from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, No. 03-CF-199 Honorable Carla A.
Policandriotes, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion. Justices Lytton and McDade concurred in
the judgment and opinion.
HOLDRIDGE PRESIDING JUSTICE
1 The State appeals the circuit court's order granting
the successive postconviction petition filed by the
defendant, Jennifer Del Prete. Specifically, the State argues
that the defendant failed to establish a Brady
violation based on the State's failure to disclose a
letter written by the lead detective in her case because
there was no reasonable probability that the result of the
trial would have been different had the letter been
3 In 2004, the defendant was charged with first degree murder
(720 ILCS 5/9-1(a)(2) (West 2002)) in that she shook I.Z., a
3½-month-old infant, knowing that such acts created a
strong probability of death or great bodily harm to I.Z.
thereby causing the death of I.Z. The defendant was a
day-care provider, and the charges resulted from an incident
at the day care.
4 A bench trial was held. Barbara Z., I.Z.'s mother,
testified that I.Z. was born on September 6, 2002. On
December 27, 2002, Barbara dropped I.Z. off at day care. I.Z.
was developmentally normal when Barbara dropped her off.
Barbara did not harm I.Z. before dropping her off at day
care, and she did not see her husband harm I.Z. The next time
Barbara saw I.Z. was later that day at Provena St. Joseph
Medical Center (Provena). I.Z. was transferred to the
University of Illinois at Chicago hospital (UIC). I.Z.
remained there for three weeks. I.Z. was then transferred to
Children's Memorial Hospital. I.Z. remained there for
several weeks. I.Z. returned home on March 23, 2003. Barbara
received help caring for I.Z. from nurses who came to her
home. On the morning of November 8, 2003, the nurse who was
caring for I.Z. called for Barbara. Barbara saw that
I.Z.'s lips were blue, and she called 911. I.Z. died the
5 Detective Kenneth Kroll testified that he investigated
I.Z.'s case. He interviewed the defendant on December 29,
2002. The defendant told Kroll that she was the only one
working on December 27, 2002, because the other day-care
provider was out of town. The defendant said that after
Barbara dropped I.Z. off that day, I.Z. took a bottle between
8 and 9 a.m. I.Z. then slept in a swing until around noon. At
that time, I.Z. had "an extremely dirty diaper."
The defendant changed I.Z.'s diaper and set her down on
the couch. The defendant stepped away for a moment to prepare
a bottle for I.Z. When the defendant returned to the couch,
I.Z. "was making a snoring, labored breathing
sound" and her body was "totally limp." The
defendant picked I.Z. up, and her head flopped forward. The
defendant gave I.Z. a "very slight shake" while
saying her name several times. The defendant tried to feed
I.Z., but the milk ran out of her mouth down the side of her
face. The defendant then positioned I.Z. face down and gave
her three to five pats on the back in an attempt to dislodge
anything that might have been choking I.Z. The defendant felt
panicked, and she called 911. The defendant said that I.Z.
did not fall or get knocked over that day. The defendant said
that I.Z.'s head moved more violently when she was
patting I.Z. on the back than when she gave I.Z. the slight
6 Kroll took a break during the interrogation. When he
returned, he told the defendant that her statements were not
consistent with the medical evidence. Kroll said that I.Z.
suffered from shaken baby syndrome (SBS) and subdural
hematomas. Kroll told the defendant that he believed she was
involved in I.Z.'s injuries. The defendant began to cry.
She said she could not remember exactly what happened and
that it was a very stressful, panicked situation. The
defendant told Kroll "she could have shaken [I.Z.] a
little harder than she thought." The defendant
maintained that she did not shake I.Z. violently, and she did
not intentionally hurt I.Z. Kroll acknowledged that he
documented in his report that the defendant never actually
confessed to shaking I.Z.
7 Dr. Adrian Nica, a physician at Provena, testified that he
treated I.Z. in the emergency room on December 27, 2002. Nica
ordered a CAT scan of I.Z.'s brain, which showed that
I.Z. had an "acute and chronic changes secondary to
bleeds in different levels." Nica said that the chronic
bleeding could have been days or a week old. Nica testified
that because I.Z. had not been involved in a car accident,
"you have to assume that it was a child abuse or baby
shaking." The defendant objected. The circuit court
allowed Nica's testimony that he believed the bleeding
was caused by child abuse or baby shaking for the limited
purpose of explaining his course of treatment, not for
"the truth of the matter asserted as it relates to
8 Dr. Howard Hast was certified as an expert in the field of
pediatric critical care medicine. Hast testified that he
treated I.Z. from December 30, 2002, through January 16,
2003. A retinal scan showed that there was blood in
I.Z.'s retinas, in front of the retinas, and in the
vitreous. I.Z. also had bifrontal subdural hematomas. Hast
performed several tests to attempt to determine a cause of
the subdural hematomas. He found no bleeding tendency or
metabolic diseases that would explain the cause of the
bleeding. Hast opined that the most likely cause of the
bilateral subdural hematomas was that I.Z. "was shaken
or had some other accelerating/decelerating injury occur such
as being dropped or thrown or something like that."
9 Dr. Jeff Harkey testified that he was employed as a
forensic pathologist by the Du Page County coroner's
office. The court certified Harkey as an expert in the field
of forensic pathology. Harkey testified that he conducted
I.Z.'s autopsy on November 10, 2003. Harkey took x-rays
of I.Z. The x-rays showed no evidence of trauma. Harkey also
examined I.Z.'s brain. He did not observe any bleeding or
acute trauma. Harkey reviewed some of I.Z.'s medical
records, including a physician's report from Dr. Emalee
Flaherty. Harkey determined that I.Z.'s cause of death
was "multiple system organ failure due to
anoxic-ischemic injuries *** that was due to abusive head
trauma [(AHT)]." Harkey stated that an anoxic-ischemic
injury occurred when there was not enough blood flow and
oxygen to bodily tissue. Harkey testified that I.Z.'s AHT
occurred 10 or 11 months prior to her death. Harkey opined:
"I believe that the reason that [I.Z.] suffered the
injury the day before she died was a direct result of the
injury that she suffered the 10 to 11 months before."
Harkey observed no evidence of old trauma during his autopsy,
and his conclusion that I.Z. suffered AHT was due to
10 Flaherty testified that she had been a pediatrician at
Children's Memorial Hospital for over 30 years. The court
qualified Flaherty as an expert in the areas of pediatrics
and child abuse. Flaherty testified that she reviewed
I.Z.'s medical records from UIC. She also spoke with
Hast, reviewed the police reports, reviewed the paramedic
reports, interviewed I.Z.'s parents, and examined I.Z.
Flaherty concluded that I.Z. "had suffered [AHT] or also
known to many people as [SBS]." Flaherty stated:
"[AHT] is a form of child abuse where a child suffers
some kind of acceleration/deceleration injuries to the brain
that cause some-or for example, shaking, and cause the
unconstillation [sic] of injuries." Flaherty
stated that AHT could be caused by "violent sustained
shaking and sometimes impact" to infants or young
children. Flaherty said that AHT was most commonly caused by
11 Flaherty showed a PowerPoint presentation to explain AHT.
Flaherty showed a slide that contained the "spectrum of
injuries you can see in [AHT] or [SBS]." Of those
symptoms, I.Z. had subdural hemorrhages, subarachnoid
hemorrhages, diffusing injury, and parenchymal lacerations
and contusions. Flaherty stated that I.Z. suffered from
encephalomacia, or dead brain tissue, as a result of her
injuries. Flaherty stated that acceleration/deceleration
forces like violent shaking can also cause retinal
hemorrhages, which I.Z. had. Flaherty opined that "when
you see hemorrhages to the ora serrata as in [I.Z.'s]
case, those kinds of extensive hemorrhages are only caused by
these acceleration/deceleration forces or seen in
12 Flaherty further opined that "extensive subdural
hematomas like [I.Z.] had over extensive areas of the head,
those are only caused by acceleration and deceleration
forces. For example, shaking would be an example." The
prosecutor asked Flaherty what level of force would be needed
for violent shaking to cause these injuries. Flaherty
responded: "Forces would be so severe that if anyone
witnessed that shaking occurring or someone shaking a child
like that, they would know that that child would suffer
severe injury." The prosecutor asked Flaherty if she
could offer a time frame as to when the abuse to I.Z.
occurred. Flaherty replied:
"Oh, yes. On the day of the 27th sometime after-[I.Z.]
was described eating normally in the morning, and sometime
after she awoke and was reported to be smiling but crabby.
About-awoke about 1 o'clock and reported to be smiling
and crabby again which tells us she had not suffered severe
brain injury at that point, and just before she lost
consciousness and became unresponsive."
13 Flaherty stated that the effects of the abuse would have
been immediate. Flaherty opined that I.Z.'s injuries
could not have been caused by someone performing
cardiopulmonary resuscitation (CPR) poorly on her, from a
fall, or by a young child. Flaherty stated that "[i]t
would take someone of adult strength shaking this child
violently to cause these kinds of injuries."
14 Flaherty acknowledged that I.Z. did not have any bruises.
Flaherty stated that bruises on the arms and trunk are not
part of the definition of SBS. Flaherty said that she would
typically look for any bruises while conducting an SBS
analysis, but it was "pretty uncommon" to find
bruising in a case of SBS. Flaherty did not know why.
15 The State rested.
16 The defendant called Dr. Wayne Tucker. The court qualified
Tucker as an expert in pathology and pediatrics over the
State's objection. Tucker testified that he reviewed
medical records, Flaherty's report, police reports,
paramedics' reports, an autopsy report, and autopsy
pictures. Based on his review of these documents, Tucker
opined that I.Z.'s injuries occurred approximately 18 to
24 hours before she collapsed at the day care. Tucker
reasoned that I.Z.'s CAT scan "reflected that there
was an acute situation and there was a chronicity to the
situation of the frontal hematomas, subdural." Tucker
stated that "chronic" meant that it had been there
for "at least 7 to 10 days." Tucker opined that
"[a]lmost anything that will cause an increase in
intracranial pressure" could cause a chronic subdural
hematoma to rebleed. Tucker gave the examples of coughing,
sneezing, holding breath, movement, turning the head quickly,
17 Tucker stated that the fact that I.Z. took a bottle the
morning she collapsed "does not rule out any problem at
that time because the sucking reflex of an infant overcomes
any damage that might-a child may have cerebral or
physically." Tucker noted that I.Z.'s history showed
that she had problems taking bottles generally.
18 Tucker stated that bruising was part of the definition of
SBS. Tucker explained that "to do this even on a three
month old or a one month old or any age group *** whoever is
doing it has to pick up into the arms, say hold arms or the
shoulders and grab and hold on tightly to give the
shaking." Tucker stated that he had never seen a shaken
baby without bruising. Tucker had previously testified in
three SBS cases.
19 The defense rested.
20 During closing argument, the State argued:
"Dr. Flaherty comes in as a fully qualified expert in
the field of pediatrics and child abuse medicine. She comes
in and she explains and teaches this Court what [AHT] is, a
rapid acceleration and deceleration of the head which causes
very distinct and specific injuries. These injuries are
telltale signs and solely towards what is commonly referred
to as [SBS]."
State further argued:
"This all happens, Judge, on [the defendant's] watch
of [I.Z.] Dr. Flaherty testified very clearly, the injuries
are immediate. This is not something that happens hours or
days before. This is something that happens when you cause
this type of injury this severe. The effect is immediate. In
the morning [I.Z.] is fine. She is able to eat. She is able
to take a bottle between 8 and 9 o'clock from [the
defendant]. That means that these core functions in the blue
area as she described have not been injured yet. It is to
this point, Judge, where [I.Z.] is fine.
*** The abrupt change signifies when this injury occurred,
and that is between 12:00 and 1:30 when the 911 call was
made. That puts it squarely on [the defendant's] hands.
Dr. Flaherty testified five years old and under, they
can't do this. A fall from a swing can't do this. An
accident can't do this. This is a violent shaking. A
violent back and forth acceleration/deceleration of ...