Father accused of killing 4 month old son in a supposed "shaken baby" case won’t face retrial.

Prosecutors have dropped efforts to retry a man who was convicted 10 years ago on charges that he shook a baby to death, a verdict that was set aside this year after a judge considered new evidence that indicated the child died of a disease rather than violent abuse.

Drayton Witt, 31, was released from prison in May after a judge set aside his 2002 murder conviction. The Arizona Justice Project filed a motion in February arguing that scientific evidence no longer supported the conclusion that Witt shook 4-month-old Steven to death.

Witt was still charged with first-degree murder in the death and faced a new trial. But last week, the Maricopa County Attorney’s Office filed a motion to drop the case, saying its expert could not testify as to the state’s theory about the case.

On Monday, Superior Court Judge Robert Gottsfield tossed the case out with prejudice, meaning it can never be pursued again.

Witt said Wednesday that he was ecstatic to see the case finally gone.

“I can start my life over again,” he said.

He said he had not been looking forward to a new trial.

“I would rather the state came to their senses and do the right thing instead of have to go into court and fight and win,” he said. “They did the right thing finally. They did the wrong thing for so long, then they finally did the right thing.”

In its motion, the County Attorney’s Office said the expert it had retained was “unable to offer an opinion with the requisite reasonable degree of medical certainty due to the quality of the remaining evidence, leaving the state with no reasonable likelihood of conviction.”

According to court records, police and hospital officials determined that night that the child’s eye and brain injuries were caused by violent shaking. They centered their attention on the last person who was with the baby: Witt.

Witt was convicted in a trial during which his actions were likened to that of a gorilla. A prosecutor told a jury that Witt would have seen the infant’s face as he shook him violently enough to cause bleeding on the brain and in the eyes.

Steven had been a sickly baby who had been in and out of the hospital during his short life, court records show. An autopsy photo showed an obstructed vein leading to the brain, something the medical examiner did not note in his 2000 report ruling the death a homicide by shaking.

That medical examiner, in a sworn statement given in February, said that he understood that several conditions mimic what were then seen as the telltale symptoms of a shaken baby and that, if he were to testify again, he would conclude the baby died of disease, not abuse.

That same conclusion was reached by Dr. Norman Guthkelch, a pediatric neurosurgeon who first speculated in 1971 that children could die of being shaken. Guthkelch, who is now retired and a part-time Arizona resident, was asked by Witt’s attorneys to examine the case.

Guthkelch testified that Witt had been convicted of murder on insufficient grounds. He also said his original article, which theorized that whiplash brain injuries could be caused by shaking, had been overused in the past 40 years.

He said his article has been used to justify “a diagnosis of criminal liability in circumstances of which I never envisaged.”

The Arizona Justice Project secured the release of one other man who had been accused in a shaking incident. Armando Castillo pleaded guilty to a manslaughter charge this summer rather than risk a retrial.
http://www.azcentral.com/news/articles/20121031dad-wont-face-retrial-death-baby.html?nclick_check=1