STATE OF WISCONSIN C O U R T O F A P P E A L S DISTRICT IV. Case No. 2007AP000933

STATE OF WISCONSIN C O U R T O F A P P E A L S DISTRICT IV Case No. 2007AP000933 STATE OF WISCONSIN, v. Plaintiff-Respondent, AUDREY A. EDMUNDS, Defendant-Appellant. ON APPEAL FROM AN ORDER DENYING A MOTION FOR A NEW TRIAL ENTERED IN THE CIRCUIT COURT FOR DANE COUNTY, THE HON. DANIEL R. MOESER, PRESIDING REPLY BRIEF OF DEFENDANT-APPELLANT KEITH A. FINDLEY JOHN A. PRAY Bar No. 1012149 Bar No. 1019121 BYRON C. LICHSTEIN Bar No. 1048483 STEVEN D. GRUNDER LAURA L. BAYARD ANWAR EDWARD RAGEP Law Students Wisconsin Innocence Project Frank J. Remington Center University of Wisconsin Law School 975 Bascom Mall Madison, WI 53706 (608) 262-4763 Attorneys for Defendant-Appellant

TABLE OF CONTENTS TABLE OF AUTHORITIES... iii ARGUMENT... 1 I. The circuit court correctly found that Edmunds s motion is not procedurally barred....1 II. III. The State ignores the circuit court s finding that Edmunds met the first four newly-discoveredevidence factors...2 The State has failed to respond to Edmunds s allegation and thereby has conceded that the trial court applied an incorrect legal standard...4 IV. The new evidence warrants a new trial....4 A. New evidence challenging SBS and supporting other causes of death warrants a new trial....4 B. New evidence on lucid intervals warrants a new trial....7 C. New evidence on the degree of force warrants a new trial...9 V. A new trial is warranted in the interest of justice...9 CONCLUSION... 11 CERTIFICATION AS TO FORM AND LENGTH... 12 SUPPLEMENTAL APPENDIX...13 -i-

TABLE OF AUTHORITIES Cases Schlieper v. DNR, 188 Wis.2d 318, 525 N.W.2d 99 (Ct. App. 1994)... 4 State v. Allen, 159 Wis.2d 53, 454 N.W.2d 426 (Ct. App. 1990)... 9 State v. Armstrong, 2005 WI 119, 283 Wis.2d 639, 700 N.W.2d 98... 9 State v. Fosnow, 2001 WI App 2, 240 Wis.2d 699, 624 N.W.2d 883... 3 State v. Maloney, 2006 WI 15, 288 Wis.2d 551, 709. N.W.2d 436... 9 State v. McCallum, 208 Wis.2d 463, 561 N.W.2d 707 (1997)... 2 Stewart v. State, 83 Wis.2d 185, 265 N.W.2d 489 (1978)... 10 -ii-

ARGUMENT I. The circuit court correctly found that Edmunds s motion is not procedurally barred. As the circuit court found, Edmunds s claim is not merely a new attempt to relitigate her unsuccessful 1997-98 postconviction motion. In denying the 1997-98 postconviction motion, the circuit court held that, at that time, Edmunds was simply offering Plan B after Plan A had failed at trial. (124:15-16; App.127-28.) The State objected to an evidentiary hearing on the present motion in part on the basis that the claim was identical to her 1997-98 claim. (157.) But the court rejected that contention, held that this claim required a hearing, and decided this claim on its merits. (159; Supp.App.A; 178; App.101.) The circuit court correctly recognized that this is not a situation in which, as the State contends, the names of the experts on collateral review are different, but the challenge is identical. (St.Brf.10.) Rather, this claim is a new one because it is based upon newly-discovered evidence new research and a change in Dr. Huntington s opinion that did not exist in 1997-98. The circuit court found, based upon testimony from numerous doctors, [w]hile there may have been strands of disagreement about Shaken Baby Syndrome present in 1996, studies, research, debate and articles about the concept have grown exponentially since the trial. (178:6; App.106.) Although the State can point to a few doctors and a few articles that by 1996 sought to challenge some aspects of SBS orthodoxy (the strands of disagreement referenced by the court), this does not mean that it was clearly erroneous to find, as argued more fully below, that the bulk of the research and debate emerged after trial. Because the evidence upon which this motion rests is new, it cannot be the same as a motion litigated before this evidence existed.

II. The State ignores the circuit court s finding that Edmunds met the first four newlydiscovered-evidence factors. The State contends that Edmunds did not meet the first four factors in the five-part newly-discovered-evidence test (requiring proof that the evidence was new, the defendant was diligent, and the evidence was material and not cumulative). (St.Brf.17.) The State, however, entirely ignores that the circuit court expressly found that Edmunds met her burden of proving these elements by clear and convincing evidence. (178:8; App.108.) Arguing as if this court is free to decide those factors de novo as if the circuit court had never addressed them the State offers no explanation why the circuit court s express findings on those matters were clearly erroneous or a misuse of discretion. See State v. McCallum, 208 Wis.2d 463, 486, 43-44, 561 N.W.2d 707 (1997)(Abrahamson, C.J., concurring)(the first two elements are factual determinations, reviewed under the clearly erroneous standard; the second two are reviewed for an erroneous exercise of discretion). Indeed, there is no argument that the circuit court s findings on the first four elements were clearly erroneous or an erroneous exercise of discretion. The circuit court relied upon the evidentiary record, for example, when it held: While some medical evidence supporting Edmunds position was available prior to trial that evidence pales significantly in quality and quantity compared to what evidence has become available since the trial. (178:8; App.108.) Likewise, the court relied upon evidence in the record when it concluded: The defense was not negligent in failing to seek the evidence prior to trial because, for the most part, the evidence supporting the defendant s position did not exist at that time. (Id.) Witness after witness including prosecution witnesses testified that considerable new research has emerged since trial (181:174-75,202; 182:52,87-88,133,198-200; 185:34; 187:48-51,72-73,121-22,159), that the debate -2-

about SBS theories has blossomed from a few skeptics in 1996 to full-scale disagreement now (181:22,25,90,138-39; 182:53-54,89), and that some medical certainties testified about at trial are indisputably false (see, e.g., Def.Brf.24). Thus, contrary to the State s repeated assertions, the 1996 jury did not already hear about a fully-engaged SBS debate. While one witness Dr. Hollman mentioned that there was some disagreement about whether shaking alone can cause all of these injuries, he did not and could not testify about the nature or extent of a debate that had not yet fully developed. Dr. Hollman said that there was some question about whether impact played a role in Natalie s death, but also said that there was no doubt that Natalie was shaken. (136:58.) The new research challenges the very premise of Dr. Hollman s testimony that there was any shaking at all. Moreover, Edmunds s new evidence is far more than simply newly-discovered importance of existing evidence. (St.Brf.16, citing State v. Fosnow, 2001 WI App 2, 25, 240 Wis.2d 699, 624 N.W.2d 883.) In Fosnow, the defendant attempted, post-trial, to offer a new psychiatric opinion that differed from opinions given by doctors pretrial regarding his mental responsibility for a crime. It did not involve any new scientific or medical research, or any new medical understandings about the nature of mental illness. It simply involved a different opinion based upon the same information previously considered. Only under these circumstances did the court hold that the psychiatrist s opinion was nothing more than the newly discovered importance of existing evidence. Here, unlike Fosnow, the state of medical knowledge, and even the opinions of one trial expert, have changed significantly. In addition, Dr. Huntington s changed opinion had to be new because he did not form that opinion until after he testified against Edmunds in 1996. It does not matter that Dr. Huntington was under subpoena at the 1997 postconviction proceeding, because Dr. Huntington testified in 2007 that he -3-

didn t change his opinion until several years later, following his experience with Maria Hernandez in 1999, and he did not publish his scholarly letter about his changed opinion until 2002. (183:37,41.) III. The State has failed to respond to Edmunds s allegation and thereby has conceded that the trial court applied an incorrect legal standard. The State has failed altogether presumably because it has no argument to address Edmunds s contention that the circuit court erred as a matter of law by applying the wrong legal standard when it weighed for itself the parties competing postconviction evidence, after first finding that the defense evidence was credible and standing alone would warrant a new trial. Although that claim is dispositive of this appeal, the State does not dispute Edmunds s contention. Because the State has failed to respond, the argument should be deemed conceded. See Schlieper v. DNR, 188 Wis.2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). IV. The new evidence warrants a new trial. A. New evidence challenging SBS and supporting other causes of death warrants a new trial. In an attempt to minimize the significance of the new research and debate about SBS, the State recharacterizes this as a case about impact more than shaking. But for every witness at trial, shaking was the central point; impact was secondary and more tentative. (134:77,107,126-34,241-43; 137:144-45.) Even Dr. Hollman, whom the State quotes extensively, clearly indicated that [w]e know that the child was shaken, and said the only question was whether there was also some impact. (136:58.) The State s attempt to reframe the case makes Edmunds s point new research has changed the assessment of the manner of death. -4-

This change matters because shaking was the basis upon which the State claimed that Edmunds flew into a homicidal rage constituting both recklessness and utter disregard for human life. The shaking, the State theorized, required force equivalent to throwing the child from a building or hitting her with a car. The State s witnesses could not make that claim about impact, because the only evidence of recent impact the fresh bruise observable only at autopsy was quite small and suggested a much smaller force. As Dr. Huntington said at trial, the evidence of impact seems so small an area going with so huge a result that shaking had to be the primary factor. (136:107.) Edmunds does not dispute that impact might have caused Natalie s death. But she does dispute that shaking had anything to do with it, because, as the new research, shows, shaking cannot cause such injuries without other bruising and serious neck injuries. As the defense experts at the postconviction hearing put it (none of whom disputed the possibility that impact was the cause, even though some believed other factors were more likely), given the evidence of an impact, there is no basis upon which to speculate about shaking. (181:131; 182:87.) Moreover, if impact, rather than shaking, was the primary cause, as the State s revised account of the case concedes, then the State no longer has any basis for showing either that the force applied amounted to recklessness or utter disregard for human life, or that the impact occurred while Natalie was in Edmunds s care. New research indicates that minor trauma can cause lethal consequences, especially in a previously brain-injured child like Natalie. And, according to the pathologists, that bruise was 24-48 hours old, putting it well outside the short window when Edmunds had contact with Natalie. (181:150; 182:56-57.) The State understates the significance of Dr. Huntington s changed view on SBS. Dr. Huntington did acknowledge in his postconviction testimony that this case -5-

[q]uite possibly involved shaking. (182.53.) But his point was that, unlike at trial, he now does not know whether Natalie was shaken, because, given the new research, the whole thing has become a whole lot less clear than we once thought it was. 1 (182:53.) Surely it is significant that the State s pathologist now acknowledges that the medical evidence cannot tell us whether there was shaking. Despite reframing this as primarily an impact rather than a shaking case, the State relies extensively upon the severe nature of the eye findings as proof of shaking, contending that the eye injuries cannot be explained by anything except the rotational forces of shaking. (St.Br.28.) But the State ignores that even its own postconviction experts uniformly agreed that the eye injuries alone do not prove shaking. (187:32,48-51,59.) And the State ignores that all experts agree that new research about retinal folds and retinoschisis in cases where there was no shaking proves wrong what Edmunds s jury was told that those injuries can occur only from shaking. 2 (187:48-51.) Further, the State misrepresents defense expert testimony on the eye injuries. The State says that Dr. Galaznik conceded that retinal folds can only be caused by trauma and that Dr. Gardner conceded that such eye injuries 1 The State also cites selected articles that purportedly support its experts opinions. (St.Br.25,36.) Those articles, and their conclusions, however, were the type of research challenged as unscientific by defense experts, and reflect only a small part of the massive body of contrary research discussed at length at the postconviction hearing. 2 The State s only response is that such injuries can also occur from crush injuries, but Natalie never suffered a crush injury or a short fall. (St.Br.29,32.) The State ignores that, if crush (a form of impact) injury can cause such injuries, then the rotational forces of shaking cannot be the exclusive mechanism for such injuries, as was previously theorized. And the State can only say Natalie suffered no crush injury or a short fall because no one reported such a fall or reported dropping anything on her head. But no one reported shaking Natalie either. There is no more reason to presume the latter than the former. -6-

are symptomatic of SBS. (St.Brf.30-31.) But Dr. Galaznik clarified that by trauma he meant any insult to the brain, including oxygen deprivation. Because of the new research, he said, the mechanism of folds presently must be considered unknown. (183:199,201.) And Dr. Gardner did not concede the diagnosticity of folds and retinoschisis, but instead said: they're not all that diagnostic, adding that the eye findings alone would not permit any conclusion about whether they were caused by shaking, impact, or anything else. (181:258-59.) B. New evidence on lucid intervals warrants a new trial. The State is wrong when it suggests that the evidence about lucid intervals is not new. At trial, defense expert Dr. Dominski did opine that Natalie had been shaken previously, and then died of a separate seizure while in Edmunds s care. (137:144-45,147.) But she did not argue that traumatic brain injuries alone can manifest a lucid interval. Moreover, contrary to the State s assertion (St.Brf.22), at trial Dr. Rust did not say there could have been a lucid interval. Rather, he testified explicitly to the contrary: the injuries had to have occurred between the time that this child was dropped off at the daycare center and the time that the officer responded. (136:256.) Likewise, while Dr. Hollman said that Natalie s bruise was 12-24 hours old, he also said there could have been no lucid interval because immediately after shaking Natalie would not have been responsive to her environment, and she would not have been able to be aware of her surroundings. (136:52,75-76.) Each of the State s witnesses at trial testified unequivocally that there could be no lucid interval, and the prosecutor argued at least five times that all experts agreed Natalie would have been immediately comatose. (134:58; 140:37-38; 141:34,35,39,49,98.) Again, the lucid-interval evidence could not have been presented at trial because almost none of it existed in 1996. (181:33,166-67,188; 182:34-35,88,91-92,133.) Indeed, the -7-

primary article that Dr. Huntington referenced was published after trial, in 1997. (182:50-51.) And Dr. Huntington didn t have his clinical experience with Maria Hernandez until 1999. The State minimizes the significance of what it calls Dr. Huntington s much ballyhooed postconviction testimony (St.Brf.33-44) by taking his statements out of context and entirely ignoring the Maria Hernandez case. While Dr. Huntington acknowledged that he still believed it was probable that Natalie was injured within two hours of the 911 call, he could no longer say even that to a reasonable degree of medical certainty (153:Huntington Aff. 11). He also said that he was no longer comfortable with his trial testimony (182:52-53), that a significant lucid interval was a distinct discomforting but real possibility in this case (182:44), and that there was no way he was still certain that Natalie had been injured within even nine hours of the 911 call. (182:53). Perhaps most significantly, Dr. Huntington testified extensively about the Maria Hernandez case, which proved that a child with brain injuries like Natalie s can suffer a lengthy lucid interval at least 16 hours in that case. (182:37.) The State fails to even mention the Hernandez case, probably because that case entirely undermines its theory, and there is no counter-argument. The best the State can do is argue that Dr. Spivack, while acknowledging the reality of lucid intervals, said that lucidity usually lasts less than an hour and that assessing lucidity in an infant can be difficult. (St.Brf.35-36.) But obviously, Maria Hernandez s case proved that lucidity can last much longer. Dr. Huntington also cited research reporting lucidity longer than 24 hours in more than 25 percent of cases, and more than 72 hours in some cases. (182:50.) Dr. Huntington testified that subtle signs of infant brain injury, including fussiness and clinginess, were present in both Natalie s and Maria s cases in the hours before they died. (182:36-37,79.) -8-

C. New evidence on the degree of force warrants a new trial. The State completely ignores the new, undisputed evidence proving that short falls can kill, and that massive force such as that described at trial is not necessary. Thus, the State simply ignores Edmunds s claim that, even if one believes Edmunds harmed Natalie, she is still entitled to a new trial on the degree of responsibility, i.e., on whether the possibility of lesser force makes this something less than firstdegree reckless homicide. The State misstates the law when it suggests Edmunds must prove a reasonable probability that the new evidence, if presented at a new trial, would result in an acquittal. (St.Brf.16.) Instead, Edmunds need only prove a reasonable probability of a different result. State v. Armstrong, 2005 WI 119, 161, 283 Wis.2d 639, 700 N.W.2d 98. Not only is an acquittal possible here, but there is also a reasonable probability a jury, after hearing the new evidence, would convict Edmunds of a lesser offense. V. A new trial is warranted in the interest of justice. Contrary to the State s claims, this court has clear authority to grant a new trial in the interest of justice in these collateral proceedings. State v. Allen, 159 Wis.2d 53, 454 N.W.2d 426 (Ct. App. 1990), on which the State relies, is no longer controlling law. Both Armstrong, 2005 WI 119, 113 & n.25, and State v. Maloney, 2006 WI 15, 14, 288 Wis.2d 551, 709. N.W.2d 436, hold that appellate courts have discretionary interest-of-justice authority in collateral proceedings. The State contends that Allen still binds this Court, despite Armstrong and Maloney, because, unlike this court, the supreme court functions as a law-developing court. (St.Brf.14.) But the supreme court s law-developing power has nothing to do with the discretionary authority to achieve justice in individual cases. Armstrong has already -9-

established that the discretionary-reversal powers of the supreme court and this court are coterminous. 2005 WI 119, 113. Allowing Edmunds a new trial will not open the doors to any claim where the defendant can find a new expert. (St.Brf.43 n.9.) Rather, a new trial will only be warranted where the conviction rested largely upon scientific evidence, and new research has emerged that seriously challenges that science. 3 This is such a case. 3 Here, the only other evidence the State can muster is Edmunds s nervousness under cross-examination at her 1996 trial. (St.Brf.38-39.) That a suburban housewife, on trial for killing a baby, was unnerved when cross-examined by a seasoned prosecutor says very little about her guilt or innocence. Nothing she said in her testimony was incriminating. At most, her uncomfortable performance provided only a basis for disbelieving her. The law, however, is clear that a negative inference drawn from the witnesses testimony is, standing along, insufficient to support a conviction[;] there must be independent support in the evidence for what is inferred. Stewart v. State, 83 Wis.2d 185, 193, 265 N.W.2d 489 (1978). -10-

CONCLUSION This court should reverse Edmunds s conviction. Dated this 23rd day of October, 2007. Respectfully submitted, KEITH A. FINDLEY Bar No. 1012149 JOHN A. PRAY Bar No. 1019121 BYRON C. LICHSTEIN Bar No. 1048483 STEVEN D. GRUNDER LAURA L. BAYARD ANWAR EDWARD RAGEP Law Students Wisconsin Innocence Project Frank J. Remington Center University of Wisconsin Law School 975 Bascom Mall Madison, WI 53706 (608) 262-4763 Attorneys for Defendant-Appellant -11-

CERTIFICATION AS TO FORM AND LENGTH I hereby certify that this brief conforms to the rules contained in s. 809.19(8)(b) and (c) for a brief and appendix produced with a proportional serif font. The length of the brief is 2,998 words. Keith A. Findley -12-

SUPPLEMENTAL APPENDIX Order Re: Evidentiary Hearing, 12/20/06... A -13-