TOPEKA On Oct. 14, 2005, police arrived at Edgewood Homes, 1600 Haskell Ave., to find Jay Decker with his 5-month-old daughter, Risha Lafferty, in his arms.
She was not breathing. Within minutes, she was pronounced dead.
Officers noticed bruises on the infant. Decker became a suspect.
In early 2007, Decker was sentenced to life in prison by Douglas County District Judge Paula Martin for the death of Risha, who had a fractured skull and numerous bruises.
Almost three years to the day after Risha's death - on Wednesday - the Kansas Supreme Court will hear Decker's appeal of his conviction.
His attorney, Kari Nelson, of Lawrence, argues that Decker didn't receive a fair trail.
The arguments include:
¢ The jury was prejudiced against him because gruesome photographs of Risha were shown during the trial.
¢ A prior allegation against him shouldn't have been admitted into evidence.
¢ The prosecutor made inappropriate comments during closing arguments.
¢ And the court failed to allow a witness to complete testimony that may have helped his case.
"The evidence against Mr. Decker is circumstantial at best," Nelson wrote in a legal brief submitted to the court. "Had any one of the above mentioned errors not been made, it is highly probable that the jury would not have convicted Mr. Decker of murder."
DA says conviction should stand
Decker's defense has been that Risha's death could have been accidental or caused by her mother, Brandi Hendrickson, who had pleaded to a misdemeanor charge of endangering her child by failing to report suspicious injuries.
But the Douglas County District Attorney's Office disagreed with Decker's allegations, and says the conviction should stand.
In a legal brief, Assistant District Attorney Brenda Clary wrote that Decker admitted dropping Risha on her head 20 minutes before she stopped breathing and that Risha suffered numerous bruises under Decker's care while Hendrickson was working.
"Although circumstantial, the evidence is overwhelming that Decker inflicted the fatal injuries," Clary wrote.
Decker also contends that the jury should have been told to "consider with caution" Hendrickson's testimony because under the law she should have been considered an accomplice witness.
But Clary said that there was no evidence Hendrickson was an accomplice in the acts that led to Risha's death and that - even if Hendrickson could have been considered an accomplice witness - she was thoroughly cross-examined during the trial.
Did photos inflame jury?
On the issue of the photographs, Nelson argued that testimony from district coroner Dr. Erik Mitchell was sufficient to inform the jury of how Risha died and about the numerous injuries, including a fractured skull and bruises, she had suffered. The photos inflamed the jury, she said.
"Unfortunately, the jurors knew that Ms. Hendrickson had already pled to a lesser charge and could not be convicted of the death of the baby, so that only left Mr. Decker to blame for the baby's death," she wrote.
But the district attorney's office argued the photographs were needed to illustrate Mitchell's testimony. "Certainly, they were gruesome, but not as disturbing as the suffering they suggested," the office said.
Testimony was allowed concerning a previous incident in which Decker allegedly threatened to choke an older daughter when she wouldn't stop crying. Nelson argued the incident shouldn't have been told to the jury because the threat of violence was not similar to the allegations in the case.
But the district attorney's office said the testimony was relevant because of Decker's contentions that Risha suffered numerous bruises through accidents.
Nelson also argued that the court was wrong not to allow a witness to complete testimony that would have shown that Hendrickson was asked to leave a friend's house after she witnessed Hendrickson's treatment of another child.
But the district attorney's office said there was no evidence that Hendrickson abused the child and that the witness had been allowed to testify that Hendrickson had handled her older child roughly as an infant.
In closing arguments during the trial, a Douglas County prosecutor said to the jury that Decker was "no longer presumed innocent."
Nelson said that was improper because under the law Decker is presumed innocent until proven guilty. "The evidence in this case was not so overwhelming that the jury could not have been swayed by the prosecutor's statement," Nelson said.
But the district attorney's office said that the remark was a single comment in a 50-minute closing statement and was not part of a pattern that would suggest ill will.
"Beyond a reasonable doubt, the comment did not change the result of the trial," the district attorney's office said.