JASON MIDYETTE - 11 Weeks (2007) - Boulder CO

A Colorado woman serving 16 years in prison for the death of her infant
son has new attorneys who plan to seek a new trial for her.



Attorneys for Molly Midyette say they'll file paperwork by August
arguing for a new trial. A judge allowed the former Louisville woman to
change her counsel so her former attorneys could testify that she was
threatened and intimidated before and during her trial by her husband
and his attorney.

Midyette was convicted in 2007 of child abuse resulting in the death of
her son, 11-week-old Jason, who had broken bones and a skull fracture.
Her husband, Alex Midyette, is also serving 16 years for their son's
death.

BOULDER — This week, Molly Midyette will
try to persuade a Boulder County judge she deserves a new trial in the
death of her 10-week-old son at the hands of her ex-husband.

Observers say the case raises unusual legal questions because
Midyette's attorneys are basing the request on the claim that she was so
emotionally and psychologically abused by her husband, his family and
his attorneys that she couldn't assist in her own defense four years
ago.

Midyette was convicted in December 2007 of child abuse resulting in
death. She was accused of not getting help in time for her 10-week-old
son, Jason, who had several broken bones and brain damage. She is
serving a 16-year sentence for his February 2006 death.

Alex Midyette also was sentenced to 16 years after a separate trial.
He has appealed his conviction of criminally negligent child abuse
resulting in death, a lesser charge.

Read more: Boulder mom seeks new trial after infant's 2006 death - The Denver Post http://www.denverpost.com/news/ci_19173293#ixzz1bbtPgomX

UPDATE 5:15 p.m.: Craig
Truman, Molly Midyette's attorney at her original trial on child abuse
charges, today largely defended his performance, given the information
he had available to him.

His testimony this afternoon in response to questions from Senior
Chief Deputy District Attorney Eva Wilson cast doubt on claims by
Midyette's new defense team that he provided ineffective counsel to
Midyette.

He said he did present evidence that Molly Midyette loved her baby,
and he could not have presented evidence that the fatal injuries
occurred within a span of a few hours while Midyette was at work because
none of the medical experts believed that, he said.

Rather, they all agreed that Jason Midyette's brain injuries and numerous fractures occurred over several weeks, Truman said.

However, Truman said he presented a strong case that it was
unreasonable to expect Molly Midyette to realize her baby was in danger
when the baby's pediatrician didn't realize anything was wrong. He said
that was the best case he could make given the information he had.

However, Truman said repeatedly on the stand that he believed
Midyette suffered from battered women's syndrome and, through no fault
of her own, could not tell him the extent to which she was controlled by
her now ex-husband, Alex Midyette. Her request for a new trial claims
she was not competent to assist in her own defense because of the abuse
she suffered.

Truman testified that he did not request a competency exam because
Molly Midyette was aware of reality and understood the charges against
her. She seemed to meet the standard of competency in Colorado, he said.

“Molly understood all those things,” he said. “She had just been
conditioned not to help us. She was in an untenable position, but it was
not her fault. It was the fault of others.

Thomas Carberry, one of Midyette's attorneys in her request for a new
trial, said he had a long re-direct planned for Wednesday, when the
hearing will re- convene, and that he would show much of Truman's
testimony to be self-serving and inaccurate.

The hearing on the request for a new trial is running behind
schedule. Midyette's attorneys said they had expected to start on the
third witness -- Alex Midyette's attorney, Paul McCormick -- by the end
of today, but instead did not even finish with the first witness,
Truman.

The hearing will not take place Tuesday due to a pre-existing scheduling conflict.

The hearing will resume Wednesday with testimony from an expert in
battered women's syndrome, then returned to Truman's perfomance as
Midyette's attorney.

UPDATE 3:30 p.m.: As Jefferson County Senior Chief
Deputy District Attorney Eva Wilson walked him through months worth of
case notes, Craig Truman described “ongoing efforts” to get Molly
Midyette to be more forthcoming about her relationship with Alex
Midyette and his role in their baby's death.

After a fight on St. Patrick's Day 2007 over Alex Midyette's alleged
cocaine use, Molly Midyette described to Truman how her husband “was not
there for her,” how he partied, drank and gambled and how he refused to
go to grief counseling with her.

Truman said the situation seemed bad enough that he asked her the
questions he uses to determine if clients are victims of abuse. Midyette
said her husband didn't hit her, but her answers indicated he had a
frightening temper and was controlling her. Truman said Midyette said
she'd think about his suggestion that she enter a domestic violence
shelter but never followed up on it. She told him she couldn't imagine
moving in with her parents and described them as more wedded to the
Midyettes than she was, he said.

Wilson asked Truman if he was trying to separate Molly Midyette from
Alex Midyette so that jurors wouldn't be presented with a woman who
stayed with the man who killed her child. Truman said that was part of
it, but mostly, he was concerned with Molly Midyette's safety.

But Truman said he didn't press Molly Midyette to come up with
instances of Alex Midyette possibly harming the baby. He didn't want to
push her to stretch the truth, he said.

As trial neared, Truman said he tried to get Midyette to think about
her own best interests, telling her “Alex is circling the wagons, and
you're not on the wagon.”

Truman's own medical expert told him the injuries that ultimately
killed Jason Midyette were inflicted by a “sociopath” who repeatedly
injured the baby in ways that would not show externally, rather than a
"shaken baby" scenario of a single instance of frustration or anger.
Truman said he did not introduce that evidence at trial because he
didn't want jurors to believe Molly Midyette, who was accused of not
getting help in time, voluntarily stayed with a sociopath.

His defense, he said, would be that Molly Midyette had no way of
knowing her ex-husband was harming the baby when her own pediatrician
dismissed her concerns as “new mother syndrome.

After leading Truman through his case notes, Wilson turned to the
trial transcript and notes Truman and Midyette wrote to each other
during trial to show that Truman presented an adequate defense.

UPDATE 12:41 p.m.: During an hour-and-a-half of
additional testimony this morning, attorneys for Molly Midyette tried to
show that her trial attorney, Craig Truman, rushed to trial without
adequate preparation, was still researching the case a week before it
went to trial and didn't do enough to separate her from her husband,
Alex Midyette, whom her attorneys claim was abusive.

Special
prosecutors from the Jefferson County District Attorney's Office tried
to show that Truman was an experienced attorney with a coherent strategy
that was undermined only by his client's reluctance to tell the truth.

Under
questioning from Thomas Carberry, one of Midyette's attorneys, Truman
said he decided in August 2007 that the medical defense proposed by the
Midyettes was not viable. However, Carberry introduced emails and
letters indicating that an investigator for the defense team was sending
Truman emails about medical experts and journals in November. The case
went to trial in mid-December.

Truman said it was the investigator and the Bowers, Molly Midyette's parents, who continued to research the medical issues.

Carberry
also showed photos of Molly Midyette holding her newborn son and asked
Truman why he didn't show them to jurors to establish that Molly
Midyette was a loving mother.

Truman said he was concerned that introducing the photos would open
the door for prosecutors to introduce other, unfavorable evidence about
Molly Midyette's conduct as a parent, including her drug use, and that
Midyette was self-conscious about how heavy she looks in the photos.
Midyette had pre-eclampsia during her pregnancy, a dangerous condition
associated with high blood pressure, fluid retention and weight gain.

Truman
testified that a forensic psychiatrist interviewed Midyette and did not
find any evidence of mental health conditions, other than possible
depression, or of domestic violence. However, he did not have the
psychiatrist prepare a written report to that effect.

Senior
Chief Deputy District Attorney Eva Wilson frequently objected to what
she called “leading” questions from Carberry. At least twice, Boulder
District Judge Lael Montgomery instructed Carberry to stop testifying
and allow Truman to testify.

Carberry said he was allowed to ask
leading questions to impeach Truman's credibility, despite the fact
that Truman was his witness.

In response to questions from
Wilson, Truman said he had extensive experience with homicide cases from
his time as a chief deputy public defender and decades in private
practice and that included experience with child victims and domestic
violence.

“We tell the truth” is the hallmark of his approach to
criminal defense, Truman said, and he told the court he felt that
Midyette was not always telling the truth during the preparation for her
trial or from the stand.

“She had conflicted loyalties,” Truman
said. “She was trying her best to help us, but her living situation,
her money, her cars, everything, was controlled by the Midyette family.
She was trying to balance those things.”

Truman said he was
concerned jurors would want to know why Midyette continued to live with
the person who most likely killed her baby and would “punish” her for
not answering that question to their satisfaction.

“Her
testimony was not very helpful at trial,” Truman said. “One of the
jurors asked if she was scared of Alex Midyette, and she said no.”

Truman
said Molly Midyette should not have been surprised when, during closing
arguments, he suggested Alex Midyette had harmed the baby, after not
presenting that evidence during the trial.

“I told her we would
answer the question of why she continued to live with the person who
killed her child and that if she didn't answer it, I would,” Truman
said.

The court adjourned for lunch a little after noon and is
scheduled to resume with additional cross-examination of Truman at 1:30
p.m.

UPDATE 10:23 a.m.: Craig Truman, the defense
attorney who represented Molly Midyette at her original trial in 2007,
told Boulder District Judge Lael Montgomery this morning that he found
himself in “uncharted territory” after Midyette's conviction.

He
described meeting with her immediately after she was found guilty of
child abuse resulting in death. She was in tears and told him there were
“so many things” that she wanted to tell him but couldn't during the
trial. He asked her why she was bringing these things up now.

“Now
is the first time I feel safe to tell you,” Midyette told Truman, the
attorney recounted in court. That was because her ex-husband's family
could no longer reach her.

Truman testified that Molly Midyette
became suspicious about Alex Midyette's role in the baby's death after a
fight on St. Patrick's Day in 2007 when she learned from friends that
Alex Midyette was using cocaine. She told him the next day that she was
scared of Alex Midyette and wanted to move out of the home that they
shared.

Truman said he tried to find space for Midyette in a
battered women's shelter. However, his client notes do not reflect that.
He said his notes reflect only what Midyette told him, not what he told
her.

Truman said he told Molly Midyette that jurors would wonder why she stayed with her husband.

“I
told her I thought it was best that she didn't live with Alex,” he
said. “I told her that just as there is a detoxification process from
alcohol and cocaine, I told her that she needed to detoxify from Alex
Midyette.”

Truman also testified that he decided early on that
the medical defense put forward by the Midyettes was not viable and that
10-week-old baby Jason died of non-accidental trauma. However, he
didn't present evidence to that effect during the trial. Only at closing
arguments did he tell the jury that Alex Midyette killed the baby, but
that Molly Midyette stood by him because she loved him and didn't want
to believe that.

Throughout the trial, Paul McCormick, Alex
Midyette's attorney, would “debrief” Molly Midyette and talk to her
about her testimony, Truman said. The confusion about who was
representing whom seemed to run both ways.

Truman said at one
point J. Nold Midyette, Alex Midyette's father, called him because he
couldn't reach McCormick and wanted some things done. Truman said he
told J. Nold Midyette that he was not his attorney.

“It was a rather terse conversation,” Truman said.

Truman
said he was “surprised and disappointed” that McCormick was talking to
his client, as professional rules bar attorneys from talking to or
attempting to influence co-defendants.

UPDATE 9:12 a.m.: A hearing to determine whether
Molly Midyette should get a new trial in the death of her infant son at
the hands of her ex-husband got off to a testy start this morning over
the question of whether Judge Lael Montgomery should recuse herself from
the case.

Thomas Carberry, an attorney for Midyette, who is now
divorced and using her maiden name of Molly Bowers, said that everyone
in Boulder knew that Paul McCormick, the attorney for Alex Midyette,
interfered with Molly Midyette's defense, but nobody did anything about
it.

“You're saying that just because these are rich, white lawyers in Boulder that the rules don't apply to them,” Carberry said.

Montgomery interrupted Carberry to ask when she ever said such a
thing. Carberry responded that she implied it by refusing to recuse
herself. Montgomery did some contract research work for McCormick when
she was in law school 30 years ago.

Midyette's attorneys argued
that represented a conflict of interest. Montgomery also worked against
McCormick numerous times when she was a Boulder County prosecutor.

Montgomery
instructed Carberry and Alison Ruttenberg, Molly Midyette's other
attorney, to limit their arguments to whether Craig Truman, Midyette's
attorney at her first trial, provided effective counsel and whether
Midyette was competent to stand trial.

Her attorneys say
Midyette was so abused and controlled by her ex-husband and his family
that she could not assist in her own defense.

Special prosecutors
from the Jefferson County District Attorney's Office said Midyette's
attorneys were presenting a "fiction" to the court.


"It's not unusual, after a person is
convicted, to come up with allegations against a co-defendant, and I
think that's exactly what we're seeing here," Senior Chief Deputy
District Attorney Eva Wilson told the court during opening statements.

Both sides brought several boxes worth of
documents and exhibits into the courtroom for the five-day hearing.
Large photographs of Molly Midyette holding her baby were on display on
poster board near the defense table.

Molly Midyette, dressed in a blue jumpsuit,
occasionally smiled at the more than a dozen supporters who sat in the
courtroom. Her parents, Dan and Jane Bowers, left after the opening
statements because they will be called to testify in the hearing.


Molly Midyette was convicted in December 2007 of child abuse
resulting in death. She was accused of not getting help in time to save
her 10-week-old son, Jason, who had multiple broken bones and brain
damage. She is serving a 16-year sentence for his February 2006 death.

Alex Midyette also was sentenced to 16 years after a separate trial.
He has appealed his conviction of criminally negligent child abuse
resulting in death, a lesser charge.

At trial, both Midyettes -- who lived in Louisville at the time --
said there had to be a medical explanation for Jason's death.

Now Ruttenberg and Carberry say her trial attorney should have told
jurors of her suspicions about her husband -- which developed over time
after the baby's death -- and should have approached prosecutors to
work out a plea deal in exchange for her testimony against Alex
Midyette.

They say Molly Midyette was so intimidated by her in-laws that she
couldn't tell her own attorney at the time, Truman, about her growing
suspicion that Alex Midyette had caused their child's death.

Truman is the first witness testifying in the request for a new trial.
http://www.dailycamera.com/ongoing-coverage/midyette-baby-death/ci_19180535?source=most_viewed