Waiting to hear from the Court of Criminal Appeals

May 29th

Cathy's lawyers have submitted new scientific evidence to the Texas Court of Criminal Appeals. We are now waiting to hear the Court's decision.

This new information, based on the latest scientific knowledge about traumatic injuries to children, was enough to persuade the prosecution's chief expert witness, Dr Bayardo, to change his opinion. He now believes it is impossible to determine whether Brandon's injuries were caused by an accident or a deliberate act. This is very different from the testimony the jury heard at Cathy's trial, to the effect that it was "impossible" that the injuries could have been inflicted accidentally.

You can read the documents filed with the Texas Court of Criminal Appeals:

Expert reports from:

The DNA of Cathy's case

April 24th

In their successful motion to vacate Cathy's April execution date (see item below), Cathy's lawyers stated:

We anticipate that, when he has completed his investigation, Dr. Plunkett [the defense expert in injury biomechanics] will be able to advise this Court and all others that the injuries sustained by [Brandon Baugh] were entirely consistent with an accidental fall, and that advances in science now show that the injuries were not ― as the State claimed at trial in 1995 ― the product of a willful, deliberate, and murderous blow delivered by Ms. Henderson.

Accident v. deliberate act

One of the most damning pieces of evidence against Cathy at her trial was the testimony of Drs Bayardo (then Travis County Chief Medical Examiner) and Veasey (then Lubbock County Deputy Chief Medical Examiner). Dr Bayardo performed the autopsy on Brandon Baugh; Dr Veasey reviewed the autopsy report and provided an opinion based on that report. Each of these witnesses stated that Brandon's injuries could not possibly have been the result of an accident and that the nature of the injuries "proved" that Cathy deliberately killed Brandon by striking him with great force.

Dr Bayardo testified that in his opinion, Brandon died from skull injuries "consistent with striking his head against a blunt object," that it would have been "impossible" for the injury to have been caused "by a fall of four to four-and-a-half feet", that the baby would have to have fallen "from a height higher than a two-story building," or have had his head "run over by a car" or have been "involved in a motor vehicle accident".

The State offered no evidence that crime scene investigators found any evidence of the child’s death in any of the manners hypothesized by Dr. Bayardo.

Before her trial in 1995, Cathy's counsel presented a motion asking the Court for the funds necessary to hire an expert to perform a biomechanical investigation. The Court denied the motion without comment or explanation.

Cathy's defense team has now gained the services of an expert in injury biomechanics who will provide an in-depth analysis of the prosecution testimony about Brandon's injuries. This recently developed science is the "DNA" of Cathy's case. You can read more about it in the Motion to Vacate the Execution Date and the Memorandum in support of that motion presented to Judge Wisser by Cathy's current lawyers.

Where to now?

April 20th

Here's a quick update from Cathy's lawyers about the status of her case after Judge Wisser granted the 60-day reprieve:

We are working on a subsequent habeas petition that we expect to file before the end of April or early in May. We are waiting for all of the expert reports to be finalized before we file the petition. The petition will be filed with the same court that tried Cathy. The state will have an opportunity to oppose that petition and then the court will decide whether further proceedings are necessary. If the court decides not to order further proceedings, we will file a similar petition in the federal court.

If the court does decide to hold further proceedings, then it is likely her execution date will be postponed further. The bottom line is that we do not know what the timing is going to be. Once we file our petition, we will know more and we will be sure to advise everyone of any future hearing dates.

Cathy's lawyers win 60-day reprieve

April 2nd

News directly from George Cumming, one of Cathy's lawyers:

Judge Wisser [has advised] us that he will vacate the April 18 execution date, and reschedule the date to June 13, 2007. Maybe we are turning the corner in this case, at long last. We still have a long way to go, but at least now have some time to get there.

And here's the email from Judge Wisser:

Dear Counsel:
I have reread the motions and memos submitted to the court. I seriously considered both parties positions over the weekend. I decided, although not convinced of the legal correctness of the defendant's position; it is in the interest of justice and the criminal justice system of this state, that the execution date of April 18th be reset for June 13th, 2007. This should permit the defense adequate time to perfect any subsequent writ.

Therefore I will instruct my clerk to recall the current death warrant and to issue a new one with the June 13th date.

Sincerely,

Jon Wisser
Judge Presiding

Background to Cathy's case

On the morning of January 21, 1994, Melissa and Eryn Baugh left their three-month-old son, Brandon, with Cathy Henderson at her home near Austin, Texas. Cathy was Brandon’s daily caregiver and also cared for Brandon’s sister, Megan, together with her own daughter, Jennifer.

On this day, according to Cathy, Brandon was very restless and in order to comfort him she held him in her arms and spun him around, a technique both her aunt and mother had used to quiet their children. While spinning him, Cathy stepped on a sharp object and dropped Brandon. He fell, hitting his head on the concrete floor. Cathy, who had nursing experience, tried to resuscitate him but, when her efforts failed, she panicked. She fled with Brandon’s body, buried him near Waco, and then proceeded to Missouri.

When arrested, Cathy was originally charged with kidnapping and then with murder of an infant, a capital crime in Texas.

From the moment of her arrest, Cathy’s story followed a familiar course for poor defendants: she received a woeful defense, while the prosecution, aided by the media, successfully painted a picture of her as a monster.

At trial, the prosecution claimed Brandon’s injuries could not have resulted from a fall and argued that deliberate force must have been involved. Cathy’s lawyers failed to cross-examine the medical evidence effectively, despite major discrepancies in that evidence.

Even though the prosecution could offer no evidence of motive – in fact, no intent whatsoever – the imbalance between the forces ranged against Cathy and those mustered in her defence resulted in the jury finding her guilty. As one of her current lawyers has said, for the prosecution to go for a charge of capital murder in such circumstances, where there was no motive or intent and no history of violence was “a true case of nothing but state vengeance”.

Cathy’s woes did not end with her conviction. During the penalty phase of her trial, her lawyers did a poor job of providing mitigation evidence. This is extraordinary given Cathy’s own history. Good mitigation defence has, time and again, saved the lives of those convicted of capital offences. Not in Cathy’s case; the mitigation work of her lawyers was half hearted, at best.

Once condemned to death, Cathy continued to receive inadequate defense during the appeals process, with errors in her original trial ignored or compounded.

Here's what Sister Helen Prejean had to say about Cathy's case in a letter to members of her order:

Cathy was condemned to death for murdering a baby. That's what the Texas prosecutor claimed. But I believe Cathy's version of what happened. Cathy was babysitting with little Brandon and, to stop him from crying, was swinging him around when, barefooted, she stepped on a sharp toy, lost her balance, and the baby flew out of her arms, hit the wall, and died. It was an accident, but at trial there was miserable defense for Cathy to tell her story and examine forensic evidence to show that the baby could have died as a result of such an accident. The plight of the poor: no defense for Cathy, who sits on death row, and a venal prosecutor, who presented her as a monster and now sits in the legislature.

(You can read the full text of Sister Helen's letter here.)