Shaken baby suspect goes free

DA drops murder charge in shaken baby case; dad, 21, avoids prison time after prosecutor admits evidence made case unwinnable

By JOHN MUNFORD — Jamal Rashad Thomas walked away from the Fayette County Justice Center a free man Tuesday morning after prosecutors dropped murder charges against him for allegedly shaking his 9-week-old son to death in February 2012.

Thomas entered an Alford plea to one count of cruelty to children in the second degree in exchange for a four-year probation sentence. Under an Alford plea, the defendant does not admit guilt but merely accepts the ramifications of a guilty verdict.

Thomas was granted first offender status, meaning the conviction will be erased from his record if he successfully completes probation.

It was a stunning turn of events for a 21-year-old Fayetteville man who last week faced the possibility of a life prison sentence if he were to be convicted of shaking his son Zaiyre to death.

The infant, who had been born two months premature, was rushed to the hospital Feb. 3, 2012 after the child fell limp in his father’s arms while Thomas was dancing Zaiyre around, trying to soothe the crying baby.

After splashing water in the child’s face didn’t help, Thomas woke up his mother for assistance and she called 911. On the way to the hospital, the child suffered cardiac arrest and he died Feb. 26 after being taken off life support.

Front and center during the prosecution’s portion of the trial last week was a remark that Thomas made at the bedside of his son the day after the incident. Zaiyre was laying unresponsive on a hospital bed while a machine helped him breathe. Things were not looking good for his son, and Thomas briefly broke down.

“It never should have happened,” the Fayetteville father told his son. “I’m sorry.”

That remark came during the second part of an interview with Fayette County Sheriff’s Det. Wendy Moulder. During cross examination, Moulder was asked if she thought Thomas’s bedside apology to his son was “a confession.”

“He never said ‘I’m sorry I did this to you,’” Moulder replied.

Moulder earlier in the interview surmised that Thomas may have moved Zaiyre around too vigorously as he danced the child around the bedroom. She testified that Thomas showed her during the interview how he held Zaiyre during the “dancing.”

“I didn’t shake him,” Thomas said at one point in the interview. “I was moving him around.”

Moulder asked if Thomas ever thought he had hurt Zaiyre, and Thomas replied, “No.”

In his opening statement, Fayette County Assistant District Attorney Warren Sellers noted that an autopsy conducted on Zaiyre found no evidence of an accident that could have caused the injury, and the medical examiner concluded that Zaiyre died as the result of a homicide.

Defense attorney Jason Sheffield in his opening statement explained that the injuries likely were caused by a blood clot, which would have dissolved in the number of days that passed before Zaiyre was hospitalized and the subsequent autopsy occurred.

A doctor who treated Zaiyre said a blood clot would not have caused the injuries documented on medical tests of the child at Egleston Children’s Hospital. Dr. Stephen Messner, a child abuse pediatrician at Egleston, said while Zaiyre did not have a neck injury, such is not always expected in a shaken baby case.

Messner testified that he could say with a reasonable degree of medical certainty that Zaiyre’s cause of death was “from the traumatic brain injury and head trauma.”

The injuries led to Zaiyre being deprived of oxygen, Messner explained.

Defense attorneys have contended that the lack of retinal hemorrhaging in Zaiyre was an indication that the child had not been shaken. The bursting of blood vessels in a child’s eyes is noted in about 85 percent of shaken baby cases, Messner testified.

At the time of the injury, Jamal Thomas was Zaiyre’s main caregiver, living with his parents who also helped out with Zaiyre along with the child’s mother, who was busy going to school and waitressing, defense attorneys said.

The plea was offered by the state after the first defense medical expert testified on Friday. Assistant District Attorney Warren Sellers said the decision to pursue a negotiated plea came after he determined based on the evidence it would be difficult to convince all 12 jurors to convict Thomas.

While Thomas’s defense attorneys said he would have preferred a full acquittal, it was important that the prospect of prison time was removed from the potential outcome.

Defense attorney Robert Rubin said he was confident that the jury would have acquitted Thomas had the case proceeded to that stage.

Sheffield said it was also important to determine that Thomas had in fact not confessed to Moulder, and Sheffield contended that misinformation was spread to doctors who used it to support their conclusion that the infant had been shaken.

“While watching his son attached to machines and tubes and bandages and needles, this father was extremely sorry that his son had to go through that,” Rubin said. “It was not in any way, it should not in any way, have been interpreted as a confession that ‘I violently shook the baby.’

Sheffield took it a step further.

“And it was wrong for the detective to tell him that the gentle bouncing that he did with his son was in fact what caused the bleeds in his head,” Sheffield said.

Rubin was also critical of Dr. Messner for concluding that the child was shaken before learning further medical details such as the fact that the child suffered cardiac arrest en route to the hospital.

The stress of the trial did wear on Thomas a bit as he teared up hearing the 911 call and at other portions during the case, his attorneys noted.

“What 20-year-old do you know that knows precisely the weight of his child at birth, the medications that his child takes on a hourly basis, the amount of feeds that he takes, the formula that he takes, what he weighs now, goes to all the doctor visits?” Sheffield said. “He loved his baby.”

Now a free man, Thomas has a strong family to support him, many of whom were in the courtroom during trial. While on probation, he is restricted from being a caregiver to any child under two years of age, but beyond that the future is his to write.

“The great thing is that he gets to walk out of here under his own free power, with no deputy accompanying him,” Rubin said.

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