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May 28, 2007

High-profile scheduled execution raises distinct innocence claim

As detailed in this AP story, Texas is scheduled in two weeks to execute Cathy Henderson.  Her case, as detailed in the AP piece, raises a distinct type of innocent claim:

A neighbor in a suburban Austin neighborhood appeared to be the perfect babysitter for Eryn Baugh's infant son and his 2-year-old sister.  "She's the most sweet, endearing person in the world and put forward this good Christian front," Baugh said of Cathy Lynn Henderson, who lived two blocks away. "She could sell snow to an Eskimo."

But just weeks after Henderson started working for the Baughs, 3-month-old Brandon was dead and Henderson had fled the state.  The infant's body was found buried 60 miles away with his skull crushed, wrapped in his yellow-trimmed white blanket and stuffed into a box that previously held Bartles & Jaymes wine coolers.

Henderson, 50, is set to die in less than three weeks for the 1994 slaying that made her one of the most hated women in Texas.  She would be just the 12th woman among the nearly 1,100 convicted killers executed since capital punishment resumed in the United States in 1977.

Henderson insists Brandon died in an accidental fall and that her decision to bury him and flee was made in panic, not in cold blood.  "It's apparent I wasn't thinking clearly," Henderson told The Associated Press recently from the state's female death row outside Gatesville.  "I think I was in shock, disbelief. I just didn't know what I was doing. That baby was dead. I didn't want to deal with that. There was too much sorrow. It hurt, it hurt," she said, tearing up. "When I look back at it, it does kind of look like I was guilty, doesn't it?"

Henderson's case has been championed by Sister Helen Prejean of "Dead Man Walking" fame.  Supporters say new engineering data interpreting Brandon's skull fracture could better support Henderson's contention the child's death was an accident and her life should be spared.

As noted before in this post (when Henderson faced an April execution date), Henderson's gender, the involvement of Sister Helen Prejean, and her distinct claim of innocence all suggest this case will become very high-profile as her execution date approaches. 

Especially because this case is in Texas — which has already conducted 2/3 of all executions nationwide this year and has five executions scheduled for June — I will be following the Henderson case closely as a litmus test on the state of death penalty politics.  If support for the death penalty is really waning nationwide, Henderson might get another reprieve.  But, in Texas, the safe money is always on an execution going forward. 

May 28, 2007 at 08:54 AM | Permalink


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Professor Berman, why would you use this case as "a litmus test on the state of death penalty politics," when, in your own estimation, it has so many atypical factors? It would seem to me that the proper "litmus test" case is the "ordinary" death sentence case -- one where there aren't so many (in your view) extraordinary other factors, not least the killer's gender. (And let's face facts: if Henderson weren't a woman, the case would barely be a blip on a capital sentencing blog. Her "innocence" claim isn't really all that distinct from most other eleventh-hour actual-innocence claims.)

Using this case to examine the state of death penalty politics is like using Bush v. Gore to examine Supreme Court Equal Protection jurisprudence -- both are atypical cases, so conclusions to be drawn from them are not necessarily indicative of how things generally work.

Posted by: bill | May 28, 2007 10:57:32 AM

Personally as a mother I think this woman is long overdue of execution. Evidence doesn't lie so why prolong the execution. Of course whether the execution happened the day after the evidence and body of this child was found or if it happens 20 years down the road, it's not going to bring the innocent 3-month old back nor will it relieve the pain and suffering the family has gone through. Prolonging the death of this woman is prolonging the grievance of this family. Let the child rest in peace. Justice needs to be carried out based on the evidence at hand. I learned that from studying to be a legal assistant for the past two years.

God Bless,
Nicole Blasingim

Posted by: Nicole Blasingim | May 28, 2007 12:52:53 PM

Lethal Injection is too humane for this murderer. She should have her skull bashed in then be stuffed in a big wine cooler box and be left to rot in a shallow grave.

Posted by: Annalee Davis | May 28, 2007 3:07:32 PM

Geez, it's a bit disheatening that some people are so blood thirsty.

Posted by: Elson | May 28, 2007 4:27:07 PM

Four opinions --

1. In general, murderers should be executed if the evidence of their guilt is overwhelming. "Beyond a reasonable doubt" is not enough. Overwhelming evidence would consist of one of the following:

a. A single item which is absolutely convincing and extremely difficult to fake. Such as a videotape of a person committing the murder, or

b. Multiple chains of logic which point to the same person. At least one of these chains of logic should consist of physical evidence.

2. Based on the news article, the evidence that she killed him is overwhelming. The evidence that it was murder is strong enough for "beyond a reasonable doubt", but not strong enough to be "overwhelming". Her behavior after he died raises a strong inference of guilt. But it's only one line of reasoning. Two are needed. Now, there may have been evidence in the trial that was not in the news article.

3. By contrast, many recent highly publicized murders do meet the "overwhelming" standard. Such as the Jessica Lunsford/John Couey case, or the Carlie Brucia/Joseph Smith case.

4. When the evidence is overwhelming, and the person isn't able to raise some reason why they should be considered less culpable (i.e. abuse at the hands of the victim), the execution should proceed within a few months of their conviction.

Posted by: William Jockusch | May 28, 2007 9:37:06 PM

I hate when I drop babies and their skulls are "crushed." Those are always bad days.

Elson, it's a bit disheartening that it's taken 13 years - even in Texas. "Blood-thirsty" would be wanting Henderson's skull crushed too. Most of us who favor the death penalty would settle for a "humane" end to Henderson's life - if only it happened 10 years ago.

Posted by: Ben D | May 28, 2007 9:47:00 PM

This is an interesting post, as few of these cases involve claims of actual innocence, and most of which I'm aware involve claims of procedural defects.

Is there any reason to believe, however, that the jury was wrong to determine that Henderson was guilty beyond a reasonable doubt? The jury saw the evidence, Henderson had a chance to tell her story, and no one believed her.

This "new engineering data" sounds suspicious. As in medical malpractice cases, patent infringement suits, and many other cases that frequently involve experts, one can often find an expert willing to say just about anything. I'm sure that a good engineer could team up with a good animator and tell a story (with fancy computer graphics) that shows the skull crushing resulting from an accident.

The government could certainly counter that with its own expert who would tell a story along the lines of Ben D's comment (i.e. babies' skulls don't crush unless they're dropped from much higher than the height of a person's shoulders).

But is this necessary? This isn't exactly exculpatory DNA evidence.

Prof. Berman is right to see this as a litmus test of death penalty politics. Unless the "engineering data" is something amazing, then anyone who grants Henderson a reprieve is using this "evidence" as a pretext.

Posted by: | May 29, 2007 11:50:55 AM

"Evidence doesn't lie..."

You mean all evidence is truthful? I guess this eliminates the need for trials. Unfortunately, this would mean that any criminal defendant would be entitled to an instant acquittal, by presenting evidence that he was somewhere else at the time, or simply testifying that he didn't "do it."

Posted by: S.cotus | May 29, 2007 12:49:31 PM

i think we just have to wait and see what happens-i dont think any of us who were not at the crime scene or the trial can possibly know what happened that day. i hope for everynes sake she is re-trialed and found not guilty as in she did accidentaly drop the baby surely if the baughs knew this was true they would find it easier to come to terms with their sweet babies death

Posted by: sophie | May 30, 2007 3:08:41 PM


"one can often find an expert willing to say just about anything". Is that only true for defense experts, or don't you think a prosecutor could also find an expert who'll say anything? If you read the whole AP piece you'll find that the original medical examiner has said, given the new evidence presented by the defendant, he can no longer say w/a reasonable degree of medical certainty that the injury were the result of a homicide. I am a criminal defense lawyer.

Posted by: Atlanta Lawyer | May 31, 2007 8:20:59 PM

In Texas, if a child dies, someone must be prosecuted and convicted. It doesn't matter how the child died.

Posted by: brucem | Jun 1, 2007 12:13:07 AM

Atlanta Lawyer,

You misattribute that quote to me. I didn't write it. I don't know why the person leaving the comment following mine didn't leave a name, but he or she did not do so. Your point about expert witnesses on each side is well-taken. I agree.

However, dropped babies do not typically have their skulls "crushed," especially to the point that the "entire back of the head [is] shattered." I know your a criminal defense attorney, but suspension of disbelief only goes so far. In my opinion, it doesn't go far enough in this case to save Henderson.

I don't particularly care if the original medical examiner years later becomes equivocal about what his conclusion would be today; his conclusion then was not equivocal. And there's another examiner now who says that the baby's injuries are "inconsistent with an accidental fall."

And Henderson buried the baby 60 miles away. In a wine cooler box. And then she fled out of state.

Again, suspension of disbelief has its natural limits and those are the actions of a guilty person, not an innocent one.

She had her day in court and 12 people convicted her. A sliver of new evidence is immaterial unless it creates something more than an equivocal expert after the fact.

Posted by: Ben D | Jun 1, 2007 7:03:33 PM

*you're* in the second paragraph - I'm very ashamed. I will now go stand in the corner until I learn my lesson.

Posted by: Ben D | Jun 1, 2007 7:05:37 PM

maybe Henderson can have another trial--this time in front of the US Supreme Court--there's precedent, namely House v. Bell . . . .

Posted by: federalist | Jun 2, 2007 3:11:43 PM

I have read through all of the comments left on this site and thought I would jump in with some of my own. I am one of the "fortunate" ones to have removed my children from her care after her abuse, just six months prior to Brandon's death. I don't know how to explain it, but this woman is evil. She has the ability to look you in the eye, tell you a lie, and make you believe she was Mother Teresa! My son, then about 10-12 mos old, came back to me regularly with bruises. She always had a good excuse for them. However, the day he came back to me with the handprint bruises on his little face and a cut on his eye, she got extremely upset when I kept "grilling" her about how he "fell". He also went from loving bathtime to screaming uncontrollably at the sight of water! It was not unusual for me to pick him up in the afternoon and he would have been bathed. Not just washed up, but bathed. I shutter to think what she might have done to him in the bathtub that would have cause such a dramatic change in him! My older child, then 5, only went to her daycare for about a week. Within that week he told me stories that got increasingly worse, but nothing I could outright say she had abused him. Until the last day that I sent them to her care. He had a baby bottle shoved in his mouth for crying. He was thrown to the floor in her kitchen and DRAGGED by his arm up her stairs where she kicked him in the back telling him to get up and then locked him in a room for the rest of the afternoon. He told me this over dinner when I asked what he did that day. Children at that age can rarely tell a lie with such detail as he provided. I checked his back for bruises and found the evidence. When confronted, she said my children were spoiled little liars. I never took them back! I quit my job and stayed home with them after that.
This "new evidence" is not a smoking gun. Dr. Bayardo did not say he didn't believe she was guilty. He simply said that he would have had to testify differently. I was at the trial. My son, then 7, testified in court about the incident he went through. I testified about reporting her to DHS and the abuse my children suffered. I seen her hit her own child.
I am not a DP supporter per se. However, I know she is as guilty as sin and she deserves whatever she gets. I would never want this woman to ever have any opportunity to be around children again. Unfortunatly, at the time that she was convicted the law would allow her to actually be paroled at some point. If death stops that, I am for it! She made her choices and had no regard for the Baugh Family or even her own Family in her reactions to what she had done. Any innocent person would have immediatly called 911. She never attempted to call 911. If she was not guilty, why would she not have called? That is almost gut reaction to people when an accident happens. Even 3,4,and 5 year olds do it. Are we to believe a grown woman would not instictively call 911 if an accident happened if she were perfectly innocent?
As far as the "new evidence", I beleive it primarily is based on skull fractures of preschool aged children and fractures caused by short falls. The bones in the skull of a 2 month old infant would be quite plyable in comparison to those of even a preschool aged child. When they have evidence that a fall such as she claims might cause those injuries in infants, maybe I would listen. I don't think so, though.

Posted by: Momof4kids | Jun 7, 2007 12:12:58 AM

A couple of quick points --

I have no problem with the execution going forward. Watching her most recent televised interview, Ms. Henderson -- crocodile tears notwithstanding -- exhibited nearly all of the textbook mannerisms of a practiced liar. If you know what to look for, deception is fairly easy to spot.

A request for clemency from Mr. and Mrs. Baugh might be worth entertaining. I don't think that the Texas Board of Pardons has any obligation to take into consideration a clemency plea from any other quarter. Particularly the extraordinarily gullible nuns who have championed Ms. Henderson's cause.

I wish the Baugh family peace.

Posted by: Susan Busani | Jun 7, 2007 6:09:31 PM

I don't belive in the death penalty, in any case. I think that this is the easy way out.
Cathy Lynn Henderson, is undoubtedly responsible for the death of little Brandon, I think that there is a fraction of a chance that her claims may be true, but accidental or not she should spend the rest of her life behind bars for what happened after the death of Brandon.

The normal person I agree would call 911, but lets face it, Cathy Henderson was no normal person, she was a substance abuser, with pshychological problems of many sorts some of them stemming from abuse, this in no way excuses her actions. She will someday be forced to face her demons whatever they may be.
It is not the decison of man to decide who lives and dies and when that is for the lord our god!!!! Vengence is mine sayeth the lord, I hope Cathy has taken the chance to get right with her maker.
Our justice system is seriously flawed, and there really is no such thing as equal access to law and justice in this country. There have been many people wrongly accused in this country, that would up on death row later to be determined innocent. And even the guilty deserve an adequate defense, and they have not and are not getting it. Even if I were for the death penalty, I don't understand it how the death penalty can be imposed under these circumstances. There have been factual accounts of sleeping lawyers, drunk lawyers, and the like representing defendants in capital trials, this is disgusting, and whats more repugnant is that our own courts have upheld these convictions. Everyone talks about the death penalty being in the interest of public policy! How about a fair justice system, what about intervention before it comes to this there are many that are culpable in these cases, what about child services where were they when this was going on? They were made aware of Cathy Henderson's history with children, why were the Baugh's not notified?
Peace be with the Baugh's as well as Cathy and her family.This is a tragedy for all involved.


Posted by: Dee | Jun 17, 2007 11:58:19 PM

I just think it's sick that so many people want Henderson dead, even to want her to have her skull crushed. Yes murder is wrong, so why have a goverment that portrays it themselves, it's almost like saying it's okay for them do do it and not for anyone else. Murder is wrong, and too wrongs do not make a right.

Posted by: Ruby | Oct 16, 2008 1:09:49 PM

Thought I smelled something on the 'Net...

It was Susan Busani and her bloodthirsty shit.

Posted by: SDL | Jan 9, 2013 8:38:04 PM

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