‘Shaken baby’ murder charges finally dismissed. But Kansas won’t admit he’s innocent | Opinion

Do you want to hear the good news first? Excellent, because here it is: The nothing of a murder case against Chris Lyman, the former Army sergeant and Bronze Star recipient who spent nearly 10 years behind bars for killing a baby who actually died of pneumonia, was dismissed last week in Geary County, Kansas.

Lyman, whose shaky “shaken baby” conviction I wrote about in April, was already free while awaiting a possible retrial because his attorney was found to have been suffering from dementia during his 2015 trial. But he was to have gone back to court on Aug. 24, when a new preliminary hearing had been set to begin in Junction City.

The charges have been dropped because there now is no evidence against him, other than the testimony of a Children’s Mercy Hospital abuse specialist, Dr. Terra Frazier, who according to three other medical experts ignored the child’s severe respiratory issues. Lung problems, they said, had nearly killed Lyman’s 8-month-old nephew, Johnathan Swan, during multiple previous hospitalizations, and finally did end his life in September of 2013.

The bad news, though, is that the state apparently hopes to tiptoe away from Lyman’s conviction without ever owning up to the faulty assumptions that robbed him of his freedom, ended both his military career and his marriage, and kept him from having a relationship with his own children. He’s never even met his younger son because his wife had just learned she was pregnant five days before Lyman found little Johnathan limp and unresponsive in his crib.

Johnathan’s mother, Meggan Swan, the sister of Lyman’s former wife, was never convinced that Lyman was guilty. Then a 21-year-old single mom, she, too, was treated like a criminal by Children’s Mercy, she says, though she’d been in her hometown in Ohio on the morning that the Lymans rushed Johnathan to a hospital near Fort Riley.

Lyman and his wife had agreed to take Johnathan in for a couple of months while Meggan was trying to get her life together. In her small town of Conneaut, Ohio, on Lake Erie, it was hard to find anyone willing to watch her baby while she worked, she later said in court, “because he had medical issues and everyone was scared.”

Sure they were, because he just stopped breathing sometimes, and at one point had been on full life support. The Lymans reluctantly took Johnathan in anyway, because Meggan was desperate for some help. And because in the months before Chris had to report to Fort Riley after a tour in Afghanistan, he in particular had bonded with the baby.

“My son wouldn’t cuddle with me, but he would with him,” Meggan testified, sobbing, at her brother-in-law’s trial. “He called him ‘dad.’ That’s the only word he ever knew.”

Prosecution’s ’radio silence’ on dropping case

When Lyman got word last week that the case had been dismissed, he drove 45 minutes to tell Swan the news in person, and found her coming out of the church that has been a refuge for her after some rough years. “There are a bunch of people there who have been praying for me,” Lyman told me, and showing Swan the piece of paper that said “case dismissed” let them know, too, that their faith had been justified.

It didn’t quite spell that out, though. So Swan immediately wrote to Geary County Attorney Krista Blaisdell to ask whether Lyman had really finally been cleared. She received this message in response:

“Ms. Swan, The case against Mr. Lyman has been dismissed, and that is an accurate copy of the order that was filed in the case. You will be receiving a closing letter from our office as the matter was just dismissed yesterday. The State does not take the position that Mr. Lyman is innocent, but rather that it is not pursuing charges currently. v/r, Krista Blaisdell.”

Not very respectfully, if you ask me. Not v/r at all.

Until the state does take the position that Mr. Lyman is innocent, will he be able to clear his name with the Army and be reinstated, as he hopes?

Naturally, Lyman’s attorney, Richard Ney, of Wichita, is unhappy about the prosecution’s “radio silence” on the dismissal: “If you do not have the evidence to prove the case, say it, and give him his life back. To do anything less is unconscionable. Give him his life back.”

Silence isn’t good enough.

No evidence day care worker killed child

This is very much like the case against former day care worker Carrody Buchhorn, of Lawrence, who likewise spent years in a Kansas prison for the murder of a child who died of natural causes.

Like Lyman, she was convicted in large part on the wildly creative say-so of discredited coroner Erik Mitchell. The case against her was dismissed after other experts found that Ollie Ortiz had not died because Buchhorn hopped on his head out of nowhere, and somehow managed to kill him without causing any brain injury. He died, they said, because of a congenital heart defect.

Yet even though Buchhorn is free now, and facing no further charges, the state continues to fight owning up to the fact that there was no crime.

Mitchell’s theory on the cause of death was found to have been “just bunk,” and Douglas County won’t be retrying her. But the state still isn’t giving up; her attorney, William Skepnek, said the AG’s office has now called in the same Children’s Mercy abuse specialist, Dr. Terra Frazier, who initially found that Johnathan Swan had been abused.

Lyman has spent the last few months fixing up his mom’s house in Ashtabula, Ohio, where he’s been staying in his old room since right after his conviction was overturned in January. In the days since learning that the charges were dismissed, he’s reapplied to Cleveland State to finish his bachelor’s degree, and has applied to be reinstated by the Army. After college, he hopes to go to law school.

That the charges have been dropped is of course “a great relief.” And no, he never expected officials to “to come out and say this is another case botched by Erik Mitchell.”

Still, it will be a far greater relief when the state admits not just that mumble mumble it doesn’t have a case right now, but steps up and acknowledges that it never did and never will.

It’s galling that the same criminal justice system that can move so quickly to assign guilt doesn’t show that same urgency when it’s been shown to have rushed in the wrong direction.

Just a few hours after Lyman found Johnathan in severe distress and started doing CPR, a Junction City homicide detective informed him that he knew for a fact that he had abused the boy.

He knew that, he said, because at Children’s Mercy, where Johnathan had been life-flighted, “they specialize in child abuse cases,” the detective said, according to the transcript of that interrogation. “The doctors, who are specifically trained and do this for a living, tell me this is child abuse. Somebody hurt this kid on purpose. That is the medical truth. Somebody hurt him and they hurt him so bad that he is fighting for his life. That is what happened.”

Not everything that a doctor says really is the medical truth, though.

Lyman kept trying to tell the detective about the child’s many serious medical problems, and the detective kept saying, “I don’t care about his medical issues.” Apparently, nobody did.

Hospital, doctor don’t answer questions

As I’ve written before, this isn’t a story about one doctor who flubbed a diagnosis, either. Instead, it’s one about how much of the medical establishment refuses to update its understanding of what they used to call “shaken baby syndrome.” The name has been changed, to abusive head trauma, or non-accidental or inflicted trauma, because of the growing criticism of this diagnosis.

But the criteria for diagnosing abuse have not changed, even though we now know that there are many other conditions that can cause the three markers for shaken baby syndrome, which are retinal hemorrhages, brain swelling and subdural hematoma.

The result is that hundreds of people every year continue to be sent away for crimes that those doctors and researchers who are critics of what they call the “shaken baby industrial complex” argue never happened at all.

The first time I wrote about Lyman, neither a spokeswoman for Children’s Mercy nor Dr. Frazier, the child abuse pediatrician who said Johnathan had been abused, answered my messages asking whether they had in the decade since Johnathan died revised their view of what abuse looks like.

This time, I once again got no response from the hospital. And found that Dr. Frazier had blocked me from emailing her; at least now I know she received my earlier request.

I’m sorry that she doesn’t like being asked for comment, but I will have to keep trying, because after my first column on Lyman, I got letters from parents all over the country, saying that the same thing had happened to them.

One of them was from a Kansas City mom who leads a large online support group of parents accused by Frazier and another abuse specialist at CMH. And as I’m going to be writing about their cases, too, I hope that the hospital will at some point decide to answer my questions.

The National Registry of Exonerations, a project of the University of California Irvine Newkirk Center for Science & Society, the University of Michigan Law School and Michigan State University Law School, lists shaken baby convictions of “injuring or killing an infant by violent shaking, based on a medical diagnosis that is now highly controversial” as a major subset of exonerations.

Another note I got after my first story about Lyman was from Tricia Rojo Bushnell, of the Midwest Innocence Project, who said, “We’re flooded with applications” for shaken baby innocence cases, “mainly because several hospitals in our 5-state region are hot spots for diagnosing it.”

‘Misdiagnosis, rush to judgment’

The court that overturned Lyman’s conviction ruled that if a defense expert like any of the three who found that Johnathan Swan actually died of acute pneumonia and lung disease had testified at Lyman’s original trial, there was a “reasonable probability” that the verdict would have been different. All three also say shaken baby syndrome is not supported by current medical science.

Yet on the basis of what Erik Mitchell called a “massive” subdural hematoma, which in fact was smaller than a dime, he concluded that Johnathan had been beaten to death. Neither he nor Dr. Frazier ever reviewed Johnathan’s medical records.

Dr. Janice Ophoven, a pediatric pathologist from Minnesota, found, based on tissue slides of five lobes of Johnathan’s lung, that “all five sections are remarkably abnormal and, in my opinion, clearly represent the cause of little Johnathan’s fatal distress and cardiopulmonary collapse.”

“There is no evidence to support a diagnosis of traumatic injury to the brain tissues,” she said, and “no evidence to conclude that Johnathan Swan suffered any abuse at the hands of Christopher Lyman.”

The swelling to the brain that signaled child abuse to Frazier, Dr. Ophoven said, was instead “associated with respiratory and cardiac failure” and efforts to resuscitate him. Yet “as soon as the presence of intracranial blood and brain swelling were observed,” she wrote, “the case became one of abuse.”

She noted that “by early afternoon on the date of hospitalization, the medical records contain numerous references to what appeared to be a confirmed diagnosis of child abuse. My review indicates that there was a combination of misdiagnosis and a rush to judgment.”

Followed, all these years later, by a very slow walk to justice.