Last month, the Court of Appeals of Michigan, voted 2-1 in favour of granting Andrew Joseph Spagnola a new trial. Spagnola was convicted of first-degree child abuse in relation to one of his 11-week-old twin daughters in 2015.
Prosecutor’s claims, that Spagnola caused his daughter abusive head trauma by either shaking her or banging her head against a hard surface, were countered by defence attorneys citing complications during labour. Spagnola’s daughter—a breech twin— was delivered via emergency cesarean section, and suffered a seizure 11-weeks later. While Spagnola’s daughter survived, she has been left with permanent disabilities.
The Court of Appeals opinion presented prosecutorial misconduct as its reasoning for Spagnola being denied a fair trial, with the trial being described as a “[b]attle of the experts.”
The court’s opinion specifically cited prosecutorial misconduct during the rebuttal closing arguments phase during trial. The COA highlighted in particular that Attorney Gordon Hosbein, “[f]lagrantly violated legal rules and professional norms. A prosecutor should always avoid argument intended to inflame rather than enlighten. Rebuttal argument deliberately directing the jury’s attention away from the evidence demands heightened scrutiny for two reasons. Not only is defense counsel deprived of any ability to respond, the improprieties are the last words the jury hears before beginning deliberations.”
Hosbein’s opening salvo during rebuttal, laid aim at both Spagnola’s defence counsel and its experts asserting, “[O]ver and over and over again, always the same old dog and pony show. The same old magic show. The same old red herring. The same old smoke and mirrors. The same old “he didn’t do it.” He didn’t prove his case……..I picked, I left each one of you on this jury because you are not stupid. Don’t be stupid. Don’t believe what you just heard.”
The COA’s opinion was seemingly only made concrete with the additional transgression from Hosbein relating to an expert—for the prosecution—that was not present to testify at trial. Hosbein’s proclamation during Rebuttal that, “[I] hope that you appreciate that I didn’t extend this trial because my radiologist is in Paris. Would that would have been a long trip back?” laid claim to the uncalled experts agreement with the prosecution’s case without their being at trial, or indeed their testimony being heard. For this the COA’s majoritiy opinion was that, “[w]e can reach no other conclusion but that defendant was denied a fair trial.”
Without the prosecution’s assumption—offered as fact as to what their expert would have testified—the COA would likely not have reversed the trial courts original decision. The COA’s finding that, “[W]ere that the prosecutor’s sole transgression, likely we would still conclude that reversal is unwarranted.” suggested that for prosecutorial misconduct to be taken-to-task, continued transgressions must be made. Whether the state wishes to appeal the COA’s decision, and request a rehearing via en banc, remains to be seen.
Parallels between Spagnola’s case, and that of Melissa Calusinski’s—for the 2009 murder of Benjamin Kingan—are evidently apparent.
While Spagnola has been found to require a new trial by the COA of Michigan, Calusinski awaits a ruling from the 2nd District Court of Appeals in Illinois. Calusinski’s claim for relief centres on the withholding of evidence of an exculpatory nature by the state, and that her conviction also rested on perjured testimony by a state expert, during the rebuttal testimony stage at trial.
Similarities between the two cases are striking. Both cases involve infants—11-weeks and 16-months-old respectfully—dying, or being left with permanent disabilities due to head injuries. Both involve conflicting testimony by state experts and defence experts alike, and due to the age of the subjects, both cases are highly emotive.
During Spagnola’s trial, experts for the defence cited complications during birth for the cause of injury, while Calusinski’s former attorneys presented a previous injury being ultimately responsible for the death of Benjamin Kingan. In both cases, approximately 11 weeks passed between the initial claimed cause of injury, and the resulting death—of Kingan—and permanent disability—of Spagnola’s daughter.
While the similar timelines could be put down to coincidence in part, similar symptoms exhibited in both cases were evident. Both infants were reported to have vomited on multiple occasions leading up to the time of their seizures. Both showed a dramatic increase in their head circumference percentiles. In Spagnola’s daughters case, her HCP went from the 10th percentile at birth, to the 85th percentile at 11-weeks-old. In Kingan’s case, he was measured in the 50th percentile before his injury—approximately 11 weeks prior to his death—and in the 95th percentile at the time of his death.
During each trial, state prosecutors offered ‘expert’ testimony from professionals with either lack of expertise, or lack of accreditation in the field they were asked to testify in. In Spagnolia’s case, the state called 2 paediatricians to interpret radiologic images. Both paediatricians offered conflicting opinions, yet more importantly those opinions were contradicted by official radiology reports. The defence had offered expert opinion from an actual certified radiologist. In Calusinski’s case, the state offered—as a rebuttal witness—testimony from a non-board-certified pathologist in the form of Dr. Manuel Montez. The jury in both cases came back with a guilty verdict.
Reasons for why guilty verdicts were reached in both instances could be manifold. Yet perhaps the underlying reasoning can be attributed to the emotiveness of each case. While it is reiterated by the court that it is the state who harbours the burden of proof, and that a guilty verdict should only be offered if this proof is met beyond a reasonable doubt, the apparent appropriate verdict often does not to follow.
In cases where children are involved, emotions are piqued. The need for the accountability of an individual, rather than that of a tragic accident, can easily cloud judgement. Even when faced with the distinct possibility of innocence, guilt needs to be apportioned to a person. Tragic accidents can’t be punished, but the accused can.
Dr. Marcus DeGraw, the prosecution’s second paediatric expert, gave opinion that Spagnolia’s daughter had sustained “massive head trauma” akin to “slamming” the child’s head as hard as possible against a hard surface. Yet there was no bleeding inside Spagnolia’s brain until several days after she was admitted to hospital. Paediatrician Degraw’s response was that he had interpreted the radiology reports differently to that of the hospital’s radiologists, raising the question, should Degraw be allowed to offer those opinions? Or at the very least should the jury give merit to the opinion of a non-expert in the field of radiology?
Dr. Manuel Montez, rebuttal witness for the State vs Calusinski, offered testimony of a through-and-through skull fracture that he saw with the naked eye, and touched with his finger. 4 years later, at Calusinski’s Evidentiary Hearing, x-rays were produced showing no such fracture. Dr. Robert Zimmerman’s testified that, “[t]o a reasonable degree of radiological certainty, no fracture of the skull was present.”
Yet the Board Certified doctors opinion was ignored by the trial court, who chose instead to offer their own opinion, “As so many factors can affect whether a fracture would be visible on an x-ray, it does not necessarily follow that it is impossible for an x-ray not to show a fracture.”
Much like the opinion of Paediatrician Marcus Degraw, the trial court were not qualified to offer that opinion.
While appeals courts can often redress errors made by trial courts, much valuable time is lost to those who had not received a fair trial to begin with. Prosecutorial misconduct can take form through many guises. Whether it be failure to disclose exculpatory evidence, eliciting false testimony or discrimination in jury selection to name only a few. For certain forms of misconduct, it is hard to hold the trial courts equally accountable, as knowledge of such misconduct is often deeply hidden. Yet in the case of Spagnola, the trial court erred in its responsibility to presiding over a fair trial by allowing clear prejudicial and unfounded comments by the state prosecution during their rebuttal closing statement. Where in Calusinski’s case, the trial court took on powers of expertise beyond its abilities during her Evidentiary Hearing.
Misconduct by prosecutors, followed by the failure of trial courts to realise such misconduct—or remedy it—flies in the face of justice. After all, ‘The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’
For Andrew Spagnola, 5 years have passed. For Melissa Calusinski, she began her 10th year behind bars this January past.
*CJRJ incorrectly named—and provided a picture—Gordon Hosbein as Gary Hosbein. This mistake was caught shortly after publication. We would like to offer our unreserved apologies.
Many thanks to @openfilesite for bringing Andrew Spagnola’s case to my attention. The Open File covers Prosecutorial Misconduct & Accountability.
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