Parents: Case an ‘ongoing nightmare’
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.”