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Georgia Supreme Court hears parents’ appeal in Columbus infant’s 2008 death

Ashley Debelbot, left, and Albert Debelbot, right, listen to testimony during a hearing in Muscogee Superior Court.
Ashley Debelbot, left, and Albert Debelbot, right, listen to testimony during a hearing in Muscogee Superior Court.

Ashley and Albert Debelbot met in the Army, which brought them to serve at Fort Benning, which led them to live in Columbus, which put them in prison for life.

Since 2009, the couple convicted of killing their newborn daughter McKenzy have been apart, in separate prisons – except during court hearings appealing their verdicts, as each sought a new trial.

Their last attempt failed Dec. 11, when Muscogee Superior Court Judge Arthur Smith III denied their new-trial motions after a series of hearings from 2015 through 2017.

Now the Debelbots have another chance: The Georgia Supreme Court has agreed to hear oral arguments in their appeal at 10 a.m. Tuesday in Atlanta.

The Debelbots will not be there, only the attorneys, but their story will be heard again, and it has come a long way since the two met in Seoul, South Korea, in 2007.

According to court records and testimony from hearings on their appeal, Ashley was a sergeant in the summer of 2007 when she met Albert, a soldier assigned to her unit, and they started dating. They got engaged that September and married in November.

When Albert was assigned to Fort Benning’s 4th Ranger Battalion School, the couple moved to Columbus, where Ashley became pregnant. She gave birth to McKenzy at Martin Army Hospital at 4 p.m. May 29, 2008.

How difficult the delivery was, and what happened afterward, remain subject to intense scrutiny and debate, and Georgia’s highest court will have to sift through conflicting accounts to decide the couple’s fate.

The baby reportedly was healthy when discharged from the hospital about 12:30 p.m. the following May 31. But sometime after midnight the parents awoke in their Buena Vista Road apartment to find a lump on the infant’s forehead, so they called the hospital and were told to bring the baby back. They returned to Martin Army about 1:30 a.m. June 1, and McKenzy was pronounced dead at 3:55 a.m.

The hospital collected X-rays and CT scans of the baby’s skull, and a Georgia Bureau of Investigation medical examiner conducted an autopsy June 2, 2008. According to the GBI, McKenzy had fractures on both sides of her skull; her brain was swollen; and she had internal bleeding.

Her death was ruled a homicide.

But was it?

Dueling experts

The Debelbots’ appeal attorneys say it was not: The child was born with abnormalities to her brain and skull that led to her death after a difficult delivery, and no subsequent trauma was inflicted upon her.

“The autopsy images show a grossly abnormal skull and brain. Trauma that occurred after McKenzy’s birth cannot explain these abnormalities,” wrote one physician, later adding: “The fracture on the right side of McKenzy’s skull had rounded edges and missing pieces which strongly suggest that the fracture was not acute. In other words, it is likely that it did not happen within hours of McKenzy’s death.”

Dueling experts in such matters occupied hours of hearings on the Debelbots’ appeal here in Superior Court, as attorneys debated defense claims that jurors in the couple’s 2009 trial would have reached a different verdict, had they heard testimony from a defense expert to counter the state’s evidence the child died from head trauma.

In July 2015, defense witness Dr. Julie Mack, a radiologist, testified that the right side of McKenzy’s skull had a hole with “amorphous” or rounded edges, and not the sharp, well-defined edges evidencing an acute or sudden fracture caused by force.

The following October, the prosecution offered testimony from Dr. Susan Palasis, a pediatric radiologist from Children’s Healthcare of Atlanta, who said the child’s skull fractures and bleeding resulted from a “severe traumatic episode” similar to what an unrestrained baby would suffer in a car wreck.

“They were very bad fractures,” she said. “Someone injured this child.”

Palasis was cross-examined by A. James Anderson of Atlanta’s Robins Kaplan law firm, one of Ashley’s appeal attorneys. Anderson claimed McKenzy’s delivery was problematic, as the physician had to free one of the newborn’s shoulders to remove her from the birth canal.

Anderson said McKenzy wasn’t feeding properly the next day and probably should not have been discharged. The circumference of her head had swollen from 33½ centimeters to 35½, he said.

Defense attorneys noted also that the child’s scalp had shown no signs of abuse such as cuts or scratches. Palasis said putting weight upon the infant’s head could have fractured her skull without external injuries.

Much of the medical evidence in the appeal is based on McKenzy’s brain scans from Martin Army, which the Debelbots’ trial attorneys did not see. Another issue in the new-trial motion is whether the prosecution in 2009 had that evidence, and refused to disclose it to the defense during discovery.

In ruling against the Debelbots last December, Judge Smith wrote that he found their experts unpersuasive: “The Court considered the credibility of the witnesses and did not find the Defendants’ witnesses, expert and non-expert, to be credible.”

Rushed to trial?

Because the jury in the Debelbots’ 2009 trial never heard from a defense expert, their attorneys were ineffective, and they did not get a fair trial, their appeal argues.

That was the subject of a hearing Smith held July 17, 2015, when he heard testimony from William “Sandy” Callahan, who in 2009 represented Ashley.

Smith could not hear testimony then from Albert’s trial attorney, William Mason, because Mason died of liver cancer in August 2014. Other witnesses spoke to Mason’s reasoning and trial strategy, which appeared to conflict with Callahan’s.

Callahan wanted to hire an expert witness to counter those the prosecution presented. Mason did not. Then Callahan ran out of time to get the expert he wanted, because the case was rushed to trial, he testified.

Albert also took the witness stand in 2015, to say he understood Mason’s trial strategy to be to emphasize Albert’s character and military service, including medals he won serving in Iraq in 2005 and 2006.

But Mason also tried another tack: Blaming Ashley for the baby’s death. “He never told me about that,” Albert testified.

A University of Wisconsin law student who in 2013 worked on the case with the Wisconsin Innocence Project confirmed this in an affidavit: She spoke with Mason before his death, and he told her he accepted the state’s claim the baby’s death was a homicide.

According to the affidavit, Mason “felt it was a shame that Albert was in prison, and that he thought Albert was innocent, just that he was covering for his wife. Mason indicated that at trial he had hoped Albert would say Ashley did it ... but it was a ‘cultural thing’ for not blaming his wife during his testimony.”

Callahan had wanted to hire an expert witness from Minnesota, Dr. John Plunkett, to counter testimony from GBI medical examiner Dr. Lora Darrisaw, who conducted the infant’s autopsy, but Mason did not.

According to the law student’s affidavit, Mason in 2013 told her “he felt that bringing in some expert from Minnesota was not going to hold any weight with the jury in Columbus.”

Callahan testified he was caught off guard when Mason filed a speedy trial demand, which cut short Callahan’s effort to get an expert.

Callahan, who served as a judge advocate general in both the Navy and Army reserves, said he was on reserve duty when told the Debelbots’ trial was about to start, even though he’d filed a leave of absence for the time he’d be away.

Callahan said he tried to get a delay, but when the case was called on then-Judge Doug Pullen’s calendar on Oct. 2, 2009, the judge told him, “We’re going to try this case. I don’t care where you decide to go.” The trial started the following Oct. 26.

Plunkett was not available until November 2009, Callahan said, so he was compelled to go to trial without a defense expert. Asked why he didn’t find a replacement, he said, “I just didn’t have time.”

Lacking an expert crippled Ashley’s defense, he testified: “Without that, I had nothing.”

On Oct. 29, 2009, a jury convicted Ashley and Albert Debelbot of malice or intentional murder, of felony murder for killing McKenzy while committing the felony of first-degree child cruelty, and of first-degree child cruelty. Each was sentenced to life in prison.

When Albert Omenged Debelbot was sent off to prison on Dec. 21, 2009, he was 24 years old. Ashley Deone Debelbot, sent to prison on Dec. 16, 2009, was 25.

Today Albert is being held in the Riverbend Correctional Facility in Milledgeville, according to the Georgia Department of Corrections. Ashley is in the Pulaski State Prison in Hawkinsville.

The appeal

Now Albert is 33 and Ashley 34, and they have a committed defense team trying to overturn their convictions and win them a new trial.

Besides A. James Anderson of Atlanta, Ashley’s attorneys include Anna Halsey of Eversheds Sutherland, also of Atlanta, and Jimmonique R.S. Rodgers, James C. Bonner Jr. and Brandon A. Bullard with the Georgia Public Defender Council’s Appellate Division.

Albert is represented by Thomas Moffett Flournoy III, who heads the Chattahoochee Judicial Circuit public defender’s office, and Carrie Sperling of the Wisconsin Innocence Project, based at the University of Wisconsin Law School in Madison.

The Wisconsin Innocence Project specializes in cases like the Debelbots’.

Representing the prosecution are Chattahoochee Judicial Circuit District Attorney Julia Slater, Assistant District Attorney Sadhana Dailey, Georgia Attorney General Christopher Carr, Deputy Attorney General Beth Burton, Senior Assistant Attorney General Paula Smith, and Assistant Attorney General Ashleigh Headrick.

That roster does not mean all those lawyers will attend Tuesday’s Supreme Court session. Each side will get 20 minutes to address the court, and “each side” means only the defense and the prosecution: The Debelbots together get 20 minutes, not 20 minutes each.

Among the issues the court will consider are:

Was Albert’s defense so ineffective that his constitutional right to a fair trial was violated? Was the evidence insufficient to warrant his conviction?

Was Ashley’s defense similarly ineffective in failing to call an expert witness, and the evidence against her also insufficient? Did the trial judge err in neglecting to tell jurors her “mere presence” in this case would not justify a conviction? Did the prosecution have McKenzy’s CT scans from Martin Army Hospital and refuse to disclose them to the defense?

The prosecution argues that Albert’s attorney, William Mason, was not ineffective in declining to call a medical expert, as his strategy was to claim his client did nothing wrong. The evidence was sufficient to justify his verdict, the state maintains.

In Ashley’s case, the evidence also was sufficient to support the verdict; the judge fairly instructed the jury on the law; and her defense attorneys failed to prove the prosecution had the hospital CT scans they claim were withheld, prosecutors argue.

After hearing arguments Tuesday, the Supreme Court may overturn or affirm the convictions; or find fault with one aspect of the trial but not others and send the case back to Muscogee Superior Court for review.

The decision must be rendered within two court terms, or in about six months, though it may come earlier, authorities said.

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