#357 Jason Flom with Jennifer Del Prete

On December twenty seventh, two thousand and two, Jennifer del Prete was working at a daycare facility in Romeoville, Illinois. One of the children in her care, a nearly four month old girl, was struggling to breathe and was nearly limp del Prete claimed to have given the infant a slight shake to rouse her, in addition to a few

Well, hello, thank you for having me.

You're very welcome and joining us to help tell this story. Is Jenny's a pellet counsel from Blagan and Garvey, Pat Blagan, Pat, welcome to the show.

Thanks.

Now he became familiar with SPS shaking baby syndrome because of this case, and we've covered this multi hypothesis on wrongful Conviction junk Science with our host Josh Dubin and the executive director of the Center for Integrity and Forensic Science as Kate Judson, who will join us later to

I don't think he ever intended it to be that way. I think he just wanted parents in England to maybe stop handling their children so roughly. But he wasn't saying, oh my god, these things are diagnostic of this. But I think it's the difference between the old way that medicine operated, Like you know, medical students and doctors were taught Hey if you find these things, then the answer

With that shift came folks who found, as I mentioned earlier, a growing list of eighty one non traumatic medical conditions that can cause these findings in addition to traumatic causes the car wrecks or even short falls. And increasingly studies find that if shaking could be the cause that we should, we almost must expect to see some other very specific injuries.

Many cases will also have occipital bone samach, the neck bone.

We now expect to see a spinal injury if we can even begin to suspect violence shaking. But before you had to know any of this stuff, of about SBS, shake and baby Singer, we'll call it SBS. Jenny, what was your life like and how did you decide to get involved in childcare.

I come from a middle class family living in the Southwest suburbs off of Chicago. I was babysitting since I was ten, and I had my daughter at eighteen. But I was a good mom and I started babysitting so I could still be with my daughter and I would bring her with. I just really have a passion for children. They just love me, and I just get along with them a lot. I get along with them more than adults.

You eventually had a second kid, too, right.

Yes, I have two children. I have a daughter, Tia, she's thirty three, and I have a son, Draven, he's twenty five.

I understand you are a very involved mom. You participated as a room mom at your daughter school. In addition to babysitting. You work part time at a library. And that's how things went for a while until a friend of your is another one of the room moms at school, Gleanne Care, gave you a new opportunity.

Gleanne wanted to bring in more income, bought a home in Romeoville that was a daycare already. She remembered me working with children back in the room mom days and thought of me, so she asked me if i'd work at the daycare. But I didn't want to leave the library because I loved it, so I did both.

And what about the family who we're going to refer to as the z family and the infant in this case, Iz, From what I understand, you had only known her for about the final eight weeks of her nearly four month long or short life. But you spent a great deal of time with her, feeding her, getting to know her idiosyncrasies.

Yeah, she was very She would cry a lot. She seemed like she was in pain. So we went and talked to the mom a few times and told her maybe she has acid reflox. You should, you know, look into that and get her what she needs, because she was very, very, I would say, touchy, just cried a lot.

I also read from the trial that Glenn had testified that he z the baby would often clench her fists after she ate, unusual for a baby, right, And it was later confirmed that there was evidence that she was having seizures. But all of these red flags had gone unnoticed. In addition to another glaring detail, what.

Was not noticed at the time, even though you know the pediatrician visits they had been measuring the head circumference, was the head grew at an abnormally fast rate, which can be a sign of a chronic subdural hemotoma, meaning a bleed in the brain. It's one of the reasons why they take those kind of measurements. Brain bleeds are not uncommon at birth, and they're not always dangerous, but they do want to monitor them.

What was missed by the doctors before and after, and was absent a trial as well, was that IS's head circumference went from the fiftieth to the ninetieth percentile in just ten weeks.

You know, our belief is that's the old brain bleed probably existed at the time the head was growing too fast.

Eventually, it turned out that these older brain bleeds were likely present before Jenny had even met the child, and were likely ongoing through the tragic end of her incredibly short life, which happened during that sleepy week between Christmas and New Year's when the whole world basically grinds to a hall. It was December twenty seventh, two thousand and two.

Yes, I was the only one scheduled to work. Leanne had to go out of town for Christmas. It was a great week. It was the first week ever in my life as a single mom of two kids, and I paid for everything in cash for Christmas. It was a very good time in my life. I was about thirty four and I was doing well on my own for once.

And what do you remember from the time you arrived at the daycare that day, so I.

Got there and the Ze family came too. She had to work, I guess, but we didn't know that at the time that the baby was sick. She had a fever on Christmas Eve and went into the hospital. I wasn't aware of that. She brought me some medicine, said she was sick, some amoxicillin, the pink stuff, and I didn't think anything of it. Babies gets sick all the time.

And it turns out that a maxicillan taken along with gas relieve medication can trigger seizures. So there were just so many things potentially happening inside this poor little girl, So please continue.

Well, the mom was a little bit rushed, so she was kind of running in with the kids, and she told me to give her this medicine. At one I put it in the fridge and she didn't say anything else about it. I don't know if it was an ear infection or cold. So I just took the kids.

And as I understand it, you had your hands full that day.

Yeah, and I have two five year olds, a four year old, and a three year old all around me.

Well, yeah, that's a full squad. And as you said later to police and repeat it consistently ever since. Is that while trying to care for all of these other kids, you had fed iy and put her down for a nap, and when she awoke around noon, you set her on the couch, made a bottle, and when you returned you found that she was struggling to breathe. Now, according to police, you never said that you had vigorously shaken her, but you said you had given her a slight shake to

And I called nine one one. They asked me to do CPR, which I did. They came in within minutes and they took over and she went off to the hospital. I had to stay there with the kids.

So the baby goes to Saint Joseph's Hospital and the administer of epinephrine, they do get the heartbeat restored. They start doing X rays and the sea scans trying to find out what's wrong with the baby, and it is early on that they find acute, meaning like newer brain bleeds,

Right, there was no other information about those older bleeds, and as the days passed, the preediatric critical care doctor noted some retinal hemorrhage and eventually brain swalling, which just confirmed what they believed. While a procedure performed on is led findings, it should have again made them question their conclusions and their resolve.

So they ended up doing a burr whole procedure to alleviate some of the pressure in the brain and evacuate some of the blood. So we had the imaging showing the old brain bleeds, but then that was also confirmed by this surgery because they evacuated old blood from the brain,

So instead of paying mind to these sides that something else was clearly going on inside this poor little girl's body and had been potentially since birth, the doctors were doubling down, sticking to the diagnosis that they had made on day one, that they had already relayed to police and the Z family on the day I was brought in.

I called the Z family a few times when I got home that day and at least for two to three days to find out how she was. They wouldn't respond. They didn't answer phone calls, voicemails, nothing.

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I got a phone call and they asked if I could come in for more questioning. I thought I was helping them, so I just went in freely without a lawyer. Biggest mistake in my.

Life at this point, with the certainty of most of the medical establishment behind them, the lead detective, Kenneth Kroll, interrogated you and let's face it. He had a clear agenda.

The interview goes in steps, which I found out later at the evidentiary hearing when Kenneth Crow explained it. First, they try to just be your friend, and they told me, you know, if you heard her, you could tell us. You'll just have to go to parenting classes. I said, no, I did not do anything to her. I helped her. And then he said, show me with this bear. So he gave me a teddy bear and I had to show him the steps of everything I did, precautionary wise

Not only were they lying to you in order to try to extract the false confession, but then they skewed the innocent things that you had said, in particularly that you had given iz eight quote slight shake.

So as you know that Jenny did not confess to shaking the baby, even though they tried to treat it as a confession in her trial, and the detective noted that the demonstration with the bear or the doll or whatever it was was a very minor, slight shake. But in the grand jury when they were getting Jennifer and dighted, they put in evidence that, you know, the kind of shaking necessary to hurt a baby like this would be, you know, extremely vigorous and progressive shaking. And then they said,

So Jenny, that was February eleventh, two thousand and three, when you were indicted for aggravated battery of a child, which potentially could put you in prison for sa to thirty years, and you spent a long night in jail before bonding out, and your family and Cleanne put together the retainer for your attorney.

So for the next year, I had to take care of my children and know that I could go away for six to thirty years. So that's why I lived my life every day. The library was so supportive of me that they paid me for I believe two to four months after this happened, but I was not allowed to work there because it was a public place. I also was told by my son's school, who was also my daughter's school back in the day, that I was

Meanwhile, Iz had been released to the care of her parents and some home healthcare workers, but she was never expected to recover, and she finally passed away tragically on November ninth, two thousand and three, and the autopsy was performed by a doctor Jeff Harki, who became critical to your defense. Actually, later on in the case.

Doctor Harky performs the autopsy, he does brain sectioning, these other things, notably, you know, he says he looked for fractures, of course, and didn't find any. By that more in time, they wouldn't have been any bruising to look forward, because it's almost a year after the baby first collapsed.

Right, Instead of relying on a fuller picture of the child's health from earlier medical records and the CT scans and radiology from December twenty seven, two thousand and two, a lot of his autopsy report relied on the reports of the state's eventual star witness at trial, doctor Emily Flaherty.

And so eventually he just essentially adopts those findings that it was shaking baby Siner more abusive head trauma. Another critical piece that I really can't get out of my mind is despite doctor Flaherty knowing of the old brain bleed the chronics of berylhematoma, she never mentions that in her report to the corner. It's obviously a critically important

Right to his credit, he was skeptical of the SBS hypothesis even back then, but based on Flarerty's selective reporting of IS's condition, he wrote in his autopsy report, quote multiple organ failure due to anoxic ischemic injuries due to abusive head trauma unquote or AHT, and he continued on,

He knows it based on doctor Flaherty's report.

He also noted no external injuries or trauma, as did doctor Flaherty, which should have been an important red flag.

Experts like doctor Flaherty do not think that's important They literally do not think it's important as to whether there is bruising or even a red mark on a baby who they say is shaken with such force that passerbys would know that serious injury was being done to the child. They think it doesn't even leave a mark, but have no explanation for the common sense question of well why wouldn't it.

I mean, come on, we're talking about an adult aggressively gripping and shaking a child. Anyone would expect to see some bruising, probably some significant bruising at the site of the alleged gripping. Right. Nevertheless, they had their declaration that this was a homicide and wrenched up the charge to first degree murder. Oh my god. In April of two thousand and four, do you remember when you got that news, Jenny.

I was making breakfast for my children, trying to live a normal life. I was working at Target by this time, and got a call from my lawyer.

Chuck Chuck Is Charles Brett's your trial attorney.

I was sitting in my kitchen with my kids trying to eat breakfast when you call me. So I had to absorb all that and not react because my kids were there. And I was trying to just have them live a normal life, even though I was terrified.

So you surrendered yourself and your parents bonded you out. As trial approached in February of two thousand and five, and rather than going in front of a jury, you chose to have your case heard by Judge Carla Alessio polychondriotes. Now, what made you opt for a bench trial over a jury? Most lawyers are almost always opposed to that.

If you pull people off the street, they're not going to understand all this medical the brain bleeds, the colors. I just didn't feel they would comprehend all of that. And I've thought a judge was smarter and wiser and would understand the medical facts, because I thought that's what they needed to focus on here. But they didn't in my opinion.

So you know, they presented the family members of Isazi, they presented some of the treating physicians. They presented the testimony of Detective Kroll, who put in this supposed confession.

Right the interrogation in which she said quote slight shake, which was good enough for their trickery at the grand jury to get an indictment. But even Detective Kroll had written in his report that Jenny never confessed to shaking the baby.

But the most important thing they presented was doctor Flaherty. I'm K.

Judson, the executive director of the Center for Integrity and Forensic Sciences. In the case of Jenny del Prete, when the infant I was admitted to the hospital, scans revealed old and new bleeding within the coverings of the brain. Those earlier bleeds and their cause were not discovered or diagnosed prior to her collapse. Like many doctors at that time, doctor Flaherty believed that subdural hemorrhages indicated child abuse. Then when blood appeared in IS's retinas several days later, that

I mean she gave what we know is medically wrong in accurate testimony. There were no lacerations or contusions, as confirmed by all the radiology and the autopsy.

So not only did she entirely omit the existence of the older brain bleed from her reporting and ultimate conclusions, which then misled doctor Harkey in his autopsy report, but also now she's making up internal injuries that don't exist, all while ignoring the complete and total lack of injuries you would expect to see on the baby's chest where an adult would have had to have gripped the child. But the doctor said, it's pretty uncommon to find bruising in a case of shaking baby syndrome.

That's like saying it's uncommon to find bruising in boxing or football, Like, oh, really, so.

I just referenced doctor Harky, who, unbeknownst to the defense, was not exactly a proponent of the SBS hypothesis, although he's still at least as was evidence in his testimony, he still agreed that it was a valid theory. What did he say a trial?

He essentially mirrored doctor Flaherty's conclusions at the trial, but because his questioning of shaking baby cinder min this case was hidden from the defense, and because his conclusion seemed so straightforwardly consistent with doctor Flaherty, they didn't know there was any reason to ask him about these kinds of things.

And to combat the state's witnesses, Jenny's attorney put on an expert in pathology and pediatrics, doctor Wayne Tucker, who certainly did a more thorough assessment than doctor Harkey. In addition to Flarerity's report, he reviewed the medical records, the initial CT scans and radiology, police and paramedic reports, pictures and the autopsy, and he testified that the gas drops

Yeah, she was at home.

Yes, doctor Tucker did know about the old brain bleed but didn't date it properly. The reality is it could have happened two or three weeks before the baby collapsed at day care, and doctor Tucker's essentially said that it was not shaking baby syndrome in a nutshell.

So then it just comes down to who the judge believed on timing more, the state's four consistent experts or the one dissenting expert, doctor Tucker. So despite glowing character witnesses, including your coworkers, who corroborated IS's history of discomfort, to put it moldly, Judge Polychondriodes ultimately sided with the state's experts.

You look at me, and you look at baby Iz, and of course you're going to have heartfelt emotions and feel sorry for her. Who wouldn't, so of course you're going to lean towards that. If she had not said guilty, I feel like she would have too much pressure. She didn't want to deal with that.

And that was March fourth, two thousand and you were sentenced to twenty years in prison.

So March fourth was a horrible day for me. I dropped my son off at my best friend's house. It was eight almost state told them I'd be back later and never came back. My daughter was at a high school sleepover function. I was supposed to be there for Sunday Family Day and instead the day I was convicted was a Friday, so it was not a good day. And then they took me in a room in the back, took off my blazer because they don't want you to kill yourself, so they take off your loose clothes that

And your initial appeal was based on the fact that there was insufficient evidence to convict you.

Insufficiency of evidence claims are very difficult to win on appeal because there's a very high standard of review, and by this point in time, the questioning of shaken baby syndrome and the legal community was building, but it was not at the state that it is today.

Right, the first case to even win on the overwhelming doubt in the SBS hypothesis was a Wisconsin case, Audrey Edmonds, who we are actually going to have on the show in a few weeks, but her case didn't come undone until two thousand and eight. And here it was in two thousand and seven in Illinois where your state appeals had been denied, first on the insufficient evidence claim and later on the ineffective assistance of counsel that you filed with a new appellated attorney, Tom Bradstraighter.

Tom brad Straighter stated somewhere in an interview that he is to stay up all night. He couldn't sleep after this case. He just felt like something was not right, and he in thirty years of practice, this case bothered him.

The most, and his frustration led him to refer you to the Northwestern School of Journalism Medil Innocence Project, and those students later made a huge discovery at just the right time. But for now, Europe moved on to federal court in twenty ten with Pat at Blagen and Garvey.

So Jenny initially got put in contact with my law partner and wife, Jody Garvey, who sort of specializes in

Of Daubert and Daubert, of course, is the nineteen ninety three Supreme Court decision which allowed courts to be gatekeepers of what is relevant and reliable expert testimony. So the aim was to raise in federal court this issue that had not been raised in state court, which is typically not allowed. The procedurally defaulted.

Jody had this brilliant idea because one way to get an evidentiary hearing in the federal court is if you can establish what's called actual innocence. That means you get to raise in the federal court issues that you had never raised below.

And so by establishing actual innocence, you could get an evidentiary hearing in federal court. And for the first time in Illinois challenged the reliability of the SBS hypothesis.

And it worked. That's what got us the hearing which brought all of this bad science is garbage testimony to light. We drew Judge Connelly, who was a very intelligent judge, and that was the first step towards Jenny's case getting reversed.

So this evidentiary hearing in front of Judge Connelly happened in December twenty twelve through January twenty thirteen, in which over the course of nine days, a number of experts testified for the defense, this time including doctor Patrick Barnes, who said that Isz's first CT scan depicted a dark band between the infant skull and the frontal lobe of

So what doctor Prang and others in that field say, and it's undisputed now by the other side to things one, there has never been any threshold yet established for how hard you have to shake a baby supposedly to tear the bridging veanes, which is what the shaking baby proponents say is the real injury. Right, You tear the bridging blanes and a bunch of blood leaks into the subgirl space.

And there were even more defense experts, four more in fact, including doctors Patrick Lance, Joseph Scheller, Jan Leetzma, and Shahgutis.

They were fantastic, They put in countless hours and all of them telling the truth. They get cross examined for like, oh, you're doing this for money, or you're doing this for some other reason utter nonsense. As Judge Kennelly found in his ruling, they weren't biased at all, They were just questioning what clearly was unsound science and unsound medicine.

Yeah, and it seems at least one of the experts called by the prosecution had by now come to similar conclusions, a biomechanical expert, doctor Rannggarajuan, who said, quote the science of biomechanics could not determine the cause of IS's injuries and the threshold necessary to produce head injuries in infants end quote. So the state's case was imploding and continued

They were all assigned to different packs, different piles of transcripts to go through. And Alex Hampel was a student in his twenties at the time. He had his pile of papers and he found the letter.

It's really like a memo that Kroll wrote, but we call it the Kroll letter. And just to summarize the Kroll letter is Kroll memorializing that doctor Harkey had expressed doubts that this was shaking baby syndrome, and of course therefore expressed doubts that this was a homicide. And from then on we knew we had a very strong Brady claim.

And I'm just going to quote from this memo from Detective Croll to doctor Flaherty right after doctor Harky performed the autopsy. Quote, I'm writing to inform you of a twist in our case. The pathologist does not agree with SBS. A Plainfield Police evidence tech who was president at the autopsy, advised that doctor Harky did, in fact question the diagnosis of SBS. Looked for fractures in the ribcage and found none. Doctor Harkey intends to summon all of IS's medical records

If Alex Hample didn't see that letter, and I wouldn't be sitting here right now. So I give him a lot of thanks, and it's like an angel to me.

So the hearings were reopened in June twenty thirteen, and from what I've read, Flaherty and Kroll were bending over backwards to cover their asses with the I do not recalls that they kept repeating on the stand.

They recalled it was their safe, safe answer.

So ultimately, thankfully, Judge Connelly saw through the farce of the SBS hypothesis and granted you a new trial, and you were released on bond on April thirtieth, twenty fourteen, released in this sort of limbo to await a potential retrial.

Correct.

It was a wonderful day, But then I had to I wasn't really free. I couldn't leave the state. I missed my brother's wedding in California because the judge wouldn't let me go. I missed all my nieces and nephews births except for one. It's hard to find work, and that was still they were talking about a retrial, so I was going to go through the whole nightmare over again.

So your team filed successive post conviction motions in state court citing the clear and super relevant Brady material that Kroll letter, and after initial denial, the appellate court forced hearing and which your trial judge vacated your conviction and

I felt like Will County just could not admit, okay, we were wrong. They just were not going to do that. They were going to fight it to the end.

So finally we come to the fateful day of October fifth, twenty twenty two.

I had gotten their expert report, I think the evening before that, this new expert report from Bennett.

And doctor Bennett was the state's new pathologist. So what did this report say?

The report was certainty, not confident at all that there was even a homicide here, and was sort of like in, well, if this and if that, then maybe you could conclude this, which is not really the level of certainty needed to advance a crime. But I remember reading it thinking, I don't know how they're going to prove their case after this, and I'm going to have to talk to the prosecutor

So we were just outside in the lobby in front of the courtroom and Pat came over and told me and my Dadad they were dropping all charges and dismissing the case, and I just cried. I said, finally, finally, I remember saying that, and then I had to maintain my composure because we had to go into court and put it on record. The judge had no idea and

We understand that you're currently litigating a civil suit. Obviously, nothing, no amount of money, could ever make up for what you lost, but we do hope that there's some semblance of justice is delivered. Do you have anything in the meantime that you'd like to ask of our audience, any action they could take.

I would advise to always have be on camera if you're taking care of someone's child, if you have to get your own, get a nanny cam, your phone on, and just have enough camera on all times, because then you would never have to go through this if you had proof. So that is a huge thing that I would like to go fight to pass a law.

Jennifer, thank you for that great advice. And now that brings us to my favorite part of the show, closing arguments. And closing arguments works like this. I'm going to first of all, thank each of you for being here and helping walk us through this insane saga. It's so important and so meaningful, and I tell you how much we all appreciate it. And then I'm going to turn my mic off, kick back in my chair and just listen for anything else you want to say.

Yeah, so, I really wish there were an institutional way in the law to get these kind of exoneration claims, these you know, innocence claims done faster. You know it is, as Jenny has expressed, it is unbelievably traumatic. And I would urge well meaning doctors, you are doing good work, and you do see a lot of children who are actually harmed and abused, But don't let those thoughts overcome your logic and your sense of what's right and wrong.

So I just want to address a couple of things. What happened to me affected a lot of people, and my kids lost me for the time they needed me most. My son became an emotional cutter. He scarred from his shoulders all the way down to his legs. My daughter went through her Niamesh surgery while I was gone. She didn't have me there. She ended up in a wheelchair. She's overcome that now and doing great, just first place

Thank you for listening to Wrongful Conviction. I want to thank our production team, Connor Hall, Annie Chelsea, Lyla Robinson, Jeff Clyburn, and Kevin Warris. The music in this production was supplied by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction, on Facebook at Wrongful Conviction podcast, and on Twitter at wrong Conviction, as well as at Lava for Good. On all three platforms, you can also follow me on both