1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

 

JULIE CHRISTINE LAEL BAUMER,

Plaintiff, Case No.

 

 HON.

vs

 

SUSAN DAVIS,

Warden of Huron Valley Complex- Women,

a Michigan Department of Corrections Facility.

Defendant.

_____________________________________

CARL MARLINGA (P17102)

43550 Elizabeth Rd.

Clinton Township, MI 48036

(586) 468-1783

Counsel for Julie Baumer

CHARLES I. LUGOSI (P70549)

Ave Maria School of Law

3475 Plymouth Road

Ann Arbor, MI 48105

(734) 827-8031

Co-Counsel for Julie Baumer

_____________________________________

APPLICATION FOR WRIT OF HABEAS CORPUS

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.1 Filed 12/08/08 Page 1 of 17
 Barnes, P., M.D., & Krasnokutsky, M., M.D., Imaging of the Central Nervous System in Suspected or Alleged 1

Nonaccidental Injury, Including the Mimics, 18 TOP MAGN RESON IMAGING 53 (2007) (Att. A to Exhibit 2). Dr.

Barnes is a Professor of Radiology at the Stanford University Medical Center and Chief of Pediatric Neuroradiology

at Lucile Salter Packard Children’s Center. 

2

INTRODUCTION

Julie Baumer requests relief from judgment under 28 USC §2254 on constitutional

grounds, including actual innocence and ineffective assistance of counsel. In 2005, Ms. Baumer

was convicted of abusing her six-week old nephew, Philipp Baumer, based solely on medical

testimony. The medical records have recently been reviewed by Dr. James A. J. (Rex) Ferris,

Professor Emeritus of Forensic Pathology at the University of British Columbia, and Dr. Michael

Krasnokutsky, co-author of a major radiological article on pediatric head injury with Professor

Patrick Barnes of Stanford University Medical School. Dr. Ferris’ affidavit is attached as 1

Exhibit 1. Dr. Krasnokutsky’s affidavit and PowerPoint slides are attached as Exhibit 2. 

Dr. Ferris’ and Dr. Krasnokutsky’s reviews confirm that Philipp’s brain damage was the

result of venous sinus thrombosis (“VST”), a frequently misdiagnosed form of childhood stroke.

VST is most commonly found in infants under the age of three months and is often triggered by

sepsis (infection that has entered the bloodstream) and dehydration, both of which were

diagnosed at Mount Clemens General Hospital. An earlier skull fracture is most likely a birth

injury. This diagnosis explains the child’s radiological findings, clinical history and subsequent

diagnosis of cerebral palsy. It also resolves the inconsistencies in the testimony of the State’s

witnesses, as well as the inconsistencies between the caretaker observations and the

pediatrician’s reports. 

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.2 Filed 12/08/08 Page 2 of 17
 The opinion of the Court of Appeals is attached as Exhibit 6. 2

 TR IX, 9. References to the transcript are in the form of volume, page. The transcript of the September 20 3

proceedings is not labeled with a volume number but is referenced as volume I. The transcript of the June 2

evidentiary hearing is referenced as TR Ev Hrg I, and the transcript of the June 14 evidentiary hearing is referenced

as TR Ev Hrg II. 

3

I. PROCEDURAL HISTORY

1. Julie Baumer was convicted of child abuse in the first degree under MCL 750.136b(2) by a

jury in the Macomb County Circuit Court on September 29, 2005. The Honorable James

M. Biernat presided at trial. Ms. Baumer was sentenced by Judge Biernat to 10–15 years

imprisonment on November 9, 2005. She is serving that sentence at the Huron Valley

Complex-Women in Ypsilanti, Michigan, located in the eastern District of Michigan.

Ms. Baumer sought reversal of her conviction in the Michigan Court of Appeals on December

28, 2005. The Court of Appeals denied relief on April 12, 2007 in an unpublished per curiam

opinion. People v Julie Christine Lael Baumer (No. 267373). The Michigan Supreme Court 2

denied leave to appeal on September 10, 2007. People v Julie Christine Lael Baumer (No.

133892).

2.

At trial, Ms. Baumer was represented by Elias Muawad, who continued to defend Ms.

Baumer’s innocence at sentencing. It is our understanding that Mr. Muawad will be 3

supporting this Motion. Ms. Baumer was represented by Madelaine P. Lyda on appeal to

the Court of Appeals. Ms. Baumer represented herself on appeal to the Supreme Court.

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.3 Filed 12/08/08 Page 3 of 17
 TR I, 8. 4

 Exhibit 1, Att. C at 1989 (gavage feeding, poorly responsive, decreased muscle tone, absent reflex, suspected 5

seizure).

4

II. STATEMENT OF FACTS

Medical History

3. Since there were no witnesses to the alleged abuse, the State’s case rested on the

interpretation of CT scans and an MRI by two State witnesses. If these interpretations were

incorrect, there is no basis for the conviction. In this Motion, we briefly review the medical

evidence presented at trial as well as the new evidence provided by Drs. Ferris and

Krasnokutsky. 

Philipp Baumer is Julie Baumer’s nephew. Due to Philipp’s mother’s addiction to crack

cocaine, Julie agreed to adopt Philipp and was his primary caretaker. 

4

4.

On October 3, 2003, Julie brought Philipp to Mount Clemens General Hospital (“Mt.

Clemens”) at approximately 1 p.m. for vomiting and lethargy. Philipp was six weeks old at

the time. A CT scan taken approximately 33 hours after hospital admission showed severe

brain damage and a skull fracture of undetermined age.

5. At trial, the State’s experts contended that Julie caused the brain damage (and possibly the

fracture) through an undetermined mechanism most likely occurring approximately 24

hours before the CT scan. It went undeveloped at trial that Philipp was in the hospital 24

hours before the CT scan, indicating that the brain damage was natural, rather than

traumatic, in origin. 

The symptoms described in ¶¶ 8–10 include 5 of the 6 factors doctors use to diagnose

neonatal brain damage.5

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.4 Filed 12/08/08 Page 4 of 17
 TR III, 68; Exhibit 4 at 27; Exhibit 2, Att. B. 6

 TR VI, 31. 7

 TR I, 47, 55, 60; TR III, 42; TR V, 115. 8

 TR VI, 83. 9

5

6. At a September 23 pediatric visit, Philipp’s weight was recorded as 8 lbs 10 oz, with no

problems noted. 

At about 5 p.m. on October 3, Philipp was transferred to the Children’s Hospital of

Michigan (“Children’s”). When he showed signs of acute brain swelling, Children’s

performed a CT scan of Philipp’s head. This scan was taken at 9:39 p.m. on October 4,

approximately 33 hours after Philipp entered the Mt. Clemens emergency room. 

6

7. This scan revealed extensive recent brain damage and a skull fracture of undetermined age.

Radiologists opined that the pattern of damage was consistent with non-accidental injury

and “shaken baby syndrome.”

8. Julie Baumer was charged and tried based solely on the radiological findings, combined

with evidence that she was Philipp’s caretaker from the evening of September 28 through

the morning of October 3.

Trial

Counsel further failed to adequately investigate or develop the birth trauma defense. His

questions revealed that Philipp’s skull fracture could possibly have been caused by a

normal delivery, but he offered no evidence to show that the brain damage, the lynchpin of 7

the State’s case, could have started with birth injury. Thus, he failed to produce evidence

that Philipp’s mother had been given Pitocin; that Philipp suffered loss of oxygen during

birth; or any evidence linking the symptoms suffered after birth to a congenital or nonabusive mechanism. Instead, the State’s experts vigorously denied those possibilities, and 8

his own expert testified that the fracture was likely part of the “spectrum of child abuse.”9

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.5 Filed 12/08/08 Page 5 of 17
 Exhibit 1 at ¶ 9 et seq.; Exhibit 2 at ¶ 6 et seq. 

10

 Exhibit 2 at ¶¶ 18, 20. 11

6

9. Trial counsel also failed to point out that the State’s witnesses testified that the brain

damage most likely occurred in the hospital, suggesting that it was natural, not traumatic, in

origin. Stroking in the hospital would be consistent with the seizures observed by neonatal

specialists at Mt. Clemens and the hospital staff at Children’s.

10. The defense that Philipp had been abused by someone other than Julie required the jury to

disbelieve the State’s interpretation of Philipp’s CT and MRI scans. Defense counsel was

unprepared to cast doubt on the experts’ timing or causation via cross examination because

the defense had not retained its own expert to read the radiology reports and was unfamiliar

with the literature. 

An expert radiologist would have challenged the mechanisms of injury postulated by Drs.

Ham and Becker. Specifically, a recent review of the radiology has established that

Philipp’s brain damage was due to venous sinus thrombosis, or childhood stroke, which is

rarely associated with trauma and is most commonly associated with sepsis and

dehydration. An expert radiologist would have confirmed that the areas of stroke were 10

unrelated in location and timing to the earlier skull fracture, which possibly related back to

birth. Further, a radiologist would have agreed with the State’s witnesses that the size and

consistency of the infarcts (dead brain cells) indicated that the stroke most likely occurred

24–72 hours prior to the CT scan. These findings would have led reasonable counsel to 11

present a defense that incorporated all of the evidence, specifically, that Philipp suffered

some birth injuries, likely including the fracture, followed by nonspecific symptoms,

including the failure to feed (requiring a week-long hospitalization) and mini-seizures or

mini-strokes (as reported to the pediatrician), culminating in a major stroke occurring either

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.6 Filed 12/08/08 Page 6 of 17
See Exhibit 9 at ¶ 20; Exhibit 10 at ¶ 56. As this suggests, in cases like this one, which present complicated fact 12

patterns, evolving medical literature, and a number of specialties, it is typical for both sides to require more than one

expert. 

 Exhibit 7 at 20–24. 13

 Exhibit 7 at 35–40. 14

7

shortly before or during hospitalization. Counsel would have discarded the theory that

Philipp was abused while outside Julie’s custody, a theory that had little credibility since

counsel was unable to identify an abuser other than by general references to his birth

mother’s drug habit. 

12

11. Ms. Baumer did not testify in her own defense. It is our understanding that counsel

inadequately informed her of her right to testify, such that she did not believe she could

overrule counsel’s strategic decision not to call her.

Appeal

Appellate counsel’s claim of insufficiency of the evidence consisted almost exclusively of

incorrect conclusory allegations that no evidence supported Ms. Baumer’s conviction.13

Appellate counsel’s claim of ineffective assistance of counsel was limited to the failure to

raise the defense of Pitocin-related birth defects. 

14

12. Appellate counsel did not address the trial court’s exclusion of Dr. Ophoven’s testimony on

the current medical research and literature, or challenge the sufficiency of the evidence

based on inconsistency among the State’s experts or the fact that their timing placed

Philipp’s brain damage as most likely occurring at the hospital, where Julie was unable to

harm him. Appellate counsel also did not address trial counsel’s failure to retain an expert

radiologist or thoroughly investigate alternative causations. 

New Evidence

13. Dr. Michael Krasnokutsky, the co-author of a leading pediatric radiology review, has

reviewed the crucial radiological evidence, and his findings have been reviewed and

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.7 Filed 12/08/08 Page 7 of 17
 Exhibit 5, Wasay at 26. 

15

 Exhibit 1, Att. C at 1985, 1989–90; Exhibit 5. 16

 Exhibit 1, Att. B at 422. 17

8

interpreted in light of Philipp’s medical history by forensic pathologist Dr. James A. J.

(Rex) Ferris. Dr. Krasnokutsky and Dr. Ferris have provided their reports on a pro bono

basis. These reports, which are attached as Exhibits 1 and 2, should be read in their

entirety.

The State’s experts missed this diagnosis, most likely for three reasons. First, because VST

is a relatively unusual diagnosis (annual incidence rate estimated at 1/100,000 births),15

many pediatricians and pediatric radiologists have never encountered it in their practices

and hence do not know to look for it. Second, neonatal brain injury and VST are often

under-diagnosed because they have non-specific and clinically subtle signs and symptoms,

and their causes are only now being revealed due to advances in diagnostic imaging and

larger case studies. Third, the State’s experts admitted that they did not interpret the 16

imaging in light of Philipp’s medical history. The medical literature confirms that VST is

often missed when physicians do not exercise a “high index of suspicion” and evaluate the

patient’s history in its totality. 

17

14. Although this is a classic case of VST, it is not possible to determine when Philipp first

began to stroke. CT scans and MRIs were not taken in the neonatal ward on August 17–29,

when he presented with lethargy and failure to suck; on August 29, when he presented with

twitches and tremors; or for 32–33 hours after hospital admission on October 3. This

evidence gap makes it impossible to determine when the stroking first began. Based on his

symptoms and medical records, however, it is likely that Philipp had some brain damage

and neurological problems from birth, likely related to prenatal conditions and birth trauma,

followed by mini-seizures or mini-strokes (as evidenced by twitches, tremors, and rapid eye

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.8 Filed 12/08/08 Page 8 of 17
 Barnes, P., M.D., & Krasnokutsky, M., M.D., Imaging of the Central Nervous System in Suspected or Alleged 18

Nonaccidental Injury, Including the Mimics, 18 TOP MAGN RESON IMAGING 53 (2007) (Att. A to Exhibit 2).

See, e.g., Wasay, M., M.D., F.R.C.Path., et al., Cerebral Venous Sinus Thrombosis in Children: a Multicenter 19

Cohort from the United States, 23 J CHILD NEUROL 26 (2008); Fitzgerald, K., M.Sc., et al., Cerebral Sinovenous

Thrombosis in the Neonate, 63 ARCH NEUROL 405 (2006); Sébire, G., et al., Cerebral Venous Sinus Thrombosis in

Children: Risk Factors, Presentation, Diagnosis and Outcome, 128 BRAIN 477 (2005) (all attached in Exhibit 5). 

Similar advances have occurred in pediatric head injury in general, including “shaken baby syndrome.” 

9

blinking), followed by catastrophic stroking occurring 24–72 hours before the first CT scan,

triggered by illness and dehydration. The seizures observed by the neonatologist at Mt.

Clemens and the hospital staff at Children’s suggest that the major stroking may have

occurred during hospitalization. 

While some of this evidence was available at the time of trial in 2005, trial counsel’s

ineffective preparation and the erroneous exclusion of Dr. Ophoven’s testimony kept much

of it from the jury. Further, the research on VST and alternative explanations for symptoms

previously attributed to “shaken baby syndrome” and non-accidental injury has continued

to evolve since 2005. As a result, this evidence is richer and more credible now than it was

three years ago. Recent studies that were not available in 2005 include the 2007 radiology

review by Drs. Barnes and Krasnokutsky, which contains five pages of alternative 18

diagnoses, and numerous research articles on the diagnosis, symptoms, and predisposing

factors of VST and other forms of childhood stroke. 

19

III. GROUNDS FOR RELIEF 

15. Julie Baumer was denied the effective assistance of trial and appellate counsel, in violation

of the Sixth and Fourteenth Amendments to the United States Constitution.

16. Julie Baumer was convicted on evidence insufficient to constitute proof beyond a

reasonable doubt, in violation of the Fourteenth Amendment and In re Winship, 397 US

358 (1970).

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.9 Filed 12/08/08 Page 9 of 17
10

17. Newly discovered evidence and evidence not presented to the jury due to constitutional

violations demonstrate that Julie Baumer is actually innocent under the standards set forth

in Schlup v Delo, 513 US 298 (1995) and Herrera v Collins, 506 US 390 (1993).

IV. LEGAL ISSUES

18. Ineffective assistance of counsel. Trial counsel’s failure to consult with or present the

testimony of an expert radiologist constitutes a deficient investigation of the facts and

defenses under Strickland v Washington, 466 US 668 (1984) and Rompilla v Beard, 545 US

374 (2003). A virtually identical fact pattern is found in State v Hales, 2007 UT 14; 152

P3d 321 (Utah, 2007). In Hales, the defendant was accused of killing his girlfriend’s young

son by shaking. Although it became apparent at a preliminary hearing that the State had no

witnesses to the alleged abuse and that CT scans would be critical to the State’s case, trial

counsel consulted only a forensic pathologist. The forensic pathologist testified that the

injuries could not have been caused by shaking but was unqualified to refute the State’s

interpretations of the radiology. Since it was critical that the jury disbelieve the State’s

interpretation of the CT scans, the Utah Supreme Court found that a reasonable attorney

would have consulted a qualified radiologist. Based on an affidavit from Dr. Patrick

Barnes, the Court held that, had this been done, there was a reasonable probability that the

defense would have obtained, and the jury would have credited, crucial expert evidence on

the timing, nature, and violence of the injury. Id. at 339–40, 344. The Court held that the

failure to consult with a qualified radiologist constituted ineffective assistance of counsel

and a deprivation of defendant’s due process rights. Id. See also People v Campbell, 2005

Mich App LEXIS 186, unpublished opinion per curiam of the Court of Appeals, issued Jan.

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.10 Filed 12/08/08 Page 10 of 17
 TR VI, 131–33. 20

11

27, 2005 (Docket No. 245263) (granting new trial where murder conviction rested solely on

medical evidence and counsel failed to consult with medical experts).

19. That counsel may have unsuccessfully sought informal appointment of an expert radiologist

due to Ms. Baumer’s indigence is irrelevant. Even without a radiologist, counsel should

have reviewed the radiology literature sufficiently to conduct an effective crossexamination of the State’s witnesses. In addition, reasonable counsel would have: (1) filed

a formal motion for appointment of an expert under MCL 775.15, with available

interlocutory appeal; (2) subpoenaed the radiologists who actually performed Philipp’s

diagnostic imaging and elicited their expert opinions; or (3) withdrawn as counsel due to

his client’s indigence with a request that the defense be presented at state expense. See Ex

parte Briggs, 187 SW2d 458 (Tex Crim App, 2005) (vacating conviction where counsel’s

failure to retain necessary expert was financial rather than strategic decision); State v

Schoonmaker, 2008 NMSC 10; 176 P3d 1105 (NM, 2008) (same).

20. Counsel’s ineffective performance prejudiced Ms. Baumer, since consultation with an

expert radiologist would have yielded a diagnosis of venous sinus thrombosis, or childhood

stroke. This diagnosis would almost certainly have resulted either in acquittal or in

dismissal of the charges. 

Right to testify. Counsel ineffectively apprised Ms. Baumer of her right to testify. The

trial court determined that Ms. Baumer understood her constitutional right to testify and

voluntarily waived it. That decision, however, was tainted by counsel’s ineffective 20

explanation of the right. It is our understanding that counsel did not adequately inform Ms.

Baumer that the decision whether to exercise her constitutional right was ultimately up to

her, and failed to inform her that she could overrule his decision not to put her on the stand.

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.11 Filed 12/08/08 Page 11 of 17
 TR I, 107. 21

 TR IV, 10. 22

 TR V, 39. 23

12

It is our understanding that Ms. Baumer repeatedly attempted to persuade counsel to allow

her to testify, but gave up when arguing proved futile.

21. Counsel cannot overrule a defendant’s desire to testify. United States v Webber, 208 F3d

545, 551 (CA 6, 2000), citing Rock v Arkansas, 483 US 44 (1987). Even when defendant

knows her rights, the courts refuse to countenance counsel’s failure to inform defendant

that the ultimate decision whether to exercise those rights is defendant’s alone. Campos v

United States, 930 F Supp 787, 793 (EDNY, 1996) (granting habeas relief on grounds of

ineffective assistance, where defendant knew he had the right to testify but trial counsel did

not explain that the ultimate decision was defendant’s). 

Counsel prejudiced Ms. Baumer by not allowing her to tell her side of the story. At trial,

counsel produced little evidence of Julie’s good character, demeanor, and positive

experience with children. The most emotional evidence was highly stacked in favor of the

State, including inflammatory photographs depicting Philipp’s current physical condition.21

Although Julie has consistently denied making this statement, the jury also heard testimony

that Julie had allegedly stated to police that she sometimes got so angry with Philipp that

she had to leave the room, for fear of what she might do. Ironically, while highly 22

prejudicial in the trial context, this merely reflects the advice commonly given by

pediatricians to frustrated parents of crying infants. Perhaps most important, the jury

became aware that Julie had been administered a polygraph test, with the obvious

implication that she had failed it. In this climate, Julie’s enforced silence is “sufficient to

23

undermine confidence in the outcome” of her trial. Strickland, supra at 694; People v

Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). 

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.12 Filed 12/08/08 Page 12 of 17
 Appellate counsel’s ineffective assistance constitutes an independent constitutional violation. See, e.g., Wright v 24

West, 505 US 277, 293 (1992) (right to counsel extends to first direct appeal).

13

22. Exclusion of Dr. Ophoven’s testimony. The preclusion under MRE 703 of Dr. Ophoven’s

attempt to refute the State’s claims on timing and “shaken baby syndrome” based on nonadmitted current research literature was error, since scientific literature need not be in

evidence to form the basis for an expert opinion. People v Yost, 278 Mich App 341, 391;

749 NW2d 753 (2008) (per curiam) (granting new trial where pathologist was forbidden

from testifying on cause of death because opinion was informed by medical text not in

evidence).

Ms. Baumer raises this issue for the first time, but the procedural bar established by MCR

6.508(D)(3) is excused for two reasons. First, appellate counsel was ineffective for failing

to raise the exclusion issue on direct appeal. Appellate counsel performs ineffectively

when there is no excuse for counsel’s failure to raise an obvious error that could result in

reversal. Gardner, supra at *9 n11. The wrongful exclusion of testimony under MRE 703

on the grounds articulated by the trial court is so obvious an error that the Court of Appeals

has considered it sua sponte and reversed for plain error. Yost, supra at 389 (remanding for

new trial in per curiam opinion). It was not reasonable for appellate counsel to choose the

speculative and substantially unsupported arguments briefed over one much more likely to

result in reversal. Second, the literature that Dr. Ophoven would almost certainly have 24

discussed would have created “a significant possibility that defendant is innocent of the

crime.” MCR 6.508(D)(3). 

23. Insufficiency of the evidence. The evidence against Ms. Baumer at trial was flimsy and

incoherent. Since the State presented no witnesses to the alleged abuse, the State’s case

was based on circumstantial medical theories advanced by Drs. Ham and Becker.

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.13 Filed 12/08/08 Page 13 of 17
See generally Exhibit 1. 25

14

However, those theories contradicted each other and, even if taken as correct, established

only a slim chance that Ms. Baumer abused Philipp. Specifically, Dr. Ham testified that

Philipp was injured within 12–24 hours of 9:39 p.m. on October 4, and Dr. Becker testified

that he was injured within 24–48 hours, but more likely within 24 hours, of that time. This

timing places the brain damage as occurring while Philipp was at Children’s or Mt.

Clemens, not while he was in Julie’s care, and is consistent with the seizures noted at both

hospitals. Drs. Ham and Becker also disagreed on the relationship between the fracture and

the brain damage: Dr. Ham testified that the fracture and brain damage occurred at the same

time, while Dr. Becker testified that they were separate events, occurring at different times,

with different causations. Drs. Ham and Becker also directly contradicted each other on

causation: Dr. Ham testified that all brain and head injuries were caused by blunt force

trauma, whereas Dr. Becker testified that the fracture was caused by impact or trauma

(possibly due to the use of forceps during birth), but that the diffuse brain damage was

inconsistent with a single impact and was best explained by repetitive shaking. There was,

however, no evidence of shaking, such as neck injury, broken ribs, or bruising on the chest

or extremities. Such confusing and contradictory evidence does not meet the standard of

proof beyond a reasonable doubt, in violation of the Fourteenth Amendment and In re

Winship, 397 US 358 (1970).

Actual innocence/new evidence. A review of the CT scan and MRIs has established that

Philipp’s brain damage was caused by venous sinus thrombosis, or childhood stroke.

Unlike the State’s theories, which were contradicted by its own experts, this non-abusive

diagnosis reconciles the conflicting evidence presented at trial. In particular, VST is 25

associated with sepsis, dehydration, and other laboratory findings that went ignored at trial.

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.14 Filed 12/08/08 Page 14 of 17
See generally Exhibit 1. 26

 Exhibit 15. 27

15

VST also causes brain hemorrhage, swelling, and infarct, mimicking the presentation of

abusive head trauma. The radiological review establishes a definitive diagnosis of VST, as

demonstrated on Dr. Krasnokutsky’s PowerPoint. This diagnosis is supported by the

medical history admittedly ignored by the State’s experts—including Philipp’s initial

hospitalization, his continuing lethargy and feeding difficulties, his failure to respond to

common stimuli, and the twitching and blinking observed by his mother, aunt, grandparents

and great-grandfather. 

26

24. Had this diagnosis been explained at trial and the jury provided a comprehensive theory

synthesizing the medical evidence, it is “more likely than not that no reasonable juror

would have convicted.” Schlup v Delo, 513 US 298, 327 (1995). Further, this new

showing is a “truly persuasive demonstration” of actual innocence, which the Supreme

Court has suggested may be sufficient to warrant relief even absent underlying

constitutional error. Herrera v Collins, 506 US 390, 417 (1993). 

25. Subsidiary claims. Several subsidiary claims require further factual review. First, reports

of Philipp’s alleged abuse by Ms. Baumer were widely disseminated in the Macomb Daily

during the trial, potentially tainting the jury pool. The first story, which we believe was

headlined on the front page, quoted Philipp’s adoptive parents and strongly implied guilt.27

Second, it is likely that inaccurate statements made by the prosecutor during her closing

argument misled the jury. Although the crucial timing evidence offered by Drs. Ham and

Becker suggested that Philipp’s brain damage occurred during hospitalization, the

prosecutor referred to that evidence in her argument as if it established that Julie had

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.15 Filed 12/08/08 Page 15 of 17
 Since this case involved technical medical evidence, the jury asked for a transcript of the testimony, which was not 28

available. TR VIII, 4-7. At the end of the trial, a juror asked the Court whether Ms. Baumer had “really done it,”

suggesting that the jury was thoroughly confused by the evidence, which was conflicting and incomplete. TR VIII,

18. As the appellate brief suggests, this evidence was misinterpreted by appellate counsel even with the benefit of a

transcript. See Exhibit 7 at 21, 22. 

 TR VII, 42. 29

 TR V, 81. 30

 TR VII, 42. 31

See Exhibit 10 at ¶ 53. Mrs. Baumer, Philipp’s grandmother, states in her affidavit that on December 18, 2003, the 32

detective in charge of the investigation told her that he was not bringing charges against Julie at that time because of

conflicting information from Children’s Hospital. We do not know the information to which he was referring. In

addition, we do not have copies of the labor and delivery records from Philipp’s birth, or the laboratory reports from

Children’s. These materials may provide additional information on birth injury, illness or infection. 

16

injured Philipp. In addition, although the prosecutor confirmed in her closing argument 28

that this was a “blunt trauma” case, not a “shaken baby” case, the prosecution’s lead 29

witness, Dr. Becker, diagnosed shaking as the cause of the brain damage, and the 30

prosecutor insisted, incorrectly, that these very different allegations are “grouped together”

and that “we’re talking about the same thing.” Given the repeated references to 31

“shaking,” it is virtually inevitable that the jury would have confused the charges with

“shaken baby syndrome,” a prejudicial and controversial diagnosis that has garnered

widespread attention in the media and inevitably inflames popular outrage against abusive

parents. Finally, there is some possibility that the State was well aware of the

inconsistencies in its theories and that potentially exculpatory information may not have

been provided to the defense. These claims require further investigation, particularly in 32

view of the medical reports confirming that Philipp’s brain damage was natural, rather than

traumatic, in origin.

V. CONCLUSION

For the reasons stated above, Ms. Baumer respectfully requests that this Court grant her

Application and enter an order requiring her release from the Michigan Department of

Corrections 

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.16 Filed 12/08/08 Page 16 of 17
17

Dated: December 7, 2008

Respectfully submitted,

s/Carl J. Marlinga 

Carl Marlinga P17102

Counsel for Plaintiff

43550 Elizabeth, Suite 300

Clinton Township, MI 48036

(586) 468-1783

mail@marlingalaw.com

S/Charles I. Lugosi

Charles I. Lugosi

Co-Counsel for Plaintiff

Ave Maria School of Law

3475 Plymouth Road

Ann Arbor, MI 48105

(734) 827-8031

Case 2:08-cv-15075-PDB-SDP ECF No. 1, PageID.17 Filed 12/08/08 Page 17 of 17