Foss G. Hodges – Criminal Defense Notable Cases:
Child Physical Abuse / Shaken Baby Syndrome / Abusive Head Trauma
Summaries of charges, defenses, and outcomes for clients prosecuted in counties throughout Georgia and the Southeast.
Charges Dismissed After Indictment Issued
Hodges gets Pretrial Diversion and dismissal of all charges for client facing up to 20 years in prison for Cruelty to Children and Aggravated Battery based on allegations he violently, maliciously broke a child’s arm (2022).
Charges: First Degree Cruelty to Children; Aggravated Battery
Defendant was indicted for First Degree Cruelty to Children and Aggravated Battery for maliciously injuring his girlfriend’s 8-year-old son. The child alleged that Defendant yanked him out of his top bunk bed, slammed his arm on a wooden table “at least 15 times,” hit him with a coat hanger, punched him, and hit him with his shoe. When the child’s biological father took the child to the hospital, doctors discovered he had a fractured arm and a curved-shaped bruise on his leg.
Defense and Outcome:
The incident in question occurred almost four years earlier, when the child was lighting things on fire in his bed. When Defendant confronted the child about it, the child lied and said he wasn't burning anything and didn't have a lighter, although Defendant could smell burning plastic in the air. Defendant pulled the child off the top bunk and spanked him on the legs and butt. He did not hit him with a hanger, a shoe, or any other object. He did not hit his arm on a table or anything else. Defendant believed the child's arm must have been injured accidentally when Defendant pulled on his arm, or maybe when the child fell on his outstretched arm. Any marks on his leg must have come from him hitting an object of that shape in his fall.
When Counsel was hired, the case was already being noticed for trial and the State was ready to engage in plea negotiations. However, no investigation had been done, the State’s discovery was incomplete, nobody had obtained any of the child’s recent or historical records, and, where the State indicated there was a long history of DFCS involvement with the family, nobody had obtained and studied the records of that history. Counsel asked the State for time to do the work that hadn’t been done, for cooperation in obtaining necessary discovery and records, and for an opportunity to meet and discuss the evidence before marching into trial or making any plea offers. The State agreed, and Counsel got to work.
First, by interviewing witnesses and obtaining artifacts of the family history, Counsel learned that Defendant had tremendous character for non-violence, gentle conduct with children, and kindness. He was described as a “gentle giant,” a “big teddy bear,” mild-mannered, and calm. He had two biological children and several “stepchildren.” Photos, emails, social media, and other evidence showed that all the children adored him, and all the children’s mothers adored him. All the evidence showed that, despite the allegations in the case, Defendant had a great relationship with the alleged victim, who never showed any signs of being afraid of Defendant, or not wanting to be around him, which was inconsistent with having been abused by him.
Counsel also obtained and studied the child’s hospital records, which described the child’s arm injury as a mild “avulsion fracture,” with no bruising or abrasion on the skin, and no noted swelling to the arm. The records did not note anything about a mark on the child’s leg, curved or otherwise.
Counsel consulted with a forensic pathologist, who explained that these findings were consistent with an accident, secondary to spanking; that an avulsion fracture was consistent with pulling, not with repeated blunt force trauma on a table as the child described; that the type of fracture and the absence of findings on the skin were inconsistent with a malicious, abusive beating as alleged.
It appeared to Counsel that the child had simply exaggerated the allegations, turning a disciplinary incident into abuse. Indeed, the State’s discovery contained lots of inconsistent statements from the child, suggesting he was not being entirely truthful. For instance: he initially told his biological father he sustained a wrist injury when Defendant spanked him, and said nothing about Defendant hitting his arm on a table; he initially said he was spanked, and said nothing about getting hit with a shoe, or a hanger, or getting punched; the shoe became a boot; the hanger was intermittently described as plastic, black, twisted, wire, broken, and plural; “threw him back in bed and left,” became “hit his head on ceiling when thrown back in bed,” and then became “maybe he didn't hit his head on ceiling at all;” he told police Defendant hit him on the right thigh, although the injury was on the left thigh. The child also explicitly demonstrated his willingness to lie, telling the forensic interviewer, “I was tossing the lighter around and it lit on fire. I don't even know how it did that. Then it caught fire right next to my toy.”
Witnesses explained that the child had a history of this kind of lying and exaggeration around the time of the incident, when all these statements were made. For example, Counsel learned that, around the same time, the child made a false allegation of physical abuse against one of his teachers.
Counsel obtained the child’s school records to look for, among other things, evidence of the child’s false allegation against his teacher. The incident was not documented in the school records. However, Counsel’s investigator located and interviewed the teacher, who remembered the incident well. She said she absolutely did not hurt the child; that he got mad because she put him in timeout; that several witnesses were interviewed and said the same thing; that the child had lots of behavioral problems back then; that he often exaggerated things; that his perception of reality was often skewed. Fortunately, she explained, with the help of teachers, counselors, his mom, his dad, and others in the child’s life, including Defendant (whom she noted was very positively involved in the child’s life), the child grew out of all this; but this is where he was at the time.
Finally, Counsel obtained and studied the DFCS records involving the family. Early on, it appeared the “voluminous” DFCS records might reflect a long, problematic history with the family. However, Counsel learned that about half of the records were irrelevant, related to cases that didn't involve Defendant, that didn't involve allegations of physical abuse, and that were ultimately unsubstantiated or "screened out." The only records that were relevant were actually very helpful, not problematic.
First, there were records of the false allegation the child made against his teacher. He had reported that the teacher squeezed his hand/wrist so hard that it hurt. An investigation found that “there was no harm to the child . . . no marks or bruises,” and that the child seemed to be alleging abuse because he was “angry with the teacher for asking him to have time out in another classroom.” The case was unsubstantiated; and everything in the record corroborated what the teacher told Counsel’s investigator.
The DFCS records involving the current case were mostly consistent with the police reports and other State's Discovery. However, they also contained an alternative explanation for child’s arm injury, which was very significant. The child told DFCS that his arm was injured when Defendant was trying to discipline the child for lighting the fire, the child tried to run away from Defendant, and Defendant grabbed him by the arm. This explanation, it turned out, was consistent with how Defendant believed the injury must have happened (grabbing and pulling), consistent with the medical findings in the case (an avulsion fracture with no bruising, abrasion, or other sign of external injury), and inconsistent with the allegations (slamming the arm on a wooden table “at least 15 times”).
Counsel shared all this information with the State, who agreed to send the case to Pretrial Diversion. After taking a parenting class and doing a book report about successful parenting, the charges against Defendant were dismissed, and the record of his arrest and indictment were restricted.
State v. John Doe: (2014)
Charges: Felony Murder, Cruelty to Children, Shaken Baby Syndrome
The father violently shook his 2 month old son due to his son's fussiness, causing subdural and subpial hemorrhages and his death. He was facing Life in prison.
Defense and Outcome:
Following Defense Counsel’s intensive review of the facts of the case and their work with medical experts in pediatric neuroradiology, pediatric neuropathology, blood disorders, and acute life threatening events (ALTEs), defense counsel learned that the bleeding in the child's head was the result of a venous thrombosis (ruptured clot) and complications of cardiac arrest, not a violent shaking. After cross-examining the state's witnesses at trial and presenting their defense of the case to a jury, the state elected to dismiss all murder charges prior to the jury deliberating. The case concluded with the defendant accepting 4 years of probation to criminal negligence under the First Offender statute and no admission of guilt. After probation, the defendant will not have a record of the offense.
Charges Reduced After Indictment/Accusation
State v. Jane Doe (2018)
Charges: Cruelty to Children
Defendant and her fiancé were arrested for spanking and causing injury to Defendant’s 8-year-old son. Photographs showed extensive “bruising” on the child’s buttocks. A medical examination concluded the bruising was consistent with a vicious beating. Defendant and her fiancé gave statements to the GBI, and each admitted to spanking the child. In addition to the State’s criminal prosecution, Defendant’s ex-husband filed a TPO against Defendant’s fiancé, and a Petition for Change of Custody against Defendant; and Defendant was ordered to have no contact with her son at all.
Defense and Outcome:
Prior to receiving discovery, Defense Counsel gathered everything possible to understand the case: Defendant’s narrative about what happened the night of the spanking; all the history between Defendant and her ex-husband; photographs she had of her son’s injuries; records of all the phone calls and text messages between Defendant, her ex-husband, and her fiancé about the incident; all of her son’s medical records, counseling records, and school records; and all of the documents filed in the TPO and Custody cases. Defense Counsel visited Defendant’s home, examining and photographing where the alleged incident occurred.
To show that Defendant was a good parent, Defense Counsel had Defendant take a Parental Fitness Evaluation (PFE) with a Licensed Psychologist, who concluded that Defendant was a perfectly fit parent and low risk for family violence. Defense Counsel also had Defendant complete parenting classes to show she was eager to learn new skills and improve.
When Defense Counsel finally obtained and studied the State’s discovery, they learned that everything in the case indicated that Defendant did spank her son, but that even her son claimed the spanking was “not that hard” and “did not hurt.”
Defense Counsel shared all the case materials with a forensic pathologist who concluded that the child’s injuries were not consistent with excessive force.
After more than a year, Defense Counsel presented its case to the prosecutor, who subsequently dropped the felony charge and allowed Defendant to plead to misdemeanor Simple Battery under the First Offender Act. After 12 months of probation, Defendant will receive a full exoneration, her plea will be discharged, there will be no conviction on her record, and the record of her arrest will be restricted.
Jury Trials - Not Guilty Verdicts
State v. John Doe (2016)
Charges: Murder, 3 counts of Felony Murder, and one count each of Cruelty to Children in the First Degree, Aggravated Battery, and Aggravated Assault
Defendant was accused of violently shaking his girlfriend’s 9-month old baby to death. Doctors discovered the “triad” of symptoms commonly associated with “Shaken Baby Syndrome”: bleeding on the brain, swelling of the brain, and bleeding in the eyes. Autopsy revealed other injuries, including a broken leg, trauma in the neck, and multiple areas of bleeding and bruising inside and out. Medical personnel and police suspected child abuse. Police interrogated Defendant over a period of six hours. Initially, Defendant claimed the baby fell off the couch. But he eventually admitted to shaking the baby out of frustration and then accidentally dropping the baby. Defendant also reenacted the events on camera, showing police how he shook and dropped the baby.
Defense and Outcome:
Defendant’s case sat idle for nearly 2 years before Mr. Rubin and Mr. Hodges were hired. The court gave counsel only 4 months to prepare for trial. Counsel immediately obtained and studied the discovery. They learned that while Defendant admitted to shaking the baby, he claimed that the baby was unharmed by the shaking—that he was fine until Defendant accidentally tripped and dropped him later, at which point he became unresponsive. Although Defendant gave detailed descriptions of how he dropped the baby, nobody with the police, the hospitals, or the Medical Examiner’s office paid much attention to the drop as a possible cause of injury and death (if they learned about it all). To most, it was a clear case of “Shaken Baby Syndrome.”
Counsel subpoenaed additional medical records and forwarded all the records and case materials to several experts: a Medical Examiner from Florida, a former Pediatrician and “Shaken Baby Syndrome” researcher from Alabama, a retired Chief Medical Examiner of Georgia, and a Biomechanical Engineer from Georgia. All of them concluded that: 1). the baby’s head injuries could not have been caused by shaking; 2). the baby’s head injuries were consistent with the accidental drop Defendant described; and 3). all the other “injuries” noted at autopsy were consistent with life-saving interventions specifically described by emergency and medical personnel in the case.
Counsel presented all this evidence at trial, and the jury found Defendant NOT GUILTY of Malice Murder, 3 counts of Felony Murder, Cruelty to Children, and Aggravated Battery. He was found guilty of 1 count of Aggravated Assault for admittedly shaking the baby.