State of Louisiana v. Brittany Tyson

Shreveport LA - Criminal defense attorney represented Brittany Tyson with a manslaughter charge.

Riley Tyson was born to Brittany Tyson ("Tyson”) on February 28,

2013. Tyson was 19 years old at the time and a single mother. She had

dropped out of school in the ninth grade. On June 16, 2013, Tyson sought

medical care for Riley after he sustained second-degree burns to his right

leg. The burns were caused when Tyson's 16-year-old sister placed a hair

dryer near Riley to soothe him. An investigation by the Department of

Children and Family Services ("DCFS”) determined that Tyson had failed to

provide adequate supervision. The matter was referred to social services.

Tyson agreed not to allow her sister to babysit or care for Riley, and Tyson

agreed not to use a blow dryer to soothe Riley. No action was requested

from the District Attorney.

While the investigation was being conducted, the Webster Parish

Sheriff's Office ("WPSO”) interviewed Tyson and her sister on June 26,

2013, concerning the burning. Tyson was arrested and charged with second

degree cruelty to a juvenile and felony contributing to the delinquency of a

juvenile. 2

On July 19, 2013, Tyson found Riley cold and nonresponsive when

she went to check on him in his playpen while staying at her friends'

apartment in Sibley, Louisiana. WPSO detectives who responded to the call

recognized Riley from the earlier investigation related to the hair dryer

incident. Drug paraphernalia containing drug residue was found in the

apartment.

Tyson was transported to the WPSO office for an interview by

detectives. Tyson told the detectives that she retrieved Riley from the

bedroom where he was sleeping earlier that evening because he was crying.

She changed his diaper, fed him, gave him gas drops, and rocked him to

sleep. After he fell asleep, she returned him to his playpen in the bedroom.

Tyson insisted to the detectives that nothing happened as they expressed

doubt about her explanation.

Later during the interview, Tyson said that Riley awakened but she

was able to get him back to sleep. He woke again screaming shortly

thereafter, so she walked around with him while bouncing him. She denied

that she bounced Riley too hard. Tyson was then asked if she had shaken

Riley that day, and she responded affirmatively. A detective left the

interview room and returned with a stuffed animal. Tyson rocked the stuff

animal to show how she had handled Riley. When Tyson was asked if she

held Riley out with him facing her and said "Why do you cry?”, she held the

stuffed animal in that manner and asked, "Why do you cry like that?” A

detective then told Tyson that when he examined Riley's eyes, the eyes had

a "coffee grounds” appearance which comes from being shaken. Tyson

explained that she was rocking him but he kept screaming, so she picked

him up and shook him. She denied that he stopped crying at that point or 3

when she returned him to his playpen. However, she admitted that he did

not cry as loud after she had shaken him. She nodded in the affirmative

when asked if she thought she shook him too hard. Later asked to

demonstrate how she had shaken Riley, Tyson held the stuffed animal to her

face and shook it while saying, "You get on my nerves.” She said Riley kept

crying after she laid him down in his playpen before returning to the living

room. She thought Riley's head rocked forward two to three times when she

shook him. She told the detectives that Riley was whimpering after she had

shaken him, and his eyes closed. She returned him to his playpen and did

not check on him until she discovered him deceased. Tyson was arrested

and charged with first degree murder, possession of a Schedule I CDS, and

possession of drug paraphernalia.

Autopsy

On July 20, 2013, Dr. Frank Peretti performed an autopsy on Riley,

who was embalmed following the autopsy. After Dr. Peretti was told by

investigators that Riley was shaken prior to being put back in his crib, he

performed a posterior neck dissection. The posterior neck dissection

revealed acute hemorrhage grossly and microscopically involving the

cervical spine at C1. It is unclear from the autopsy report whether other

autopsy findings were made during the original autopsy or the posterior neck

dissection. Dr. Peretti's findings were healing burns and neck injuries

consisting of "[i]njuries involving ligaments of cervical spine at C1” and

"[c]erebral edema, mild.” Neck injuries were listed as the cause of death.

In the external description section of the autopsy report, Dr. Peretti

noted that "[t]the neck was symmetrical, without injury or abnormality.” In

the subsection for evidence of recent injury, Dr. Peretti wrote:4

There was no external evidence of injury noted to the head,

neck, chest or abdomen. Posterior neck dissection showed

hemorrhage surrounding the posterior atlanto-occipital

membrane. There was a slight amount of surrounding soft

tissue hemorrhage present. The cervical spine at C1 was

removed en bloc and was decalcified. The brain grossly

showed mild edema.

In the neck subsection of the internal examination section of the

autopsy report, Dr. Peretti noted that examination of the soft tissues of the

neck revealed no abnormalities or hemorrhage. Dr. Peretti wrote in the

central nervous system subsection that there was no epidural, subdural, or

subarachnoid hemorrhage present. However, mild cerebral edema was

present. Dr. Peretti noted in the musculoskeletal system section that the

cervical, thoracic and lumbar spine showed no obvious old fractures or other

abnormalities. Regarding the cervical spine at C1, Dr. Peretti wrote in the

histology subsection:

After decalcification, step sections were made. There is acute

hemorrhage involving the ligaments and soft tissue.

Hemosiderin deposits are noted. Iron stains are negative.

Guilty plea

M. Randal Fish was appointed to represent Tyson in July of 2013. He

filed a motion for discovery and production of documents on July 23, 2013.

He also filed a motion for a preliminary hearing. On September 4, 2013,

Tyson was indicted for first degree murder in violation of La. R.S.

14:30A(5).

Tyson entered a plea of not guilty on September 9, 2013. Fish filed a

motion for appointment of a sanity commission on September 18, 2013. A

sanity commission was appointed on September 24, 2013.

Dr. Richard Williams concluded that Tyson was competent. In his

report dated October 15, 2013, Dr. Williams wrote:5

Her version of the accounting was "I put him in a playpen at my

friend's house in Sibley.” She stated that she was there at her

friend's house the entire time, and she said that about an hour to

an hour and a-half time elapsed between when she placed her

son in the playpen and when she went back to check on him and

found him dead. She said that her friend did not go back to

check on him with her. She stated that they had watched a

movie and had gone outside.

Ms. Tyson stated that she first told the police that she had not

shaken her baby, but "when they kept interrogating me, I told

them I had so they would stop.”



Dr. George Seiden also found Tyson to be competent. In his report

dated October 16, 2013, Dr. Seiden wrote:

When asked if she would be willing to provide her version of

the events that led to her arrest, Ms. Tyson stated, "He was

asleep, so I put him in his playpen, and when I went back to

check on him, he was dead.” When I then asked her how that

would then lead to being charged with first-degree murder, she

stated, "When they interviewed me, they asked me if I shook

him and I said no.” She reported that they continued to

repeatedly ask her about shaking her baby, and she stated that

she eventually said yes "so they would stop.”

On November 13, 2013, the court found Tyson competent to assist in

her defense and competent to understand right from wrong at the time of her

act. On that same date, Tyson entered a guilty plea to the amended charge of

manslaughter. The charges of possession of a Schedule I controlled

dangerous substance, possession of drug paraphernalia, second degree

cruelty to a juvenile, and contributing to the delinquency of a juvenile were

dismissed. On February 14, 2013, Tyson was sentenced to 20 years at hard

labor. Tyson did not appeal.

Post-conviction relief application

In 2016, Tyson obtained post-conviction representation. Her counsel

asked three forensic pathologists to review Dr. Peretti's findings.6

Dr. L.J. Dragovic is a forensic pathologist and neuropathologist in

Oakland County, Michigan. In a letter to counsel dated April 11, 2017, Dr.

Dragovic stated that the autopsy performed by Dr. Peretti did not reach the

threshold for national standards. He was critical of Dr. Peretti's findings,

characterizing them as "an appallingly short list[.]” He believed the finding

of neck injuries was highly questionable and unsubstantiated, and the finding

of injuries involving ligaments at C1 was at minimum dubious. Dr.

Dragovic considered the finding of mild cerebral edema to be false and

impossible to substantiate or verify, contradicted by gross description, and

unsupported by any photographs.

Dr. Dragovic was also critical that the autopsy report listed neck

injuries as a cause of death but failed to address the manner of death.

Further, he believed Dr. Peretti's description of the central nervous system

contradicted Dr. Peretti's opinion on the matter. Moreover, he considered

Dr. Peretti's finding in the cervical spine at C1 of hemosiderin deposits

while iron stains were negative to be nonsensical because the two findings

are mutually exclusive.

Dr. Dragovic concluded there was no tangible physical evidence that

Riley had been purposely subjected to any form of violence that could have

resulted in his death. In his opinion, Riley likely died of asphyxia resulting

from overlay.

Dr. John Plunkett also examined this matter on behalf of Tyson. In a

letter to counsel dated May 3, 2017, he noted that Dr. Peretti was not a

board-certified pathologist. He added that he did not know what Dr.

Peretti's cause-of-death conclusion was following the first autopsy. 7

Dr. Plunkett disagreed with Dr. Peretti's conclusion regarding the

cause and manner of Riley's death. In Dr. Plunkett's opinion, Dr. Peretti

observed and described an artifact from the embalming process. Moreover,

true and significant neck injuries involve damage to the connective tissue,

bone, and spinal cord. None of that existed in this case, as Riley presented

no evidence of mechanical or structural damage to his neck.

Dr. Plunkett believed that the autopsy failed to meet the minimum

forensic autopsy performance standards at the time it was conducted. The

report did not indicate the date and time that the second autopsy was

conducted. Dr. Peretti did not describe the damage done during the

embalming process, and he failed to sign and date the initial autopsy report.

Dr. Plunkett questioned Dr. Peretti's finding of hemosiderin deposits but a

negative iron stain during the microscopic examination of the cervical spine.

He believed that what Dr. Peretti was describing was actually formalin

pigment secondary to the embalming process and not hemosiderin.

It was Dr. Plunkett's opinion that the cause of Riley's death is

undetermined. While he acknowledged that some forensic pathologists

would use the terms SIDS to describe Riley's death, he does not use that

term. Dr. Plunkett added that he would not disagree with a pathologist who

reached the conclusion that an unsafe sleeping environment caused or

contributed to Riley's death. Dr. Plunkett believed there was no evidence

that shaking caused or contributed to Riley's death.

Dr. Harry Bonnell is a forensic pathologist who had been the Chief

Deputy Coroner and Director of Forensic Pathology of Hamilton County,

Ohio. In his affidavit from October 23, 2017, Dr. Bonnell testified: (i) Dr.

Peretti was not a board-certified forensic pathologist; (ii) the autopsy report 8

did not describe any injuries which could be lethal; (iii) the hemorrhage

described in the neck dissection had the same appearance as that caused by

lividity; (iv) it was scientifically impossible for there to be no hemosiderin

yet have positive iron stains in the same area as described in the autopsy;1

(v) what Dr. Peretti described as hemosiderin was actually formalin artifact

from the embalming process; (vi) it is possible Riley died from smothering

or overlaying while in the blanket but the investigation was insufficient to

establish that to be any more than a remote possibility; (vii) Dr. Peretti

would not have felt obligated to autopsy the neck area during the second

examination if he had not been influenced by the coerced confession; (viii)

Dr. Peretti was unfamiliar with the neck area since he did not autopsy that

area as part of his routine autopsy technique; and (ix) had an adequate

autopsy and investigation been performed, Riley's death would fit the

criteria of having an undetermined cause of death, which is commonly

defined as SIDS.

On January 10, 2018, Tyson's counsel filed an application for postconviction relief in which she raised claims of actual innocence and

ineffective assistance of counsel. She alleged that her application was filed

timely based on newly discovered evidence, that being Dr. Peretti's

complete file, which retained counsel had obtained in November of 2016.

In support of her non-DNA based actual innocence claim, Tyson

argued that there is overwhelming evidence that she is factually innocent and

did not kill her son. Tyson noted that Dr. Dragovic, Dr. Bonnell, and Dr.

Plunkett performed independent evaluations of Dr. Peretti's autopsy findings



1 Dr. Peretti actually found the opposite. 9

and concluded that there was no evidence that Riley died as a result of

shaking or neck injuries. The pathologists also concluded that the cause of

death was undetermined, although it was possible that Riley died from

suffocation due to an unsafe sleeping environment.

Tyson also complained that three hours after she discovered that Riley

was dead, she was subjected to a highly stressful and accusatory

interrogation, during which the detectives used a false evidence ploy

(evidence of retinal hemorrhaging which suggested shaking) to coerce a

false confession from her. Tyson asserted that her innocence was further

corroborated by statements from her friends Megan Lewis and Lauren

Lewis, who were with Tyson on the day of Riley's death and stated that they

never saw Tyson shake or be aggressive toward Riley.

In support of her claim of ineffective assistance of counsel, Tyson

argued that Fish failed to conduct an independent pretrial investigation,

failed to interview Lauren and Megan Lewis, failed to scrutinize the autopsy

report, and failed to seek a second opinion as to the cause of Riley's death.

Tyson contended that although she maintained her innocence and informed

Fish that she told the police that she shook Riley in an effort to cease the

investigation, Fish never investigated her claims and advised her to plead

guilty. Moreover, Fish filed only three stock motions on her behalf and did

not seek funding for an expert pathologist to scrutinize Dr. Peretti's autopsy

findings. Tyson claimed that with minimal effort, this case would have

concluded without a conviction because she is factually innocent.

On March 27, 2018, the trial court denied the PCR application as

untimely. Tyson applied for a supervisory writ with this Court, which was 10

denied on August 2, 2018. The order from this Court stated, "On the

showing made, the writ is denied. La. C. Cr. P. art. 930.2.”

On April 22, 2019, the Louisiana Supreme Court granted Tyson's

writ. The per curiam granting the writ stated:

The district court's ruling dismissing petitioner's actual

innocence and ineffective assistance of counsel claims is

reversed, and the claims are remanded for consideration after an

evidentiary hearing. See La. C. Cr. P. art. 930.8(A)(1); see also

State v. Pierre, 13-0873, p. 4 (La. 10/15/13), 125 So. 3d 403,

409 (new evidence of actual innocence must be so compelling

that no reasonable juror could have voted to convict with

knowledge thereof); State v. Conway, 01-2808, p. 1 (La.

4/12/02), 816 So. 2d 290, 291 (assuming post-conviction claims

of actual innocence not based on DNA evidence are cognizable,

they must be supported by new, material, noncumulative and

conclusive evidence which meets an extraordinarily high

standard, and which undermines the prosecution's entire case).

State v. Tyson, 18-1475 (La. 4/22/19), 267 So. 3d 584. Justice Crichton

disagreed and wrote that he would deny the writ as untimely and

alternatively on the merits.

Post-conviction relief hearing

An evidentiary hearing was held on November 25, 2019. The trial

court heard testimony from Dr. Dragovic, Fish, and Tyson's mother.

Introduced into evidence at the hearing were: (i) the DCFS report from the

burning incident; (ii) the competency findings of Drs. Seiden and Williams;

(iii) the autopsy report; (iv) Riley's medical records; (v) Dr. Dragovic's

letter to Tyson's counsel and his curriculum vitae ("CV”); (vi) the report and

supplemental report from the WPSO concerning the investigation into

Riley's death; (vii) Dr. Bonnell's affidavit and CV; (viii) Dr. Plunkett's

letter to Tyson's counsel; (ix) handwritten statements from two of Tyson's 11

friends2

; (x) a transcript of Tyson's interview prepared by her counsel; (xi) a

news article from a local newspaper concerning Riley's death; and (xii)

DVDs of Tyson's interview by the WPSO detectives as well as the

detectives' interviews of three of her friends who were present in the

apartment on the date of Riley's death.

Dr. Dragovic testified as an expert in the field of forensic pathology.

He noted that Dr. Peretti was not a board-certified forensic pathologist. Dr.

Dragovic explained that embalming can interfere with some of the aspects of

a medical investigation. However, performing the posterior neck dissection

after Riley was embalmed was not a problem. The problem was that Riley's

cervical spinal cord was found to be intact as well as there being no fracture

at C1. Dr. Dragovic stated that in order to cause death, an injury at C1

would have to involve the cervical spinal cord being compromised by the

movement of the bony structures. Dr. Dragovic found no indications that

Riley suffered from any violent contact.

Dr. Dragovic testified that there was no scientific physical evidence

that supported Tyson's statement that she held Riley out and his head rocked

back and forth two to three times. There would have been evidence of brain

trauma if it had occurred as described by Tyson. However, there was no

evidence of brain herniation, bruising, or hemorrhage. Dr. Dragovic

regarded the finding of mild cerebral swelling as meaningless. Moreover,

nothing in the autopsy, slides, or photographs corroborated Dr. Peretti's



2 Lauren Lewis wrote that she never saw Tyson be aggressive toward Riley.

Megan Lewis wrote that she was with Tyson most of the day and never saw Tyson shake

Riley or be aggressive toward him. 12

finding of mild edema. In his opinion, there was no brain injury that

contributed to Riley's death.

Dr. Dragovic explained that he did not see hemorrhage involving

ligaments and soft tissue at C1 when he reviewed the slides and photographs

from Dr. Peretti's examination. There was some settling of blood in the area

from the body's position after death. When examining the cervical spine at

C1, Dr. Peretti had noted hemosiderin deposits, but iron stains were

negative. According to Dr. Dragovic, hemosiderin is a pigment from the

blood cells that contains iron. Thus, a negative iron stain in the presence of

hemosiderin would not make any sense. Moreover, the presence of

hemosiderin indicates an older hemorrhage of at least three days.

Dr. Dragovic was dismissive of the claim made by a detective to

Tyson that he could see signs that Riley had been shaken when he looked at

Riley's eyes. While Dr. Dragovic acknowledged there is the potential for

retinal hemorrhage when there is significant head trauma, this hemorrhage

could not be seen without using an ophthalmologic instrument.

Dr. Dragovic did not find any scientific evidence substantiating Dr.

Peretti's claim that Riley's death was caused by neck injuries. In his

opinion, Riley's death was most likely caused by asphyxia resulting from

sleeping in the playpen with a large blanket. Asphyxia in small babies

normally does not reveal signs of injury. Dr. Dragovic concluded that Riley

was not the victim of intentional violence or child abuse.

Randal Fish testified he is the full-time public defender in Bossier and

Webster Parishes. He has been practicing criminal defense since 1980. He

was provided with a paralegal and had an investigator and a secretary. He

handled capital or life without parole cases. He has about 14-15 open cases 13

at any time, but only one or two of those cases were capital cases in July of

2013. Fish also had a very limited private criminal practice.

Fish met with Tyson three or four times. She was detained throughout

this proceeding. He recalled that he met with Tyson's family once in his

office and possibly more than once at the courthouse. He spent four to five

hours reviewing the discovery in this case including the recording of

Tyson's statement to investigators, the autopsy report, and the statements of

her three friends present in the apartment. Fish believed that he spoke with

the three friends or their attorneys at the courthouse. He did not recall

failing to follow up on any information or leads that Tyson may have given

to him.

Fish acknowledged that he never sought a second opinion on Dr.

Peretti's conclusion regarding the cause of Riley's death. He added that

since Tyson's guilty plea, he has represented other defendants in shaken

baby cases and as he has learned about them, he has developed better

resources generally. He testified that he will at least seek an initial review of

the autopsy report in most shaken baby cases. This review is funded through

the public defender's office. Fish testified that in hindsight, he would

probably seek a second opinion if Tyson's case came through his office now

by sending the autopsy materials for review by a doctor that he knows in San

Antonio, Texas.

While Fish saw nothing in Dr. Peretti's report that made him think he

needed to contact Dr. Peretti and question him about what was in the report,

it would cause Fish concern if Dr. Peretti had rendered a cause of death after

the autopsy and then changed the cause of death after speaking to law

enforcement. It would also concern him if Dr. Peretti did not have any 14

conclusions after the initial autopsy, but after the detectives contacted him to

say that Tyson confessed, he conducted further examination and found that

evidence.

Fish did not recall noticing that Dr. Peretti had performed the neck

dissection after speaking with the detectives from the WPSO and only then

rendered neck injuries as the cause of death. He acknowledged that it would

have set off a red flag had he noticed that at the time.

Fish explained that he requested a sanity commission because he was

concerned that Tyson had a mental disability because she had left school in

the ninth grade. He reviewed the reports from Dr. Seiden and Dr. Williams

before she pled guilty. He noticed that she maintained her innocence in both

reports, but he did not specifically recall if Tyson maintained her innocence

when he spoke to her, only that there were discussions about whether she

meant to harm Riley.

Fish's philosophy is that he does not need to file every defense motion

at his disposal, and in his opinion there was no additional motion that he

should have filed in this matter. Regarding Tyson's statement to

investigators, he did not think a motion to suppress would have been the

proper vehicle to counter it even though he had some reservations about the

questions asked and the methods used by the detectives. He regarded any

issues surrounding her confession to center on the weight accorded to the

confession.

Fish testified that the plea agreement was offered by the District

Attorney around October 26, 2013, and the offer would be withdrawn if not

accepted. He did not remember exactly when he discussed the plea with 15

Tyson. Despite the request for a sanity commission, he did not have any

concerns about whether Tyson understood the plea offer.

It was Fish's professional opinion at the time that the plea was in her

best interest and he communicated that to Tyson and her parents. The

reason that he thought it was in her best interest was because if the State

withdrew the plea offer and tried her for second or first degree murder, he

thought the chances were very high that she would be convicted and spend

the rest of her life in prison. He felt that way in light of Dr. Peretti's

opinion, Tyson's problematic admission to shaking Riley, and the recent

burn incident. It was his impression that Dr. Peretti communicated well

when testifying. Fish acknowledged that his advice to take the plea was

largely premised on Dr. Peretti's autopsy report and conclusion that Riley

died from neck injuries.

While Fish agreed in hindsight that it would have been better to have

obtained a second opinion regarding the cause of death, he did not know if a

second opinion would have appreciably changed his advice, but it could

have. Nevertheless, he did not favor the idea of going to trial with

someone's life on the line and depending on dueling experts, particularly

when there was a confession.

Tyson pled guilty without there being a sentencing cap. Fish's

understanding was that the State would not take a position on sentencing.

Fish testified that he had a conversation with the trial judge prior to the plea

being entered concerning the facts in general and what the judge's feelings

toward the sentencing would be. Tyson was sentenced to what Fish and the

trial judge had discussed. The trial judge did what he indicated he would do

in their conversations. 16

Belinda Couch is Tyson's mother. She testified that she met with Fish

once in his office and then in court before sentencing. She disputed Fish's

account that he expected a sentence of 20 years if her daughter pled guilty.

She recalled that Fish told them it was in her daughter's best interest to plead

guilty to negligent homicide and that her sentence would be 5-10 years.

Tyson's potential sentence was discussed on the day that she pled guilty.

Couch testified that she told Fish that local media was reporting that Riley

had died from suffocation.

In a post-hearing memorandum, Tyson argued that Dr. Peretti's

autopsy report was internally inconsistent and contained unsupported

conclusions. She further argued that Dr. Dragovic's testimony discredited

Dr. Peretti's findings and proved that Riley did not die from neck injuries.

She emphasized Dr. Dragovic's conclusions that there was no evidence of

injury to Riley's neck, no evidence of mild cerebral edema, and no proof that

Riley died from intentional violence, and that the likely cause of death was

unintentional asphyxiation. Tyson argued that Dr. Dragovic's testimony,

which was corroborated by Dr. Bonnell and Dr. Plunkett, met the

extraordinarily high standard for non-DNA based claims of actual innocence

because it undermined the State's entire case and was so compelling that a

reasonable juror could not have voted to convict. Further, Tyson claimed

that because Dr. Dragovic concluded that Riley could not have died in the

manner described in her statement to police, her statement was not

corroborated, and standing alone, was insufficient to sustain her conviction.

Regarding her ineffective assistance of counsel claim, Tyson argued

that Fish failed to conduct an adequate pretrial investigation, failed to

consult an expert about the cause of Riley's death, and failed to subject the 17

State's case to any meaningful adversarial review. Tyson asserted that given

the severity of the first degree murder charge and potential life sentence,

Fish's investigation was shockingly scant and limited to a cursory review of

the discovery provided by the State. Tyson also noted that Fish's testimony

showed that he was engaged in plea negotiations while the issue of her

competency to stand trial was pending.

Ruling

The trial court denied Tyson's post-conviction relief claim of actual

innocence because she failed to prove that the expert opinion testimony of

Dr. Dragovic was evidence of actual innocence so compelling that no

reasonable juror could vote to convict. The trial court also denied Tyson's

post-conviction relief claim of ineffective assistance of counsel because she

failed to prove that Fish was ineffective in his representation or that he failed

to provide the minimum standards required by the constitutions of Louisiana

and the United States.

The trial court noted that Tyson's claim of actual innocence rested

solely on medical opinion testimony from Dr. Dragovic's review of Dr.

Peretti's autopsy report several years later. The court also noted that Dr.

Dragovic and Dr. Peretti are board-certified forensic pathologists and

qualified as experts in autopsy and determining cause of death. The court

reasoned that after listening to the opinions of Dr. Dragovic and Dr. Peretti,

a reasonable juror could have believed one expert's opinion over the other.

In essence, it would have been a case of dueling experts.

Moreover, a jury could have found Dr. Peretti was in a better position

to determine Riley's cause of death since he performed the autopsy

immediately after the death, while Dr. Dragovic reviewed the autopsy report 18

several years later. Therefore, Dr. Dragovic's expert opinion testimony did

not rise to the level of being new, material, noncumulative, and conclusive

evidence that was so compelling that it undermined the State's entire case to

the point that no reasonable juror would have voted to convict.

The trial court also found that Tyson failed to prove that Fish was

ineffective in his representation or that he failed to provide the minimum

standards required by the United States and Louisiana Constitutions.

Additionally, she failed to prove that his representation was so ineffective

that it required reversal. The court noted that Fish was a seasoned criminal

trial attorney who had handled a large number of serious felony cases,

including capital cases. The court also noted that under the circumstances,

his advice to Tyson would be the same even if he had been provided with

Dr. Dragovic's contrary opinion from the beginning. The court

acknowledged that Tyson had shown that additional steps could have been

taken on her behalf and that she might have prevailed at trial by presenting a

contrary expert opinion. However, that was far from the threshold of

compelling proof that an acquittal was a certainty. Fish's experience and

recommendation to accept the plea offer could have just as easily saved

Tyson from a life sentence.

Tyson applied to this Court for supervisory review. Her writ was

granted to docket.

DISCUSSION

Tyson argues in her first assignment of error that the trial court erred

in its analysis of her actual innocence claim because the defense presented

uncontroverted medical testimony that Riley did not die from intentional

violence. This testimony was corroborated by additional expert reports and 19

by evidence collected at the time of the offense, including witness

statements that Tyson did not abuse Riley on the day of his death.

Tyson argues in her second assignment of error that the trial court

erred when it found that trial counsel provided effective representation

because counsel admittedly did not conduct any independent investigation,

did not seek a second medical opinion, and limited his representation to

reviewing the state's discovery and advising Tyson to plead guilty.

Actual innocence

Tyson contends that based on Dr. Dragovic's unrefuted testimony that

Riley did not die from neck injuries or intentional violence, she is serving a

prison sentence for a crime that she did not commit. She argues that the trial

court discounted the extensive evidence in support of Tyson's actual

innocence. Not only is Dr. Dragovic's testimony corroborated by two other

experts, but it is also consistent with the statements of the eyewitnesses who

spent the day with Tyson and did not witness abuse as well as consistent

with Tyson's own statements to the psychiatrists that she did not abuse

Riley. Tyson maintains that this evidence undermines the State's entire case

against her and proves that the findings in Dr. Peretti's report were

unsupported and internally inconsistent, such that no reasonable juror armed

with this knowledge could have voted to convict her of second degree

murder.

The State counters that the trial court properly denied Tyson's

application for post-conviction relief. The State adopted the reasons set

forth in the trial court's ruling and noted that the court provided a thorough

analysis of the evidence and testimony presented. The State argues that

Tyson pled guilty to the reduced charge of manslaughter, thereby waiving all 20

non-jurisdictional defects, and that Tyson failed to meet the extraordinarily

high burden of establishing a non-DNA actual innocence claim.

The petitioner in an application for post-conviction relief bears the

burden of proving that he is entitled to relief. La. C. Cr. P. art. 930.2. An

application for post-conviction relief must state with "reasonable

particularity” the factual basis for the relief sought. La. C. Cr. P. art.

926(B)(3).

Generally, a valid, unqualified plea of guilty waives the defendant's

right to appeal all non-jurisdictional defects in the proceedings prior to the

plea. State v. Crosby, 338 So. 2d 584 (La. 1976); State v. Burks, 47,587 (La.

App. 2 Cir. 1/16/13), 108 So. 3d 820, writ denied, 13-0424 (La. 7/31/13),

118 So. 3d 1116. The defendant's guilty plea also waives any right to

question the merits of the state's case and factual basis for the plea. State v.

Shaw, 49,876 (La. App. 2 Cir. 5/20/15), 166 So. 3d 1185, writ denied, 15-

1247 (La. 6/3/16), 192 So. 3d 755.

La. C. Cr. P. art. 930.3, which sets forth the exclusive grounds for

post-conviction relief, does not include the ground of actual innocence not

based on DNA evidence. The Louisiana Supreme Court has not expressly

held that a claim of actual innocence, not based on DNA, is cognizable on

post-conviction relief. However, in State v. Conway, 01-2808 (La. 4/12/02),

816 So. 2d 290, the supreme court explained that, assuming that such a

claim is cognizable, the claim must involve new, material, noncumulative

and conclusive evidence which meets an extraordinarily high standard, and

which undermines the prosecution's entire case.

In State v. Pierre, 13-0873 (La. 10/15/13), 125 So. 3d 403, the

supreme court contemplated the level of proof necessary for a free-standing 21

claim of factual innocence not based on DNA evidence. While the supreme

court did not fully define the burden of proof for factual innocence, it stated

that a petitioner must persuade the district court that, in light of the new

evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.

3

Further, a credible claim requires new reliable

evidence, whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence, that was not presented at

trial.

The supreme court also stated in Pierre that "[a]ctual innocence also

referred to as factual innocence is different than legal innocence. Actual

innocence is not demonstrated merely by showing that there was insufficient

evidence to prove guilt beyond a reasonable doubt.” Id., 13-0873 at p. 9,

125 So. 3d at 409.

4



Although no Louisiana state court has addressed the issue of whether

a defendant who pled guilty to an offense may be allowed to raise a claim of

actual innocence not based on DNA evidence, other courts are split on the

issue. See e.g. Schmidt v. State, 909 N.W. 2d 778, 789 (Iowa 2018) (finding

that "convicted defendants can attack their pleas when claiming actual

innocence even if the attack is extrinsic to the pleas”); People v. Tiger, 32

N.Y. 3d 91, 101, 110 N.E. 3d 509, 85 N.Y.S. 3d 397 (2018) ("Allowing a

collateral attack on a guilty plea obtained in a judicial proceeding that

comported with all of the requisite constitutional protections on the basis of

a delayed claim of actual innocence would be inconsistent with our



3 Citing McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 185 L. Ed. 2d 1019

(2013).

4 Citing Gould v. Commissioner of Correction, 301 Conn. 544, 22 A.3d 1196,

1206 (2011). 22

jurisprudence and would effectively defeat the finality that attends a

constitutionally obtained guilty plea.”).

By entering an unqualified guilty plea, Tyson admitted her guilt and

waived the right to challenge the sufficiency of the evidence against her.

However, assuming that non-DNA based actual innocence claims are

cognizable on post-conviction relief in Louisiana, and that such a claim may

be raised by a defendant who pled guilty, Tyson fails to meet the

extraordinarily high standard required by State v. Conway, supra, and State

v. Pierre, supra. Specifically, Tyson's application does not present any new,

material, noncumulative, and conclusive evidence that completely

undermines the State's entire case and is so compelling that no reasonable

juror would have found her guilty. Dr. Dragovic's testimony and the reports

of Dr. Bonnell and Dr. Plunkett call into question the possible cause of

Riley's death and attempt to undermine Dr. Peretti's autopsy findings.

Although this new evidence is troubling and raises doubt as to whether

Tyson shook Riley, it does not rise to the level of conclusive evidence of

Tyson's innocence.

Had Dr. Dragovic's opinions been introduced at trial, the jury would

have been presented with dueling expert opinions and a reasonable juror

could still convict Tyson. Because Dr. Dragovic, Dr. Bonnell, and Dr.

Plunkett never examined or performed any autopsy procedures on Riley's

body, a jury could rationally choose to accept the testimony of Dr. Peretti

about the cause of Riley's death and reject the testimony of Tyson's experts.

Further, even if this new evidence persuaded the jury that Riley died from

asphyxiation, not neck injuries caused by shaking, the jury could have still

found that Tyson was criminally negligent in putting Riley in the bed face 23

down with a large blanket. Tyson failed to meet her burden of proving that

she is factually innocent. Her argument on this issue is without merit.

Ineffective assistance of counsel

Tyson contends that the evidence established that Fish did not conduct

an independent pretrial investigation, failed to seek a second opinion on

cause of death, and engaged in plea negotiations prior to a judicial ruling on

her competency to stand trial. Tyson claims Fish advised her to plead guilty,

despite questioning her legal competency, based on a cursory review of the

State's discovery and without any investigation into the obvious issues

contained in the autopsy report.

Tyson also argues that the trial court applied an incorrect legal

standard in denying her claim of ineffective assistance of counsel because

she was only required to prove the reasonable probability of a different

result, not that "acquittal was a certainty.” Tyson maintains that if Fish had

adequately investigated her case and obtained a second opinion regarding

the cause of her son's death, there is a reasonable probability that the result

of this case would have been different. Further, because Fish failed to

subject the prosecution's case to any meaningful adversarial testing, Tyson

argues that prejudice should be presumed.

Adopting the reasons set forth in the trial court's ruling, the State

counters that the trial court properly denied Tyson's application. The State

argues Fish's performance did not fall below an objective standard of

reasonableness and that Tyson failed to establish that the new medical theory

of Dr. Dragovic, if presented to a jury, would result in an acquittal.

A claim of ineffective assistance of counsel is analyzed under the twoprong test developed in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 24

2052, 80 L. Ed. 2d 674 (1984). First, to establish that her attorney was

ineffective, the defendant must show that counsel's performance was

deficient. This requires a showing that counsel made errors so serious that

he was not functioning as the counsel guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that counsel's deficient

performance prejudiced his defense and that, but for counsel's

unprofessional errors, there is a reasonable probability the outcome of the

trial would have been different. Strickland v Washington, supra; State v.

Reese, 49,849 (La. App. 2 Cir. 5/20/15), 166 So. 3d 1175, writ denied, 15-

1236 (La. 6/3/16), 192 So. 3d 760. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland v.

Washington, supra. See also State v. Curley, 16-1708 (La. 6/27/18), 250 So.

3d 236, where the court noted that Strickland only requires the reasonable

probability of a different result, not the reasonable probability of an

acquittal.

In U.S. v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657

(1984), the Supreme Court created limited exceptions to the application of

Strickland's two-part test in situations that are so likely to prejudice the

accused that the cost of litigating their effect in a particular case is

unjustified. The Supreme Court identified three situations implicating the

right to counsel in which prejudice must be presumed: (1) where a defendant

is denied counsel at a critical stage of the proceedings; (2) when counsel

"entirely fails to subject the prosecution's case to meaningful adversarial

testing;” and (3) when the circumstances surrounding a trial prevent the

defendant's attorney from rendering effective assistance of counsel. Id., 104

S. Ct. at 2047, 80 L. Ed. 2d at 659-60. 25

Regarding the second exception, the Supreme Court reiterated in Bell

v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), that the

attorney's failure must be complete. In Craker v. McCotter, 805 F.2d 538

(5th Cir. 1986), the appellate court recognized that a constructive denial of

counsel occurs in only a very narrow spectrum of cases where the

circumstances leading to counsel's ineffectiveness are so egregious that the

defendant was effectively denied any meaningful assistance at all. In

Goodwin v. Johnson, 132 F.3d 162 (5th Cir. 1997), the appellate court stated

that when the defendant receives at least some meaningful assistance, he

must prove prejudice in order to obtain relief for ineffective assistance of

counsel.5

In Woodard v. Collins, 898 F.2d 1027, 1029 (5th Cir. 1990), the

appellate court declared that "a decision to investigate some issues and not

others or even a decision to conduct virtually no investigation is governed by

Strickland and its progeny.” Thus, a showing of actual prejudice was

required.

In Johnson v. Cockrell, 301 F.3d 234 (5th Cir. 2002), the appellate

court explained that for purposes of distinguishing between the rule of

Strickland and that of Cronic, a case does not come under Cronic merely

because counsel failed to oppose the prosecution at specific points in the

trial, nor is it enough for defendant to show mere shoddy representation or to

prove the existence of errors, omissions, or strategic blunders by counsel.

The Cockrell court further noted that bad lawyering, regardless of how bad,

does not support the per se presumption of prejudice.



5 Citing Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997). 26

A defendant who pleads guilty and then claims he received ineffective

assistance of counsel must first show that counsel's advice to plead guilty

was not within the wide range of competence demanded of attorneys in

criminal cases. The defendant must also show that, but for counsel's

erroneous advice, he would have elected to go to trial rather than plead

guilty. State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639,

writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208. See also Lee v. U.S.,

__ U.S. __, 137 S. Ct. 1958, 1967, 198 L. Ed. 2d 476 (2017), where the

Supreme Court stated that "[c]ourts should not upset a plea solely because of

post hoc assertions from a defendant about how he would have pleaded but

for his attorney's deficiencies . . . [but] instead look to contemporaneous

evidence to substantiate a defendant's expressed preferences.”

In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203

(1985), the Supreme Court explained:

In many guilty plea cases, the "prejudice” inquiry will closely

resemble the inquiry engaged in by courts reviewing

ineffective-assistance challenges to convictions obtained

through a trial. For example, where the alleged error of counsel

is a failure to investigate or discover potentially exculpatory

evidence, the determination whether the error "prejudiced” the

defendant by causing him to plead guilty rather than go to trial

will depend on the likelihood that discovery of the evidence

would have led counsel to change his recommendation as to the

plea. This assessment, in turn, will depend in large part on a

prediction whether the evidence likely would have changed the

outcome of a trial.

Id., 474 U.S. at 59, 106 S. Ct. at 370.

A reviewing court must give great deference to trial counsel's

judgment, tactical decisions, and trial strategy, strongly presuming he has

exercised reasonable professional judgment. State v. Smith, 49,356 (La.

App. 2 Cir. 11/19/14), 152 So. 3d 218, writ denied, 14-2695 (La. 10/23/15), 27

179 So. 3d 597. A defendant making a claim of ineffective assistance of

counsel must identify certain acts or omissions by counsel which led to the

claim; general statements and conclusory charges will not suffice.

Strickland v. Washington, supra; State v. Critton, 52,058 (La. App. 2 Cir.

8/22/18), 251 So. 3d 1281, writ denied, 18-1515 (La. 2/25/19), 266 So. 3d

292.

Whether to call a witness is within the ambit of trial strategy. State v.

Reeves, 18-0270 (La. 10/15/18), 254 So. 3d 665. Additionally, the securing

of an expert witness is a strategic and tactical decision made by defendant's

trial counsel. State v. Prater, 15-0079 (La. App. 1 Cir. 11/6/15), 2015 WL

6835423 (unpublished), writ denied, 15-2234 (La. 4/22/16), 191 So. 3d

1046. Regarding the failure to call an expert witness, the court stated in

State v. Reeves, 18-0270 at pp. 5-6, 254 So. 3d at 671-72:

Additionally, though Reeves faults Ware for failing to call a

counter-expert, he fails to demonstrate that funding was (or

could have been made) available or the nature of that proposed

expert's testimony. See La. C. Cr. P. art. 930.2; see also Day v.

Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) ("[T]o prevail

on an ineffective assistance claim based on counsel's failure to

call a witness, the petitioner must name the witness,

demonstrate that the witness was available to testify and would

have done so, set out the content of the witness's proposed

testimony, and show that the testimony would have been

favorable to a particular defense.

In Strickland v. Washington, 104 S. Ct. at 2066, 80 L. Ed. 2d at 690-

91, the Supreme Court stated:

[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on

investigation. In other words, counsel has a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate 28

must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to

counsel's judgments.

Counsel has a duty to make a reasonable investigation, and a decision

not to investigate must be assessed for reasonableness under the

circumstances. Strickland v. Washington, supra; State v. Joshua, 50,566

(La. App. 2 Cir. 8/10/16), 201 So. 3d 284. Counsel's investigative actions

and choices may be influenced by information and decisions from the

defendant and, under the circumstances of the case, might diminish or

eliminate the need for further investigation. Id.

In Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982), the U.S. Fifth

Circuit discussed a claim of inadequate investigation:

We have previously recognized that adequate investigation is a

requisite of effective assistance. . . . When, as in this case, a

defendant alleges that his counsel's failure to investigate

prevented his counsel from making an informed tactical choice,

he must show that knowledge of the uninvestigated evidence

would have altered his counsel's decision. The fact that an

investigation would have turned up admissible evidence is in

itself insufficient to show prejudice. Cf. Washington v.

Strickland, 673 F. 2d 879 (5th Cir. 1982). A defendant must

demonstrate that the bases underlying his counsel's tactical

choice to pursue or forego a particular course would have been

invalidated.

Tyson argues that Fish was ineffective in failing to conduct an

independent pretrial investigation and failing to seek a second opinion on

cause of death. Fish's investigation of this case was limited to a four or five

hour review of the discovery provided by the state. Despite the fact that

funding was available, Fish did not seek a second opinion on the alleged

cause of death or even talk to a pathology expert to review Dr. Peretti's

autopsy findings. The findings in the autopsy report, including the fact that

some findings were made after discussions with law enforcement, should 29

have alerted Fish to the need for further investigation. Nevertheless, early in

his representation, the State presented Fish with the offer for Tyson to plead

guilty to a lesser offense without a recommended sentence. Fish also

discussed the possible sentence with the trial judge. Under the

circumstances, and considering the sentence Tyson faced if convicted, the

representation by Fish, an experienced criminal defense lawyer, was not

deficient in this matter. However, even if we assume that Fish's

representation was deficient and fell below the objective standard of

reasonableness, we cannot conclude that Tyson was prejudiced.

Regarding the prejudice prong of Strickland, Tyson correctly asserts

that the trial court applied the wrong standard in denying her claim. The

trial court found that Tyson failed to show that "acquittal was a certainty.”

The correct standard is whether there is a reasonable probability the outcome

of the trial would have been different. However, because Tyson pled guilty,

she is required to prove that but for counsel's erroneous advice, she would

have elected to go to trial rather than plead guilty. On review, Tyson merely

claims that there is a reasonable probability that the result of this case would

have been different if Fish had adequately investigated and sought a second

opinion on cause of death, and ultimately relies on the presumption of

prejudice set forth in United States v. Cronic, supra. In order for the

presumption to apply, Tyson must establish that Fish entirely failed to

subject the prosecution's case to meaningful adversarial testing such that she

was denied any meaningful assistance. Because Fish reviewed discovery,

filed several motions, and negotiated and provided Tyson with advice

regarding the guilty plea, Fish provided Tyson with some meaningful

assistance and this case does not fall within the narrow spectrum of cases 30

described in Cronic, supra. Therefore, because Tyson has failed to establish

that she is entitled to receive the benefit of the Cronic presumption, she is

required to establish actual prejudice.

As noted above, to prove prejudice, Tyson was required to establish

that there is a reasonable probability that Fish's errors affected the outcome

of the plea process such that she would have rejected the plea and insisted on

going to trial. This determination is based on the likelihood that discovery

of the new evidence would have led counsel to change his recommendation

as to the plea, which depends on whether the evidence likely would have

changed the outcome of a trial. Fish advised Tyson that it was in her best

interest to plead guilty to manslaughter to avoid a potential life sentence

based on the strength of the State's case. Fish's recommendation was based

on Dr. Peretti's conclusion that Riley died from neck injuries, Tyson's

confession, and the prior DCFS case regarding injuries to Riley. Although

Dr. Dragovic's testimony casts doubt on Dr. Peretti's autopsy findings and

the truth of Tyson's confession, Fish testified that he would still recommend

that Tyson accept the plea, considering the risk of going to trial while

relying on the opinions of dueling experts. Because the new evidence would

not have changed Fish's recommendation and there is no evidence that

Tyson would have rejected Fish's advice in light of this evidence, Tyson

failed to establish any prejudice as a result of Fish's failure to conduct a

more thorough investigation.

As to Tyson's claim that Fish was ineffective in engaging in plea

negotiations prior to a judicial ruling on her competency to stand trial, this

claim is without merit. Although counsel may have negotiated the plea

agreement before the trial court determined that Tyson was competent, the 31

sanity reports were issued approximately one month before Tyson pled

guilty, the plea was offered after the reports were issued, and Fish reviewed

those reports before the date of the competency/guilty plea hearing.

For the foregoing reasons, the trial court’s ruling denying Tyson’s post-conviction relief claims of absolute innocence and ineffective assistance of counsel is affirmed.