Lawyer insists new evidence would free Marybeth Davis 

By Mannix Porterfield 
Register-Herald Reporter  

LEWISBURG - New evidence and medical experts to explain it could reverse a 1997 verdict that former nurse Marybeth Davis murdered her daughter with caffeine, a public defender insisted Tuesday. 

George Castelle argued for a new trial, partly on the basis of tissue slides that became available after her Sept. 15, 1997, conviction of first-degree murder in the death of 3-year-old Tegan Davis. 

Greenbrier County Circuit Judge Frank Jolliffe made no immediate decision, although Castelle plugged for a swift and favorable one - not only for a new trial but on a motion to release Davis on bond until she can be tried again. 

"You've been dragging this through the court for the past one and one-half years, and now you want me to rule on it promptly?" the judge asked. "I'll do the best I can." 

Jolliffe said he would decide within a month whether to resume the hearing on a second phase of the motion advanced by Castelle and Davis' private attorney, Paul Detch. 

That one deals with what the defense hails as newly acquired proof son Seth's medical problems were caused by human growth hormone deficiency, not an injection of insulin as the state contended. 

Neither side called witnesses in the two-hour hearing. In the same 1997 trial, Davis was convicted of injuring her son with insulin five months before his sister died. Seth Davis remains in a near-vegetative state. Based on slides depicting brain swelling,
symptomatic of Reye's syndrome, a doctor believes Tegan Davis died of either the childhood disorder, or a mimic of it, the public defender maintained. 

Had such slides and other evidence been available, "we would have had a very different trial," Castelle maintained. 

While the state isn't obligated to prove motive in a murder case under West Virginia law, the state sought to show Davis injured the children in a concept known as Munchausen syndrome by proxy, in which a parent or guardian harms a child to gain
attention or sympathy. 

Prosecutor Mark Burnette disputed claims that evidence offered by the defense is new or that it would overturn the verdict. "The defendant is guilty," Burnette said. "We proved this to the jury." 

Burnette told the judge "some of the best doctors in the country" were used by the state to show Tegan was administered a lethal dose of caffeine in days leading up to her death. "There's nothing on the slides that would change the results," the prosecutor said. 

Castelle said "the only way" to know for certain is to put Davis on trial again with everything the defense has acquired since her first one. 

Burnette said the U.S. Supreme Court has held new trials are "seldom granted" and only then when evidence is overwhelming, such as in modern times when DNA testing has become a pivotal element to disprove rapes. 

"The tissue slides in this case are the equivalent of a DNA test," Castelle countered. 

- - - 

The Charleston public defender disputed Burnette's contention that tissue slides, combined with other evidence, would produce a new outcome if a second trial were granted. 

Since the trial, he said, the defense has learned Tegan possibly was given an injection of caffeine benzoate at a Fairlea hospital to counter a possible overdose of Valium in an effort to revive her in an ambulance the day she died. 

The amount of caffeine corresponds to a therapeutic amount, the equivalent of about 1 1/2 cups of coffee, the defender said. Burnette reminded the court that no hospital records exist to verify any such injection of caffeine. 

The only suggestion of that came from a note kept by Dr. Anne Hooper, then the county pathologist, and that was merely an attempt by her to explore that possibility, he said. 

Castelle said the state's own toxicologist found an uneven distribution of caffeine in Tegan - 10 times higher in the blood than body tissues. Had she been fed caffeine by her mother over a period of days, the drug would have been even, he said. 

"The heart would have pumped the caffeine throughout the body, and that caffeine would have been distributed evenly throughout the body," the attorney said. Without notes kept by Hooper and the slides, however, the defense couldn't challenge the state's theory that Tegan was poisoned with a huge amount of caffeine, he said. 

A third point by Castelle was that the state sought to use the discovery by Davis of empty blister packs of Dexatrim in her garbage pail the day of Tegan's funeral as proof the child was fed massive amounts of the diet pill. 

A key defense element is the absence of any phenylpropanolamine (PPA) in Tegan's body. Castelle said the defense has been given ample documentation that no PPA surfaced in the autopsy to the point "it completely undermines" the case by Dr. Irvin
Sopher, then the state's chief medical examiner. 

Burnette rigidly denied the state ever sought to show Dexatrim was used to kill Tegan, telling the judge there were other diet pills on the market in the 1980s that contained 100 percent caffeine no PPA. 

"That's precisely what the state argued," Castelle countered. 

What's more, Burnette said it remains "debatable" whether the toxicologists ever tested Tegan specifically for PPA. 

Castelle emphasized the defense isn't asserting Burnette intentionally withheld any exculpatory evidence, but said the lack of slides and Hooper's notes diminished Detch's ability to challenge the state's evidence. 

Burnette maintained he supplied the defense all the information he had at the time. 

Time could be a critical factor in reopening the hearing on what the defense says is new evidence clearing Davis of any wrongdoing in Seth's injury. 

Jolliffe plans to begin his next term of criminal court in January, and Burnette by then will no longer be prosecutor. The state senator-elect will turn his office over Kevin Hanson, who has been his assistant. 

Davis is serving life at the state women's prison in Pruntytown without the opportunity to seek parole in the March 11, 1982, death of Tegan. The case was reopened in 1995, and Davis then was indicted on charges involving both children.

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