Prosecutor: Douglas County plea deal illustrates complexity of child injury case

Michael L. Radice

When Brooke Radice, 19, saw her soon-to-be ex-husband Michael Radice, 20, finally sentenced last week for harming her infant son and another baby, she was angry and terrified.

Two years’ probation didn’t seem like adequate punishment for the man who pleaded no contest last month to two charges of aggravated battery that involved serious injuries to babies, Brooke Radice said.

“They just let a criminal walk free,” she said. “I’m terrified, not so much for myself but for my son, who can’t defend himself.”

According to prosecutors, the Eudora man’s case illustrates the types of decisions they face when offering plea deals.

“To be really simple about it, we couldn’t prove the child abuse,” District Attorney Charles Branson said. “The only information we had was the information (Michael Radice) provided and the nature of the injuries.”

The prosecution could not prove Michael Radice was the only one to have access to his child when the injuries occurred, Branson said. Brooke Radice was also in the home during the time of the abuse, though she told investigators that she was in the shower.

Branson said with the only witnesses too young to talk, the prosecution was cornered. Before accepting the plea bargain, Michael Radice proclaimed his innocence.

“The only way to have him admit that he was responsible for these injuries was to offer the (aggravated battery) plea,” Branson said.

According to Assistant Douglas County District Attorney Mark Simpson, Michael Radice poured “extremely hot water” over the head and face of an 11-month-old he was babysitting last October, scalding the child, who was admitted to Children’s Mercy Hospital in Kansas City, Mo., for burns.

Eight months later, Michael Radice’s own infant son was taken to the same hospital after suffering chips to his ankle bones and a spiral fracture to his leg while under Michael Radice’s care this summer, Simpson said during the man’s plea hearing. The baby was 7 weeks old at the time.

“Babies’ bones don’t just break like that,” Brooke Radice said. “The Eudora police told me the spiral fracture came from pulling and twisting of the leg.”

A doctor at the hospital concluded the injuries were child abuse, but, as Branson notes, that doesn’t prove Radice was the abuser.

By ordering those two years of probation, Douglas County District Judge Paula Martin was handing down the standard sentence for the aggravated battery charges to which Michael Radice pleaded no contest. Martin must adhere to the Kansas sentencing guidelines, a grid that lays out sentences by offense and criminal history.

On Aug. 21, Michael Radice accepted the state’s offer to reduce his two child abuse charges to aggravated batteries — the same charges one might get for a bar brawl — if he’d plead guilty or no contest, avoiding trial.

With Radice’s minor criminal history, Martin could only choose to give him 11, 12 or 13 months’ probation for each charge of aggravated battery. In Kansas, only juries are allowed to depart from the guidelines.

But if Radice would have been convicted of his original charges of child abuse, it would have placed him in a “border box” on the sentencing guidelines, meaning Martin would have been able to choose probation or prison.

Branson said that the state offered the plea deal because his office just didn’t have the evidence to convict Radice of the heavier charge.

Without an admission by Radice, they had no way to show if there was intent behind his actions, Branson said.

“It’s easy for the public to jump to conclusions, but we’re still constrained to the facts of the case,” Branson said.

Additionally, since the abuse charges happened to two different children on separate occasions, Branson said they probably would have been severed into two trials. Each jury would not be able to hear about the other incident of abuse, Branson said.

“The cases would have had to stand on their own legs,” Branson said. “He still stood a reasonable chance of acquittal.”

After review, the prosecution decided to offer the plea bargain instead of risking the cases in front of a jury, Branson said.

“We felt (the plea deal) still accomplished a lot of goals, namely keeping this man away from children,” Branson said. “He’s now a two-time convicted felon who has a record that will hopefully follow him around and keep him accountable.”

But for Brooke Radice, a felony criminal record is not enough.

“The law needs to be changed,” she said. “It’s our jobs as mothers to protect our children.”

As part of Martin’s ruling, Michael Radice is not allowed to contact Brooke Radice, the other victim’s mother or anyone under the age of 18, including his son, according to Cheryl Wright Kunard, assistant to the district attorney.