Par­ents: Case an ‘on­go­ing night­mare’


Austin American-Statesman - - THE SECOND FRONT - A Con­tact Chuck Lin­dell at 912-2569. Con­tact Kate Alexan­der at 445-3618. Twit­ter: @katealexan­der Con­tact Lay­lan Copelin at 445-3617.

Judge Michael Keasler wrote that he was “baf­fled and ap­palled” by the de­ci­sion to or­der a new trial. The ma­jor­ity, he said, ig­nored other ev­i­dence point­ing to Hen­der­son’s guilt — par­tic­u­larly her cross-coun­try flight to avoid cap­ture af­ter the boy’s death and her ad­mis­sion to a friend that she was on the run be­cause she had “killed some­body.”

“It is a trav­esty to grant this child killer re­lief ... while her tiny, de­fense­less vic­tim lies dead and re­buried,” Keasler wrote.

The court’s or­der for a new trial was un­signed but ac­com­pa­nied by three con­cur­ring opin­ions signed by five judges and two dis­sent­ing opin­ions joined by Keasler, Pre­sid­ing Judge Sharon Keller and Judge Bar­bara Her­vey. Judge Lawrence Mey­ers didn’t par­tic­i­pate in the de­ci­sion.

Hen­der­son, now 55, had claimed that Bran­don died af­ter slip­ping from her arms and fall­ing about 4 feet to the tile-on-con­crete floor of her kitchen. She said she pan­icked and buried the boy’s body in a Bell County field be­fore flee­ing to Mis­souri, where she was found and ar­rested 11 days later.

The search for the boy’s body, the pain felt by his dis­traught par­ents and the hunt for Hen­der­son dom­i­nated head­lines in Fe­bru­ary 1994.

Bran­don’s par­ents, Eryn and Melissa Baugh, re­main con­vinced of Hen­der­son’s guilt and said they were pro­foundly dis­ap­pointed by Wed­nes­day’s rul­ing.

“We’ve been liv­ing with this for al­most 19 years. We’re look­ing for clo­sure, and we can’t get it,” Eryn Baugh said from his Dal­las-area home. “It’s an on­go­ing night­mare that has put our lives on hold.”

The Baughs said they will at­tend ev­ery day of Hen­der­son’s new trial, just as they’ve trav­eled to Austin for ev­ery other hear­ing as­so­ci­ated with her case. “This is a mess, and we shouldn’t be put through this a sec­ond time,” Eryn Baugh said. “What me and my wife went through in the first trial, all those years of wait­ing, has been hor­rific.”

Hen­der­son was two days from a June 13, 2007, ex­e­cu­tion date when the Court of Crim­i­nal Ap­peals halted pro­ceed­ings — di­rect­ing Travis County District Judge Jon Wisser, who had presided over her trial, to ex­am­ine Hen­der­son’s claims that new sci­ence cast doubt on her mur­der con­vic­tion.

Last May, af­ter a se­ries of hear­ings with tes­ti­mony from pros­e­cu­tion and de­fense ex­perts on pe­di­atric in­juries and foren­sic sci­ence, Wisser rec­om­mended the ap­peals court grant the re­quest for a new trial.

Wisser found that ju­rors would have been un­likely to con­vict Hen­der­son had they known about new sci­en­tific dis­cov­er­ies into head trauma, in­clud­ing stud­ies show­ing that falls of less than 4 feet can be lethal, pro­duc­ing com­plex skull frac­tures sim­i­lar to what Bran­don Baugh suf­fered.

The new ev­i­dence in­cluded a change of heart by the pros­e­cu­tion’s cen­tral wit­ness, former med­i­cal ex­am­iner Roberto Ba­yardo, who sev­eral years ago said he no longer be­lieves what he told ju­rors at Hen­der­son’s 1995 trial — that it was “im­pos­si­ble” to at­tribute the boy’s ex­ten­sive head in­jury to an ac­ci­den­tal fall.

Ba­yardo said he now be­lieves that ad­vances in the un­der­stand­ing of pe­di­atric head in­juries show that rel­a­tively short, ac­ci­den­tal falls onto a hard sur­face can pro­duce skull frac­tures sim­i­lar to what he dis­cov­ered in Bran­don’s 1994 au­topsy.

The ap­peals court didn’t have to ac­cept Wisser’s rec­om­men­da­tion for a new trial, and the court rou­tinely de­clines to over­turn con­vic­tions or or­der new sen­tences based on sim­i­lar re­quests. But, Cochran noted, Wisser was swayed by cred­i­ble ex­pert tes­ti­mony that mod­ern sci­ence couldn’t prove that Bran­don’s death was the re­sult of an ac­ci­den­tal drop or in­ten­tional act.

Cochran added that the court’s or­der for a new trial doesn’t mean that Hen­der­son is in­no­cent of cap­i­tal mur­der. “It sim­ply means that the cru­cial ev­i­dence that had sup­ported both the cause of Bran­don’s death and (Hen­der­son’s) in­tent to cause his death has been re­tracted. The present guilty ver­dict is based on sci­en­tif­i­cally un­re­li­able ev­i­dence, but, af­ter an­other cap­i­tal mur­der trial, a guilty ver­dict could be based on sci­en­tif­i­cally re­li­able ev­i­dence,” she wrote.

Travis County District At­tor­ney Rose­mary Lehm­berg didn’t op­pose Wisser’s rec­om­men­da­tion for a new trial. Though Lehm­berg said pros­ecu- tors re­main con­vinced of Hen­der­son’s guilt and were unswayed by the opin­ions of her ex­perts, the ques­tions raised by Ba­yardo’s changed opin­ions and by Wisser’s find­ings left lit­tle choice but to head to a sec­ond trial.

“I be­lieve jus­tice re­quires that a new jury hear the case, which was the po­si­tion I took with the ap­pel­late court,” she said.

Lehm­berg said the charge Hen­der­son will face will be de­ter­mined af­ter a re­view of court records, ev­i­dence and the new tes­ti­mony from Wisser’s hear­ings. If the charge is cap­i­tal mur­der, an ad­di­tional de­ter­mi­na­tion will be made on whether to seek the death penalty, Lehm­berg said.

In the mean­time, Hen­der­son will re­main in cus­tody un­der her orig­i­nal cap­i­tal mur­der in­dict­ment and at a fu­ture date will be trans­ferred to Travis County Jail to await her new trial. the case as le­gal di­rec­tor for the Texas Class­room Teach­ers As­so­ci­a­tion, said he agrees with the school dis­tricts’ ar­gu­ments and be­lieves they have a win­ning case over­all, par­tic­u­larly when it comes to in­equities in fund­ing.

But Hollingsworth said the dis­tricts’ ar­gu­ment about in­ad­e­quate fund­ing is a tough one be­cause the Supreme Court in 2005 con­cluded the school dis­tricts must show that the Leg­is­la­ture has abused its dis­cre­tion.

Craig Enoch, a former Texas Supreme Court jus­tice, agreed that the school dis­tricts have a high bur­den.

“It’s as high a civil bur­den as there is, be­cause, af­ter all, you’re try­ing to de­clare an enactment of the Leg­is­la­ture un­con­sti­tu­tional,” said Enoch, who is rep­re­sent­ing a sep­a­rate group of plain­tiffs that in­cludes the Texas As­so­ci­a­tion of Busi­ness. about it quickly. Not a cou­ple days be­fore the news­pa­pers know.”

Man­sour sug­gested that the agency hire a con­sult­ing firm to re­view the agency’s pro­ce­dures and per­for­mance. But an­other board mem­ber, Hous­ton busi­ness­man Charles Tate, said he thought the board should come to its own con­clu­sions and that con­sul­tants would sim­ply be “win­dow dress­ing.”

Tate, a long­time ad­vo­cate of com­mer­cial­iza­tion grants, also ques­tioned the com­pli­ance of­fi­cer’s report of how she un­cov­ered the prob­lem with the Pelo­ton award.

“As I read her work, she’s also new to the agency, and I’m not, “he said. “I know a lot about our com­mer­cial­iza­tion ef­forts that are ig­nored.”

Man­sour asked Gim­son if he could re­as­sure him that there have been no fi­nan­cial con­flicts of in­ter­est in the agency’s grant awards. Gim­son said there hadn’t been any “to my knowl­edge.” Man­sour sug­gested that the names of in­vestors and direc­tors for the com­pa­nies ap­ply­ing for grants now be dis­closed to the agency’s over­sight com­mit­tee.

An­other board mem­ber, Bar­bara Canales, said she wished she had asked more ques­tions about the 13 com­mer­cial­iza­tion grants, but added, “If you can find me a state agency that hasn’t had a bump in the road, I’d like to see it.”

Ad­dress­ing Gim­son, Canales said that the good the can­cer agency has done shouldn’t be lost in the wake of the Pelo­ton con­tro­versy: “To really look at this as the one thing that de­fines us or de­fines you is wrong.”

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