This morning, attorney Katie Kauffman called a client with the best possible news: Her criminal case is being dismissed. A deputy prosecuting attorney acknowledged to Kauffman she did not have sufficient evidence to prove the client abused her infant daughter. The charges will be formally dismissed in court March 21. 

It was more than two years ago, in January 2015, when the client took her then-1-month-old baby daughter to the emergency room because her left leg was badly swollen. The baby was diagnosed with a broken leg. A doctor at PeaceHealth Southwest Medical Center didn’t believe the injury was consistent with the client’s story of what happened. Vancouver police officers responded and referred the case to the Children’s Justice Center – a multiagency office that includes attorneys from the Clark County Prosecutor’s Office -- and Child Protective Services.

The client, who has no criminal history, was charged with second-degree assault of a child, a felony that carries a sentence of at least 31 months (2 1/2 years) in prison.  The charges were filed the same month she brought her child to the hospital; it’s not uncommon for prosecutors to wait months to receive more evidence before making such a serious decision.  The client, a young mother who lives with her grandparents, lost custody of her daughter, who went into foster care. In the past two years, the client has only been allowed to see her daughter once a week during supervised two-hours-long visits.

The case was scheduled for trial this month.

Understandably, Kauffman’s client burst into tears this morning and asked if this means she gets to bring her child home. Kauffman explained that will be up to the judge overseeing the dependency case, but since that case has been tracking the criminal case, it’s likely she will regain custody.

 

So why did the case, which prosecutors now acknowledge can’t be proved, drag on for more than two years? A lot of factors were at play. Kauffman was appointed to represent the mother in September 2016, after the original defense attorney was appointed to an aggravated murder case and had to lighten his felony caseload. The first defense attorney hired a doctor who specializes in children’s injuries, who determined that the fracture could have happened the way the mother said. At the ER, the mother had explained that she’d been carrying the baby up the stairs and tripped, falling forward. The baby had a bruise on her head that would be consistent with a fall. (The ER doctor erroneously told police that the baby had a subdural hematoma, which then police documented in the report relied on by prosecutors. It turned out it was only a bruise, with no internal bleeding.) The ER doctor, and initially the state’s expert, believed the injury occurred when the baby’s leg was yanked.

When Kauffman received the case, there were several witness interviews that had yet to be conducted. She repeatedly asked the Children’s Justice Center to schedule the interviews, but was put off for months. Kauffman then set the case on for a review to tell a Clark County Superior Court judge about the prosecution's lack of action. Finally, interviews were scheduled.

The prosecution’s expert has been out of the country for several months. When she was finally given the defense expert’s report, she reviewed the initial X-rays and medical records and concluded that the injury could have been from a fall – just as the mother claimed all along.