Christina Diaz

Now acquitted, woman fights for her reputation

By Greg Moran
STAFF WRITER

September 19, 2004

EARNIE GRAFTON / Union-Tribune
Life as Christina Diaz knew it ended Dec. 18, 2002, when she was accused of shaking a baby boy to death at her Kensington day care. She endured two jury trials before being acquitted.

She was always good with children. That was the one thing about Christina Diaz everyone agreed on. She had a smile for the playful ones, a hug for the crying ones, patience with the fussy ones. She built a small in-home day-care business around that sympathetic nature over the course of a decade and thought it would be her life's work.

"I always thought I would get gray hair and retire doing day care," Diaz, 37, said recently.

But that all came to a crushing end on Dec. 18, 2002, when she was accused of just about the worst thing she could imagine: killing a baby that had been left in her care by violently shaking the child to death. It would take nearly 18 months and two grueling trials for Diaz to emerge from her nightmare. In June, a jury acquitted her in the death of 4-month-old Cooper Kuznitz.

Diaz walked out of the downtown courthouse that day with her freedom returned. But on Thursday, in an unusual move, she will go back inside those halls and ask for something more. She wants Superior Court Judge Robert Trentacosta to declare her factually innocent. Such a move – rarely successful – would seal her arrest records forever.

From the very beginning, Diaz maintained she never harmed the child. She turned down offers to plead guilty to a lesser charge, according to her lawyer, Chris Plourd. And she repeatedly volunteered to take a lie-detector test administered by police but was rebuffed.

Prosecutors plan to oppose the request. Deputy District Attorney Garry Haehnle, who prosecuted Diaz, maintains that even with her acquittal, she does not meet the legal criteria for being declared innocent.

Catherine Kuznitz, Cooper's mother, declined to be interviewed for this story, saying she was too distraught to discuss the case.

Returning to the Kensington home where she ran her business, Christina Diaz, 37, said that even though a jury found her not guilty, she will never provide day care again. 

Diaz's trials featured fiercely debated medical testimony about how Cooper died, and the scientific and legal debate over shaken-baby deaths. At the same time, her case was buoyed by an extraordinary network of friends, neighbors and parents of the children she cared for who came to her defense.

She said she will never provide day care again. But before Diaz starts anew, there is something she feels she needs to fight for: her reputation.

A baby dies
It began a week before Christmas, right around 3:15 p.m. Diaz had just finished a lengthy phone conversation four minutes earlier with her sister, Patti, about plans for the holiday.
Cooper had been in Diaz's day care for about three weeks, and Dec. 18 was supposed to be his final day with her.

As she hung up the phone, Diaz had no inkling this would also be her last as a day-care provider.

She noticed the infant was not breathing normally in the car seat in which she had placed him for his nap. She picked him up, and he went limp. She called 911 and began CPR.

Paramedics rushed the baby – who had no visible injuries or trauma – to Children's Hospital, arriving about 3:40 p.m. Meanwhile, a stunned and shaken Diaz sat down at her Kensington home with two San Diego police officers who had come in response to the emergency call.

They would stay there for seven hours, talking to Diaz while doctors at the hospital worked on Cooper.

The baby had no pulse and was not breathing on his own. He was given CPR, intubated with a breathing tube, and he had a slew of drugs and fluids pumped into him. Doctors found Cooper had a high blood-sugar reading and very high potassium levels. And there was one other finding about his body chemistry that would later become an issue in the trial: The child had a severe blood-clotting problem.

A CT scan showed that Cooper's brain was clearly swollen. And Dr. Bradley Peterson, an experienced doctor who was the admitting pediatrician, believed he saw something more ominous. Reading the scan with a radiologist, Peterson said there appeared to be a frontal lobe contusion, a bruise on the front of the brain. But the key finding was this: An eye exam using a device called an ophthalmoscope showed that Cooper had bilateral retinal hemorrhages – bleeding in the eyes.

Medical debate
Even as they stabilized the child, doctors at Children's Hospital were arriving at a conclusion about what had happened. The swollen brain and bleeding eyes were the result of trauma, they concluded. Cooper Kuznitz had been shaken, violently, and was going to die.
The baby was taken off life support Dec. 20. Shortly afterward, the charges against Diaz – who was arrested the night of Dec. 18 as Cooper lay in a coma – were changed from attempted murder to assault on a child causing death. If convicted on the new charge, Diaz faced 25 years to life.

The report from the Dec. 22 autopsy confirmed the retinal hemorrhages, as well as small injuries to the neck and spinal cord. It also said Cooper had no other known medical problems and noted no other injuries. No bruises, no broken bones.

Police reports state that a sergeant informed detectives, in a briefing at the hospital Dec. 18, that doctors had said Cooper was bleeding "from the frontal lobe area." Peterson would later testify he could not remember saying such a thing to police. Moreover, he testified during the trial that the frontal lobe bleeding was not an important factor in his conclusion that the child had been shaken.

Plourd, Diaz's lawyer, would argue in court that this was the first in a string of police and medical misjudgments that led to Diaz's prosecution. He said erroneous information was key in framing the case as a homicide, crowding out other possible reasons why the child died.

But Haehnle dismissed those suggestions.

"The fact is a number of highly qualified doctors came to the conclusion it was an intentional act that caused the injuries to this child," he said in a recent interview.

Plourd hired his own pathologists to review the medical records. They dismissed the conclusion that the baby had been shaken, pointing to several factors.

Cooper did not have some of the injuries associated with shaken-baby deaths, such as broken ribs and "grab marks" on his body. Another injury often seen in such deaths – the tearing and shearing of "bridging veins" in the brain as it is slammed from side to side – was not there.

He also had no subdural hematomas, a pooling of blood in the brain. Finally, Plourd's experts argued that the bleeding in the eyes was not caused by the head being violently shaken back and forth.

In the contentious area of shaken-baby death cases, the theory that retinal bleeding is nearly always indicative of a shaking event is hotly debated.

"It's like trying to diagnose a heart attack with one symptom," said Dr. Jan Leestma a neuropathologist from Chicago and an outspoken critic of many shaken-baby diagnoses. "Yes, you could be right, but it could be many other things."

Retinal bleeding without brain injuries or any other hallmarks of shaken-baby deaths was not enough to conclude the child had been assaulted, Plourd's experts said.

They posited other reasons for Cooper's death. Dr. Victor Weedn, a pathologist and research scientist at Carnegie Mellon University, said the baby died from a "near-SIDS" event. Sudden infant death syndrome is the medical term used to describe the inexplicable death of seemingly healthy babies during their first year of life.

He said the bleeding in the eyes likely resulted from CPR efforts, as pressure from the chest was transmitted to blood vessels in the retinas. Cooper's blood-clotting problem and the fact that at one point his lungs were hyperinflated as doctors fed oxygen to his brain could have caused the hemorrhages, Weedn said.

The defense experts argued that the head and neck injuries were caused by swelling in the brain that pushed down on the spinal cord and neck. Weedn said the injuries were "isolated" and could not be the result of a massive, traumatic shaking episode.

Yet every defense expert was countered with a prosecution claim. For example, Haehnle said after the trial, not all shaken-baby cases have rib fractures. And, he said, he has prosecuted other cases with retinal bleeding, but no brain injuries.

Dr. Cynthia Kuelbs of Children's Hospital said she ruled out a SIDS deaths because SIDS babies don't have retinal bleeding. Other experts said the extent of the blood in the eye could have been caused only by a shaking event.

As would become evident during Diaz's two trials, the medical evidence would be fiercely debated among experts.

Strong support
After Diaz was arrested, she spent 10 days in jail before her parents tapped the equity in their Olive Street home in North Park to bail her out.
Almost as soon as her arrest became known, a network of neighbors and friends began to mobilize to support her. Diaz had lived on Olive Street most of her life, starting to care for children at a house next to her parents. She got her state license in 1993, and – with the exception of a minor housekeeping violation in 1999 – had a spotless record with licensing authorities over the years.

"She was caring for her second child with some families, and one mother was about to put her third child with Christina," said her mother, Mercedes Diaz.

Several parents testified at the trials on Diaz's behalf.

"She was patient, she was very structured, and she knew how to handle the children," said Mike Kull of San Diego. His two children were in Diaz's day care, and both he and his wife testified on her behalf during the trials.

"There was never a single doubt with us about Chris and her ability with children," Kull said. "It was not within her to do that to a child."

As the case headed to the first trial, supporters organized fund-raisers to defray some of the mounting costs. They rented out the La Mesa Recreation Center for one event featuring a band and silent auction, said Grady Dutton, a former Olive Street neighbor whose child was in Diaz's care.

Auction items included pedicures, a handmade quilt and two home-cooked dinners for four, Dutton said. About 100 people showed up, and while the money that was raised helped, Dutton said the emotional support Diaz got as the trial loomed was just as important.

Diaz tried to keep busy, but it was difficult at times. She had never been to the courthouse, let alone ever involved in a case. And now her future hung in the balance.

"I imagined the truth would prevail, but I didn't know how," she said. "I thought some magic point would come out, and then all these people would see I did not do this."

But that moment was months away.

'Is it really over?'
Two juries sized up Diaz, struggling through the ping-pong of testimony from dueling medical experts, in two trials this year. Both were marked by moments of controversy.
During the first trial, which began in January, prosecutors were accused of not turning over to the defense key information from an expert witness. Plourd said he had requested the information for more than a year.

While the judge ultimately ruled that the error was not intentional, he told jurors about the violation and said they could give whatever weight to it they wanted. After several days, the panel was unable to reach a verdict, deadlocking 8-4 in favor of a guilty verdict.

"I believe what we had here was doctors misdiagnosing something, and two hours later the detectives are in on it," said juror Renee Stern. "I don't see how she did it."

Diaz said she and her family were deflated when prosecutors decided to retry the case. What more could be done? But despair soon turned to resolve. A second trial, Diaz concluded, was a second chance to be cleared.

Again, neighbors and friends rallied, and the family slowly became more determined.

"We just did not entertain any thoughts that she would not be exonerated," her mother said.

The second trial began in May. It was largely a replay of the first, but Plourd was able to introduce one intriguing piece of new evidence.

Laboratory tests on some of the breast milk from Cooper's mother revealed the presence of a bacteria that can produce an infection, said Dr. Harry Bonnell. Bonnell, a former deputy medical examiner in San Diego – who was fired in 2001 for reasons that were not made public – testified for the defense in both trials.

The finding backed up Diaz's observations that Cooper hadn't been eating and wasn't feeling well before the incident, the jury was told. In an interview after the trial, Bonnell said it could have been the cause of a toxic infection which may have triggered the fatal sequence of events for Cooper.

Haehnle scoffed at that notion. He said there was never any indication the child had been fed the breast milk the day he died, and that the levels found in the test were too low to cause serious harm.

But the finding was one more bit of doubt cast on the case. On June 24, after deliberating a couple of days, word came: The jury had a verdict.

Diaz remembers that time as "the longest 20 minutes of my life." She remembers Plourd telling her that if the verdict was guilty, she would likely go straight to jail. Sitting at the defense table, she shook as the clerk began to read the verdict.

Not guilty. Diaz broke down and turned to Plourd. "I know what I heard, but I had a doubt – is it really over?" Then, she remembers hearing the judge say, "You're free to go now."

Some jurors later said there was too much reasonable doubt in the medical evidence to convict her, Haehnle said. Plourd said at least one juror told him the case was "a rush to judgment" by the authorities.

That had long been the thrust of Plourd's defense. He also points the finger at prosecutors for "failing to analyze the case properly, and letting one entity – Children's Hospital – rule the roost."

"That's a systemic problem, and it's been going on for years," Plourd said.

Haehnle dismissed that claim. "That's a total misperception," he said. "They are not child-abuse advocates. They don't like finding it. They don't like accusing people of it. There are lots of cases we don't file based on their opinion."

To this day, Diaz says Cooper's death baffles her. Never in her years of caring for children had something so terrifying occurred.

"I don't know what happened to that child," she said recently. "I've thought about it, and I just don't know."

Soon after the verdict, Diaz decided she wanted the declaration of her innocence. It is a daunting task because the law says she must prove that "no reasonable cause exists" to believe she committed the crime for which she was arrested.

Haehnle contends Diaz has not met that standard. The case survived a preliminary hearing and several motions to dismiss the charge, which Haehnle said showed there was reason to believe she committed the crime.

Still, Diaz plans to press forward. "I need to have this taken off my record," she said. "It's one step further that I need to take."

http://www.signonsandiego.com/news/uniontrib/wed/metro/news_1m4diaz.html 
Prosecutor grilled by defense in baby-shaking trial

By Greg Moran
UNION-TRIBUNE STAFF WRITER
June 25, 2004

A jury acquitted the former owner of a Kensington day-care business yesterday of all charges in the death of a 4-month-old boy whom she was accused of shaking to death. The verdict came after two days of deliberations in the second trial of Christina Diaz. The first jury had deadlocked 8-4 in favor of guilt after a controversial trial earlier this year in which a judge chastised prosecutors for not handing over evidence to the defense. Diaz, who steadfastly insisted she was innocent and never harmed Cooper Kuznitz, broke down after the verdicts were read in San Diego Superior Court, her attorney, Christopher Plourd, said.

She was acquitted of assault on a child causing death, and two lesser assault charges. The first charge carried a sentence of 25 years to life in prison. Diaz, 37, has been under a cloud since Dec. 20, 2002, when the baby died after being taken to Children's Hospital after Diaz called 911 to report that he had stopped breathing. Doctors at the hospital concluded that the infant had been victimized by some kind of trauma, probably violent shaking. Cooper died two days after he was admitted. Doctors initially suspected that he had a bruise to the frontal lobe of the brain. But an autopsy revealed no such injury or any other brain trauma.

Prosecutors still charged Diaz, theorizing that in a moment of exasperation she shook the baby violently, causing his brain to swell. Plourd argued at both trials that authorities had rushed to judgment, misread the medical evidence and overlooked other possible causes of death. He presented several medical experts who testified that Cooper had other medical problems, including a blood coagulating disorder, that could have contributed to his death. Those experts said the baby may have succumbed to sudden infant death syndrome, or died of complications from an infection.

For the second trial, Plourd had a laboratory in England test breast milk that the infant's mother had left with Diaz the morning the baby stopped breathing. The tests showed the milk was contaminated with bacteria that produce a toxin in the body, according to Plourd. Jurors appeared to agree. "They thought something was wrong with the child, though no one figured out what exactly it was," said Plourd, who spoke to several jurors after the verdicts. "They thought the idea that there was some infection going on was probably the best" conclusion.

Prosecutor Garry Haehnle could not be reached for comment.

Diaz's first trial was marked by controversy over the tactics of the prosecution, which Plourd accused of hiding information about a key prosecution witness. The witness, Dr. Alex Levin of Toronto, testified that a key medical finding – that Cooper had bleeding in his eyes – proved that the infant was shaken. Plourd vigorously contested that, arguing that the bleeding was caused by other factors, including the blood-coagulating problem.

During questioning by Plourd, the doctor suddenly produced a thick file of notes, e-mails and other materials relating to his work on the case. Plourd had sought such information for more than year, but had been told it did not exist. Eventually, Superior Court Judge Robert Trentacosta ruled that while the information should have been turned over, it was not an intentional error by prosecutors. Diaz, who has been free on $200,000 bail, had numerous character witnesses testify for her. All said she was a caring, considerate day care provider who would never harm a child. Plourd said she will now try to get her life back on track, though what that will involve is still unknown.

"She's not gloating or anything," he said. "She's glad it's over with. It just devastated her life, this whole thing."