Babysitter wins reprieve from execution for killing Texas infant
By MICHAEL GRACZYK
Associated Press Writer

HOUSTON � Condemned inmate Cathy Lynn Henderson won a reprieve Monday from a divided Texas Court of Criminal Appeals that will keep her from being executed this week for the slaying of a 3-month-old child in her care.

Henderson, 50, was scheduled to be executed Wednesday for the death of Brandon Baugh, whose skull was bashed in while she was baby-sitting him. His body was buried in a wine cooler box as she fled the state more than 13 years ago.

The state's highest criminal court voted 5-3, with one judge not participating, to send the case back to the trial court to examine arguments that Henderson was innocent of capital murder and that constitutional errors led to her conviction.

In an appeal filed late last month, Henderson's lawyers said new scientific evidence bolstered the baby-sitter's contention the child died when she accidentally dropped him and his head struck the concrete floor at her home in Pflugerville, a north Austin suburb.

A medical examiner who testified for the prosecution in 1995 that Brandon's death could not have been an accident submitted an affidavit with Henderson's appeal that he believed scientific tests not available a decade ago now show his conclusion was incorrect.

"Had the new scientific information been available to me in 1995, I would not have been able to testify the way I did," said Dr. Robert Bayardo, the now retired chief medical examiner in Travis County.

Because Henderson's appeals had been exhausted, her lawyers needed to convince the courts their latest appeal introduced new evidence.

A court majority agreed.

Judge Tom Price, in the lone concurring statement, said he thought Bayardo's affidavit proved to him no rational juror could have found Henderson guilty "to a level of confidence beyond a reasonable doubt."

But in a scathing dissent, Judge Michael Keasler accused the court majority of being "sphinx-like" about Henderson's claims and chided the judges who backed the reprieve without explanation as "indefensible."

"They dare not set out their reasons because they might have to defend them," Keasler said.

Henderson would have been the 16th inmate executed this year in the nation's busiest capital punishment state, where 394 prisoners � three of them women � have been given lethal injection since 1982. Nationally, she would have been just the 12th woman among the 1,079 convicted killers executed since the U.S. Supreme Court in 1976 allowed capital punishment to resume.

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 April in an 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, then wrapped him in his blanket, stuffed him in a 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.

Price said Henderson's flight from the state didn't sway him that the child's death amounted to capital murder.

"While (Henderson's) flight undoubtedly evinces a guilty conscience, it provides little rational basis to conclude she felt guilty of an intentional or knowing murder, as opposed to a reckless or negligent homicide or even an excusable accident," Price said.

But Keasler said an innocent person would have administered first aid, called an ambulance, sought help from a neighbor or driven the child to a hospital.

"What did Henderson do?" Keasler said. "She buried Brandon's 3 1/2-month-old body and skedaddled to Missouri. And what did Henderson do then? Why, she sipped a few margaritas, and according to her friend and confidant, admitted that she had 'killed somebody or murdered somebody.' Is this consistent with her innocence? Of course not."

George Cumming, a San Francisco lawyer obtained for Henderson by Sister Helen Prejean, the New Orleans nun of "Dead Man Walking" fame, acknowledged her flight from Texas is damaging.

"At the end of the day I don't think that proves murder," he said. "It proves stupidity, gross insensitivity, collossal egocentricity and the worst kind of behavior in the world."

People aren't put to death "for being worse than stupid," Cumming said. He called the ruling Monday gratifying.

Bryan Case, who handles capital case appeals for the Travis County district attorney's office, said it likely would be at least three months before the trial court holds any hearings in a case he predicted would become a "battle of science." The trial court will take the evidence and make a recommendation back to the appeals court, which then could accept the court's recommendation, uphold the verdict or order a new trial.

"We respectfully disagree that this is newly discovered evidence and the effect is that it shows she's actually innocent," Case said. "We have some doubts, a lot of doubts, about the underlying scientific studies that were presented to Dr. Bayardo to prod him to change his mind."

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 history 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.

The per curiam opinion states: "Dr. Bayardo's re-evaluation of his 1995 opinion, which he states is based upon new scientific developments, is a material exculpatory fact. In our view, the current application contains sufficient specific facts establishing that applicant's first two claims satisfy the requirements of article 11.071, sec. 5(a)." That's it. No real analysis at all.

The concurrence goes into far greater detail as to why he thinks the statute has been satisfied, but the final point is what bothers me: "That the evidence may still be legally sufficient to convict the applicant even in the face of Dr. Bayardo's affidavit does not mean we cannot conclude that a prima facie case has been made that no reasonable juror would have convicted the applicant." If you concede that a reasonable juror could convict under the evidence (i.e., it's legally sufficient), then how can it also be true that "no reasonable juror would have convicted?" The opinion points out the difference between "could" and "would," but in this context, the only way for a court to say that a reasonable juror "could" have convicted, but no reasonable juror "would" have convicted is for the court to usurp the fact finding authority of all the hypothetical "could-have" jurors.

Read the dissent, it will make you feel better.