Emergency Appeal for Cathy Henderson

Cathy Henderson is scheduled to be executed in Texas on 13 June. She was sentenced to death in May 1995 for the murder of a three-and-a-half-month-old baby, Brandon Baugh, in January 1994.

On the morning of 21 January 1994, Brandon Baugh’s parents left him with Cathy Henderson, who was the daily caregiver, at her home in Pflugerville, near Austin, Texas. When the child’s mother returned to collect him later in the day, both he and Cathy Henderson had disappeared. The FBI arrested Cathy Henderson in Kansas City, Missouri, on 1 February 1994. After an investigation and discovery of Brandon’s body, Cathy Henderson was then prosecuted for capital murder. The jury heard expert opinion that the head injuries sustained by the baby could not have been the result of an accidental fall from the defendant’s arms.

Dr Roberto Bayardo, who conducted the autopsy, stated that the nature of the injuries ”proved” that Cathy Henderson had deliberately murdered Brandon Baugh by a blow to the head. For example, he said that the baby would have to have fallen ”from a height higher than a two-storey building”, or to have been ”involved in a motor vehicle accident” in order to have sustained the head injury in question. Dr Sparks Veasey suggested that the death had occurred as a result of ”the child’s head impacting in an extremely forceful manner a blunt surface — a floor, counter top, a desk top, a wall”. The prosecution provided no crime scene evidence to support such hypotheses offered by its experts.The analysis of the amount of ”force” necessary to break or shatter an object, including a skull, requires expertise in the sciences of physics and engineering, rather than medicine, and this has led to the science of ”biomechanical” analysis. Prior to the trial, the defense lawyers had sought funds to hire an expert to conduct a biomechanical investigation of Cathy Henderson’s claim that the baby’s death had been accidental. The request was denied. The jury convicted Cathy Henderson of capital child murder and after finding that she would pose a danger to society if allowed to live, voted for execution.

In an appeal just filed in the Texas Court of Criminal Appeals, Cathy Henderson’s current lawyers point out that the biomechanical analysis of infant head trauma has developed substantially in the dozen years since her trial. With accompanying reports from four experts, the appeal argues that the trial of Cathy Henderson would today be conducted against a fundamentally different scientific landscape than existed in 1995. For example, in his report, Dr Peter Stephens states that ”biomechanical consultation and testimony is essential to the understanding of any impact injury to the head, and is mandatory for any case proceeding to litigation, civil or criminal—- I would not contemplate assigning a cause and manner of death in any controversial case involving head injury without obtaining, or recommending consulting, a biomechanical evaluation.”

Dr John Plunkett, a forensic pathologist with an expertise in infant head trauma, states that while he agrees with the experts at trial that an impact injury caused Brandon Baugh’s death, Dr Bayardo’s conclusions were ”wrong” and that he had ”strayed from his area of medical competence and expertise when he opined about the amount of ‘force’ sustained by Brandon Baugh, and opined that this ‘force’ could not have been sustained accidentally”. Dr Plunkett notes that the trial transcripts indicate that ”none of the medical witnesses in Ms Henderson’s trial understood [the science of biomechanics]”. Dr Plunkett states that he has reviewed at least two cases of accidental falls of less than four and half feet involving infants that ”caused fractures virtually identical to Brandon’s”.

Dr Stephens concurs, stating that ”since 2000, physicians have increasingly recognized that lethal injury to the infant can, and does, occur from an accidental fall, even of a short distance It is simply incorrect to state that only a fall from a bunk bed, balcony, or upper story window can cause such an injury. Forensic pathologists, biomechanical scientists and many pediatricians now agree that such comparisons are without scientific merit and should not be made.”

In her report on the case, Dr Janice Ophoven notes: ”In the past, the characteristics of a fracture of the type seen in Brandon were assumed to denote an abusive injury. However, current scientific experience reflects a more conservative analytical approach to skull fracture evaluation. The nature of the fracture itself cannot be used to determine whether the injury is due to an accident or inflicted injury”.

Fourthly, Dr Kenneth Monson, a leading biomechanics expert, states that the ‘force’ at which Brandon Baugh’s skull would have hit the floor under Cathy Henderson’s version of events was enough to cause the injury that killed him. The accidental death of Brandon Baugh, he states, ”cannot be ruled out given the current state of knowledge”.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible, in your own words (please include Cathy Henderson’s inmate number, #999148)
– expressing sympathy for the parents of Brandon Baugh, and explaining that you are not seeking to downplay the suffering they will have endured as a result of their child’s death;
– opposing the execution of Cathy Henderson;
– noting the recent conclusions from experts, including experts in biomechanical analysis, not heard at the trial, supportive of Cathy Henderson’s claim that the baby’s death was the result of an accidental fall;- noting that developments in science have been one of the reasons why numerous wrongful capital convictions have been uncovered in the USA in the past three decades;
– calling for Cathy Henderson to be granted clemency.

Rissie Owens,Presiding OfficerBoard of Pardons and Paroles
Executive Clemency Section
8610 Shoal Creek Boulevard
Austin, TX 78757Fax: 1 512 463 8120
Salutation: Dear Ms Owens

Governor Rick Perry
Office of the Governor
P.O. Box 12428
Austin, Texas 78711-2428
Fax: 1 512 463 1849
Salutation: Dear Governor