AP NEWS

With new medical evidence, day care provider convicted of child abuse homicide seeks new trial

February 16, 2019

A Verona woman, convicted of homicide in 2009 for the death of a 4-month-old boy who was at her home daycare, is asking that a judge throw out her conviction and grant her a new trial, asserting that medical testimony was so flawed that even the prosecution’s lead medical expert no longer believes that the boy was a victim of abuse.

The Wisconsin Innocence Project, which is representing Jennifer Hancock, convicted of first-degree reckless homicide for the 2007 death of Lincoln Wilber, said in a motion filed this week that there is ample new evidence to overturn Hancock’s conviction and order a new trial.

Hancock, now 48, was sentenced to 13 years in prison. She is scheduled to be released in about three years. Innocence project co-director Carrie Sperling said Thursday that she did not want to discuss the case until she has talked with Hancock.

The case has been assigned to Circuit Judge Ellen Berz. The motion requests a hearing in which testimony would be taken from seven witnesses, including Dr. Michael Stier, the pathologist who performed Lincoln’s autopsy and testified for the prosecution but has since changed his opinion about the cause of Lincoln’s death.

“Physicians who were seeking an explanation for (Lincoln’s) death hastily concluded he had been abused, and police identified a suspect: Ms. Hancock, the last person seen with the child,” the motion states. “The case that the state built against Ms. Hancock was an exercise in confirmation bias. Medical personnel, relying on outdated scientific theories and assumptions, inaccurately attributed the death to abuse.”

The motion also faults “deficient performances” at Hancock’s trial by her attorney, John Hyland, who is now a Dane County judge; by Hancock’s prior appellate lawyer; and improper jury instructions delivered by now-retired Circuit Judge David Flanagan.

But chiefly, the motion is driven by Stier’s changed opinion. At Hancock’s trial, Stier’s testimony supported a finding of abuse as the cause of Lincoln’s death. In an affidavit, Stier now states that at a trial today, “I would not testify that (Lincoln’s) death was caused by non-accidental inflicted injury. I would testify that there is no definitive cause of death.”

Stier had expressed that opinion in 2014 as part of an investigation by students from Northwestern University’s Medill Justice Project and the Wisconsin State Journal, who looked at court, medical and police records and interviewed people connected to the case.

According to the motion, Stier testified at Hancock’s trial that a subdural hematoma — a collection of blood between layers of tissue over the brain — sustained by Lincoln was indicative of abuse. But he has since performed autopsies on people who have had a similar condition that was not caused by abuse. There are all kinds of causes for the condition, he now states.

Stier is also confident that Lincoln did not have a skull fracture, which he could not rule out at Hancock’s trial. He wrote in his affidavit that he “felt pressured by the prosecution to ‘leave the door open’ to the possibility that (Lincoln) had a skull fracture.” And a small fracture on one of Lincoln’s leg bones, which Stier originally testified was unique to abuse, may have been caused by something other than abuse, such as medical intervention after Lincoln became unresponsive at Hancock’s home.

Overall, Stier said in his affidavit, “a death from natural causes may explain the findings at autopsy,” including a heart virus, which might provide an “alternative, viable explanation of (Lincoln’s) demise.”

“Although Dr. Stier does not recant factual findings made in the autopsy report,” the motion states, “he now interprets those findings differently, leading him to a profoundly different conclusion about (Lincoln’s) cause of death.

Four doctors with expertise in radiology, pathology, neurology and pediatrics, the motion states, have also reviewed the evidence “and found it does not support the conclusion that (Lincoln) died from abuse, or that any abuse was inflicted by Ms. Hancock.” Among their conclusions, the motion states, was that Lincoln did not have a skull fracture.

The motion also asserts that in representing Hancock, Hyland failed to sufficiently investigate key medical records, failed to consult and retain necessary experts, and inadequately prepared his only expert witness, a neurologist whom prosecutors repeatedly pointed out to the jury was not a radiologist or a pediatric neurosurgeon, like some of the prosecution’s expert witnesses.

In an affidavit, the motion states, Hyland admits he did not “meaningfully” consult with Stier and did not notice or follow up on any existing conditions noted in Lincoln’s medical records.

The motion also asserts that Flanagan improperly instructed the jury on the state’s burden of proof, reading to them a standard instruction that tells them, “You are not to search for doubt; you are to search for the truth.”

The motion states that recent studies have found that jurors who receive “search for the truth” instructions are “significantly more likely to convict than jurors who are not,” adding that use of that instruction is being explored in a case granted review by the state Supreme Court.