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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.
Statetnent of the Case and the Facts
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
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.
II. 'I`he facts of this case
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.
The scene of the death
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 parents' immediate reaction
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 forensic investigation
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
Testing other objects f'ound at the house
'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.
A family deals with a tragetly
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
Others in or around the house when the child died
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
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.
Office of thc Ohio Public Defender
The police accused my son of sexual abuse and smothering his four month old daughter. Dr. Werner Spitz said my son's baby daughter died because she choked on her vomit soon after she was fed her bottle and put to bed. All the evidence points to my granddaughter choking, there were signs of air bubbles in her dried vomit on her face. Dr. Spitz said the damage that the goverment doctors alledged was caused by the instruments they used while examining my granddaughters body which they did inproperly. Yet my son was arrested two years after his baby died and put on trial. He is now in prison sentenced to life without the possibilty of parole.
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