Shaken – English Transcript

December 20, 2016
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HOST INTRODUCTION:

Being a parent, especially a parent to a newborn baby, can test us in the most surprising ways. Sometimes, oftentimes newborns cry and you don’t know why. It can be frustrating. They sneeze or they cough and you worry it’s something worse. It can be scary. But who really knows what goes on behind closed doors. This week at Life of the Law, we’re going to tell you a story about a young woman, her family, her community and her baby. The question is when has a gone too far and how do we know?

It’s called shaken-baby syndrome. It’s complicated. And it’s sent caretakers, mother fathers, babysitters and nannies to prison–some who later had their convictions overturned.

Our story was reported by Adele Humbert and Taylor Mullane with The Medill Justice Project, an award-winning national investigative journalism center based at Northwestern University.  

And now, our story, SHAKEN.

 

STORY:

They call it Babyland. Dozens of stillborn infants and children who lived only a few weeks are buried here at Floral Lawn Memorial Gardens, in Battle Creek, Michigan, just past sprawling cornfields. Small tombstones dot the green grass, and artificial flowers are planted by the graves. The space between each bouquet is so small you can imagine the tiny caskets beneath the surface. On one headstone rests a snow globe, a candle and a collection of angels. On another there is a Pez dispenser. Two helium balloons are floating above a grave. One of the stone slabs is for Alicia Duff.

THERESA MILLER: “Our sweetest baby girl, Alicia L. Duff, born July 29 of 2001…to October 20 of 2001,” and she was a little angel, and it just wasn’t her time.

Theresa Miller, Alicia’s 54-year-old grandmother, stands stoically in the cemetery. Her blond bangs hang unevenly, and car oil stains her hands. Theresa tries to hold back tears while she is facing her granddaughter’s tombstone.

THERESA MILLER: So it’s a little heart-shaped plaque with a vase sticking in there so you can put fresh flowers in it. It’s got a little shepherd girl on it with two little lambs.

On Friday, October 26, 2001, Alicia was buried here, less than a week after she died. She was one day shy of 12 weeks old. Fifteen years later, Theresa tries to imagine a different reality to forget the pain.

THERESA MILLER: They’re on vacation! To me, if I keep telling myself they’re on vacation, I’ll eventually see them again.

It’s the first time in eight years she’s been back to the cemetery.

THERESA MILLER: It still hurts… It still hurts…A reminder of what’s lost. And it’s hard to deal with it.

According to her autopsy, Alicia died as a result of brain trauma from shaken-baby syndrome. Her mother, Tonia Miller, was 18 when her daughter died. Tonia was accused of violently shaking Alicia and convicted of murder in 2003. She was sentenced to 20 to 30 years in prison.

Tonia, now 33 years old, is incarcerated at Women’s Huron Valley Correctional Facility, in Ypsilanti, Michigan. From the prison, she recalls the first time police officers arrested her, just after Alicia’s death.

TONIA MILLER: The very first time I was arrested was two days after she had passed away. They showed up to the house and said that they had a warrant for my arrest.  

Officers let Tonia go. But six months later, she was arrested again and charged with second-degree murder. Speaking for Battle Creek Police, Detective Sergeant Troy Gilleylen says the department has no comment on the case.

Thirteen years later, questions remain – questions about what happened in Alicia’s brief life and questions about the cause of her death.

It’s the year 2000 in Battle Creek, a city of about 50,000, known for its breakfast cereal factories. Tonia is 17. She lives with her mother, Theresa. Tonia is much like other teenagers: She goes shopping at the mall with her friends, plays soccer and volleyball. But she has a 1-year-old daughter and four siblings to help take care of while her mother works on an assembly line. And Tonia is pregnant again. She’s unemployed, and there’s not a lot of money to go around. An eleventh grader, she goes to an alternative school, where classes are more accommodating for pregnant students.

At home today, Theresa and her youngest daughter, Nicole, now 22 years old, are going through old photos and Tonia’s school diplomas and awards. Tonia is 11 years older than Nicole, and, by all accounts, she took care of her little sister when Theresa was too busy at work.

NICOLE MILLER: I remember that, and Tonia taking me to school with her when she went to the adult education to get her diploma. She used to take me because I didn’t like to be at home. I didn’t like my babysitter. I would rather be with my sister.

The glue of the family. That’s how Nicole describes Tonia before all of the troubles and now. Tonia’s closest friends were like family to her. Whitney Wesner was one of them. She has kept notes Tonia wrote her.

WHITNEY WESNER: It says “To Whitney: Hope we stay friends forever. We know a lot about each other and you’re a good friend. Love you like a little sis. Tonia Miller.”

Tonia and Whitney had a ritual when they were kids: They would exchange school pictures and write notes on the back of them. Whitney lived next door to Tonia, and their families shared a driveway. Whitney was 12 years old when Tonia was pregnant with Alicia.

WHITNEY WESNER: I’d say it was stressful! Tonia was pretty much the mother of all her siblings. They all needed her.

In the winter of 2000, in the early stages of her first trimester, Tonia was already bracing for a difficult pregnancy. She said doctors were worried she might miscarry after she experienced complications while carrying her first child. Tonia was about two months pregnant when she and a friend were in a car that was hit pulling out of a parking spot. Tonia didn’t think it was serious. She casually brought it up at her next doctor’s appointment. It did not come up at trial.

About six months later, Tonia got into another accident. Whitney and Curtis, Tonia’s younger brother, then 10 years old, remember what happened.

WHITNEY WESNER: The neighbor kids would come over and we would be on top of the garage.

CURTIS MILLER: We were playing in the fort.

WHITNEY WESNER: Curtis and I would jump off on them.

CURTIS MILLER: And then Whitney voted herself mayor and that upset the other kids and we got into an argument about it. I remember shoving. (Laugh) That’s all I remember!

WHITNEY WESNER: Tonia had to come out, I think she was pregnant.

CURTIS MILLER: Oh, she had a pretty big belly I can tell you that.

WHITNEY WESNER: So we were all fighting and hitting each other with sticks, and I think she got hit.

Tonia said she grabbed Curtis and held him back, but he elbowed her in the belly while he was struggling to break free. Tonia, then late in her pregnancy, brushed it off and didn’t see a doctor about it. The incident was not mentioned at trial.

Whitney is 28 now. In her living room, a photo album is open on the coffee table. For years, she took photos with disposable cameras of Tonia and her daughters.

WHITNEY WESNER: This is the first time in probably 8 or 9 years that I’ve opened it. I kind of just tucked it in my room. I feel sick to my stomach right now.

In one picture, Tonia’s older daughter is singing along with a karaoke machine. When Tonia was sent to prison, her 3-year-old was placed in foster care. On the back of the most important pictures, Whitney wrote notes.

WHITNEY WESNER: Here you go: Alicia Lynn Duff, 4 days old, 6 pounds, 5 ounces, 20 inches, born on July 29.

In this picture, Alicia looks tiny and sleepy. She is wearing a white onesie. Tonia’s holding her. The photo is off-center. Tonia is gazing at her baby. She has long dark hair, chipped fingernail polish and teenage acne. Now, from prison, Tonia remembers her first impressions of her daughter.

TONIA MILLER: She is so tiny (laugh)! She was very quiet. She hardly ever cried at all. She was a real happy baby.

After Alicia’s birth, Tonia and her boyfriend, Alan, start a life with their new baby at Alan’s parents’ house, just a block away from Tonia’s mother’s home, in Battle Creek. They live in an area called Post Addition, where trees line the streets and modest homes boast front yards. Tonia says her boyfriend was a proud dad.

TONIA MILLER: He immediately wanted to hold her. He did not want anybody else to hold her. He was just a doting father.

Several weeks after Alicia’s birth, she begins to behave strangely.

TONIA MILLER: Probably about five or six weeks after she was born things just started looking different. She wasn’t as responsive as she had been previously. She was just pretty sick a lot.

At about that time, Tonia remembers a moment when she realized something was wrong with her baby.

TONIA MILLER: I remember the incident; Just holding her and then her basically going lethargic, and it scared me. I immediately contacted the pediatrician, and his reaction was just that she was upset and learned how to hold her breath.

Pediatric records obtained by The Medill Justice Project show doctors noted some of Tonia’s concerns about Alicia’s health and offered treatment. But the hospital system, where doctors worked, declined to comment, saying it is not its “standard practice to discuss past or present litigation.”

Tonia’s friend, Carla Edwards, remembers accompanying her one time when she took Alicia to the doctor.

CARLA EDWARDS: She begged for a heart monitor and the doctor just kept telling her there’s nothing wrong with her.

Being young, Tonia says she doesn’t know how much to push back; besides, the doctors are the experts so she trusts them. Tonia wanted a heart monitor for Alicia because she was concerned that her daughter had a heart condition. As noted in the appellate court decision upholding her conviction, Tonia’s attorney at trial “presented evidence that Alicia had stopped breathing on several prior occasions and that her pediatrician denied defendant’s requests to place Alicia on a heart monitor.”

 

Alicia, just weeks old, has difficulty breathing, she doesn’t eat much and she is sick often. Tonia says Alicia has what appear to her as seizures, which become more and more frequent, and her responsiveness slows.

Darla Kortz, Alan’s grandmother, says Alicia’s “eyes looked vacant.” She remembers that from only one visit with her. At trial, Darla says she was thinking about what kind of caregiver Tonia was, not how healthy Alicia was. As a result, Darla didn’t bring up on the stand how Alicia seemed lethargic, but she mentioned it to her husband after the trial.

Tonia‘s closest friends and family members have witnessed Alicia’s health issues themselves. And Tonia immediately shares her concerns about Alicia with her grandmother, Erma Hoskin.

ERMA HOSKIN: Every time Tonia came to my trailer, she says, “Grandma, something’s wrong with my baby. She cannot keep down her formula.” She was very concerned about the health of the baby.

Tonia spent a lot of time at her grandmother’s, and Erma recalls Alicia’s feeding issues.

ERMA HOSKIN: I seen the baby crying when she came in. She tried feeding the baby, and when the baby took a little of the milk, she just brought everything right back up. She just couldn’t keep nothing on her stomach.

Erma’s concerns were not voiced at trial because she didn’t testify.

Tonia recalls another incident that wasn’t mentioned in court. Alan is holding Alicia and trips.

TONIA MILLER: I distinctly remember Alan carrying Alicia and her head hitting the doorframe.

Alan did not respond to several requests for comment. Alicia had no bruise, no bump, so Tonia didn’t think it was important.

TONIA MILLER: It didn’t seem hard but it was enough to make her cry. But she didn’t cry for very long and so we didn’t think anything of it.

It is just before Labor Day in 2001. Summer is winding down, and the neighbors are having a block party before school starts. Theresa, Alicia’s grandmother, and her friend, Violet Jean Williams – whom the kids called Aunt Jean – recall Alicia there, sitting in a car seat on the ground.

JEAN WILLIAMS: Dressed real cute in her little outfit, little headband. She looked like a little doll! And at the block party she was lying there, sleeping.

THERESA MILLER: There were people around her, kids were playing in the street. They were riding their bikes, throwing water balloons, chalk-writing on the streets.

All of a sudden, one of the water balloons hits the ground next to Alicia.

JEAN WILLIAMS: When the balloon came and burst right there at her, water splashed and she woke up.

THERESA MILLER: She just arched back like this and her eyes went in the back of her head. I mean she was arched, as much as she could possibly be arched in a seat.

JEAN WILLIAMS: And then her whole body just went to shaking like a leaf. You know how you get nervous? This baby body was doing that, and her head was going side to side really fast. And I didn’t know what to do.

Theresa finds ice and uses it to massage Alicia to calm her. Alicia’s episode at the block party was not mentioned at trial. Tonia says she does not remember the incident.  

One night around that same time, Tonia and her friend Carla are at Carla’s parents, in Ceresco, Michigan, a small rural village eight miles southeast of Battle Creek. Alicia is lying on the sofa in the living room, between Carla and Tonia.

CARLA EDWARDS: I do remember at my parents’ the baby had stopped breathing. I didn’t know what to do. So I yelled for my dad and he blew in her face, and she started breathing again.

Carla’s mother, Anna, sits on a swing in her yard and recalls that night in her living room.

ANNA EDWARDS: All I remember is him blowing in her face and then she started breathing again and stuff. And that’s when we told Tonia “Hey you need to take the baby back to the doctor, there’s something going on with the baby, ya know?”

Alicia’s episodes and breathing issues are becoming more and more frequent. Joyce, Whitney’s mother, recalls one of the last times she saw Alicia. Her daughter Whitney is holding the baby.

JOYCE WESNER: She is rocking the baby, the baby is awake, we’re talking to the baby, and then all of a sudden, her eyes roll in the back of the head, and she is gasping.

JOYCE WESNER: Just kinda (gasping twice)

Joyce used to operate a day care out of her home with kids mostly under five years old. She got worried Alicia was having a seizure; she took the baby from Whitney and immediately talked to Tonia about her concerns.

JOYCE WESNER: I mean, you could tell she wasn’t a healthy baby! I mean, she wasn’t happy, she wasn’t healthy. I told Tonia something’s not right.

 

At trial, Joyce briefly mentioned she wasn’t sure whether Alicia had stopped breathing, but she witnessed the child rolling her eyes in the back of her head and giving a blank stare. Joyce did not mention in court specifics of that afternoon at Tonia’s house.

Another incident was not mentioned in court. When Alicia was about 10 weeks old, Whitney, Tonia’s friend, says she saw the child fall through the grasp of her father’s hands.

WHITNEY WESNER: I know like a week before she died, I saw him drop her in the bassinet.­

Whitney says Alicia was crying when she fell about two or three feet. Whitney, then 12 years old, is scared and runs home. She tells her mother what happened.

JOYCE WESNER: She hit her head on the mattress of the bassinet but still! I mean … and that never got brought up!

Alan did not respond to several requests for comment about this episode.

Whitney spends a lot of time with Tonia at Alan’s house. She plays with the girls and watches them while Tonia showers. She says Alicia was different from her 2-year-old sister. Daydreaming. That’s the expression she used to describe her.

WHITNEY WESNER: I feel like she always had a blank stare, always. I was always trying to get her attention, like, “Alicia!” [Snapping fingers.] She was just all over the place.

Curtis, Tonia’s youngest brother, is now 26. At his Battle Creek house, his 2-year-old daughter, Angelica, is watching morning cartoons by his side in the living room. He is reminded of another accident that occurred just before Alicia’s death, 15 years ago—another episode not mentioned in court.

Curtis was at Alan’s parents’ house to take care of the girls. He was changing Alicia’s diaper.

CURTIS MILLER: I was on my knees. The play pack was off to the right side of me, just behind me. Diaper bag was in front of it. Alicia was on the couch. I went over to the diaper bag. She had a spill, threw herself back and went off the couch. And she didn’t cry so I didn’t think much of it.

He was only 11 when Alicia passed away but he has not forgotten her reactions.

CURTIS MILLER: Her spills were more like seizures, I would say. They would just come and go, and she would just throw herself back and start having troubles breathing and she was making noises trying to breathe, kind of like if you just got done jogging and you have heavy breath. That’s more or less what it was like. I mean back of my mind, I knew that something wasn’t right, but I wasn’t a child expert.

 

It’s about 8:00 in the morning on October 19, 2001, and this is what Tonia says happens, according to records: She is alone with her two daughters. Alan is gone fishing, and his parents are at work. The girls have just awoken. The oldest is watching her favorite show, Blue’s Clues. Tonia places Alicia in a swing for a few minutes so she can use the bathroom, but she keeps an eye on the girls. She suddenly sees her 2-year-old shaking Alicia’s swing pretty hard and she yells at her to stop. She says it could hurt Alicia. Both girls begin to cry. Tonia calms them down, and they start to play again. A few minutes later, Alicia gets cranky, and Tonia figures she’s hungry. She sits down and starts to feed her. That’s when Alicia starts gasping for air. One of her eyes goes off to the side, and she arches herself backwards. Tonia calls 911.

Her mother, Theresa, is just back from work and hears what is going on.

THERESA MILLER: I did see an ambulance but I didn’t know for what, and she called and she said that Alicia had another seizure. She wasn’t breathing. She got scared.

Alicia is rushed to the ER. The doctor who treats her says her injuries look like abusive head trauma. Investigators from Children’s Protective Services arrive and question Tonia multiple times. They explain shaken-baby syndrome to her. Spokesperson Bob Wheaton of the Michigan Department of Health and Human Services says it is not permitted to comment on specific cases under the Michigan Child Protection Law.

Theresa recalls Tonia’s first reaction.

THERESA MILLER: Tonia called me and told me “I can’t believe that they are saying I shook her that hard! I did not shake her that hard!” and I go “Well, I know how you do it because you done it once just lightly at the house and she started breathing again. You kind of rocked her a little bit, like this, you’re holding her head, her body’s in your arms like this and when you blew on her face, she started responding.” I said, “So I know that you wouldn’t do that.”

On Saturday night at 7:27, Alicia is declared dead. When Dr. Brian Hunter conducts the autopsy, he finds brain bleeding, brain swelling and bleeding within the eyes—the three symptoms frequently associated with shaken-baby syndrome. He rules her death a homicide. He did not respond to requests for comment for this story.

It’s April 8, 2003, about a year and a half after Alicia’s death. Tonia is on trial. The prosecutor presents a theory: Tonia Miller shook her infant to death because she was stressed.

BUSCHER (from the video of the trial): You got headaches, you’re stressing out, you’re living at the Duff’s house, you have no money, no job, you’re not getting along with your boyfriend, you take care of your child 99.9 percent of the time. And you snapped that particular day. That’s what happened, isn’t it?

TONIA MILLER: I was furious. She was such a happy baby. And for them to make that accusation not knowing anything about her or my relationship with her, I was furious! I really wanted to lash out at them but I am not a physically violent person so I just basically shut down.

ANNA EDWARDS: I’ve never seen Tonia snap. Never in my life. Never. That girl—I bet you I could go up and smack her and she wouldn’t snap. She wasn’t that type of a person.

That’s Anna Edwards, Carla’s mother. She was at the trial, and 13 years later, she is still convinced that Tonia did not snap that day.

Joyce Wesner doesn’t believe it either, and she says so on the stand.

JOYCE WESNER (video): And when I was around the baby, the baby had had times where she had, I don’t know if she stopped breathing but she had rolled her eyes in the back of her head and kind of got a blank stare like she was going into a seizure or something.

At the trial, Tonia stares vacantly.

TONIA MILLER: I didn’t know anything about shaken-baby syndrome at the time. Everything that I learned about it I learned basically from the prosecutors and the doctors during trial.

David Gilbert, the Calhoun County prosecuting attorney, says he was not involved in the case, but he reviewed appellate records when reached for comment for this story. Gilbert says that records indicate a disagreement not about whether there was abuse, but about when abuse was inflicted. Daniel Buscher, who prosecuted Tonia’s case, did not respond to several requests for comment.

Edwin Hettinger, Tonia’s trial attorney, says his defense strategy largely focused on the disagreement over when the child’s head injury occurred. Hettinger, who continues to believe Tonia is innocent, says he didn’t focus much on Alicia’s medical history.  

EDWIN HETTINGER: There could be something maybe further that could have been done, I don’t know.

Hettinger says he recalls talking to Tonia a bit about Alicia’s health but, given The Medill Justice Project’s findings 13 years later, he says he may have “just scratched the surface.”

EDWIN HETTINGER: Sounds like there would be more that could have been delved into with all the family interactions.

Joyce’s daughter Whitney, then 14 years old, attends the trial and watches it from the gallery in the court room.

WHITNEY WESNER: She is in shock! She looked like she had like pretty much just seen a ghost the entire time. Like she was just empty looking.

JOYCE WESNER: We were like in the first row: me and Whitney and her mom, and, you know, immediate family.

THERESA MILLER: Tonia and I had left the courthouse for a short period of time while the jurors were coming up with a verdict.

JOYCE WESNER: They’re reading the verdict, and they find her guilty.  

Jury representative (video): Guilty, your honor.

Gasps in background, hear “Oh my god, no!”

JOYCE WESNER: And when they announced that she was guilty I just, I mean. We of course all just started bawling. And it was like somebody had stabbed me in the heart.

 

At Floral Lawn Memorial Gardens, just as the sun starts to set, Theresa is on her knees, removing leaves from Alicia’s gravestone. Tonia has at least seven years to go in prison.

THERESA MILLER: Hopefully once we can get Tonia back home and start actually healing, then we can start moving on. Until then, we just get by day by day and keep ourselves busy.

There is a vase attached to Alicia’s stone slab. It’s the only empty one in Babyland.

THERESA MILLER: I’m going to get some flowers because the way it looks, she is a lost child that has been forgotten and she has never been forgotten.

 

CREDITS:

SHAKEN a co-production with The Medill Justice Project was reported by Adele Humbert and Taylor Mullaney with production by Adele and editing by Alec Klein and Amanda Westrich. Our Senior Producer is Tony Gannon.Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain. We want to thank Allisha Azlan and Rachel Fobar, Medill Justice Project associates, and Anthony Settipani, former Medill Justice Project fellow for their help with the reporting and production of our story.  

Our engineers were Adam Yoffe at WBEZ in Chicago and  Howard Gelman at KQED Radio in San Francisco.  Music in this episode was from The Audio Network.

If you prefer to listen to a French Version of this episode, you can find a link on our website, Life of the Law.org.

We want to thank the Medill Justice Project, an award-winning national investigative journalism center that examines potentially wrongful convictions, probes systemic criminal justice issues and conducts groundbreaking research for bringing this story to Life of the Law. You can find out more about the Medill Justice Project on our website, Life of the Law.org.

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SPECIAL BEHIND THE SCENES REPORT

 

SHAKEN Reporters Adele Humbert and Taylor Mullaney interviewed by Nancy Mullane, Life of the Law’s Executive Producer.

MULLANE: Where did you get this idea for “Shaken”?

MULLANEY: The Medill Justice Project has been investigating potentially wrongful convictions for several years now. This case was presented to MJP by a source who truly believes Tonia  Miller is innocent. Alec Klein, Director of The Medill Justice Project, looked over the case records and thought there was some potential for an investigation.

NM: When did you meet Tonia and what were your impressions?

HUMBERT: When Taylor and I decided to report on the case of Miller we had tons of documents to read. I remember we literally had big piles of medical records, police records, court documents all over our desks! It was crucial for us to fully understand Tonia’s background and the chronology of the events before we met her. By the time we went to the prison to meet Tonia in person, we had done so much research, so many interviews surrounding her story that to me it felt like I already knew her, in a way.

MULLANEY: Yes, meeting her was a critical piece of the puzzle. With her in prison, there were many logistical challenges to getting access to the interview. We finally met her during our second trip to Michigan. I think she was especially calm and mature, even when talking about the day when Alicia died. I would describe her as level-headed.

NM: When you met Tonia, what surprised you? What was it like to meet a person who was charged and sentenced for this very private crime?

HUMBERT: In this case, it’s true, we don’t know what happened. Tonia was alone with her 2-year-old daughter and her baby and there were no witnesses. When we met her the contrast between the way she was portrayed by the prosecutor in court documents, and the person we had in front of us really stood out to me. At trial, they described her as emotionless. When we interviewed her in prison, she actually got very emotional. Maybe it’s not in her character to show her emotions but she had tears in her eyes when we asked her about her memories of her daughter, Alicia.

MULLANEY: I remember there was one specific moment, when she talked about not being able to stay at Alan’s parents’ house because she couldn’t bear to look at the empty crib. You could tell she was trying to hold herself together. That was the moment she got very emotional.

NM: Is it the end of Shaken for you?

MULLANEY: I have a graduate degree in journalism and I am in law school right now. I am particularly interested in criminal justice and education advocacy so I would love to work more on podcasts and written material like SHAKEN after I graduate.

HUMBERT: I am a radio reporter and I have a graduate degree in law. I want to use my legal background and my journalistic skills to uncover and tell in-depth stories that can have an impact on real people’s lives and can make a difference. I worked on a French version SHAKEN. You can listen by going to this link on Life of the Law’s website www.lifeofthelaw.org. I think SHAKEN and all the topics surrounding this story will be fascinating for a French speaking audience.

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