DA is serious about suspicious infant deaths

SALISBURY -- Before 1999, Rowan County District Attorney Bill Kenerly had never thought of prosecuting someone for rolling over and suffocating a baby during sleep.

But he decided the death of Sean Lee Tucker should not go unpunished.

When the 2-month-old died, his mother and grandfather first claimed Sean had been sleeping alone in a playpen.

The medical examiner initially thought it could be sudden infant death syndrome – a mysterious, unpreventable death.

But the grandfather later confessed he had been sleeping with the baby on a couch. Social workers had warned the family not to sleep with Sean, and to place him in a crib.

Nine months later, a jury convicted the grandfather of involuntary manslaughter.

Elsewhere in North Carolina, when babies die in unsafe sleeping conditions and negligence is suspected, often no one is held accountable.

That’s because deaths are sometimes too readily attributed to SIDS.

An Observer investigation found N.C. Chief Medical Examiner Dr. John Butts uses the SIDS label even when accidental suffocation cannot be ruled out.

Prosecutors also can be hesitant to blame parents who haven’t intentionally harmed their children. In cases where there is no obvious connection between parental behavior and a child’s death, prosecutors say they try to have compassion for parents.

“You’ve got the potential of having a parent who had no criminal intent, and while they might be guilty of some negligence, they shouldn’t be in prison,” said Jim Woodall, district attorney for Orange and Chatham counties and president of the N.C. Conference of District Attorneys.

Kenerly, one of the most aggressive prosecutors of infant death cases, would not accuse a parent of committing a crime by co-sleeping unless there was evidence of neglect or abuse. His decision to prosecute the Tucker case sent a clear message to law enforcement officials in his county: They should take child deaths seriously, and he would, too.

More parents charged

Since the Tucker case, Kenerly has charged four other parents whose babies died while they slept together. Two pleaded guilty to involuntary manslaughter. Charges of second-degree murder are pending against two others.

“I don’t think co-sleeping in and of itself is child abuse or neglect,” said Kenerly, sitting in his corner office at the Rowan County courthouse, 40 miles north of Charlotte. “Many people sleep with their children because they love them.”

But if a parent or caregiver has been warned of the dangers of bed-sharing and continues to behave irresponsibly, he said that rises to the level of “gross disregard” for life.

Kenerly also considers prosecuting a parent who has had more than one child die unexpectedly while sleeping or an adult who has been using drugs or alcohol while sleeping with a child.

In the pending cases, both mothers have lost two children unexpectedly during sleep, and both mothers had been sleeping with their infants.

“There’s no way in hell somebody’s going to have two babies die and not get charged,” Kenerly said. “Just the fact that it’s not intentional … doesn’t mean it’s not a crime.”

Vulnerable children

Kenerly, 64, a Salisbury native, returned to Rowan County after graduating from Duke University and UNC-Chapel Hill law school in 1973.

Before law school, Kenerly spent three years in the Marines, including a tour in Vietnam. That’s when the self-described law-and-order Republican embraced the philosophy that “Folks ought to do the right thing, and if they don’t, there ought to be consequences.”

In Salisbury, he served as an assistant district attorney for three years and had a private law practice for 13 years before being elected district attorney in 1991.

Six years into the job, something happened to make him aware that the county’s most vulnerable children needed him on their side.

In the first six months of 1997, four children, ages 16 months to 16 years, were murdered in separate incidents, three of them by caregivers. Three of the children had been beaten and died of head injuries. The teenage girl was shot. All four families had been investigated by Rowan County child-protective workers before the children died.

News of the crimes rocked the community and led to significant changes in county and state efforts to protect children.

“It was such a horrible period,” Kenerly recalled. “That spring and summer of ’97, I think it impacted everybody.”

Over the next year, Kenerly, with help from his assistants, Salisbury police and Rowan sheriff’s detectives, put four people behind bars for first- or second-degree murder in connection with those four deaths.

“It really emphasized that when a child dies, there needs to be an investigation,” Kenerly said.

Two years later, when Sean Lee Tucker died, Kenerly encouraged investigators to follow the evidence, and he stayed abreast of every development.

Something wasn’t right

Sean’s mother, Crystal Tucker, found her baby lifeless on the morning of Oct. 10, 1999.

She first told investigators Sean had been sleeping in a playpen at a home in Salisbury where she and her father, Donald Ray Tucker, were babysitting for friends and spent the night.

With that as background, Dr. Robert Thompson, who performed the autopsy, told investigators the cause of death could be suffocation. But he said it could also be SIDS, a diagnosis that means the death is unexplained after other causes have been ruled out.

But Tonya Barber, the sheriff’s detective who worked the case, didn’t think it was SIDS. “Something didn’t feel right,” she said.

She continued to investigate and learned that Rowan social workers had previously received a complaint about the Tuckers. The social workers had warned them about the dangers of sleeping with an infant and had given them a crib.

About a month after Sean’s death, Crystal Tucker admitted to Barber that she had lied, court records show. She had put a baby bottle and blanket in the playpen to make it appear that Sean died there, according to her statement.

She had actually found Sean at the end of the couch, lying between his grandfather’s legs, she told Barber. The baby had a scratch under one eye and was on his stomach with his face pushed down between the cushion and the arm of the couch, the statement said.

“We knew that Sean probably died because he was sleeping on the couch and not in a crib,” Crystal Tucker said in her statement.

Three weeks later, the grandfather confessed that he “either rolled over on Sean or my feet got on Sean. … I didn’t intentionally smother the baby,” according to his statement. He was charged with second-degree murder.

Sean’s final cause of death was “suffocation due to overlying by an adult.”

At trial, Kenerly, in his trademark starched white shirt and suspenders, argued that although Sean’s death may have been unintentional, Donald Tucker had shown “gross disregard” for the child’s safety.

In July 2000, a jury found Donald Tucker guilty of a lesser charge, involuntary manslaughter. He was also convicted of felony incest with an adult relative and served 31/2 years in prison.

Crystal Tucker was also charged, with “accessory after the fact of murder.” But she cooperated with investigators. Her charge was also reduced, and she was sentenced to probation.

Kenerly acknowledges that suffocation is hard to prove when SIDS is believed to be the cause of death.

“It makes it harder, but I don’t think it makes it impossible,” he said. “Our detectives ‘get’ that there may be other [evidence] that would change the cause of death from SIDS to a homicide. It would be a mistake not to continue with the investigation just because the doctor says it’s SIDS.”

Deceiving diagnosis

Forensic pathologists say there is no physical distinction between a baby who dies of SIDS and one who suffocates. An autopsy usually doesn’t tell the difference. Getting at the truth depends on a good investigation at the death scene.

Thompson, the now-retired medical examiner who performed Sean’s autopsy, testified in court that, if he hadn’t known the baby was sleeping on the couch with his grandfather, the cause of death might have been SIDS.

Lisa Mayhew, lead child death investigator in the state medical examiner’s office, trains law enforcement officers to find out how babies were sleeping. She provides a checklist to guide them in collecting information. She advises them to take a doll and ask family members to show where and how the baby was lying.

She says officers grow frustrated when they follow her advice and build a case only to have it disappear when a medical examiner concludes the death was SIDS.

“The way I teach it was the way that I was taught,” Mayhew said. “If you cannot completely rule out 100 percent another cause, it should be ‘undetermined.’”

But she said pathologists prefer “the gold standard” – that someone has to see it happen or admit they had lain on the baby. “That rarely happens,” she added.

Of more than 550 SIDS deaths in North Carolina from 2004 to 2008, about 43 percent involved babies sleeping with adults or other children, according to an Observer investigation. In 50 of those autopsies, medical examiners called the deaths SIDS even though they added notes saying they could not entirely rule out suffocation.

“Some of the cases that get called SIDS, another doctor might have chosen ‘undetermined,’” Mayhew said. “At the end of the day, it’s the pathologist’s decision.”

Other investigations

Kenerly is not the state’s only district attorney who has prosecuted parents for rolling over on infants.

In Harnett County, near Raleigh, Dunn police are pursuing involuntary manslaughter charges against a mother whose two children died while sleeping, in separate incidents, three years apart. A 5-week-old died in 2006, and a 7-week-old died in December. Each was found trapped between their mother and the back of a couch.

Both deaths were ruled asphyxiation, not SIDS.

Other law enforcement officials have openly expressed frustration that infant deaths are attributed to SIDS even when risk factors point to other causes.

In Gaston County, District Attorney Locke Bell declined to prosecute a baby’s suspicious death partly because the medical examiner concluded the baby’s death was “consistent with SIDS.”

“You have to have an eyewitness or a confession,” he said. “With SIDS, often there is no eyewitness. It’s so easy to smother a baby and leave no evidence.”

Alamance County Sheriff Terry Johnson shares Bell’s concern. He still suspects homicide in the 2007 death of 10-week-old Autumn Rose Brown.

But the district attorney’s office declined to prosecute after the cause of death was ruled SIDS. The sheriff recently reopened the investigation after Observer reporters began asking questions.

With the SIDS finding, “you are pretty much foreclosed from being able to make a viable prosecution,” said former Alamance District Attorney Rob Johnson, now a Superior Court judge.

Rob Johnson said his office had prosecuted a number of parents whose children died while they were sleeping together, when the parents had been impaired by alcohol or drugs. “The difference is we did not have a SIDS diagnosis,” he said. “That makes a huge difference."

When Alamance detectives grew frustrated over how to proceed in the Autumn Brown case, they turned to Rowan County for advice.

Linda Porter, a Rowan sheriff’s detective who often works with Kenerly, listened to the Alamance detectives and encouraged them to continue what they were doing.

“They did everything that I would have done,” Porter said, “but they didn’t have the support of the district attorney’s office. … No matter how good an investigation an officer does, if they don’t have the D.A.’s office to prosecute the case, it doesn’t matter.”

‘We’re missing cases’

Kenerly will soon leave his law enforcement job. He’s retiring at the end of the year.

Running for district attorney this fall will be Kenerly’s senior assistant, Karen Biernacki, a Democrat who helped prosecute the co-sleeping cases.

“He typically does what I think is the right thing,” she said. “He says, ‘Sometimes juries need to decide things.’”

Kenerly appreciates the kind words.

But when it comes to infants who die in unsafe sleeping conditions, he doesn’t feel he’s done enough.

“There are probably twice that many deaths by over-sleeping that we haven’t charged,” he said. “I have no doubt that we’re missing cases.”

Anne Blythe of The News & Observer, and Charlotte Observer staff writer Fred Clasen-Kelly and researcher Maria David contributed.