Federal judge weighing evidence in day care worker’s murder case

SPOTLIGHT ON SHAKEN-BABY SYNDROME

The home of former day care owner GleeAnn Kehr of Romeoville, Ill. Kehr left Jennifer Del Prete in charge on Dec. 27, 2002, when 3 1/2-month-old Isabella Zielinski was rushed to the hospital. (Julie Kliegman/Medill)

By Christina Assi, Rebecca Cohen, Anika Dutta, Stephanie Fuerte and Alex Hampl
The Medill Justice Project
Published: March 19, 2013

At day care worker Jennifer Del Prete’s murder trial, the infant she oversaw was known to have suffered from a chronic brain bleed. However, medical experts may have misunderstood when the child sustained the brain bleed, which could have been a critical error at trial. That and other medical issues were raised at a recent federal hearing, which brought to light the possibility that the infant died of natural causes.

Two days after Christmas in 2002, Del Prete was caring for 3 ½-month-old Isabella Zielinski in a Romeoville, Ill., day care when the infant became unresponsive. Del Prete called 911, and the infant was rushed to Provena Saint Joseph Medical Center in Joliet, Ill. Soon after, Del Prete was accused of child abuse. Isabella died several months later. Since Del Prete’s conviction about eight years ago, many experts have called into question whether the triad of shaken-baby syndrome symptoms alone—bleeding within the eyes, brain bleeding and brain swelling—can identify the cause of an infant’s injuries or death. The infant in Del Prete’s case showed no overt signs of abuse, such as bruising or injuries to the neck.

At Del Prete’s 2004-2005 trial, Adrian Nica, an emergency room physician at St. Joseph, testified that Isabella’s brain bleed—also known as a subdural hematoma—likely was up to a week old when she was brought to the hospital. Nica did not respond to requests for an interview for this article. Wayne Tucker, a family practitioner called as the defense’s expert witness, testified then that the brain bleed was as many as 10 days old. Tucker has since passed away.

At Del Prete’s recent hearing in U.S. District Court in Chicago, three experts for the defense and one for the prosecution agreed that the subdural hematoma was at least two to three weeks old—and possibly older—when Isabella was taken to the hospital. She began attending the day care on Dec. 6, 2002, 21 days before she became unresponsive on Dec. 27—the only day Isabella was alone with Del Prete without another adult caregiver, according to GleeAnn Kehr, the owner of the day care. The new understanding of the timing of the subdural hematoma means that Isabella’s brain bleed may have started before Isabella was under Del Prete’s care.
“Only two witnesses at the original trial discussed the chronic subdural, and both were wrong as to the timing of the subdural,” said Patrick Blegen, Del Prete’s attorney, in a post-hearing brief.

In an interview for this article, Blegen said he believes Del Prete was convicted because the experts who testified at the trial not only misdated Isabella’s chronic subdural hematoma, but also because the prosecution’s expert witness, Emalee Flaherty, said at trial the infant’s eye damage could have only come from being violently shaken, although studies have shown in recent years there could be other causes.

“The judge had bad information,” Blegen said.

Flaherty, a nationally recognized child-abuse expert, declined to comment for this article. The Zielinskis also declined to comment.

At the federal hearing, which ran over several days in December and January, the defense brought in six experts. Some testified pro bono, others were paid, but only after Del Prete’s family filed an affidavit in which her brother, Wesley, wrote, “At this point, Affiant’s family have exhausted their financial resources, and do not have the means to retain experts to testify at an evidentiary hearing.” The judge set aside funds to pay for the experts.

For a complete account of the hearing, The Medill Justice Project sought to gain access to the trial transcripts. Through their spokesperson, prosecutors declined to be interviewed, and the defense attorneys declined to make the transcripts available, which were not in the public court files, so The Medill Justice Project purchased the documents from the court reporter—more than 2,000 pages—at a cost of more than $1,400. Judge Matthew Kennelly is now reviewing the case. Through an assistant, he declined to comment for this article.

At the hearing, Blegen, Del Prete’s attorney, highlighted what he considered red flags in Isabella’s pediatric files, which had not been raised by the defense at the trial more than eight years ago. The records show the infant had an abnormal increase in head size before she began attending the day care where Del Prete worked. Shaku Teas, a forensic pathologist who spoke for the defense, said that Isabella had rapid head growth; Teas said it grew four centimeters from birth until one month, when the average is between two and two and a half centimeters. At the recent hearing, experts for the defense and one for the prosecution agreed that an abnormal increase in head circumference may be a sign of a chronic subdural hematoma.

Jennifer Del Prete describes the day when 3 1/2-month-old Isabella Zielinski became unresponsive under her care in December 2002. (Stephanie Fuerte/Medill)

Del Prete’s attorney sought to show that new, or acute, subdural hematomas found in Isabella were naturally occurring, not a marker for shaken-baby syndrome. Prosecutors argued that Del Prete shook the infant violently, causing bridging veins to rupture, which, in turn, caused the brain bleeding and, eventually, Isabella’s death. However, Patrick Barnes, a pediatric neuroradiologist who spoke for the defense, said bridging veins were not torn. “Bridging veins are large blood vessels in infants,” he testified. “They carry a lot of blood at high rate. You would expect to see much more bleeding and a large amount of bleeding than what we see here.”

Barnes said the acute subdural hematomas could have been caused by a re-bleed of the chronic subdural hematoma, even through normal handling. Jan Leestma, a forensic neuropathologist who spoke for the defense, supported this theory when he testified that his examination of Isabella’s brain revealed there were several membrane layers formed by the subdural hematoma, which indicated that Isabella suffered multiple episodes of re-bleeding, continuing until her death. “It is part of the natural disease process of a subdural hematoma to re-bleed on its own,” Leestma said.

Teas said the acute subdural hematoma could also have been the result of an intradural hemorrhage, or bleeding within the dura, the brain’s outer covering.

One critical aspect of Del Prete’s defense at the latest hearing was the possible presence of a cortical venous thrombosis, or CVT, an uncommon blood clot within a vein in the head. According to the American Stroke Association, a CVT is difficult to diagnose, and the possibility that Isabella had such a blood clot was not raised at Del Prete’s trial in 2004-2005. However, three medical experts who testified on behalf of the defense in the recent hearing diagnosed Isabella with a CVT, based on radiological images, which they said showed a clotted vein in the space between her brain and skull. The experts also noted Isabella had several risk factors for CVT, including a condition known as thrombocytosis, or high platelet counts, an ear infection shortly before her collapse and the chronic subdural hematoma.

The prosecution countered that a CVT diagnosis is based on “ungrounded speculation.” Barnes, the pediatric neuroradiologist, testified that a CVT could mimic some of the symptoms of shaken-baby syndrome. A CVT, for instance, could be responsible for bleeding in the eyes, one of the three conventional signs of shaken-baby syndrome.

According to defense expert Joseph Scheller, a pediatric neurologist, children can develop retinal hemorrhaging any time there is a problem with vein circulation, such as Isabella’s clotted vein in her brain. Scheller also testified that hypoxic ischemia, a lack of oxygen to the brain, can also cause retinal hemorrhaging in children. Isabella’s retinal hemorrhaging was one of the most damning pieces of evidence in Del Prete’s 2004-05 trial because the prosecution’s medical expert witness said at the time only child abuse could account for that pattern of eye damage.

According to the American Stroke Association, about 40% of patients with CVTs experience seizures, which may have been what Del Prete observed when she said she noticed Isabella’s shaking and lips quivering on the day the infant collapsed. The hypoxic ischemia, which causes blood to leak out of veins, would have occurred after Isabella became unresponsive, according to Teas.

Medical experts now also say Isabella may have suffered from other underlying health issues that could explain why she became unresponsive in December 2002.

On Oct. 23, 2002, about two months before she was rushed to the hospital, Isabella developed a fever and was hospitalized and given IV antibiotics. Doctors discovered Isabella had an elevated platelet count, which means she may have been more prone to blood clotting. After her December hospitalization, doctors at Provena Saint Joseph Medical Center found that Isabella’s platelet count was elevated once again.

Isabella required another hospitalization less than two months after her fever. Nine days before she was rushed to the hospital on Dec. 27, Isabella became sick with an ear infection on Dec. 18, and was prescribed the antibiotic amoxicillin. As in the case of high platelet counts, infections are also a risk factor for CVT.

This investigation was conducted by five undergraduate students at Medill as part of an investigative journalism class taught by Northwestern University Professor Alec Klein, director of The Medill Justice Project, which supported the class work. Alison Flowers, research associate at The Medill Justice Project, also contributed to this report.

 

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