Judge ruling a blow to mother's defense
by Rick Casey

Thursday, Feb 25,1999

U.S. District Judge Orlando Garcia has dealt a blow to the defense of Cynthia Lyda, the woman accused of assaulting two of her children after being caught on videotape blowing into one child's stomach tube at Wilford Hall Hospital.

Over angry defense objections, Garcia ruled this week that prosecutors can introduce evidence they say shows Lyda poisoned a previous baby who died in Arizona.

Prosecutors say they have a lab test of hair taken when the body of the previous son, Aaron Martinez, was exhumed by Arizona authorities in 1996. The lab test, prosecutors Demetrius Bivins and Jack Stick said, shows Aaron had been poisoned with ipecac. The over-the-counter drug is legitimately used to induce vomiting in children who have swallowed poison.

Prosecutors also are expected to produce a former friend of Lyda's who says she was with Lyda when she bought three bottles of ipecac.

Stick said a medical expert will testify that records indicate at least one of the Lyda sons at issue in this trial was poisoned by ipecac.

Judge Garcia postponed the trial until March 30 to give defense attorneys time to seek their own lab tests of Aaron's hair samples and to line up their own expert witnesses on the ipecac issue. The trial had been scheduled to start next week.

Garcia has one major question yet to decide. Defense attorney Kurt May asked him to exclude any reference to Munchausen's Syndrome by Proxy, saying it would be prejudicial to his client.

MSBP is used to describe an incident in which a child's caregiver, usually the mother, either lies about or produces symptoms of illness in a child in order to meet the caregiver's own needs.

At a hearing on the issue two weeks ago, May presented an expert witness, Eric Mark, a New Hampshire psychologist working on a book to be called "MSBP: The Human Cost of Junk Science."

Mark said that diagnoses of Munchausen's Syndrome are often wrong. Defense attorneys also argued that prosecutors would use testimony about MSBP to "profile" Lyda, something that isn't allowed in federal court. It means to present characteristics that perpetrators have in common, suggesting that if the defendant fits the profile she must be guilty.

A San Antonio psychiatrist, Dr. Patrick Holden, diagnosed Lyda as having the syndrome. His diagnosis played a key role in a state judge here placing her two children by a second marriage in state custody.

Prosecutors put on Dr. Randy Alexander, a pediatrician at Morehouse School of Medicine in Atlanta, and a national expert on child abuse.

For Alexander and other pediatricians, MSBP is not a psychological condition in the perpetrator. It's a medical diagnosis of what is happening to the child.

"It's something you do, not something you have," he said.

The distinction is important because it takes the diagnosis out of the realm of psychological "profiling" and into the realm of medical science.

Both definitions are useful to prosecutors, who have two major reasons for wanting to introduce expert testimony on the syndrome.

One is to overcome the normal human skepticism among jurors that any mother could intentionally hurt her children.

An explanation of MSBP provides a motive and an understanding that other mothers have engaged in such behavior.

The other purpose is to explain some of that behavior. For example, in a state hearing Lyda's lawyers produced experts who testified that when she blew into the feeding tube that went into her baby son's stomach (the act caught on the now-famous videotape), she wasn't causing the boy any harm. What's more, her explanation that she was trying to clear a blockage was plausible.

But the boy's pediatrician countered that she wasn't trying to hurt the boy. She was trying, by producing a bloated stomach, to fool the doctor into thinking the boy was not tolerating his feeds. Her larger purpose, he said, was to keep him malnourished by getting doctors to cut back on his food intake.

This would correspond to part of Dr. Alexander's definition of MSBP — that the perpetrator makes the doctor or nurse the actual agent of child abuse.

Will Garcia allow MSBP testimony in? It's unclear. An article in the current issue of "Criminal Justice," a journal of the American Bar Association, says many courts and some state supreme courts have allowed it. But a few haven't.

The article strongly urges prosecutors to use Munchausen experts as part of their case.

1999 San Antonio Express-News

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