3.5 years for Champaign woman accused of injuring infant in her care

 

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URBANA — Almost five years after being accused of gravely injuring an infant in her care, a Champaign woman has been sentenced to 3 1/2 years in prison.

Veteran day-care provider Debbie May maintains she did not shake or hit Rowen Kaeding but pleaded guilty to doing so to avoid a lengthy prison sentence in the event a jury did not believe her.

"This is an absolute tragedy for all concerned: the parents, Ms. May and her family. This child was seriously injured. Had she sought medical attention sooner, the results might have been lessened," Judge Tom Difanis said Friday as he sentenced May, 59.

Difanis said he didn't believe May, who had no previous criminal convictions, was a danger to the public or likely to re-offend but said a message of deterrence needed to "come across loudly and clearly."

May will be eligible for parole in 21 months, given the amended count of aggravated battery to which she pleaded guilty. She was taken to jail immediately following her sentencing hearing.

About 60 friends and family of both May and the Kaeding family packed into Difanis' courtroom to hear what May's future holds.

They also got a glimpse into the life and uncertain future of Rowen, now 5, from a video presentation and emotion-packed statements read by his parents, Dan and Corinne Kaeding.

As Rowen sat in the front row behind May in the lap of first his father and then his mother, wearing headphones to hear music to soothe him, the Kaedings spelled out in medical-school-like detail their younger son's severe handicaps.

Those include functional blindness, cerebral palsy, infantile spasms and the inability to drink or speak more than just a few words.

"There's never enough justice for the lifetime of consequences he faces," Corinne Kaeding told The News-Gazette after the hearing.

When it was her turn to address the judge, May spoke only of the loss she felt at no longer being able to be a day-care provider, a job she held at least two decades, and her gratitude to friends and family for their support. There was no apology to the Kaedings or mention of Rowen in her almost three minutes of remarks.

"That would have been nice to hear — I'm sorry," Corinne Kaeding said.

Guilty plea but no admission of guilt

On April 26, May, a wife, mother of two adult children, grandmother and daughter of a police officer, entered an Alford plea.

Named for a U.S. Supreme Court decision, it allows her to maintain her innocence while admitting that the state had enough evidence to persuade a jury that she caused the injuries to Rowen on Nov. 5, 2014, when he was just 5 months old.

While rare, the Alford plea was an "acceptable" resolution, Difanis said, especially given the good reputations of the prosecutor and defense attorney who worked it out and asked him to impose a sentence.

"As a judge, you don't know what circumstances have arisen in preparing for a case," he said.

Medical experts for the state and May disagreed about the cause of Rowen's condition, but his parents are convinced it was May, a woman they once trusted, who robbed them of their healthy, normal baby and left them with a profoundly disabled child.

"When you abused Rowen, you killed parts of his brain that will never, ever heal," Dan Kaeding said.

He also said she "destroyed" their beautiful family, which includes an 8-year-old son who has difficulty understanding why his brother is different.

Dan Kaeding, an elementary school teacher, said his wife had to quit her teaching job to care full-time for Rowen, leaving him to support a family of four on his salary.

Corinne Kaeding said she has since returned to working part-time as a developmental therapist. Besides her and her husband, the only other people they allow to care for Rowen are his grandparents, she said.

Five years for resolution

May's case has a convoluted procedural history, including two different prosecutors and two defense attorneys with hands on it.

She was charged Nov. 12, 2014, with aggravated battery to a child for injuries that allegedly occurred a week earlier. She turned herself in that same day, posted $15,000 cash bond and has been free since.

The offense was a Class X felony punishable by between six and 30 years in prison. May ultimately pleaded guilty to aggravated battery, a Class 3 felony with penalties ranging from probation to two to five years behind bars.

The home day-care business she ran for about 20 years abruptly ended.

May immediately hired Adam Dill, then an attorney in the preeminent Champaign firm of Erwin, Martinkus & Cole. Within a month, Champaign County State's Attorney Julia Rietz asked that a special prosecutor be named because one of her assistants had used May as a babysitter. In fact, that employee's spouse wrote a letter of support for May that her attorney quoted at Friday's sentencing.

Difanis then appointed veteran Champaign attorney Tom Koester, who worked for many years as a Champaign County state's attorney, to prosecute May.

In private practice, Koester has handled many medical-malpractice cases and was well aware of the challenges of prosecuting a shaken-baby case. He began gathering Rowen's medical records and expert opinions as to what happened to him.

"The medical community is divided a bit over all this. It's become more and more controversial. These cases pretty much never have a confession or eyewitnesses. You never have any exterior marks on the child to say he was punched, hit or dropped," observed Koester, who was later removed from the case at his own request and replaced by Ed Parkinson of the office of the State Appellate Prosecutor. "You have the majority (of medical experts) who say that's the result of very aggressive shaking of the child, but you have other physicians who don't believe that's the automatic conclusion to be reached."

That's because in recent years, doctors have uncovered other conditions that can cause spontaneous brain bleeds without trauma, Koester said. And those conditions have resulted in criminal convictions for aggravated battery to a child being overturned.

Instead of obvious bruises or marks, Rowen was found to have bleeding in his brain and hemorrhages in his eyes, indicative of trauma usually caused by the brain bouncing back and forth off the skull.

Agreed-upon facts

In an unusual move, Difanis took a few minutes Friday to read aloud for the spectators the facts that Parkinson and defense attorney Jim Martinkus agreed to for the plea.

Those included that Rowen was one of three infants in May's care on Nov. 5, 2014. Although described as "fussy" and "colicky" from time to time, Rowen was in good health and got regular medical checkups.

He had been a client in May's home about a month when he began a vomiting spell in late October that lasted for 10 days.

On Oct. 27, 2014, he was seen by his pediatrician, who detected no "abnormalities ... which would have alerted her to any type of injury." Five days later, the Kaedings took Rowen back to his doctor for a rash and continued vomiting. She recommended "watchful waiting for another 24 hours."

On Nov. 5, May said Rowen had been crying a lot and awoke from his morning nap "pale and floppy." Rather than call 911 immediately, May called a friend and was on the phone from 11:11 a.m. to 12:44 p.m. She took Rowen outside into the cold air "in an effort to somehow make him appear to get better."

"Finally, at 1:15 p.m., the defendant called Rowen's parents and told them to come pick him up," Difanis read. "By now his eyes were rolling, he appeared lethargic, lifeless and in distress. His parents took him directly to Carle.

"The testimony at trial of at least eight physicians who tended to him and performed brain scans and MRIs would be that Rowen Kaeding suffered two brain bleeds, one older (about two weeks) and the most recent sometime after 8:30 a.m. and before 11:30 a.m. on the date of his arrival at Carle Clinic and that the injuries to his brain were caused by inflicted non-accidental head trauma."

Parkinson said the state would also present as evidence the opinion of a Peoria doctor who is an expert in child abuse that retinal hemorrhages in Rowen's eyes and pooled blood under his skull were "due to physical abuse and that the failure of Rowen's sitter to seek timely medical attention placed him at serious risk of harm and constituted medical neglect."

Change of attorneys and delays

Prior to the April plea, May's case had proceeded as many involving complicated medical conditions do, with multiple continuances as records and opinions were collected.

May appeared monthly with her attorney, Dill, before Difanis; often, members of Rowen's family and their supporters were there for the seconds-long hearings.

In January 2017, Koester and Dill agreed they would be ready for trial on July 10 of that year. But in June 2017, Dill was appointed an associate judge and took the bench the same day that May's trial was to have started.

That meant he was out and his boss, Jim Martinkus, was in.

In December, Martinkus filed motions asking that one of Koester's two medical experts who opined that Rowen had been the victim of shaken-baby syndrome be limited in what she could testify about. He also sought a "Frye" hearing, intended to challenge the underlying science behind the expert opinions.

Koester, no stranger to that kind of hearing — he was involved in the first case in Illinois in which DNA was used at trial against a man accused of rapes on the UI campus in 1988 — asked to be removed as prosecutor.

"Whatever the court rules could affect other similar cases throughout the state of Illinois," Koester said. "I'm just a guy in private practice and I'm not sure I'm the one who should be doing that. It sounds like something the state has a profound interest in, so I filed a motion to withdraw, figuring it should be handled by the attorney general or the state appellate prosecutor."

Difanis agreed to let Koester exit and, in early April 2018, Parkinson of the State Appellate Prosecutor's Office stepped in. Three months later, Difanis refused Martinkus' request to limit the expert testimony of a doctor for the state and his request for a Frye hearing.

That left the case in the posture of two state experts versus two defense experts, and Parkinson and Martinkus agreeing to another continuance.

A year after Parkinson took over the case, May entered the "guilty but not admitting it" plea after extensive consultation with Martinkus.

Recommendations

On Friday, Parkinson echoed the sentiments of the Kaedings in asking for the maximum five-year prison sentence for May. He argued she was "the only one who could have helped" Rowen but did not notify anyone for at least two hours after noticing his pale and floppy condition.

Martinkus asked for probation for May, who had "striking support" from at least 40 people who wrote letters calling her a "loving caregiver."

"There's nothing in here to suggest she would hurt Rowen," Martinkus said.

But Difanis said whatever happened, May, the experienced care-giver, "for some reason decided not to call for medical assistance," resulting in Rowen's severe disabilities.

Reporter

Mary Schenk is a reporter covering police, courts and breaking news at The News-Gazette. Her email is mschenk@news-gazette.com, and you can follow her on Twitter (@schenk).