Retrial ordered based on mold

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Retrial ordered based on mold

Saturday, April 12, 2008

The Post-Standard - Syracuse.com - Syracuse,NY*

By Jim O'haraStaff writer

http://www.syracuse.com/news/index.ssf?/base/news-

13/120600340617791.xml & coll=1 & thispage=1

A Syracuse woman convicted and jailed on charges she tried to

suffocate her baby eight years ago deserves a new trial based on

photographs that indicate the 7-week-old daughter may have suffered

from toxic mold exposure, a judge ruled this week.

" They've got me in a state child abuse registry for something I

didn't do, " said Everson Gallishaw, a mother of three. " If I

sat back and did nothing about that, I'd be in that registry until

my 5-year-old son turns 28. I'd be damned if I was going to let that

happen. "

She served the jail part of her sentence several years ago. She's no

longer on probation and she has custody of her children. But she

said she is determined to prove she did not harm her daughter,

a, in May 2000.

She won a major victory in that effort when state Supreme Court

Justice Brunetti ruled Gallishaw may not have been convicted in

2001 had the jury seen photos of her baby's clothing in a mold-

infested basement.

In a 42-page decision, Brunetti said Gallishaw, known at the time as

Everson, should get a new trial because the photographs

support the defense contention that mold exposure and not child

abuse led to the injuries.

" The court concludes that had the photographs in question been

introduced at trial, the verdict would probably have been

different, " Brunetti wrote.

Prosecutors urged jurors during Gallishaw's trial to reject her

contentions that a's injuries were caused by exposure to mold at

Gallishaw's mother's home. They said there was no evidence that the

infant's clothing had been laundered at the home on Furman Street in

Syracuse.

Gallishaw's lawyers last year discovered photographs had been taken

when a city police officer and medical examiner employee visited the

grandmother's home 10 days after a was hospitalized in 2000.

Brunetti said the photos show baby clothing folded and stacked in

the mold-infested basement after being laundered there. He also

concluded the clothing belonged to a.

The judge wrotethat Gallishaw's trial lawyer would not necessarily

have discovered the photographs to assist at trial. A police report

mentioned that officials found mold, secured samples and

photographed the area. But that would not have provided a clue that

anything other than the mold was pictured in the photographs,

Brunetti concluded.

The judge ruled that the photographs called into question the

accuracy of the testimony of Dr. Jumbelic, the Onondaga County

medical examiner, at Gallishaw's trial. Jumbelic testified exposure

to mold could account for the injuries suffered by a if she or

her clothing had been in the basement.

But Jumbelic indicated a police detective reported that a's

grandmother said Gallishaw did not have access to the basement

laundry area. If a's clothing was not laundered there, Jumbelic

concluded the only explanation for the baby's injuries was

intentional abuse.

Gallishaw, however, claimed she regularly used the laundry at her

mother's home when her mother was not there. The prosecution

successfully argued at trial that Gallishaw's story was " concocted

to fit the evidence. "

Chief Assistant District Attorney Maxwell declined comment on

Brunetti's decision and on whether the prosecution would appeal the

ruling. If it doesn't appeal, prosecutors could pursue another trial

or ask to dismiss the case.

" There's not one wordto sum up what I've been through, " Gallishaw,

now 24, said Thursday. " It's been traumatic, stressful. Any emotion

you can think of, that's what it's been. It's the worst. "

Gallishaw said it has been hard living in the same neighborhood

where she lived at the time of the 2000 incident because people

routinely point her out as the " woman who tried to kill her baby. "

" I was determined not to run away from that, " she said, noting she

opted instead to fight to clear her name.

Her life has been made more difficult by an inability to get a job,

she said. She was granted youthful offender treatment, which removed

the conviction from her official record. But Gallishaw said that

conviction has repeatedly popped up when prospective employers did

background checks.

Unable to get a job,she lives with her mother and is supported by

her father and other relatives, she said.

" This is a great day for , " said , one of two

attorneys representing Gallishaw.

said Gallishaw contacted him several years ago after reading a

newspaper article about how he was handling a mold-case lawsuit.

After reviewing the case, said he volunteered his legal

services.

Her attorneys contend a was injured by exposure to mold. Their

position is supported by Dr. Dorr Dearborn, a national expert on the

hazards of mold. Dearborn, who authored a study on the impact of

mold exposure on children in Cleveland, said in a court affidavit

that a's case should have been treated medically and not

prosecuted.

He concluded that Gallishaw's conviction on first-degree assault and

endangering the welfare of a child was a " miscarriage of justice. "

He signed on to help her without taking a fee. He concluded evidence

of hemorrhaging on just one side of a's bronchial system was

misinterpreted as evidence of abuse by doctors who testified against

Gallishaw.

Had Gallishaw actuallytried to suffocate her baby, there would have

been bleeding on both sides, he noted. The infant's breathing

difficulties could clearly have been caused by exposure to mold, and

the bleeding that doctors found likely was caused by an improperly

inserted endotracheal, Dearborn concluded.

Gallishaw's case was similar to many of the cases in Dearborn's

Cleveland study in that it involved poor African-Americans and

public housing, said. The house where Gallishaw's mother lived

was a Syracuse Housing Authority residence, and the mold has since

been cleaned up, the lawyer said.

Co-counsel Philip Rothschild, from the Hiscock Legal Aid Society,

said Gallishaw's first child had similar mold-related health

problems that tended to support her claims about a's condition.

None of the problems appears to have led to any permanent health

issues for the children, said.

Gallishaw said she believes local child protective services

officials also believe in her innocence. When her son was born five

years ago, authorities took no steps to take him away even with her

conviction, she said. And authorities dropped a protective order on

behalf of her two daughters even before she was sentenced to jail

and probation in the assault case, she said.

Gallishaw said itwas nice having Brunetti's decision come the same

week a turned 8.

This is the second time Brunetti has set aside the conviction

against Gallishaw. He initially overturned the verdict in November

2001, ruling he had made a mistake in allowing Jumbelic to express

an opinion about the cause of the infant's injury based on hearsay.

An appellate court in Rochester voted 3-2 to reinstate the

conviction in 2003. The state's highest court affirmed that ruling

in September 2003. The following month, Brunetti sentenced Gallishaw

as a youthful offender to five years' probation with 30 days in

jail.

Gallishaw said she ended up serving only 11 days in jail in October

2003.

She said she wouldn't mind if the District Attorney's Office decides

not to try her again. But she said she would prefer to have another

trial to have her name cleared in as public a forum as it was

damaged by the original allegations.

How has she handled it all?

" I pray really hard, " she said.

Jim O'Hara can be reached at johara@... or 470-2260.