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Case Review

SABRINA BUTLER
Introduction
Sabrina Butler was 17-years-old when her nine-month-old son, Walter, stopped breathing. After attempting to resuscitate him, Butler rushed to the hospital, where the young child was pronounced dead. The following day, Butler was arrested for child abuse due to the bruises left by her resuscitation attempts. She was interrogated by the police and then prosecuted. In March 1990, she was convicted of capital murder and sentenced to death. Her conviction was overturned by the Mississippi Supreme Court in August 1992. 1 The court said that the prosecution had failed to prove that the incident was anything more than an accident. At retrial, one of Butlers neighbours belatedly c ame forward with evidence that corroborated her account that the injuries to her son occurred during the course of an unsuccessful attempt to administer CPR. In addition, the medical examiner changed his opinion about Walters cause of death, which he had come to believe may have occurred due to a kidney condition. His abdominal injuries were diagnosed as posthumous results of a failed attempt to revive him. Butler was acquitted on 17 December 1995, after a very brief jury deliberation. It is now believed that the baby may have died either of cystic kidney disease or from sudden infant death syndrome (SIDS). Butler spent almost six years in prison, including two years and 9 months on death row. According to the Death Penalty Information Center, Butler is the only woman in the US to have been exonerated after being sentenced to death.

Facts2
Shortly after midnight on 12 April 1989, 17-year-old Butler rushed into the Columbus hospital with her lifeless nine-month-old son, Walter. She told medical professionals and the police that she had tried to resuscitate him after finding him not breathing. Attempts to revive Walter at the hospital were unsuccessful. He had serious internal injuries. Everyone who saw Walters body that morning remarked that his stomach was noticeably swollen. An autopsy revealed the swelling was caused by severe internal injuries and bleeding, including several abrasions, bruises and scars, in addition to a distended abdomen and a prolapsed rectum. Some marks, of course, were caused by medical personnel in the effort to resuscitate the child. Internally, the autopsy revealed two areas of rupture or perforation in the small intestine, as well as bruising and bleeding. There was a substantial amount of fluid and faecal -like material... floating free inside the abdominal cavity which had entered the cavity through the perforations in the wall of the small intestine. The right adrenal gland, which sits atop the right kidney, was also lacerated. A microscopic examination showed acute inflammation involving the serosal [or outer] surfaces of most all of the organs within the abdominal cavity. This condition is called
1 2

Butler v. State, 608 So.2d 314 (Miss. 1992) Facts drawn from the judgment in Butler v. State, 608 So.2d 314 (Miss. 1992), available at http://www.cwcy.org/resources/184_attach_Butler%20v%20Mississippi%20(1992).pdf; http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3078; and M Newton, The Encyclopedia of Crime Scene Investigation, p. 34.

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acute peritonitis and is the bodys response to the presence of foreign substances in the abdominal cavity. Expert opinion was offered that Walters death was directly related to the perforations in the duodenum and ... the events that resulted immediately after that, i.e. the acute peritonitis. As for what caused the internal injuries resulting in death, Dr Hicks, the pathologist who performed the autopsy, testified at trial that some type of blunt trauma, or substantial blunt force to the abdomen, had to be the culprit. Over the next several hours and into the early hours of the next morning, Butler was repeatedly questioned by medical personnel and police. Butler gave several different accounts of what happened. These accounts included a fictitious babysitter, who she later admitted to having made-up out of fear, a fictitious male visitor, as well as versions in which she went jogging by herself and went jogging with the baby in a stroller. Ultimately, she gave a statement which was transcribed and signed by her, saying that she had punched the baby in the abdomen when he wouldn't stop crying. Less than 24 hours after the baby died, Butler was charged with his murder. In this latest statement, Butler said that she put Walter to bed around 10:00 p.m. on the night of 11 April 1989. After making sure he was asleep, Butler left her apartment and went jogging for about ten minutes. Upon her return to the apartment, the baby was awake and crying. Finding a wet diaper, Butler began changing it and noticed in the process that Walters rectum was protruded. She used a finger to push [his rectum] up inside him. She then took him into the kitchen and gave him a Tylenol/milk solution to drink. 3 She said he took one swallow and then stopped breathing. She sought help from her neighbours and one of them, Larry Nance, drove her to the local Columbus hospital. By the time they arrived, the baby was dead. After giving this statement, Butler was arrested and charged with capital murder. When filing the murder charge, the police said they had noted contradictions in her statement. However, they discounted the effects of her grief and her diagnosis as borderline mentally retarded.

Trial
Butler was indicted in 1989, at the grand jury of Lowndes County, for capital murder in violation of section 97-3-19(2)(f) of the Mississippi Code (Annotated) 1972 (Supp. 1991), for the killing of Walter Dean Butler, while engaged in the commission of felonious child abuse and/or battery of the child.4 Trial commenced on 8 March 1990 and resulted in a guilty verdict and a sentence of death by lethal injection. The prosecution focused on the statement in which she said she punched the baby, noting that an autopsy showed the baby had numerous internal injuries and peritonitis was present. Peritonitis can be caused by an infection or injury in another part of the body that causes bacteria or fungi to infect the peritoneum. None of the facts as stated by the prosecution witnesses were seriously contested by Butlers attorneys at trial. Butlers defence consisted of cross-examination of those witnesses in an unsuccessful attempt to establish reasonable doubt that the physical state of the babys body was the result of clumsy attempts by Butler to revive the baby. No defence witnesses
3

Significantly, there was no indication of milk or medicine in the stomach, although a lot of its contents had spilled into the cavity. 4 http://www.lexisnexis.com/hottopics/mscode/

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were called and no other evidence was offered on Butlers behalf. Butlers attorneys fa iled to make a reasoned case for funds to hire a psychiatrist and investigator on her behalf. Butler also seriously contested the admissibility of her contradictory statements, to no avail. In the course of closing argument, the prosecution made remarks commenting upon Butler's failure to testify. In Butlers appeal, the Supreme Court of Mississippi identified the following statements as clearly amounting to comments on her failure to testify: Ladies and Gentlemen, that is an admission of guilt, but I submit to you she hasnt told you the whole truth yet; and Ladies and Gentlemen, those bruises were not inflicted by the same wound that created the massive internal injuries that subsequently killed this child. It could not have happened. So, Ladies and Gentlemen, she has not yet told you the whole truth of the torment she subjected her son to. You still dont know the whole story. Incredible, unbelievable evasion from start to finish. Ladies and Gentlemen, is that what an innocent person does?5 (Emphasis added.) Despite objections to such remarks from Butlers defence counsel, they were permitted by the trial judge, Ernest Brown. In March 1990, Butlers execution date was set for 2 July 1990. While Butler was told that the execution would be stayed pending appeals, this was lost on someone who did not understand the legal process and believed, until the morning of 2 July 1990, that that was her day to die.6

Appeal
Improper References To Butlers Failure To Testify
On appeal to the Supreme Court of Mississippi, Butlers conviction was overturned on the grounds that the prosecutor, District Attorney Forrest Allgood, had improperly urged jurors to infer guilt from the fact that Butler did not testify in her own defence, thereby depriving her of her constitutionally-protected right to due process.7 The court noted that while it was competent for Allgood to comment on the weight and worth of what was in the evidence, including the various statements made by Butler, which the court upheld as being duly admitted into evidence, the prosecution still had a clear duty to refrain carefully from making any remark which directly or indirectly drew the jurys attention to the fact that Butler did not take the stand. When an accused person exercises his or her constitutional right not to testify, a judge must ensure that the prosecution does not comment, directly or indirectly, on this fact. 8 If such a comment is made, the judge is obliged to declare a mistrial on the spot. 9

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Butler v. State, 608 So.2d 314 (Miss. 1992) S Westervelt and K Cook, Feminist Research Methods in Theory and Action, p. 26. 7 As established by the Fifth Amendment to the US Constitution and subsequent case law. Specifically, the US Supreme Court has ruled that the government cannot punish a criminal defendant for exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defence (Griffin v. California, 380 U.S. 609 (1965)). In Griffin, the Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors. 8 Butler v. State, 608 So.2d 314 (Miss. 1992), citing Ladner v. State, 584 So.2d 743, 754 (Miss.1991), cert. denied 502 U.S. 1015, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991); Livingston v. State, 525 So.2d 1300, 1305-08 (Miss.1988). See Supra. Note 7, for the constitutional duty to refrain from attempting to draw inferences from a defendants refusal to testify. 9 Ibid.

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The opinion of Judge Armis Hawkins notes that [t]he tactical advantage of having the jury wonder why, if the defendant was innocent, he did not testify, is a temptation prosecuting attorneys, especially the younger ones, find difficult to resist. 10 Indeed, as the Supreme Court of Mississippi notes, [t]he prosecution could hardly have made the point plainer if it had simply come out and said There is a lot more to tell, but Butler has not seen fit to get on the witness stand and tell you. The comments made by Allgood in this case were held to be error, so egregious in fact that even if there had been no objection at trial, [the Court] would nevertheless have been obligated to reverse.11 Separately, Allgood also continually elicited (uncertain) evidence that Walter had previously been injured, despite the fact that a prosecutor is prohibited from referring to any unadjudicated bad act that a defendant has allegedly committed in the past. Coupled with Allgoods insistence on gratuitously showing gruesome photos of the dead baby with little relevance or value to the jury (and the trial courts willingnes s to admit such photos), this inflammatory evidence was likely to have had a highly prejudicial effect on the jury, a point that was raised by Butlers post-conviction counsel in preparation for retrial.12

Identical Offence Instructions


The remainder of the Opinion was confined to issues likely to arise at retrial. The Supreme Court of Mississippi considered the issue of whether Butler was entitled to have the jury instructed on the possibility of a manslaughter conviction, in addition to a finding of capital murder, as the crime she was accused of committing would fall under two different statutes.13 The court noted that the two offences were identical for all intents and purposes, in that the capital offence of killing in the commission of felonious child abuse did not require intention as to the killing. In the circumstances, notwithstanding the states discretion to elect between two different criminal statutes for the same offence, the Supreme Court of Mississippi held that Butler was entitled to have the jury instructed on the statutory manslaughter offence, for which there was a maximum penalty of 20 years imprisonment, in contrast to the capital murder statute, under which she was sentenced to death. The court emphasized that no prosecuting att orney should have it in his power to prosecute a defendant for capital murder when the same offence could be prosecuted under a statue with a less severe penalty, and also prevent a jury from considering whether she should be found guilty only under the statute carrying the lesser punishment.14

Ex Post Facto Claim


On 11 April 1989, the date of the commission of the crime, a conviction for child abuse pursuant to section 97-5-39(2) of the Mississippi Code required that the injury must have been inflicted in such a manner so that any bone is fractured or any part of the body of such child is mutilated, disfigured or destroyed. The Code was amended on 21 April 1989, to merely require that the defendant intentionally injured the child in such manner as to
10 11

Ibid. Ibid. 12 See, for further detail, two motions filed by Clive Stafford Smith on 10 May 1995, available at the following webpage (a contradictory and factually incorrect letter from Forrest Allgood to the editor of The Columbus Packet in response to criticism of his handling of the Butler case): http://packet-media.com/2011/07/29/letter-to-theeditor-forrest-allgood/. 13 Capital murder when engaged in felonious child abuse (defined in s. 97-5-59 of the Code) pursuant to s. 97-319(2)(f), and manslaughter pursuant to s. 97-3-27 of the Code. 14 Butler v. State, 608 So.2d 314 (Miss. 1992).

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cause serious bodily harm. The jury in Butlers trial was instructed on the basis of this amended version of the statute. As the defence did not object to this at trial, Butler was procedurally barred from raising this issue at trial, although the Supreme Court of Mississippi did note that she would be entitled at retrial to have the jury instructed according to the old version of the statute. Finally, Butlers attempts to attack the sufficiency and weight of the evidence to convict were dismissed in a single sentence at the start of the appeal judgment. The Supreme Court of Mississippi dealt with Butlers attempt to contest the admission into evidence of her statement about striking the baby in the abdomen in greater detail. The court concluded that Butler had been adequately warned of her right to remain silent by the questioning officers and that she had the intelligence to understand the statement she made to them, even though, in the absence of coercion, there was no constitutional requirement to consider this latter question.

Retrial and Exoneration


A defence request for a change of venue was granted and Butler went on trial for a second time in December 1995 in Panola County. This time, Butler had the advantage of a skilled attorney, Clive Stafford Smith, who presented belated testimony from a neighbour who confirmed Butlers original account of attempted CPR on the baby. A medical expert testified that the injuries could have been caused by those efforts to save the child. The defence also elicited testimony from the medical examiner who performed the autopsy that his work had been less than thorough. He changed his original opinion, stating that the child died of an internal kidney condition. During Butlers retrial, her former husband also testified that he had been the last person to see Walter alive, not Butler.15 The jury deliberated briefly before acquitting Butler on 17 December 1995.

Failings Of The Attorneys


Quite aside from the Supreme Court of Mississippi s findings of prosecutorial misconduct in Butlers trial, Allgoods record of procedural impropriety speaks for itself. Four people prosecuted by Allgood and convicted of murder were subsequently acquitted. Two of them, Sabrina Butler and Tyler Edmonds (convicted in 2007 and acquitted in 2008), served time on death row. Allgoods questionable prosecution tactics, in particular his repeated use of discredited medical experts and flagrant breaches of established rules of addressing a jury, are well documented.16 For example, in Tyler Edmonds case, Allgood argued that Edmonds had simultaneously pulled the trigger with his co-defendant. At trial, Allgood called on controversial medical examiner Steven Hayne, who preposterously claimed that he could tell by the bullet wounds in the victims body that two people had held the gun. On review, the Supreme Court of Mississippi threw out Haynes testimony and ordered a new trial. In another case, Allgood relied on the discredited Hayne and his side-kick Michael West, to convict Kennedy Brewer of rape and murder, based on dubious bite-mark analysis.
15 16

S Westervelt and K Cook, Feminist Research Methods in Theory and Action, p. 31 See for example: T Freeland, The Mississippi Supreme Court admonishes Forrest Allgood, available at http://nmisscommentor.com/law/the-mississippi-supreme-court-admonishes-forrest-allgood/; R Balko, Forrest Allgood, available at http://www.theagitator.com/2007/10/16/forrest-allgood/; and R Balko, Bad Boys: A rogues gallery of misbehaving prosecutors, plus three worth praising, available at http://reason.org/news/show/bad-boys.

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Notwithstanding Allgoods attempts to prevent the preservation of the DNA evidence in that case, Brewers lawyer succeeded in preserving it. Subsequent DNA testing revealed that the victim was killed not by Brewer, but by two other men. Appallingly, Allgood had used Hayne, West and dubious bite mark testimony in another case too, once again convicting the wrong man. In 2008, that man, Levon Brooks, was exonerated and freed. The DNA in both cases matched a man named Justin Albert Johnson, who later confessed to both crimes.17 Allgood also flagrantly breached the Golden Rule by asking the jury to put themselves in the position of one of the other parties, thereby playing on their sympathies in order to obtain the improper murder conviction of Brian Holleman in 2008. In reversing this conviction, the Supreme Court of Mississippi made its displeasure clear and Allgood was admonished. Butler was also let down by her own defence attorneys in her first trial. Among their many failings at trial, which are discussed above, the defence neither offered any serious evidence to support Butlers CPR account, nor objected to certain serious errors in the prosecutions conduct of the trial, such as the instruction in respect of child abuse based on an amended version of the Mississippi Code rather than the version in force at the time of the crime. A local newspaper described one of the lawyers as an incompetent drunk.18

Sources
Butler v. State, 608 So.2d 314 (Miss. 1992) Mississippi Code Of 1972 Unannotated: http://www.lexisnexis.com/hottopics/mscode/ The National Registry of Exonerations - Sabrina Butler: http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3078 T Freeland, The Mississippi Supreme Court admonishes Forrest Allgood : http://nmisscommentor.com/law/the-mississippi-supreme-court-admonishes-forrest-allgood/ R Balko, Forrest Allgood: http://www.theagitator.com/2007/10/16/forrest-allgood/; Bad Boys: A rogues gallery of misbehaving prosecutors, plus three worth praising , available at http://reason.org/news/show/bad-boys; and Solving Kathy Mabry's Murder: Brutal 15-Year-Old Crime Highlights Decades-Long Mississippi Scandal (at http://www.huffingtonpost.com/2013/01/17/kathy-mabry-murder-steven-hayne-michaelwest_n_2456970.html) S Westervelt and K Cook, Feminist Research Methods in Theory and Action , Chp 2 of Criminal Justice Research and Practice: Diverse Voices from the Field, Ed. S Miller, Northeastern University Press, 2007 M Newton, The Encyclopedia of Crime Scene Investigation, Facts of File Inc. / Infobase Publishing, Inc., 2008 Motions filed by Butler Butlers retrial counsel on 10 May 1995 (available at http://packetmedia.com/2011/07/29/letter-to-the-editor-forrest-allgood/)

Case Review produced by Freshfields Bruckhaus Deringer.

17 For further information, and a full expos on the lengths to which West and Hayne went in the Brooks case, see R Balko, Solving Kathy Mabry's Murder: Brutal 15-Year-Old Crime Highlights Decades-Long Mississippi Scandal, available at http://www.huffingtonpost.com/2013/01/17/kathy-mabry-murder-steven-hayne-michaelwest_n_2456970.html. 18 M Newton, The Encyclopedia of Crime Scene Investigation, Facts of File, Inc., 2008, p. 36.

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Chronology

SABRINA BUTLER
12 April 1989 9-month-old Walter Dean Butler is brought to Columbus Hospital by his 17-year-old mother, Sabrina Butler, with severe internal injuries. The baby is dead on arrival and resuscitation attempts are unsuccessful. Butler is questioned several times at the hospital by medical personnel and again, later, at the police station. She is arrested and charged with the capital murder of her child. Butler is indicted by the grand jury of Lowndes County, Mississippi, for the killing of Walter Dean Butler while engaged in the commission of felonious child abuse and/or battery of a child. Butlers trial commences in Lowndes County Circuit Court. Butler does not testify and there are no other witnesses called by the defence. Butler is convicted and sentenced to death by lethal injection. She is the only woman on Mississippi s death row. The Supreme Court of Mississippi reverses Butlers conviction due to impermissible prosecution comments regarding Butlers failure to testify and orders a re-trial. The defence request a change of location for the retrial, which is granted. Butlers retrial commences in Panola County. The defence present testimony from neighbours who say Butler had attempted to perform CPR on her child. A medical expert testifies that Walters injuries could have been caused by efforts to resuscitate him. The jury deliberates briefly before acquitting Butler.

12 April 1989

May 1989

8 March 1990

14 March 1990

26 August 1992

1995

December 1995

17 December 1995

Chronology produced by Freshfields Bruckhaus Deringer.

Case Summary

SABRINA BUTLER
In the early hours of the morning of 12 April 1989, 17-year-old Sabrina Butler brought her 9-month-old son, Walter Dean Butler, into the emergency room at Columbus Hospital, Mississippi. Walter had suffered severe internal injuries and bleeding and was dead on arrival at the hospital. At the hospital, Butler was questioned several times by medical personnel and police. Each time she gave different accounts of the events of the previous day, all involving a fictional babysitter named Ester Hollis. At police headquarters, Butler gave a further statement stating that she and a neighbour had attempted to perform CPR on her son after finding him not breathing in his cot. Butler then made a final statement in which she stated she had hit the baby in the abdomen when he wouldnt stop crying. Later that day Butler was arrested and was indicted in May 1989 for the killing of her child while engaged in the commission of felonious child abuse and/or battery of a child. Her trial commenced on 8 March 1990. The prosecution focused on Butlers statement , in which she said she punched her child, noting that the autopsy showed that the baby had numerous internal injuries and an internal infection. The defence did not offer any witnesses or other evidence, but attempted through cross-examination of the prosecutions witnesses to show that Walters injuries resulted from Butlers attempts to perform CPR on her child. On 14 March 1990 Butler was convicted and sentenced to death by lethal injection, making her the only woman on Mississippis death row. Butler appealed to the Supreme Court of Mississippi and on 26 August 1992 her conviction and sentence were set aside on the basis that the prosecution had improperly commented on her decision not to testify at trial. The court also went on to state that Butler was entitled to have had the jury instructed that she could be convicted for heat of passion manslaughter (carrying a maximum penalty of 20 years imprisonment, rather than the death penalty) as well as murder. The defence requested a change of venue for the retrial, which took place in Panola County in December 1995. The defence presented testimony from neighbours who said Butler and another neighbour had both attempted to perform CPR on the baby. A medical expert testified that Walters injuries could have been caused by attempts to resuscitate him and the physician who performed the original autopsy admitted that he had not been particularly thorough in his original assessment of the baby s injuries. The jury deliberated briefly before acquitting Butler on 17 December 1995.

Case Summary produced by Freshfields Bruckhaus Deringer.

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