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City police standing by baby-death conclusion
Saturday, August 16, 2008

Pittsburgh police are standing by their conclusion that a 7-year-old girl caused the death of a baby at a Garfield day care center, despite a judge's doubts that the older child could have inflicted such severe injuries.

"This is such a horrific incident. It is hard to believe that a 7-year-old would do this or could do this," Assistant Police Chief Maurita Bryant said yesterday.

"But our investigation is pretty complete. The investigators have no doubts in their minds that this is what occurred."

Experts testifying at a dependency hearing this week in family court said that the force with which 10-month-old Marcia Poston died at a Garfield day care center in June was equivalent to a two-story fall. Marcia suffered numerous injuries, including a fractured skull and hemorrhages in her eyes, and her death was ruled a homicide.

After hearing testimony for three days, Common Pleas Judge Kim Berkeley Clark said she doubted that the 7-year-old girl was capable of causing those injuries, as police have said.

"Repeated, repeated slamming blows," Judge Clark said yesterday. "It's doubtful a small child could do that kind of damage."

But the judge nevertheless ruled Thursday that the little girl should be removed from the care of her grandmother. Her grandmother, Loretta Bray, operated the day care center, which has since closed.

Judge Clark said she did not remove the girl based on delinquency but on a lack of proper parental control.

Despite her findings that the 7-year-old could not have committed the crime, however, police said they have found no evidence to point to any other suspect. Police did not file charges against the girl because of her youth.

Under Pennsylvania law, anyone who kills may be charged with homicide, no matter how young. But such prosecutions of very young children are rare. For any other crime, a child under 10 is considered too young to be responsible,

"There is no evidence at this point that indicates anything other than what we reported occurred," Chief Bryant said. "We looked at it very carefully and consulted with the [district attorney's] office, the medical examiner's office.

"The way the evidence stands at this point, everything points to the 7-year-old, including her admissions and the observations at the scene," she said.

But Chief Bryant and Mike Manko, spokesman for District Attorney Stephen A. Zappala Jr., said police would pursue any new information presented in the case.

"If there is new evidence uncovered, of course we'll look at it," she said. "Unfortunately, everything points to the 7-year-old. As of this point, there have been no new developments."

On June 6, Marcia's parents left her at Bray's Family Day Care in Garfield. According to police, four other children were there that day.

Ashley Swann, 20, who was working as a caregiver, went upstairs to change another child's diaper, and returned upon hearing a commotion in the basement, police said. She told police she found Marcia had been pulled from her baby chair and was lying on a love seat with blood coming from her ears.

Marcia was taken by ambulance to Children's Hospital, where she was pronounced dead about 12:44 p.m.

Police have said that the 7-year-old -- who is the niece of Ms. Swann -- pulled the infant from her chair and smashed her head off the carpet-covered concrete floor.

Consultation with Mr. Zappala's office and the medical examiner, along with admissions from the 7-year-old, led police to their finding that she was responsible, Chief Bryant said.

Police also have said the 7-year-old had anger-management issues.

But after listening to testimony this week, Judge Clark said she was unconvinced.

"This was described as rage. For a kid to be enraged like that, there would have to be obvious signs -- either previously, or that day," she said. "There was no indication of that at all."

The judge said she heard testimony from the girl's teachers and others that she is a happy child without behavioral issues.

"I found due to the severity and nature of the injuries that she could not have been the one responsible," Judge Clark said.

Dr. Abdulrezak Shakir, a forensic pathologist in the Allegheny County medical examiner's office, testified that he could not exclude the 7-year-old as a suspect in Marcia's death.

He described her as being 4 feet 2 inches tall and weighing about 70 pounds. A person of that size is capable of inducing the type of injuries sustained by the baby, who weighed 22 pounds.

"There were 13 instances of blunt force trauma on the head," Dr. Shakir said, noting a fractured skull, bruises and retinal hemorrhaging. The severity of the injuries mean that the child would have lost consciousness immediately and died a short time later.

Other doctors testified that they did not believe the 7-year-old could have inflicted such damage. They could not be reached or would not comment later on their testimony.

Judge Clark said she did not really find any of the expert testimony at odds. Instead, she said she gave deference to the individual expertise of the other doctors, noting that Dr. Shakir is an expert in forensic pathology while the others are experts in children's health.

Though Dr. Shakir found that the 7-year-old could have killed the infant, he said yesterday that possibility would not have been his first impression when he learned of the case.

"To me, the adult to be the individual who did it is easier to believe," he said."

Olga Salvatori, an attorney who represents Ms. Bray, said she disagrees with Judge Clark's decision to remove the 7-year-old from her family home.

"The child belongs in the one stable environment she knows," Ms. Salvatori said.

"My client is pretty much the only constant in her life," she said.

Judge Clark would not comment on the police investigation. Nor would Scott Hollander, executive director of KidsVoice, the nonprofit agency that represented the 7-year-old in court.

Judge Clark said that she will allow the 7-year-old to have visitation with her family, because reunification is the ultimate goal.

Marcia's father, DeJuan Poston, said he welcomed a review of the evidence.

"This is what we need to happen," Mr. Poston said yesterday. "Somebody is responsible, and we're suffering every day ever since June 6, while whoever did it is living their everyday, ordinary life."

Mr. Poston said he and Marcia's mother, Rhonda Moore, have hired an attorney, Fred Rabner, who declined to comment on the case last night.

"I wish there was something I could do to bring them comfort," Judge Clark said. "I guess there are questions, but I don't have any answers for them."

Sadie Gurman and Cindi Lash contributed. Paula Ward can be reached at pward@post-gazette.com or 412-263-2620. Jerome Sherman can be reached at jsherman@post-gazette.com or 412-263-1183.
First published on August 16, 2008 at 12:00 am
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