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Allison v. State

Court of Appeals of Alaska

July 26, 2019


          Appeal from the Superior Court Trial Court No. 3PA-09-02996 CR, Third Judicial District, Palmer, Vanessa H. White, Judge.

          Josie 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. [*]


          ALLARD, JUDGE.

         Clayton 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.

         One of 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.

         For the 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.

         Factual background and prior proceedings

         J.A. 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.

         On 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 neck trauma.

         Allison was charged with manslaughter, criminally negligent homicide, and second-degree murder.[1] 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.

         The 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[2] - 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 trauma.

         The 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.

         In his 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.

         The jury convicted Allison of second-degree murder.[3] At sentencing, Allison was sentenced to 40 years' imprisonment with 10 suspended (30 years to serve) and 15 years of felony probation.

         The trial court's rulings excluding evidence related to Ehlers-Danlos Syndrome

         On appeal, Allison argues that the trial court erred by barring him from raising the possibility that J.A. suffered from Ehlers-Danlos Syndrome.

         Ehlers-Danlos 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.[4] 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.

         At the 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.

         After 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.

         The 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. "may ...

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