May 24, 2012 -- A Texas woman who was convicted of killing a 3-month-old baby but claimed she merely dropped him could be released from her cell on death row and receive a new trial.
Texas Judge Jon Wisser has submitted a formal recommendation to the Texas Court of Criminal Appeals to toss the conviction of Cathy Lee Henderson for the murder of 3-month-old boy in 1994.
Henderson, now 55, was found guilty of killing her infant neighbor, Brandon Baugh, while she babysat, and then burying the body in a wine cooler box 60 miles from the home and fleeing the state. Henderson maintained throughout her trial that she accidentally dropped the boy on her concrete floor, from four-and-a-half feet in the air, while swinging him around to try and calm him.
Dr. Roberto Bayardo, the Travis County, Texas, medical examiner, refuted that claim, saying that the injuries sustained by the baby would not have been possible from that height.
"The infant would have had to fall from the height higher than a two-story building," he concluded, and ruled the death a homicide, according to brief filed in the Criminal Appeals Court by Wisser.
But new research suggests that Bayardo's conclusion may not be accurate, and Bayardo testified at a 2007 hearing that he would not have ruled the same way if he had details on the new research at the time of the trial.
"I think if you took away Dr. Bayardo's testimony at the first trial that the jurors would not have convicted Ms. Henderson," Wisser told ABC News affiliate KVUE.
"I believe it was very difficult for the jurors to separate the death of the infant from Ms. Henderson's subsequent behavior," said Wisser.
Henderson came within two days of her death sentence in 2007 before receiving a last-minute reprieve based on the new scientific evidence and Bayardo's change of opinion. In the intervening years, Wisser has toiled over whether Henderson's verdict should be tossed, he told KVUE.
"In the 16-17 years (since), things have changed," Wisser said. "We have more scientific proof and evidence that I thought a jury should have the opportunity to consider."
Wisser's recommendation will land on the desks of the nine Texas Court of Criminal Appeals judges, who will issue a ruling sometime in the "next few months," according to the court.
The judges will either deny Wisser's recommendation or set a date for a hearing on the matter, in which prosecutors and defense attorneys could argue for a new trial. The court can either release Henderson from prison immediately while the two sides prepare for the hearing, or continue holding her in jail until a final decision is reached.
Eryn Baugh, the father of the infant that was killed, is dismayed at the development, according to KVUE.
"It is extremely difficult," Baugh told the station. "We came within two days of having this over with and having her executed and getting on with our lives. Now we are back in a courtroom and hearing what is basically a bunch of junk science that is basically going on over the death of my son."