 14 -
findings to imagine what led to those findings rather than looking carefully at what witnesses
said. He opined, when Dr. Case sees horrible injuries, she concludes “it’s got to be child abuse.”
Dr. Young believed Dr. Ralston did the same thing. Dr. Young opined, if one believes there was
child abuse, he or she is not going to agree CPR caused the injuries.
¶ 35 Dr. Case testified at the evidentiary hearing. According to Dr. Case, Galen had
extensive injuries that led to his death:
“He’s got primarily a very large laceration of the liver, but
he’s got hemorrhage in the capsule of the spleen. He’s got
hemorrhage in the mesentery of the lesser curvature of the stomach
and in the large bowel at the cecum and around the pancreas. He
has a lot of deep hemorrhaging in the muscle around the right
pelvic region. So those are the injuries in the abdomen. So there
are other injuries to the body in addition, but those are the ones that
are most significant in producing his death.”
Galen also suffered rib fractures that can be inflicted by striking the child or by squeezing.
¶ 36 When asked the reason Dr. Case opined Galen was the victim of homicide, Dr.
Case stated, “There was not an accidental mechanism to account for these rather extensive
traumatic injuries, so basically that was the reason.” Dr. Case further pointed to the marks on
Galen’s body that looked like knuckle marks.
¶ 37 Dr. Case opined Galen’s injuries would not have resulted from CPR. Dr. Case
opined “[w]e have a lot of children that we autopsy, and almost everybody has had CPR, and we
don’t observe these kinds of injuries in those children.” None of the children showed those types
- 15 -
of injuries: “They get resuscitated and nobody has any of these injuries. If you look at children
that are dying from homicidal blunt trauma of the abdomen, not all of those children have
resuscitation. So there is a literature that kind of divides out, well, here are the ones that are
resuscitated. Do they look different? And they don’t. They look the same.” Dr. Case reported
there was no new literature showing injuries resulting from resuscitation and all of the literature
supported her conclusion. She further testified “there is even more literature that supports that
opinion today than there was earlier.”
¶ 38 Dr. Case testified the injuries seen in adults from CPR are not seen in children.
While children may be more delicate in certain ways, adults have fixed tissue, and it was very
common to see rib fractures in adults. Children were more pliable.
¶ 39 Because Dr. Bowman did not measure the fluid found in Galen, Dr. Case was
unable to determine how much blood Galen lost as a result of his injuries. Dr. Case opined the
autopsy photographs reveal “a very liquid blood in the abdominal cavity” and “in the soft tissue
*** there is a lot of soft tissue hemorrhaging[.]” The microscopic sections taken from the liver
show, when the injury occurred, Galen was alive as “the body’s inflammatory reaction to it
occurred.”
¶ 40 Dr. Case was familiar with Dr. Young. She disagreed “with his ideas about his
theory of if you have injuries and you have a witness statement and they match, that you have to
believe it because the injuries always seem to match.” Dr. Case testified to an incident leading to
his removal “from the list of doctors that could do autopsies on children in the State of
Missouri”:
“At one time [Dr. Young] did autopsies in the State of
- 16 -
Missouri, and there came a time when he presented a case on that
in November to this child death pathology group that his
reasoning—he had a very dreadful—and it was an abdominal
injury, looked very much like this child. And he showed it—or
there were rib fractures, an extensive liver laceration, and many
marks all over the body—that this was from resuscitation, and the
entire group kind of rose up. And I took it to the State of Missouri,
and he was removed from the list of doctors that could do
autopsies on children in the State of Missouri.”
¶ 41 Dr. Case denied that conclusions are drawn about cause of death simply from the
physical state of the body. Dr. Case testified when there is a death, particularly of a child, “we”
look at the autopsy, the photographs, the stain photographs, the microscopic, the medical history
from birth, and police reports, including witness statements. Dr. Case further discussed a study
that examined 33 cases of abdominal trauma. Twenty-four of the cases had resuscitation, while
nine did not. When the 9 were compared to the 24, “they didn’t look any different.” Dr. Young’s
conclusion the literature is faulty “doesn’t hold.”
¶ 42 Dr. Case testified CPR performed on children over one year of age is done with
two hands. On infants, CPR is performed with two fingers.
¶ 43 On cross-examination, Dr. Case was asked if there is a difference between CPR
performed by someone trained in CPR and CPR performed by “a 200-pound healthy man high
on adrenaline trying to get a child to breathe, not knowing how to perform CPR.” Dr. Case
testified “[t]here’s no difference between trained and untrained.” Dr. Case testified “when they
- 17 -
compared nontrained and trained, they did not get any difference.”
¶ 44 Dan Fultz, defendant’s attorney during his second trial, testified regarding his
representation of defendant. Early in his representation, Fultz met with Dr. Ralston and told him
he “needed to pick a path and *** needed some guidance on where I thought I had the best
opportunity.” Fultz was concerned about explaining Galen’s older bruises. Dr. Ralston informed
Fultz he need not worry because the tissue slides indicated healing of the liver had already begun
by the time Galen died. Dr. Ralston told him, because the macrophage cells were present, the
timing of that injury could not have occurred while Galen was in defendant’s care. After this
conversation, Fultz developed his trial strategy.
¶ 45 Fultz recalled defendant telling him he performed CPR on Galen at the home.
Defendant reported he was not trained in CPR but had performed chest compressions. Defendant
was frantically trying to get Galen to breathe. Fultz recalled one of the issues in the case was that
Galen had a history of breathing issues. Dr. Ralston told Fultz he did not believe the injuries
could have resulted from CPR. Dr. Fultz testified as to the reasons he did not pursue CPR as a
theory of the case:
“[T]he real reason would be that I didn’t want to confuse
other issues with my theory of the case, and Dr. Ralston had told
me that he did not think the injuries could have resulted from—
from CPR.
I knew the other experts were going to testify in the same
manner, and so I didn’t want to raise an issue as a red herring that
would confuse the jury because my whole theory was I don’t care
- 18 -
how the injuries got there, he didn’t do it. It wasn’t the timeframe,
the right timeframe for the injuries to have occurred, so I just
didn’t raise it because I didn’t need to. It wasn’t consistent with my
theory.”
Fultz further testified other injuries Galen suffered, such as injuries to his head
and bruises, could not be explained by CPR.
¶ 46 Fultz was convinced Ebony killed Galen. He testified regarding his concerns
about the case:
“There were things about the case that bothered me very
much, and even to this day, and one of those things that kept
jumping out at me was the mother’s behavior during the course of
the emergency. I was troubled by the fact that she came home early
from work without any real explanation as to why she came home.
I was troubled by the fact that she had explained away
some injuries on the child earlier in the week when [defendant] had
raised those issues with her.
I was troubled by the fact that she did not go in and check
on her child, that she sent the family member who came home with
her from work to check on the child.
I was concerned about the fact that when the baby was in
distress, she didn’t grab the baby up. She didn’t hold the baby. She
didn’t try to console the baby. She didn’t try to do any CPR.
- 19 -
[Defendant] held the baby all the way to the hospital. Even at the
hospital the evidence was that was mom would not touch the baby,
and I could not get my mind around that fact, that I just couldn’t
understand how a mom—I couldn’t understand that—how a mom
could not touch her baby in distress and not want to physically be
with it.
And that, in conjunction with talking to [defendant]
repeatedly and looking at the discovery and all the things that we
did, talking to Dr. Ralston, I just did not believe, firmly did not
believe that [defendant] killed this baby, and I was determined to
find something that would allow the jury to hang their hats on that
as an outcome, because as much as I hate to say this as an officer
of the court, as a defense attorney, when you’re trying a case
involving a dead child, I don’t believe the presumption of
innocence is as strong as it is in other cases. *** I needed to prove
something. I needed to prove his innocence. And I was struggling
to figure out how I could do that when it was just his word against
the mother’s word, and when Dr. Ralston looked at the liver tissue
slides and he found those macrophage cells, that was what I was
looking for and that’s how I—that’s how I—I adopted that
strategy.”
Fultz admitted he did not anticipate how Dr. Case “got up and basically ridiculed Dr. Ralston and
- 20 -
said that that was no macrophage cell, and there’s no way in the world that was a macrophage
cell, and she was way smarter than him.”
¶ 47 Regarding Dr. Bowman, Fultz testified he was aware she failed the
forensic-pathologist exam multiple times. He was further aware she had “diagnosed a young kid
in Springfield with a medical condition that was, like, so rare that it was almost unheard of.” In
addition, when the defense was trying to get the liver-sample slides from the State, it took
months. The State admitted they did not know where the slides were. Ultimately, they were
found in Dr. Bowman’s personal refrigerator. He knew the Sangamon County state’s attorney
had asked the coroner to fire Dr. Bowman. Dr. Bowman was “kind of the laughing stock of the
forensic science community for a while.”
¶ 48 The circuit court entered a written order in February 2020. The court concluded
“Dr. Young did not have an opinion on the cause of death of the child but did testify that it was
possible that a forceful adult[-]style CPR improperly performed could lead to the injuries
discovered in the autopsy.” The court stated it, after reviewing the medical literature and the
testimony of Drs. Young and Case, found the medical literature was not “of such a conclusive
character [it] would probably change the results at re-trial.” As to the effectiveness-of-counsel
claim, the court found Fultz was “extremely prepared” for trial and pursuing a defense the
injuries were older, given Dr. Ralston’s testimony, was sound trial strategy. The court found
Fultz’s representation did not fall below an objective standard of reasonableness and no
reasonable probability the outcome of the trial would be different had defendant retained an
expert like Dr. Young before trial.
¶ 49 This appeal followed.
- 21 -
¶ 50 II. ANALYSIS
¶ 51 A. Proceedings Under the Act
¶ 52 Our General Assembly created a three-stage process by which a petitioner may
assert claims a substantial denial of his or her constitutional rights occurred during the
proceedings that led to his or her conviction. See 725 ILCS 5/122-1 et seq. (West 2014). At the
first stage of proceedings, a petition is filed in the circuit court. People v. Andrews, 403 Ill. App.
3d 654, 658, 936 N.E.2d 648, 652 (2010). The court then examines the petition to determine
whether the petition’s claims are frivolous or patently without merit. Id. If the court finds the
petitioner’s claim frivolous or patently without merit, the court shall dismiss the petition. 725
ILCS 5/122-2.1(a)(2) (West 2014).
¶ 53 A petition will survive the first stage and advance to the second stage when it
asserts a claim that is not frivolous or patently without merit or, as here, when the circuit court
fails to make a first-stage ruling within 90 days of the petition’s filing. See 725 ILCS
5/122-2.1(a), (b) (West 2014). At the second stage, counsel may be appointed, and an amended
petition may be filed. Andrews, 403 Ill. App. 3d at 658, 936 N.E.2d at 653. The State has the
option of answering the petition or moving to dismiss it. 725 ILCS 5/122-5 (West 2014). If the
State answers the petition or the circuit court denies the State’s motion to dismiss, the proceeding
advances to the third stage, in which an evidentiary hearing may be held and defendant may
present evidence to support his claim. See 725 ILCS 5/122-6 (West 2014); see also Andrews, 403
Ill. App. 3d at 658-59, 936 N.E.2d at 653. In this case, two of defendant’s claims advanced to
third-stage proceedings, where defendant was afforded the opportunity to call witnesses and
present evidence. See 725 ILCS 5/122-6 (West 2014).
- 22 -
¶ 54 B. Defendant’s Claim of Actual Innocence
¶ 55 To succeed on a claim of actual innocence, the petitioner “must present new,
material, noncumulative evidence that is so conclusive it would probably change the result on
retrial.” People v. Coleman, 2013 IL 113307, ¶ 96, 996 N.E.2d 617. “Probability, not certainty, is
the key as the trial court in effect predicts what another jury would likely do, considering all the
evidence, both new and old, together.” Id. ¶ 97. “New evidence need not be completely
dispositive of an issue to be likely to change the result upon retrial.” People v. Davis, 2012 IL
App (4th) 110305, ¶ 62, 966 N.E.2d 570. “[T]he conclusiveness of the new evidence is the most
important element of an actual[-]innocence claim.” People v. Sanders, 2016 IL 118123, ¶ 47, 47
N.E.3d 237.
¶ 56 A circuit court’s decision to deny relief after an evidentiary hearing is reviewed
for manifest error. Coleman, 2013 IL 113307, ¶ 98. We will find a decision manifestly erroneous
when we find the opposite conclusion is clearly evident. Id.¶ 57 On appeal, defendant contends the trial court failed to consider all evidence in
deciding the new evidence was not so conclusive it would probably change the result on retrial.
Defendant first points to the medical literature that “describe instances where two[-]handed chest
compressions caused rib fractures in infants.” Defendant also emphasizes literature presented by
Dr. Case, which he contends “leads to reasonable doubt [he] may have inadvertently caused
injury” to Galen. Last, defendant stresses Dr. Young’s testimony highlighting problems with Dr.
Bowman’s report, particularly the failure to describe blood in the abdomen.
¶ 58 Upon our review of the record, we find the opposite conclusion, the evidence was
so conclusive it would probably change the outcome on retrial, is not clearly evident.
- 23 -
Defendant’s reliance on the medical literature is not convincing. In his appellant brief, he points
to two papers. The first noted (1) CPR had “been proposed as a cause of rib fractures” and (2)
“[a]n analysis of infants who were discovered during autopsy to have rib fractures and had
received 2-handed chest compressions antemortem suggested that 2-handed CPR is associated
with anterior-lateral rib fractures of the third to sixth ribs.” Emalee G. Flaherty, et al., Evaluating
Children with Fractures for Child Physical Abuse, 133(2) Pediatrics 477, 478 (Feb. 2014).
However, the very next sentence states, “In this small study, no posterior rib fractures were
observed.” Id. It also concluded not that rib fractures to children would result from two-handed
CPR but that “[a]dditional research is needed to examine the relationship between 2-handed CPR
technique and rib fractures.” Id. Such conclusions are hardly suggestive of conclusive evidence
of actual innocence. The paper does not conclude two-handed CPR causes rib fractures, much
less injuries to the extent of those inflicted on Galen.
¶ 59 The other paper cited by defendant also fails to undermine the circuit court’s
decision the evidence is not conclusive. For example, the paper lists two 1962 cases where
massive lacerations of the liver were reported after CPR was performed, but the paper identifies
those cases as “alleged post-CPR injuries.” The paper further notes the “determination was
questionable” and concludes “primary blunt force abdominal injuries due to nonvehicular
accidental blunt abdominal trauma or CPR occur very rarely, if at all.” Eroston A. Price, M.D.,
et al., Cardiopulmonary Resusciation-Related Injuries and Homicidal Blunt Abdominal Trauma
in Children, 21(4) The American Journal of Forensic Medicine and Pathology 307, 310 (Dec.
2000).
¶ 60 The testimony of Dr. Young, when considered with the literature or alone, is also
- 24 -
insufficient to show the trial court’s determination was manifestly erroneous. Dr. Young did not
conclude Galen’s injuries were caused by defendant’s resuscitation efforts but only that those
injuries were consistent with the testimony CPR was attempted. In contrast, three forensic
pathologists testified definitively at trial resuscitation efforts could not have caused Galen’s
injuries. Dr. Case reiterated that position at the evidentiary hearing. While Dr. Young relied on
the amount of blood found in Galen’s abdomen as evidence the liver injury occurred after blood
was no longer circulating in Galen, Dr. Case opined to the contrary. She testified the microscopic
evidence established the immune response was occurring when Galen died, meaning the injuries
did not occur after Galen died. The trial testimony of Dr. Ralston, defendant’s own witness,
supports this conclusion. Although the two disagreed as to the timing of Galen’s injuries, Dr.
Ralston’s testimony shows the immune response was occurring when Galen died. In contrast to
Dr. Young’s conclusion the abdomen contained a small amount of blood, Dr. Case testified the
photographs showed “a very liquid blood in the abdominal cavity” and “in the soft tissue ***
there is a lot of soft tissue hemorrhaging[.]” Moreover, Dr. Case testified Dr. Young was no
longer permitted to perform autopsies on children in Missouri and the medical literature
supported her conclusion both trained and untrained CPR on children could not have produced
Galen’s injuries. Given Dr. Case’s testimony and the conclusions of two other forensic
pathologists that directly contradicted Dr. Young’s conclusions, we cannot find the trial court
erred in finding Dr. Young’s testimony and literature would not probably change the result on
retrial.
¶ 61 C. Defendant’s Claim of Counsel’s Ineffectiveness
¶ 62 Defendant next argues he was denied the effective assistance of counsel when his
- 25 -
trial counsel, Fultz, failed to investigate and pursue a claim CPR caused Galen’s injuries.
Defendant contends counsel failed to investigate the circumstances of how he performed CPR,
pointing to a statement by Brady made under oath before his first trial that defendant was “trying
real hard” while performing chest compressions on Galen and emphasizing Fultz did not ask
defendant to demonstrate his actions. Defendant further points to Fultz’s statement he did not
want to explain Galen’s injuries to the jury and confuse the fact with more than one theory.
Defendant argues pursuing both theories would not have confused the jury as the lack of blood in
the abdomen supports the theory Galen had no circulation when the liver injury occurred.
¶ 63 Criminal defendants have the constitutional right to the effective assistance of
counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. A defendant asserting he was
denied that right must establish (1) his or her counsel’s representation fell below an objective
standard of reasonableness and (2) there exists a reasonable probability the outcome of the
proceeding, absent counsel’s error, would have been different. People v. McGath, 2017 IL App
(4th) 150608, ¶ 37, 83 N.E.3d 671. Defendant carries the burden of proving this claim. Id. The
failure to prove either prong precludes a finding counsel was ineffective. Id.¶ 64 When a petition advances to a third-stage evidentiary hearing, this court will not
reverse a circuit court’s determination, where fact-finding and credibility assessments are made,
absent manifest error. People v. Pendleton, 223 Ill. 2d 458, 473, 861 N.E.2d 999, 1008 (2006). In
consideration of whether counsel’s representation fell below an objective standard of
reasonableness, we are mindful our scrutiny of counsel’s performance must be highly deferential,
and we “ ‘must indulge a strong presumption counsel’s conduct falls within the wide range of
reasonable professional assistance.’ ” See People v. Peeples, 205 Ill. 2d 480, 540, 793 N.E.2d
- 26 -
641, 677 (2002) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
¶ 65 The trial court did not commit manifest error when it found defense counsel’s
conduct was within an objective standard of reasonableness. The expert testimony in the case
before trial ruled out resuscitation efforts as the cause of Galen’s death. This included testimony
by defendant’s own retained expert. In addition, defendant’s expert further testified the
microscopic evidence established the injuries occurred one to two days before Galen’s death and
there were injuries to Galen that could not be explained by resuscitation efforts. Given this
evidence, it was not unreasonable to not pursue CPR as a theory of the case. In addition, it was
not unreasonable to not pursue the CPR theory in the alternative to the theory Galen’s injuries
did not occur when defendant was present. First, the expert testimony did not support the
resuscitation-efforts theory. Second, it was not unreasonable for defense counsel to not suggest
to the jury the defense and the defense expert might be wrong on the timing of Galen’s injuries.
¶ 66 D. Defendant’s Claim of a Brady Violation
¶ 67 In his postconviction petition, defendant asserted the State violated his
due-process rights by failing to disclose information related to Dr. Bowman’s competency,
preventing him from challenging her expertise as an expert witness or from impeaching her
testimony. Defendant cited documentation showing the State was aware of, or should have been
aware of, an investigation into Dr. Bowman, including newspaper articles and various letters
questioning Dr. Bowman’s competency.
¶ 68 This argument involves a claim that was dismissed at the second stage of
proceedings under the Act. At the second stage of proceedings under the Act, the task of the
circuit court is to determine whether the petition’s allegations sufficiently establish a
- 27 -
constitutional infirmity necessitating relief. People v. Snow, 2012 IL App (4th) 110415, ¶ 15, 964
N.E.2d 1139. The burden of making a substantial showing a constitutional violation occurred is
defendant’s. See Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008. A circuit court may dismiss a
petition at the second stage only when the allegations in that petition, liberally construed in light
of the trial record, do not make a substantial showing of a constitutional violation. Snow, 2012 IL
App (4th) 110415, ¶ 15, 964 N.E.2d 1139. We review such a dismissal de novo. Id.¶ 69 We find defendant failed to make a substantial showing his constitutional rights
were violated. In his postconviction petition, defendant supported his claim with documentation,
including the following: (1) a May 2010 newspaper article reporting several county coroners
preferred not to work with Dr. Bowman after her questionable work in investigating the death of
a toddler, Anakin Credit; (2) Dr. Bowman’s April 2008 autopsy report of Credit, in which she
opined his death was caused by a rare form of cancer; (3) an October 2009 letter from Dr. Case,
indicating Dr. Case opined Credit’s cause of death was homicide from asphyxiation; (4) an April
2011 newspaper article reporting the Sangamon County coroner agreed to resign after a criminal
investigation into her office after it was determined Credit did not die of natural causes as Dr.
Bowman opined; (5) a March 2011 newspaper article reporting Dr. Bowman had been removed
as the pathologist for the Sangamon County coroner’s office after her qualifications were
questioned; and (6) a March 2011 letter from Sangamon County officials requesting the
Sangamon County coroner replace Dr. Bowman due to a lack of confidence in her abilities.
¶ 70 Prosecutors play a special rule in the search for truth in criminal trials. People v.
Beaman, 229 Ill. 2d 56, 73, 890 N.E.2d 500, 510 (2008). A prosecutor’s interest is that justice is
done. Id. (quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)). Under Brady, 373 U.S. at 83, a
- 28 -
prosecutor violates a defendant’s constitutional right to due process when that prosecutor fails to
disclose evidence favorable to the defendant and material to the question of guilt or punishment.
Beaman, 229 Ill. 2d at 73, 890 N.E.2d at 510. Brady is violated when the prosecutor fails to
comply with his “duty to learn of favorable evidence known to other government actors,
including the police.” Id.¶ 71 To establish a prosecutor failed to comply with Brady, the defendant must show
“(1) the undisclosed evidence is favorable to the accused because it is either exculpatory or
impeaching; (2) the evidence was suppressed by the State either willfully or inadvertently; and
(3) the accused was prejudiced because the evidence is material to guilt or punishment.” Id. at
73-74. We will find “[e]vidence is material if there is a reasonable probability the result of the
proceeding would have been different had the evidence been disclosed.” Id. at 74.
¶ 72 Defendant has not shown the nondisclosed evidence is material as there is no
reasonable probability the result of the trial would have been different had that evidence been
disclosed. The record establishes defense counsel was aware of questions regarding Dr.
Bowman’s competency. Testimony heard by the jury during defendant’s trial was that Dr.
Bowman was not board certified as a pathologist and there were concerns by the police and the
state’s attorney’s office regarding working with Dr. Bowman. Testimony further established Dr.
Bowman had been replaced because of these concerns.
¶ 73 III. CONCLUSION
¶ 74 We affirm the trial court’s judgment.
¶ 75 Affirmed.
- 29 -