Accused child killer Patrick Cody McCormick has new attorneys including one who was on the legal team that was found to be incompetent by the Nevada Supreme Court last November when McCormick original conviction was over turned and the Carlin miner was granted a new trial.
McCormick fired his public defender earlier this month and in a May 6th, hearing was represented by the firm of David Lockie and Sherb McFarlane of Elko.
McFarlane was the Nevada counsel in McCormick’s first trial 15 years ago. Then the defense was headed by Salt Lake ‘rock star’ defense attorney Ron Yengich and it was Yengich the high court singled out as providing an incompetent defense.
Yengich, said McCormick appellant attorney Rick Cornell who won the new trial , 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.
Jennifer had separated from her husband, Ben Jones, and had taken up with McCormick with her two children at a Carlin trailer park.
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 in February. “But the day he died she gave him an adult dose (of penicillin) to stop him from coughing.”
The autopsy of the toddler did not reveal any antibiotics in his system but did fine some 20 blows to his heads consistent with shaken baby syndrome.
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’ case was little disputed.
The court ruled however that Yengich made a crucial error that might have sent an innocent man to prison for 15 years.
“… 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.
McFarlane was not mentioned in the appeal and indeed brings to the defense his complete and according to sources very thorough files on the case, perhaps including the original Carlin police report which reportedly cast extreme doubt and perhaps exonerates McCormick.
Just whether that ‘different outcome’ does occur could be seen later this year in the second trial of Patrick Cody McCormick The trial date is yet to be set however it is expected to last two weeks.
