freejaybiggs

Jay's appeal Brief

Explanation of why this Case Raises Substantial Constitutional Questions

And is a Case of Great General and Public Interest

Cases of alleged sexual abuse and murder of infants are, by their nature, of great general

and public interest. Where there is no direct evidence of guilt, the price of error is enormous on

both sides. A dangerous killer can be released. Or an innocent, grieving father can be falsely

imprisoned for causing the death of one whom he would have given anything to protect.

The death of Jaydee Biggs was a tragedy. But as Forensic Pathologist Werner Spitz

explained, her death was most likely a tragic case of' Sudden Infant Death Syndrome or an

accidental obstruction of her airway as she slept based on overfeeding by her mother. He also

testified that much of what the State called evidence of rape was simply the result of infection

and a government urologist's inappropriate use of a speculum in an autopsy. The State's experts

opined that the injuries were the result of rape and suffocation. Although there was evidence to

support the State's theory, the evidence was not sufficient beyond a reasonable doubt. And

while the evidence must be viewed in the light most favorable to the State, that standard must be

viewed with common sense. In this case, no reasonable jury could have found that Mr. Biggs

was guilty of killing and raping his daughter beyond a reasonable doubt.

On the morning of June 5, 2006, Appellant.Iay Biggs found his four-month-old daughter

dead in her room. Almost two years later, he was arrested and charged with raping and killing

her. The charges carried a potential death penalty. He steadfastly maintained his innocence at

trial. He was convicted of two counts of aggravated murder with capital specifications, R.C.

2903.01; two counts of felony murder, R.C. 2903.02; one count of rape, R.C. 2907.02; and one

count of endangering a child, R.C. 2919.22. After the penalty phase of the capital trial, the jury

authorized a sentence of life without the possibility of parole. The trial court merged the all of

the counts into the first count of aggravated murder and sentenced Mr. Biggs to life in prison

without the possibility of parole.

On appeal, Mr. Biggs' lawyer raised only a single assignment of error challenging the

sufficiency and weight of the evidence. The court of appeals affirmed. This timely appeal

follows.

Argument

Proposition of Law

The State cannot convict a defendant without proving every element of the offense

beyond a reasonable doubt to the jury.

The State's failure to prove each element of the offenses beyoud a reasonable doubt

violated Mr. Biggs' rights under the Fifth and Fourteenth Amendments to the United States

Constitution, Jackson v. Virginia (1979), 443 U.S. 307. Here, the evidence presented failed to

attain "the high degree of probative force and certainty required of a crimminal conviction" State

v. Getsy (1998), 180 Ohio St.3d 193, 193.

The evidence presented by the prosecution included no supporting forensic evidence and

the testimony of the experts presented by the State was replete with inconsistencies.

Furthermore, Dr. Spitz, who was considerably more qualified and experienced in the field of

forensic pathology, systematically undermined every one of the State's findings regarding the

cause of death and the allegations of sexual abuse. Further, the evidence did not prove beyond a

reasonable doubt that any person caused the death of the child, that Mr. Biggs caused the death

of the child, that the child had been sexually abused, that Mr. Biggs had sexually abused the

child, or that he had endangered the child.

Despite the seriousness of a death penalty case, the matter came down to the following

issues: 1) the cause of the infant's death; 2) whether the infant had been sexually abused (vaginal

penetration by another); and 3) whether appellant had committed any offenses. No one testified

that they saw Mr. Biggs take any harmful action toward his daughter.

At the scene, testimony indicated that Mr. Biggs told the sanitation workers who came in

to help and the police officers that a blanket had wound itself "tightly tlrree times around the

baby's neck." Both Mr. Biggs and his wife, Diane Biggs, testified the child was fed between 7:00

and 8:00 p.m., and that Mr. Biggs put the child to bed around 9:00 p.m. Although Mr. Biggs was

the only person that witnesses saw in the infant's room during the night and in the early morning,

Mrs. Biggs passed the room, and did not notice any problems. Another person in the house,

Patrick Smreckar, said that he (Patrick) was never upstairs. Mr. Biggs said that the bedroom

window was open all night. Police said they could find no evidence that someone forcibly

entered through the open window illegally.

The witnesses at the scene at the time of the report testified Mr. Biggs was calm while

Mrs. Biggs was hysterical. A sanitation worker described him as in shock. It was the State's

theory that acting calm or being "a little bit nervous" after the death of one's infant child was

evidence of rape and murder. The court of appeals found that such evidence supported the

finding of guilt. The State and the court of appeals also found that concern for going to jail when

the police were investigating Mr. Biggs was a sign of guilt and evidence supporting the verdict.

Mr. Biggs called the coroner's office and said he might not be available to make funeral

arrangements because he might be in jail, and told people the police thougbt that his DNA was in

his child's body.

The State first examined the body at the Stark County Morgue, not at the scene. Coroner

P.S.S. Murthy, M.D. first made a visual examination, and found no signs of injury. He said he

noticed pallor around Jaydee's mouth and chin, but he noted this finding only after consulting

with the Coroner firom Summit County. He also said the pallor could have been caused by light

pressure and possibly by the bedding material. There were no finger marks on her face.

There were also signs of a skin infection of unknown duration in the vaginal area. Lab

tests showed the presence of e coli in her system, but Dr. Murthy believed it was caused by

contamination in the morgue. He said that the large amount of gas in her intestines could have

been caused by an infection- An e coli infection could also cause vomiting.

Dr. Murthy said that when he examined the infant's genital area, he saw blood in the

area. He stopped the examination and requested the assistance of Anthony Bertin, D.O., a

urologist and a deputy coroner with the Stark Couuty Morgue. Dr. Bertin said that upon

examination of the infant, he saw "blood coming from the vaginal opening" and "clotted blood

within the vaginal vault." Dr. Bertin testified the vaginal tissue looked "purplish in hue" as in a

"bruised" color as opposed to the usual redder color. These observations were made before the

use of a nasal speculum for the internal investigation.

Dr. Murthy said that the internal examination showed that the infant's "hymenal area is

torn apart. It's wide open." The speculum was inserted into the infant "very easily" which was

not natural, and clotting and fluid blood were observed in the vaginal vault where the hymen

would have been. Dr. Bertin also observed two long abrasions inside the vaginal vault which was

the source of the bleeding. Doctor Murthy determined that the girl died within an hour of being

fed based upon the amount of milk that remained in her stomach, and that she died from

asphyxia caused by smothering. This conclusion, however, was only reached after consulting

with the Summit County Coroner, Dr. Kohler. Dr. Murthy also conceded that it is very easy for

an infant to suffocate accidentally.

Dr. Bertin opined the physical findings were the result of "some blunt forced trauma"

caused by something penetrating the vaginal area (an animate or inanimate object). When asked

if the injuries could have been the "result of anything other than insertion of something into that

area," Dr. Bertin said that it could not have. Dr. Bertin opined the torn hymen, blood, clotting,

and abrasions were caused by "some object is forced up into the area at a low velocily."

Regarding the cause of death, Dr. Spitz disputed the findings of Dr. Murthy and those

with whom he consulted. Dr. Spitz is a specialist in forensic pathology who has performed sixty

thousand autopsies and has published the recognized treatise on the subject. He reviewed Dr.

Murthy's autopsy report, photographs, microscopic slides, lab reports, a letter from the Summit

County Coroner, and the police reports. Dr. Spitz's preference is to view the body at the scene

as the first step, something Dr. Murthy did not do. Dr. Spitz found no pallor around the mouth

when he reviewed the same photos as Dr. Kohler. In fact, Dr. Spitz found no evidence to support

Dr. Murthy's and Dr. Kohlers's conclusion that the death was caused by asphyxia at the hands of

another. Dr. Spitz concluded that the girl died from Sudden Infant Death Syndrome or an

accidental obstruction of the airway. The latter conclusion is based upon the presence of foam

around her mouth which was caused by aspirating food prior to death.

With respect to alleged sexual abuse, Dr. Spitz disputed the findings of the government

doctors. Dr. Spitz reviewed the autopsy reports, tissue samples and photos. He saw no blood in

the vaginal area, no injury to the hymen, and found the redness visible on the vagina was a

symptom of an infection caused by poor hygiene, specifically the presence of fecal matter. This

conclusion is supported by the presence of e coli in the child's blood. Furthermore, Dr. Kohler

agreed that poor hygiene can cause an infant to develop a vaginal infection. The small bruises

inside her vagina were likely caused by Dr. Bertin's improper use of speculum, where excising

the area would have been appropriate. Dr. Spitz stated that the use of speculum in pathology is

unusual because it can cause damage. Dr. Murthy admitted that Dr. Bertin had to bring a

speculum because Dr. Murthy did not even have one in his office. Dr. Spitz also explained that

an investigator should not insert an object into a cavity without being able to see what effect that

object will have on the surrounding area. The irritation cause by the infection could have bled a

small amount.

'I'wo days after the death, the police executed a search warrant at the home and forced

entry without attempting to contact any of the family members and without requesting the

assistance of the county crime lab. The police sent the basinet, three blankets and the child's one

piece, bib and socks to the crime lab. Before the search warrant, Diana and her mother removed

items from the home. Diana said that she and her mother were shopping at Wal-Mart for a dress

in which to bury the girl at the time. The Appellant's brother, however saw them removing

items from the home.

'I'he crime lab analyzed the blankets and found vomit stains and light spots of the child's

blood which could have been there for some time. No semen or blood from any other individual

was found. Her clothing contained vomit stains not blood. The girl's basinet was also tested

for blood and semen with negative results, although it also contained vomit stains. Swabs taken

from the parents' hands contained no blood or saliva. Swabs taken from the girl's body could

have been tested for DNA, such a test was not requested by law enforcement. A five-inch hair

found on the girl was clearly that of an adult but no attempt was made to determine its origin.

The Biggs family moved out of Massillon a week after the funeral. They lived with Mr.

Biggs' parents before moving to Columbus. Diana started nursing school and Mr. Biggs got job

at Home Depot. Mr. Biggs kept in touch with his parents during this time. Mr. Biggs told his

manager at Home Depot that he suspected Amber Shue, a young woman who was living with

them just before their daughter died, was responsible for the death. Mr. Biggs and his wife

returned to northeast Ohio and lived with his parents after their car broke down putting them in

financial bind.

Mr. Biggs' wife, Diana Biggs, said that their house guest at the time, Amber Shue, had

left the home the Sunday night of the girl's death after Diana and Amber had an altercation.

Amber's boyfriend, Patrick Smrekar, came to the house around 9:00 p.m. and stayed until just

before 1:00 a.m. Mr. Biggs also told a detective that Amber had been living in the home, she did

not have a key to the house, and that she had left on Saturday morning and did not return.

Amber said that she had been living with the Biggs since the rniddle of May and that she left the

house Friday to go to work, spent the weekend with a male friend named Ian, and never returned

to the house. Diana, however, said that Amber did not leave until Saturday night. She was in the

hospital on Sunday being treated for an abscessed tooth. From there she went to Patrick's

parent's home and she found out about the death when a detective contacted Patrick a few days

later.

Diana Biggs had arranged an "intervention" on Sunday night to address Amber's

behavior of running around with several different men, and Diana invited Patrick. She expected

Amber to come home around 9:45 p.m. Mr. Biggs left the house that evening to look for Amber

after the girl was put to bed. He left in his car and was gone for a half an hour. He left a second

time to look for Amber in the neighborhood and was gone ten or fifteen minutes. No one saw

Amber come back that night and Diana tried to call her. Amber said she did not receive any calls

from Diana on Sunday, but Diana said that she called Amber on Ian's phone several times and

spoke to Amber two times. The second time they spoke, Amber was angry and used profanity

toward Diana. Eventually Diana found out Amber was at the hospital and was not going to come

back to the house to live. Diana collected two trash bags full of Amber's belongings and placed

them in the porch. She went to bed when Patrick left. Diana said that the Appellant had changed

the diaper in the living room before he put her to bed. Diana passed the girl's room on her way

and did not see anything out of the ordinary. She woke up once in the night when Patrick called

and again because of bright lights outside. Diana is a light sleeper.

Mr. Biggs and his wife were asked to come to the police station. They arrived

accompanied by several faniily members. The detective interviewed the parents separately

because they were emotional and may be mistaken about facts. The detective said it was

suspicious that he saw Mr. Biggs outside the door to the inteview room trying to listen in on his

wife's questioning, but during his questioning of Mr. Biggs, the detective asked if Diana was

suffering from post partum depression and Mr. Biggs was concerned for his wife. Furthermore,

these interviews took place within only an hour of when these parents learned of the death their child,

and the interviews took place in a room decorated as a child's room. The detective did not

think such a room would be traumatic to parents who had just lost an infant child.

The detective interviewed Mr. Biggs for a half an hour and did not record the interview.

The detective said that Mr. Biggs said that Mr. Biggs found the child with a blanket wrapped

around her neck and that he attempted CPR unsuccessfully. While the dectective was

interviewing Mr. Biggs and his wife, the coroner called, however lie did not indicate that there

was any evidence of suspicious circumstances. During the interview there was "no outward sign

that anything was wrong." An investigator with the Coroner's Office, however, said that he

contacted the detective as soon as he saw blood on Jaydee's vagina. (T. Vol. 9 at 18-19, 28). The

investigator said that the detective said he would be questioniig the family about that issue. At

the end of the interview, police swabbed the hands of the Mr. Biggs and his wife.

The detective contacted Mr. Biggs and his wife later the same day and demanded they

appear the next day for additional questioning. Mr. Biggs' family had convinced him to consult

an attomey, and on that advice Mr. Biggs refused the detective's request. Diana's father tried to

dissuade Mr. Biggs from seeking the advice of an attorney. The detective became angry at Mr.

Biggs' decision to exercise his right to counsel. Children Services had placed Alex, their other

child, with Mr. Biggs' parents purportedly to give the parents a "break." But when the parents

refused to comply with the detective's instruction, Alex was removed and Children Services

began a court action to take custody. When the detective removed Alex he told Mr. Biggs'

parents that their son "must be guilty." At the first hearing regarding Alex's custody the Mr.

Biggs discovered the allegation of sexual abuse.

The detective also interviewed Amber and Patrick. Patrick Smekar, Amber's exboyfriend

had been at the home until almost 1:00 Monday morning. Patrick arrived around 9:00

p.m. and claimed that this was the only time he was ever at the Biggs home or met Mr. Biggs.

Amber, however, said that Patrick had visited her at the Biggs residence at least once while she

was staying there. Patrick told the detective that he (Patrick) returned to the house after 1:00

a.m. and sat in his car across the street. Patrick also told the detective that he saw Mr. Biggs

through an upstairs window. At trial, however, Patrick claimed that he only drove by the house

and that he could not see any activity inside the house. He claimed that he drove around the

neighborhood looking for Amber, but he also said that he left the Biggs home when he

discovered that Amber was at the hospital. He also said that he did not remember calling Amber

on Ian's phone, although Amber said that Patrick called her on Ian's phone repeatedly

throughout the weekend.

Patrick claims he never returned to the Biggs home to pick up Amber's property and that

her property did not end up at his house, but Diana said that when Patrick woke her up with his

phone call early Sunday morning he said that he would be coming by to pick up Amber's things.

Later Diana was awaken by the light of a car outside which she assumed was Patrick.

Additionally Patrick said that he and Mr. Biggs had a beer while they waited for Amber, but

Diana said that neither Mr. Biggs or Patrick drank any alcohol that night and that any amount of

alcohol makes Mr. Biggs sick. She only recalls him drinking alcohol on one occasion and the

clerks at the local convenience store only remember selling him alcohol on one occasion

although he was a regular customer. Patrick also said that Mr. Biggs left the house twice that

night to look for Amber.

The parents said that they were instructed by a physical therapist to roll up a blanket and

place it on the left side of the child's neck at night. Only Diana and her mother were present for

the visit to the therapist who allegedly gave these instructions. The therapist, however, denies

that she ever gave such an instruction. She said she told the family to let the child "sleep the way

she sleeps." The therapist examined the child on May 31, 2006 and found no bruising or any

sign of "foul play."

The evidence was insufficient to support the charges. This Court should accept

jurisdiction, vacate Mr. Biggs' convictions, and discharge him.

Respectfully submitted,

Office of thc Ohio Public Defender