Rare decision in Chicago-area day care worker’s shaken-baby syndrome murder case
By Alison Flowers
The Medill Justice Project
In a rare move, a federal judge in Chicago is reopening a hearing to examine an imprisoned day care worker’s claim that she is innocent of murder, in light of new evidence recently uncovered by The Medill Justice Project.
Jennifer Del Prete was sentenced to 20 years in prison in 2005 for first-degree murder; she was accused of violently shaking an infant in 2002 in what is known as shaken-baby syndrome, or abusive head trauma.
Last month, The Medill Justice Project, a journalism enterprise at Northwestern University, published an investigation of Del Prete’s case. As part of its yearlong probe, The Medill Justice Project posted a Nov. 10, 2003, letter from Romeoville, Ill., Police Det. Kenneth Kroll, in which he raised concerns about whether the infant’s autopsy would confirm she had died as a result of shaken-baby syndrome.
In the Kroll letter, the detective wrote he had heard from a Plainfield, Ill., police evidence tech—or ET—who was present at the autopsy by Jeff Harkey, then a forensic pathologist in the DuPage County Coroner’s Office. “The ET advised that Dr. Jeff Harky [sic] did in fact question the diagnosis of SBS [shaken-baby syndrome],” Kroll said in his letter. “I was told that Dr. Harky [sic] specifically looked for fractures in the rib cage (adult grabbing point) and found none.”
The Medill Justice Project confirmed the Kroll letter was sent to the prosecution’s expert medical witness by comparing the address on the letter, where the name was redacted, to the address on the hospital’s website before the hospital recently moved.
Del Prete’s defense lawyer, Patrick W. Blegen said he did not know of the Kroll letter’s existence until The Medill Justice Project published it. As a result, Blegen filed a motion in March, asking U.S. District Court Judge Matthew F. Kennelly to consider this new evidence, which the attorney views as potentially exculpatory.
“We think an innocent person is sitting in prison,” Blegen said in an interview after the hearing today.
The judge’s decision to reopen the federal hearing, which ran over several days in December and January, is unusual, according to several denizens of the Chicago federal courthouse. “The fact that Judge Kennelly is going to hear it is exceptional,” said Michael J. Petro, a Chicago federal defense attorney who has appeared before Kennelly several times. ““It’s a pretty rare bird. It doesn’t fly very often.”
Thomas Brandstrader, a Chicago attorney who represented Del Prete on her appeal, after her trial, and her first post-conviction petition, also called it “exceptionally rare” and applauded the discovery of the Kroll letter. “It’s terrific,” said Brandstrader who has defended criminal cases for 33 years, including several cases in Kennelly’s courtroom. “Who knows if they would have turned this [evidence] over properly.”
At Del Prete’s trial about eight years ago, Harkey testified that he saw no evidence of acute head trauma when he examined the infant’s body nearly 11 months after the incident at the day care care–not surprising given the time that had elapsed. He testified he relied heavily on the prosecution’s expert medical witness’ report to determine the infant had died of multiple systemic organ failure due to anoxic-ischemic injuries, which he attributed to abusive head trauma.
“What we want to find out is how did [Harkey’s] initial opinion change and why,” said Blegen, who is also drafting a motion to file a post-conviction petition, asserting the Kroll letter represents what’s called a Brady violation, when the state withholds evidence favorable to the defense.
The Will County State’s Attorney’s Office, which originally tried the case, had planned to order the case file from storage but determined it is in custody of the Illinois Attorney General’s Office.
The state Attorney General’s Office said in an April 10 court filing that it had not come across the Kroll letter when it reviewed the trial files from the Will County State’s Attorney’s Office. But it said the Kroll letter merely demonstrates that Harkey conducted a thorough investigation before determining the infant’s cause of death.
“Based on the court’s order, we will continue moving the case forward and developing the evidence,” said Natalie Bauer, communications director of the Office of Illinois Attorney General Lisa Madigan.
A status hearing has been set for May 28; Del Prete’s attorneys said they found a scribbled signature of the police evidence tech who had alerted the police detective about the autopsy, according to the Kroll letter. Del Prete’s attorneys said they intend to track down the evidence tech to testify. Kennelly set a June 21 hearing to get to the bottom of the Kroll letter.
“This is going to be done with dispatch,” Kennelly said. “Floor it. You know? Pedal to the metal. Floor it.”