LIVINGSTON, Texas (AP) — A woman on Texas death row won a new trial Wednesday from a divided Texas Court of Criminal Appeals for the slaying of a 3-month-old suburban Austin boy she was baby-sitting 18 years ago.
Five judges on the court joined in the ruling ordering a new trial for Cathy Lynn Henderson, three dissented and one didn't participate.
Henderson, who turns 56 later this month, got within days of lethal injection in 2007 before the same court halted the punishment for the early 1994 death of Brandon Baugh. The child's skull was bashed in and he was found buried in a wine cooler box miles from home as Henderson fled the state.
The appeal centers on expert witnesses' testimony at a hearing at Henderson's Travis County trial. They said new developments in the science of biomechanics showed the fall that fatally injured the child at Henderson's home in Pflugerville, north of Austin, could have been accidental. Five prosecution expert witnesses disagreed.
Dr. Roberto Bayardo, the retired Travis County medical examiner who testified at Henderson's 1995 trial that the child could not have died from an accidental fall, testified at the evidentiary hearing that he had changed his position. He said there was no way to determine with a reasonable degree of medical certainty whether the infant's injuries resulted from an intentional act of abuse or an accidental fall.
Travis County prosecutors presented witnesses who testified it was very unlikely that Brandon's injuries were caused by an accidental short fall onto concrete.
The trial judge found all the expert witnesses were truthful and credible and that Bayardo's re-evaluation of his previous opinion was based on credible, new scientific evidence and constitutes a material exculpatory fact, according to the appeals court ruling Wednesday.
And the five-judge majority opinion, backing the trial judge's findings, said the trial court ruled Henderson had shown "by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of her new evidence."
Michael Keasler, writing for the three-judge dissent, called the ruling for a new trial "a travesty ... while her tiny, defenseless victim lies dead and reburied."
Travis County District Attorney Rosemary Lehmberg said Henderson will be retried but there has been no decision on whether her office will seek the death penalty again.
"I believe justice requires that a new jury hear the case, which was the position I took with the appellate court," she said in a statement released by her office in Austin.
Henderson said Brandon was cranky on Jan. 21, 1994, and while swinging him around to calm him she stepped on a toy.
"He flew out of my hands," she told The Associated Press in an April 2007 interview at the state's female death row in Gatesville. "He hit the bottom of the garage, which had been converted to a playroom."
She said she performed CPR on the infant but didn't call 911. She then wrapped him in his blanket, stuffed him in the wine cooler box and fled north, burying him in a field 60 miles away. Then she drove to her native Missouri where she was arrested under an assumed name.
Eighteen days after she and the child disappeared and after a prolonged legal fight by Travis County prosecutors to obtain from Henderson's lawyer a crude map the woman had drawn, Brandon's body was found in a shallow grave.
"It's apparent I wasn't thinking clearly," Henderson said from prison.
Her case has been championed by Sister Helen Prejean, the New Orleans nun whose book "Dead Man Walking" inspired a movie of the same name. Prejean arranged an attorney to lead Henderson's appeal.
Henderson, a twice-divorced mother of three, lost custody of two older daughters and may have abused at least one of her children, according to trial testimony. She had been on probation for writing a bad check, which she said was the result of her estranged husband emptying a bank account and not telling her.
Her legal past was unknown to Eryn and Melissa Baugh when they responded to a notice she posted in their subdivision that offered her baby-sitting services at her home a few blocks from where they lived.
Of the 492 inmates who have received lethal injection in Texas since 1982, three have been women. Another woman, Kimberly McCarthy, is set to die next month for a fatal stabbing and robbery in Dallas County in 1997.