Allegheny County judge had to choose: Investigate child's death, or hurry to save another life?

Dying child’s organs given to 7-year-old

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A judge Monday night was faced with the toughest of decisions -- justice for a child already lost or life for a dying child?

The situation was presented to Allegheny County Common Pleas Judge Robert J. Colville during an impromptu emergency telephone hearing between an attorney for the Center for Organ Recovery and Education and the Clearfield County district attorney.

A 2-year-old girl from Clearfield, Baby Sophia, was taken to a hospital in DuBois on Saturday morning by her father's girlfriend. She was later flown to Children's Hospital of Pittsburgh of UPMC -- believed by investigators to possibly be the victim of shaken baby syndrome.

Charges have not yet been filed, but the case is under active investigation.

Baby Sophia was pronounced brain dead Sunday morning, and her parents agreed they wanted to donate her organs.

While CORE wanted to quickly move forward with the donation -- they were a perfect match for a 7-year-old girl already at Children's -- Clearfield County District Attorney William Shaw objected.

He said he believed that harvesting the toddler's organs could potentially damage any potential homicide case he might bring.

"I'm an advocate for organ donation and organ recovery," Mr. Shaw said. "Under these circumstances, when it has the potential to jeopardize a criminal investigation and to prevent someone responsible for the death of a 2-year-old to be prosecuted, then organ donation is not appropriate.

"My job is to prosecute crimes and people who kill children."

But Paul Vey, the attorney for CORE, said that choosing a potential criminal investigation over the organ transplant would have cost that 7-year-old girl, who was in end-stage organ failure, her life.

In the end, Judge Colville allowed organ donation to occur, giving the older girl a new kidney and liver.

In his order, the judge said he "carefully balanced the interests" of all the parties, as well as representations of the Allegheny County medical examiner that "evidence in aid of prosecution of a potential criminal matter ... would be carefully and duly preserved."

Despite those assurances from Dr. Karl Williams, Mr. Shaw said Wednesday, "I don't know now if we're going to be able to prosecute the case."

But Mr. Vey said that during the telephone hearing Monday, Mr. Shaw's consulting pathologist admitted that it was possible even without organ donation, that Baby Sophia's cause of death may be hard to prove.

"All the Clearfield County DA could say is 'there's a possibility I might bring charges, and there's a possibility I might be able to prove this,' " Mr. Vey said. "And balancing that against the certainty of the outcome if organ donation did not go forward, demonstrates the wisdom of the decision Judge Colville ultimately reached."

Besides not agreeing with the decision in the case, Mr. Shaw also objected to the way the emergency hearing played out.

He believed that Clearfield County courts had jurisdiction in the matter, because Children and Youth Services there had already been involved in Sophia's life.

She lived with her biological father, and the girl's biological mother had only supervised visitation, which she hadn't taken advantage of since February.

More than that, Mr. Shaw continued, he believed a guardian in Clearfield County should have been appointed to represent Baby Sophia's interests -- not someone from CORE.

"It's not their case. The crime didn't happen in Allegheny County. There's not a potential child killer running on the streets of Allegheny County."

The hearing process didn't involve any cross-examination of witnesses, and no real record was made, Mr. Shaw said. Instead, the parties simply made statements to Judge Colville.

"Something of this seriousness, under the cloak of darkness, should have been in open court with a transcript and a possible remedy for the commonwealth," Mr. Shaw said.

But Mr. Vey countered that any further delay to allow for a traditional, formal court hearing would have made the issue moot.

"The only one who knew the condition of the potential donor indicated she was getting close to the point where she couldn't be maintained much longer, and the opportunity for donation could be lost," he said.

As for jurisdiction, Mr. Vey wrote in his petition that under the county code: "[a] the Coroner having a view of the body shall investigate the facts and circumstances concerning deaths which appear to have happened within the county, regardless of where the cause thereof may have occurred, for the purpose of determining whether or not an autopsy should be conducted or an inquest thereof should be had, in the following cases ..."

Moreover, he continued, he believed the jurisdictional issues were addressed because Judge Colville consulted with Clearfield County Judge Paul Cherry, who had the underlying Children and Youth Services case.

Mr. Shaw, who has prosecuted at least a half-dozen shaken baby cases, characterized those kinds of homicides as "the toughest prosecutions, bar none.

"I know this, the commonwealth didn't get a fair opportunity to respond, and somebody responsible for a 2-year-old's death may go free because of it."

David Freed, the president of the Pennsylvania District Attorneys Association, said the question of procedure and jurisdiction in these matters is an important one -- and currently the subject of legislation in the state Senate.

"You have to put a procedure in place. It's not like every prosecution insists on an autopsy every single time," said Mr. Freed, the district attorney in Cumberland County. "It has to be decided on a case-by-case basis.

In shaken baby cases, "you can almost guarantee ... it will be a battle of the experts," he said.

Dr. Williams, Allegheny County's medical examiner who testified during the telephone hearing Monday night, said he has never had a case where the donation of organs has interfered with charges being filed.

He agreed with the prosecutors that shaken baby cases are "extraordinarily complex," and also the most difficult for medical examiners to handle.

Often, Dr. Williams said, the manner of death is listed as "undetermined," because it is impossible to tell for certain how the bleeding in the brain and eyes occurred.

"My primary responsibility is to have all the evidence I need to determine cause and manner of death," he said.

To do that in this case, Dr. Williams said, he and a neuro-pathologist attended the surgery to harvest Baby Sophia's organs. Dr. Williams conducted an external exam before the procedure began and examined the abdominal cavity, which showed that the organs appeared to be normal with no signs of trauma.

Photographs were also taken that could be used in a criminal prosecution.

But, for Mr. Shaw, that may not be enough.

"You can't prosecute somebody today just by saying there's retinal hemorrhaging and bleeding on the brain, because they're so defensible," he said. "I guarantee you in this case, a defense attorney will say, 'you can't say [shaken baby] definitively because we don't have the organs.'

"That's the danger. The probability of success is weak."


Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.

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