from the Superior Court Trial Court No. 3PA-09-02996 CR,
Third Judicial District, Palmer, Vanessa H. White, Judge.
Garton (opening and reply briefs) and Emily Jura (oral
argument), Assistant Public Defenders, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
Patricia L. Haines, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth and Kevin
Clarkson, Attorneys General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison, Judge, and
Suddock, Senior Superior Court Judge. [*]
Phillip Allison was convicted of second-degree murder after
his fifteen-month-old daughter, J.A., suffered a fatal injury
while she was in his care. Over the course of Allison's
month-long trial, the jury heard testimony from thirty
witnesses - including sixteen medical professionals. In
addition to J.A.'s numerous care providers, who testified
to the medical complications she experienced during her
lifetime, both Allison and the State presented multiple
expert medical professionals who analyzed the circumstances
surrounding J.A.'s death. Although the State's
experts concluded that J. A.' s death was the result of
physical abuse, Allison's experts presented the opposite
opinion - that there were plausible, and far more likely,
alternative explanations for J.A.'s death.
these possible explanations was that J.A. suffered from
Ehlers-Danlos Syndrome - a neurogenetic disorder that is
associated with collagen abnormalities and excessive
bleeding. But the trial court precluded Allison's experts
from discussing, or even mentioning, the possibility that
J.A. suffered from Ehlers-Danlos Syndrome. On appeal, Allison
argues that this was error.
reasons explained here, we agree with Allison that it was
error for the trial court to exclude this evidence and error
for the trial court to restrict Allison's questioning of
the experts on this matter. We also conclude that the error
affected Allison's ability to present his defense and was
not harmless. Accordingly, we reverse Allison's
conviction and remand this case to the superior court so that
the State can determine whether to retry Allison.
background and prior proceedings
was born on June 22, 2007 to Christiane and Clayton Allison.
J.A. appeared to be a relatively healthy child for the first
few months of her life, but her development suddenly changed
when she was four to six months old. She began experiencing
decreased muscular strength and tone, weight loss, limited
mobility, and an enlarged head and brain. Her primary care
physician referred her to a physical therapist, dietician,
neurologist, and radiologist. J.A. was under treatment by
most of these medical professionals at the time of her death.
September 24, 2008, when J.A. was fifteen months old, she
suffered a fatal injury while she was home with her father.
According to Allison, J.A. fell down a flight of stairs while
he was in the bathroom. Allison called 911, and J.A. was
taken in a helicopter to the emergency room at Providence
Hospital. Doctors discovered that J.A. had suffered a severe
traumatic brain injury, resulting in a subdural hematoma
(bleeding between the skull and the surface of the brain) and
overall brain swelling. J.A. died while undergoing surgery to
remove the blood and reduce the pressure on her brain. Dr.
Robert Whitmore, a forensic pathologist, conducted an autopsy
the following day, and categorized J.A.'s death as a
homicide, with the cause of death being blunt force head and
was charged with manslaughter, criminally negligent homicide,
and second-degree murder. It was established during the trial
that J.A., in fact, had two subdural hematomas: an older
chronic one and a newer acute one. Various witnesses
testified to prior falls where J.A. failed to extend her arms
when she fell down, forcefully hitting her head on the ground
or on a piece of furniture as a result. The defense argued
that the older hematoma was likely caused by one of these
prior falls, and that the older hematoma made J.A. especially
vulnerable to the newer one. The State argued that, despite
this preexisting injury, J.A. could not have sustained a
fatal injury from a fall down the stairs and therefore the
only possible explanation for her death was physical abuse.
State presented testimony from Dr. Cathy Baldwin-Johnson, an
expert in the medical evaluation of suspected abuse. Dr.
Baldwin-Johnson concluded that J. A. suffered from abusive
head trauma - a conclusion she reached in part because
she was able to rule out the existence of other medical
conditions that could have contributed to J. A.' s
injuries. The State also presented testimony from two other
medical professionals who observed J.A. just prior to and
just after her death: Dr. Elizabeth Galloway, the pediatric
intensive care unit physician at Providence Hospital who
examined J.A. upon her arrival, and Dr. Robert Whitmore, the
forensic pathologist who conducted her autopsy. Dr. Galloway
did not diagnose J.A. with having suffered from abusive head
trauma. She stated only her opinion that J.A.' s injuries
were consistent with shaking and not with a fall down the
stairs. Dr. Whitmore concluded that, based only on the
injuries he observed during the autopsy, the most likely
explanation for J.A.' s death was shaking or a
combination of shaking and non-accidental blunt force head
State's case against Allison rested on the testimony of
these three experts. There were no eyewitnesses to the
alleged abuse, nor any eyewitnesses to any prior abuse. The
jury heard no admissions or confessions by Allison. Notably,
none of the doctors who treated J.A. prior to the incident
that led to her death testified that they believed that J.A.
had suffered abuse while in Allison's care. Nor did any
of the family members or friends who testified at trial.
defense, Allison called three expert physicians who had
independently reviewed J.A.'s medical records: Dr. Janice
Ophoven, a specialist in pediatric forensic pathology, Dr.
Khaled Tawansy, a pediatric retinal opthalmologist, and Dr.
Joseph Scheller, a child neurologist. These doctors testified
that J.A.'s chronic subdural hematoma, coupled with her
preexisting health issues, was a "time bomb for
subsequent decompensation and potentially sudden death,"
and that her injuries were consistent with a fall down the
stairs and not indicative of abuse. Allison also presented
Dr. Kenneth Monson, a mechanical engineering professor, who
testified that, based on his analysis of the mechanics and
injury thresholds in children, J. A. could have died from
falling down the stairs, but not from shaking.
jury convicted Allison of second-degree murder. At sentencing,
Allison was sentenced to 40 years' imprisonment with 10
suspended (30 years to serve) and 15 years of felony
trial court's rulings excluding evidence related to
appeal, Allison argues that the trial court erred by barring
him from raising the possibility that J.A. suffered from
Syndrome is a group of inherited disorders that affect a
person's connective tissues-primarily their skin, joints,
and blood vessel walls. People who have Ehlers-Danlos
Syndrome usually have overly flexible joints and stretchy,
fragile skin. They can also be more susceptible to bruising
and excessive bleeding. A more severe form of the disorder,
called vascular Ehlers-Danlos Syndrome can cause the walls of
a person's blood vessels, intestines or uterus to
rupture. According to Dr. Tawansy, one of Allison's
experts, there have been cases where complications related to
Ehlers-Danlos Syndrome have been misdiagnosed as child abuse.
time of her death, J. A. was under the care of pediatric
neurologist Dr. Roderic Smith. Dr. Smith's office was
assisting the family in trying to secure additional medical
insurance to pay for genetic testing because the causes of J.
A.'s multiple health problems were unknown. One avenue of
genetic testing that Dr. Smith was interested in pursuing was
whether there was something wrong with the connective tissue
within J.A.'s family. Dr. Smith was aware that J.A.'s
mother and her relatives had an undiagnosed amplified pain
syndrome that might be Ehlers-Danlos Syndrome.
J.A.'s death, J.A.'s mother traveled to the Mayo
Clinic, where she was subsequently diagnosed as having
"Ehlers-Danlos type 3 appearance with hypermobile
joints." (This is a nonvascular version of the
disorder.) According to Dr. Smith, there is a fifty percent
chance of a person with Ehlers-Danlos Syndrome passing on
that condition to their children. According to Dr. Ophoven, a
family history of any type of Ehlers-Danos Syndrome
is a factor that should be considered in any case involving
significant bleeding, such as J.A.'s.
expert reports given to the State during pretrial discovery
referred to the mother's diagnosis of Ehlers-Danlos
Syndrome and to the significance of this diagnosis to any
differential diagnosis of J.A.'s death. Dr. Tawansy's
report characterized the maternal diagnosis as
"significant," concluding that the family history
of Ehlers-Danlos Syndrome "merit[ed] further
investigation" and noting the possibility that J.A.