On February 4, Elko District Judge Nancy Porter will either free a child killer or give an innocent man a new trial for a crime he never committed.
The man, Patrick Cody McCormick, is either one or the other and has been sitting in the Elko County Jail waiting his day in court ever since the Nevada Supreme court overturned his conviction for the 1995 murder of toddler Jacob Jones last November.
“We are just heartsick about this,” said Sandy Foertsch the paternal grandmother of Jacob Jones the one year old child McCormick was convicted of killing. “We plan to be at the hearing February 4th to protest if that man is freed.”
In addition to possibly freeing McCormick, the court’s finding that the Carlin miner deserved a new trial because his original attorney was incompetent and because of that ‘ineffective council’ an ‘innocent’ man may have spent 17 year in prison may send shock waves across the intermountain west.
“We aren’t talking about some inexperienced, under paid public defender,” said McCormick’s new attorney Rick Cornell. “This is Ron Yengich, who is promoted as the best defense attorney in the west.”
Cornell was not exaggerating. In a glowing article in the Deseret News published in October 2005, Yengich was lionized by reporter Doug Robinson on the attorney’s 30 anniversary of practicing law:
“As Ron Yengich walks briskly to court this morning, he is pondering his three decades of defending the accused. Sept. 29 will mark 30 years as a criminal defense attorney in Salt Lake City. He noted it on his calendar. It has been on his mind for months.
“Thirty years,” he says. “I’ve spent a lot of time thinking about it.”
That’s 30 years of taking on some of Utah’s most high-profile cases, usually on the side of the underdog and squarely against public sentiment. That’s 30 years of having the fate of men resting on his shoulders. Thirty years of representing murderers, drug dealers, thieves. Thirty years of fighting for congressmen, mayors, judges, “Joe Sixpack,” pro athletes, actors, religious leaders, journalists. “All manner of disreputables,” he says wryly.”
Yengich, Cornell said, was retained shortly after McCormick was arrested in 1995, for the murder of Jacob Jones the son of McCormick’s live in girl friend, Jennifer.
“She was typical trailer trash.” Cornell explained and according to Cornell it was Jennifer Jones not Patrick Cody McCormick who was responsible for her son’s death.
“A week before she found out her son was allergic to penicillin,” the attorney said. “But the day he died she gave him an adult dose (of penicillin) to stop him from coughing.”
Shaken baby syndrome (SBS) is a triad of medical symptoms: subdural hematoma, retinal hemorrhage, and cerebral edema from which some doctors, consistent with current medical understanding, infer child abuse caused by intentional shaking. In a majority of cases there is no visible sign of external trauma. Up to half of deaths related to child abuse are reportedly due to shaken baby syndrome.
There is a very good reason why no penicillin was found in the boy, Cornell explained, it metabolizes almost immediately after it is taken. Yengich, Cornell added, told McCormick’s family that he would get one of the top pathologists in the country to counter the theory espoused by the state’s pathologist Ellen Clark and then Elko District attorney Gary Woodbury, that Jacob Jones was beaten to death and that Patrick Cody McCormick did it.
While the Salt Lake rock star lawyer did make some preliminary calls, Cornell said, he never followed through thus when the jury heard the case the cause of Jacob Jones’ death was little disputed if at all.
Pertinent part of Nevada supreme court ruling:
“… Appellant argues that counsel was ineffective for failing to investigate whether the victim died from anaphylactic shock due to an allergic reaction to penicillin. The record before this court indicates that counsel was deficient and that appellant was prejudiced by that deficiency. Counsel testified that he knew the emergency room physician could not rule out a penicillin allergy as a cause of death; that he could not recall discussing it with Dr. S. Dunton, the medical expert with whom he briefly consulted; and that he would have presented expert testimony that the victim died of anaphylactic shock had he had such an expert opinion. Counsel provided no reason for why he did not investigate this possible defense. It was thus objectively unreasonable for trial counsel to have abandoned the potential defense without first investigating it. Strickland, 466 U.S. at 690-91. Moreover, appellant has demonstrated a reasonable probability of a different outcome had counsel presented expert testimony regarding a penicillin allergy. The testimony of two key witnesses provided the only evidence at trial that appellant fatally abused the victim. First, Dr. E. Clark testified that the victim died of brain injuries as the result of blunt force trauma to his head, the blunt force trauma was inflicted within 6 to 12 hours of death, and the victim would have exhibited symptoms within minutes of axonal disruptions within the brain. Second, the victim’s mother testified that appellant was alone with the victim for approximately 10 minutes during that 6-to-12-hour timeframe, and when she returned at the end of the 10 minutes, appellant was coming out of the victim’s room and reported that the victim was having trouble breathing. The only evidence presented at trial regarding penicillin was that the mother had administered some to the victim shortly before he went into distress, none was found in the victim’s stomach or blood, and Dr. Clark’s opinion that that was “unusual.” Opinions such as those of Dr. R. Gabriel, whom appellant retained for the post-conviction proceedings, would have impeached Dr. Clark’s testimony and provided a plausible, alternative cause of death that did not implicate appellant. Dr. Gabriel opined based on the victim’s medical records and the autopsy report that the victim died from anaphylactic shock due to penicillin poisoning. He explained that it was in fact not “unusual” that no penicillin was found in the victim’s system as it would have been fully metabolized before death, an opinion with which Dr. Clark agreed at the evidentiary hearing held for the instant petition. Dr. Gabriel further opined that the medical records and autopsy report contained insufficient evidence to support child abuse as a cause of death. Dr. Gabriel testified, consistent with Dr. Clark’s testimony at trial and the evidentiary hearing, that the superficial bleeding on the brain was insufficient to cause death. However, where Dr. Clark testified at the trial that the superficial bleeding and retinal hemorrhaging were an indication of axonal disruptions, Dr. Gabriel testified that no such conclusion could be drawn. Rather, he explained that microscopic analysis of deep brain tissue was necessary to determine whether there were axonal disruptions and that the hospital staff could have easily mistaken dilated capillaries in the victim’s eyes for retinal hemorrhaging, but neither could be confirmed because no photographs were taken and the autopsy report did not indicate they were examined for. Because Dr. Gabriel’s testimony provided an alternative explanation for the death and contradicted that of Dr. Clark, and because the expert testimony was critical in this case, appellant demonstrated a reasonable probability of a different outcome at trial had counsel pursued the penicillin theory. We therefore conclude that the district court erred in denying this claim.’
Because appellant has demonstrated that trial counsel was ineffective, he is entitled to a new jury trial…”
A new trial might be easier said than done. Eighteen year have passed since Jacob Jones died and district Attorney Marc Torvinen may decide pragmatically that the cost of mounting a new prosecution simply is not justified.
Originally sentenced to 20 to life McCormick would have been up for parole in two to three years even if he had lost his appeal.
“A new trial with so much time passed would not be easy for the prosecution,” said retired District Judge Mike Memeo. “Witnesses forget, evidence is destroyed or ruined. It isn’t impossible getting another conviction but it isn’t easy.”
Another cynical consideration favoring the dismissal of the case is the fact that McCormick now suffers from the debilitating Crohn’s disease.
According to Cornell, as long as McCormick is in custody the cost for the treatment of his illness must be either borne by the state or Elko County.
“We are hoping that the District Attorney does the math,” Cornell said.
On the other hand on February 4th, it will be up to Judge Nancy Porter to look Jacob’s father and grandmother in the eye and tell them the man they believe brutally beat the boy to death is now a free man.
Porter is up for reelection in 2014.