Brian Peixoto’s Final Appeal

In the fall of 2011, Peixoto and Munger mailed his case records to several of the experts mentioned during the Frontline special, including Michael Laposata, then chief pathologist at Vanderbilt University Medical Center. In the Lopez case, Laposata had determined that the child died of a disease and not a beating. Too often, Laposata says, decisions during an autopsy are based more on emotion than science. He faulted the human instinct to rush to blame somebody—anybody—when faced with a child’s death. “What is more sad than a cute little three-year-old boy with an incision that goes from the bottom of his neck down to his navel, with his organs spread out all over the place?” Laposata said. “It’s the saddest doggone thing in the world. And when you look at that, when you’re a human, you say, ‘Somebody’s paying for this.’ You’re grabbing the person who’s most potentially liable.”

Reading through Peixoto’s case records, Laposata quickly seized on Christopher’s fall down a set of stairs days before his death. The fact that Christopher fell and broke his collarbone was known to detectives since the night he died, but it had been a mere footnote during Peixoto’s trial. After all, medical experts had testified that the death blows occurred the night Christopher died—and not from a cracked clavicle. Even though the trial had focused only on the events of that day, Laposata now believed that the answer to what killed Christopher lay in the events leading up to the boy’s death.

Roughly a week and a half before he died, Christopher tumbled headfirst down a pair of steps at his grandmother’s house. A bump in the center of his head soon turned into a bruise, but he seemed “fine,” Sneed testified during the trial. Days later, though, Christopher complained to his grandmother that his throat hurt. When she removed his shirt, she saw a bruise and a lump around his neck and shoulder. On January 13, 1996, Sneed took her son to Saint Anne’s Hospital in Fall River, where doctors discovered the broken collarbone and fitted him for a brace. At the time, doctors told Sneed to call her pediatrician if Christopher began exhibiting any symptoms on a list they handed her. “The paper had several things on it,” Sneed testified, “but I don’t remember exactly what it said.”

Five days later, when Sneed dropped Christopher off at daycare, three workers noticed bruises on the top of his forehead, the back of his legs, his back, his ear, and his cheek. Sneed told the daycare’s program coordinator that the bruises were the result of a fall at her mother’s house. The daycare worker later testified that Sneed joked, “He looks like an abused kid, huh?”

A week after the fall, Sneed noticed her son was having trouble walking and was acting in what she called “a drunken state.” Both she and Peixoto noted it again on the day of his death, when he complained of pain throughout his body. “Christopher was acting like a real stumbly-butt,” Sneed testified, calling his behavior “really weird.”

Christopher had a pediatrician’s appointment that morning to check on the clavicle, but Sneed testified she couldn’t get the boy’s father or Peixoto to take him while she was at nursing school. Peixoto said she never asked, and if she had, he would have recommended that she skip school to take him. Instead, the plan was to drop Christopher at daycare and then take Sneed to class. But Christopher started falling asleep along the way, so they decided he should stay at home. That evening, Christopher died.

To Laposata, Christopher’s death was no “whodunit,” as it had been presented at trial: The boy fractured his skull when he tumbled down the stairs at his grandmother’s house. Though Christopher survived the fall, the neurological problems he demonstrated—including the “drunken” stumbling—were a result of subdural hematomas, or blood pooling on his brain. It was also clear why none of this was considered during the trial: Weiner and Newberger both testified that if the boy had fractured his skull during the fall down the stairs, he could not have survived for another 10 days. But now, thanks to new medical findings, Laposata believes they were wrong. In addition to Plunkett’s original study, Laposata points to a 2009 paper—a dozen years after Peixoto’s conviction—in which more than 800 children survived falls down stairs despite fracturing their skulls.

Laposata also called the notion that a certain amount of force is required to fracture a child’s skull—such as Newberger’s well-worn “two-story-fall” theory—mere conjecture and not based on science. There is, he argued, no harmless way to test such a hypothesis. According to Laposata, unscientific testimony such as the two-story analogy “is often spoken by people who seem qualified to offer such an opinion, but clearly are not providing evidence-based information.”

Ultimately, Laposata believes specialists should have evaluated Christopher to determine whether a bleeding disorder had caused the excessive bruising on his body, and that the bruises—including on his genitals—were likely a result of his body’s inability to form clots due to the massive days-long brain bleed. In June 2012, Laposata—who worked on the case pro bono—put his findings in a sworn affidavit supporting Peixoto’s bid for a new trial. “They decided it’s child abuse,” he said, before they considered any of the other possibilities.

By the time Laposata’s affidavit was filed, Munger and Peixoto’s relationship had gotten more complicated. Several months earlier, the Department of Corrections had transferred Peixoto from a prison in Norfolk to one in Concord, and then terminated Munger. These were not unrelated events. Officers had caught Munger bringing a cell phone into the prison, and though Peixoto and Munger are both reluctant to publicly discuss their relationship, it is clear that they have become romantically close.

In late 2012, another renowned brain expert signed an affidavit supporting a new trial. This time it was Waney Squier, of John Radcliffe Hospital, in Oxford, England, who declared that Christopher’s head injury from falling down the stairs had clearly not been “fully considered” at the autopsy or when the brain was examined. She also said that brain samples should have been studied under a microscope in order to date them accurately, calling attention to the fact that dating bruises by their color—common practice in the mid-1990s—is now known to be antiquated and wrong. “They’ve obviously come to the conclusion that somebody was beating up the child…and we got our answers by looking with a naked eye,” Squier said. “That’s just not good enough.”

Squier also pointed to numerous examples of children who had experienced a “lucid interval” after a head injury—appearing relatively normal or with symptoms just like those Christopher exhibited—only to die days later. Despite having a reputation at home in the United Kingdom for testifying that police and medical examiners overlooked scientific evidence in shaken-baby cases, Squier continues to practice medicine while fending off charges that she has twisted evidence to fit her views.

In the summer of 2014, two more experts signed affidavits supporting Peixoto. Chris Van Ee, a biomechanical engineer who specializes in accident reconstruction and pediatric head injury, corroborated that a fall down two or three steps could cause a child’s death, and criticized the trial testimony of Newberger and Weiner that Christopher would have had to have been dropped from great heights to fracture his skull and would have been knocked out immediately. Zhongxue Hua, a pathology professor at Albert Einstein College of Medicine, in New York City, and a former New Jersey medical examiner, said the scientific conclusions made during Peixoto’s trial were akin to the days when people thought the world was flat. “At that time, if the kid had a fracture,” he said, “then what you’re taught in medical school is somebody did it.”

Hua also picked away at Weiner’s credentials and expertise. Born in New Haven, Connecticut, Weiner spent less than three years studying premedicine at Belgium’s Catholic University of Louvain, where, according to licensing records, he stated he did not earn an undergraduate degree. Still, he acquired a medical degree in anatomic and clinical pathology from Free University of Brussels. Weiner had completed forensic pathology residencies in Brussels, Connecticut, and Maryland, and worked at the medical examiner’s office in Dallas, Texas, for nearly three years before coming to the Cape in 1988. Weiner was not board-certified as a forensic pathologist, but it is not a requirement to practice medicine or be employed as a medical examiner in Massachusetts. Reviewing the case records, Hua was dismayed that the medical examiner, now dead, was not a board-certified pathologist. “I have a joke,” about noncertified physicians, said Hua, who is certified in three medical specialties: “Are you dumb, or just lazy?”

It also turned out that Newberger, the child-abuse expert whose testimony helped convict both Peixoto and Woodward, had been under fire for years. In a 1982 murder case, for instance, Newberger’s meandering conclusions after watching a young victim’s sisters play with dolls led to a mistrial, and in 1991, a manslaughter conviction was overturned because the doctor strayed from the particulars of the case into what an appeals judge called “irrelevant and highly prejudicial” testimony concerning “family characteristics” and “patterns” in child-abuse cases.

During a 2012 custody battle in Connecticut in which a wife alleged that her husband had sexually abused their child, the judge blasted Newberger for offering what she thought were unqualified opinions, accusing the father of abusing the boy without interviewing either subject and falsely accusing the husband of marital rape. “It appears that there is nothing that Dr. Newberger is unsure about, whether he is right or wrong, and he is always sure he is right,” Connecticut Superior Court Judge Lynda B. Munro seethed in her opinion. Munro pointed out that Newberger’s conclusions on the 50 cases he’d consulted on since his retirement from Children’s Hospital in 1999 always supported the side paying him. In response, Newberger stated in a deposition, “I’m not a whore.”

In December, I went to see Newberger at his home in Brookline, where we spoke at length about the case. He acknowledged that since Peixoto’s trial, there’s been “fairly substantial critical literature” about aging bruises by color, which played a significant role in his testimony and conclusions. As the Department of Justice stated in 2014: “No one can precisely assess the age of bruises based on their color,” so an “investigation should not rely on opinions that assign an age to bruises.” Still, Newberger stands by his use of that method, saying, “I mean, that was my belief at that time. That was what I testified to based on my knowledge and experience.” He dismissed the opinion that Christopher’s fall down the stairs played a role in the boy’s death as an “absurd reformulation.”

Armed with affidavits from leading doctors—all of whom had previously been involved in efforts to help prisoners prove their innocence—Peixoto felt a twinkle of hope for the first time in more than a decade. In 2012, his attorney filed an appeal arguing that there was new evidence, and that Weiner and Newberger had steered the case in the wrong direction with faulty conclusions that Peixoto’s attorney had failed to oppose. But after all that—new doctors weighing in, the prosecution’s experts seemingly debunked—the judge dismissed the appeal. Judge Hely—the same judge who presided over Peixoto’s original trial and had already denied one appeal, once again tasked with determining if the trial he oversaw was flawed—stated that the new evidence failed to address the testimony that “unequivocally show[ed] that Christopher was beaten multiple times with severe force on the back of the head.” A Massachusetts Supreme Judicial Court justice upheld Hely’s decision, stating that medical experts during Peixoto’s trial had found the stair fall inconsistent with Christopher’s fatal injuries. In other words, the new explanation simply wasn’t enough.