Case 20200F000344 Document 9 Filed 01-27-2020 Page 1 of 15 FILED 01-27-2020 John Barrett Clark of Circuit Court STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE W354 STATE OF WISCONSIN Case No. 2020CF000344 Plaintiff, - v. 1 JOHN M. COX Defendant, MOTION TO DISMISS COMPLAINT To: Honorable Stephanie Mr. Matthew J. Torbenson Circuit Court Judge Deputy District Attorney Milwaukee Co. Safety Building Rm. 620 Milwaukee Co. District Attorney?s Of?ce 821 W. State Street 821 W. State Street Milwaukee, WI 53233 Milwaukee, WI 53233 The defendant, John M. Cox, Cox?), appearing specially by his attorneys, the Law Of?ces of Robert A. Levine, by Attorney Michael G. Levine, and reserving his right to challenge the Court?sjurisdiction, moves the court for the entry of an order dismissing the Criminal Complaint. This motion is brought pursuant to Wis. Stat. 968.01, 07l.31(2) and (4), the 5th, 6th and 14th Amendments to the United States Constitution, and Article 1, Sections the Wisconsin Constitution and the cases cited herein, on the grounds that the Complaint is defective because it contains statements which demonstrate a reckless disregard of the truth, and omits critical material necessary for any neutral and detached magistrate to make a proper determination of probable cause and fails to state probable cause within the four corners of the complaint. State v. Mann, 123 Wis.2d 375, 367 209 (1985); State v. Adams, 152, Wis. 2d 68, 73, 447 90 (Ct. App. 1989). A hearing on this issue is hereby requested. In further support Dr. Cox provides the following: In a Criminal Complaint ?led on January 23, 2020, Dr. Cox was charged in Count I with Child Abuse-Intentionally Cause Harm in violation of Wis. Stat. ?kid-- Case 20200F000344 Document 9 Filed 01-27-2020 Page 2 of 15 ARGUMENT A criminal complaint must meet probable cause requirements to confer personal 3 jurisdiction. State v. White, 97 Wis. 2d 193, 197, 295 346, 347 (1980). A criminal complaint is suf?cient if it sets forth facts within its four corners that together with reasonable inferences from those facts, would allow a reasonable person to conclude that a crime had been committed and that the defendant was probably the person who committed it. State v. Adams, 152 Wis. 2d at 73, 447 90 (Ct. App. 1989). The Criminal Complaint in this case is entirely devoid of any factual assertions that would support a ?nding of probable cause that Dr. Cox intentionally committed child abuse causing harm to L.G. The facts in this case simply do not specify in any meaningful way what Dr. Cox is alleged to have intentionally done to cause bodily harm to L.G. The statements attributed to Dr. Cox indicate that he believed his daughter to have an injured clavicle as a result of an accident and sought medical attention. There are no further factual assertions related to the conduct of Dr. Cox. The conclusion the state proffers as a mechanism of injury is a theory unsupported by medical data but moreover, is not attributed to any speci?c conduct or actions of Dr. Cox.l See State ex rel. Evanaw v. Seraphim, 40 Wis. 2d 223, 161 369 (1968) (requiring the essential facts be set forth, preferably concisely and certainly clearly.) Additionally, the reliability of hearsay information contained in this criminal complaint is subject to challenge. In evaluating the reliability of such information, the Court must weigh the ?totality of the circumstances.? Illinois v. Gates, 462 U.S. 213, 238 (1983) (de?ning the test for probable cause in an application for a search warrant). Under this test, the court must determine whether, given all the circumstances, including the credibility of the information and the basis of the information, probable cause exists. Id. In fact, according to CPS records, as of 6/28/19 ?the maltreater of remains unknown." [Exhibit 2 Case 20200F000344 Document 9 Filed 01-27-2020 Page 3 of 15 Among the errors contained within the four corners of the Complaint, and the information omitted from the charging document are the following: 1. THE CRIMINAL COMPLAINT OMITS CRITICAL EXCULPATORY EVIDENCE RELATED TO THE BA KEMPE ET AL 1962 a. The criminal complaint-states that ?the study. . .recognized the role that bias may play when a physician is faced with a caretaker who presents well but provides a medical history that fails to explain the clinical presentation of the child?s injuries.? This statement is misleading. The study not does not say anything about when a physician is faced with a caretaker who presents well. This is detail inserted by the State made up to apply to Dr. Cox.2 THE CRIMINAL COMPLAINT OMITS CRITICAL EXCULPATORY EVIDENCE RELATED TO BRUISES IN INFANTS AND TODDLERS, SUGAR ET AL 1999 a. The criminal complaint asserts based on this study ?in summary, it is extraordinarily rare for a non-mobile infant to have even a single bruise.? This statement is categorically false. The study cited states that it is rare for non- mobile infants to have incidentally found bruises at well-child evaluations. It absolutely makes no such claim that it is extraordinarily rare for a non-mobile infant to have a bruise following an accidental injury. The inclusion criteria for 2 As a result of Dr. Leach not reaching a conclusion of abuse, the State asserts ?this is the very de?nition of caretaker biases discussed within The Battered-Child What the State fails to include in the criminal complaint, as it relates to Dr. Leach, is that in addition to taking a direct history from Dr. Cox, Dr. Leach reviewed the child advocacy report, reviewed dermatology information, reviewed PMD notes and therefore, Dr. Leach gathered information from multiple sources and made an assessment. The bias described in the article is bias that a physician will not entertain the idea that abuse occurred. That is clearly not what happened with Dr. Leach. He reviewed the child abuse evaluation and subsequently, concluded there was an accident and not abuse. 3 Case 20200F000344 Document 9 Filed 01-27-2020 Page 4 of 15 the study were children who presented to a well-child check. A well-child check generally occurs at ages 2, 4, 6 and 9 months. Documentation of a bruise at a well-child check is what would be referred to as an incidental ?nding happened to be found when child presented for normal scheduled outpatient care, not at an urgent unscheduled appointment to address a concern for an accidental injury. b. The criminal complaint states ?the evidence in this case establishes that L.G., a non-mobile one-month-old infant, had multiple linear-shaped patterned bruises on multiple different planes of the body including areas that are rarely bruised even on active, mobile children.? This statement is false. As explained below in detail, Dr. Chiu, a pediatric dermatologist, examined L.G. on 5/13/19 and found that LG. had pigmentary lines of demarcation which are linear birthmarks, not multiple linear-shaped patterned bruises. EXHIBIT A. 3. THE CRIMINAL COMPLAINT OMITS CRITICAL EXCULPATORY EVIDENCE REGARDING THE OPINION OF DR. POMERANZ. a. The criminal complaint alleges that Dr. Pomeranz ?noticed bruising on each of arms that appeared consistent with the skin being ?pinched.? There was also a bruise on the right lower back. Dr. Pomeranz further noted decreased movement of the left arm.? This statement is misleading and contains inaccurate information. The criminal complaint omits the information from Dr. Pomeranz?s medical documentation from 5/9/19. EXHIBIT B. Dr. Pomeranz states ?linear bruising, not clear etiology but ones on arms may represent where father picks up child.? DDA Torbenson 3 In all of the CPS and medical records related to L.G. the only place Dr. Pomeranz apparently used the word pinched was on 5/14/19. According to CPS records, on 5/14/19, Dr. Pomeranz stated to IASW ?he has been doing this work for a long time and he has seen a lot of abuse cases and ?this is not usually a place you pinch to torture." 4 Case 202OCF000344 Document 9 Filed 01-27-2020 Page 5 of 15 received these records in May or June of 2019 as they were made part of the CHW record and CPS record on 5/9/19 and 5/14/19, but did not include this exculpatory information in the criminal complaint. b. The criminal complaint states ?Dr. Pomeranz raised a concern for abuse and consulted Child Advocacy.? The criminal complaint omits, however, that Dr. Pomeranz, after initially contacting Child Advocacy, submitted two separate letters explaining that after further testing, his concern for abuse dissipated. EXHIBIT C, EXHIBIT D. DDA Torbenson received these letters sometime in June of 2019. Attorney Torbenson omitted these exculpatory facts from the complaint. c. On 6/28/19, Dr. Pomeranz wrote, have some concerns about some discrepancies in medical records between Ms.Ventura?s (APNP) ?ndings and conclusions and other physician?s ?ndings, including myself. I believe these discrepancies may have led to an incorrect conclusion about suspected child abuse and thereby the removal of from her home.? EXHIBIT D. This exculpatory information was not included in the criminal complaint. d. On 6/28/19, Dr. Pomeranz wrote: ?One of my main concem[s] is that the examination of the skin by Ms. Ventura of Child Advocacy is not consistent with my ?ndings or that of the pediatric dermatologist, Dr. Chiu. There is no question that there were three bruises present that I had dif?culty explaining, which is exactly why I contacted Child Advocacy and CPS. However, Ms. Ventura describes many more skin ?nding that she interprets as bruises. The pediatric dermatologist, Dr. Chiu, did not feel these were bruises and offered Case 20200F000344 Document 9 Filed 01-27?2020 Page 6 of 15 other explanations for these ?ndings. Considering her expertise is the skin and I myself saw only the three bruises, I consider her ?ndings more credible. Dr. Chin did propose two other possible explanation for the bruises in her note: the upper arm bruises being secondary to the way Dr. Cox picked up after discovering he was partially laying on her and the bruise on the back possibly related to the way he burps involving his wedding ring.? EXHIBIT D. This exculpatory information was not included in the criminal complaint. On 6/28/19, Dr. Pomeranz further wrote: ?Another concern I have is that Ms. Ventura, according to what I can ascertain from notes and the foster parents, never spoke to the foster parent Dr. Cox to obtain his account of what happened. Obtaining a good history of the event that may have caused the bruising is very important in reaching a conclusion about possible etiology. In fact, the clavicle fracture that sustained is consistent with Dr. Cox?s description of what happened that morning when he reportedly rolled on EXHIBIT D. This exculpatory information was not included in the complaint. On 6/28/19, Dr. Pomeranz concluded: . .I don?t think the results of the evaluation Warrants removal of this infant from their foster parents." EXHIBIT D. But this exculpatory information was omitted from the complaint, and instead, DDA Torbenson wrote only that Dr. Pomeranz ?raised a concern for abuse and alerted Child Advocacy.? On 7/2/ 19, Dr. Pomeranz wrote: just want to document that the fracture of clavicle is totally consistent with the mechanism of injury described van-m Case 20200F 000344 Document 9 Filed 01-27-2020 Page 7 of 15 by the foster father, Dr. John Cox, on the day of injury. Dr. Cox's chief complaint was ?concern for clavicle fracture,? and the presence of the fracture does not substantiate abuse but actually lessens my concern that the fracture is a sign of abuse by validating the mechanism that has been described.? EXHIBIT E. This exculpatory evidence is not included in the criminal complaint. 4. THE CRIMINAL COMPLAINT OMITS EXCULPATORY INFORMATION ABOUT SKIN LESIONS AND INCLUDES MISLEADING AND FALSE STATEMENTS ABOUT THESE LESIONS a. The criminal complaint states, ?[t]he medical history gathered in this case included a previous bruise to face, noted by both the defendant and his wife, neither of whom could provide an explanation for the bruise.? This statement is entirely untrue. Dr. Dobrozsi, foster mother, was asked about skin, and she described it as very sensitive. EXHIBIT F. Dr. Dobrozsi mentioned a mark that had appeared on skin as a result of her falling asleep on her metal pacifier clip. Dr. Dobrozsi did not describe this as a bruise. Dr. Petska did not see this mark; no one from Child Advocacy saw this mark. Dr. Dobrozsi merely mentioned this mark to make a point about the considerable sensitivity of skin. Dr. Dobrozsi attempted to show Dr. Petska these marks using photographs on her phone, but Dr. Petska declined, telling Dr. Dobrozsi it ?wasn?t really a big deal.? The description of this mark as a ?bruise? and ?sentinel injury? is misleading and wrong. The exculpatory information about this skin lesion is consPicuously absent from the complaint. . Case 20200F000344 Document 9 Filed 01-27-2020 Page 8 of 15 b. The criminal complaint alleges that Rita Ventura, APNP, documented a bruise to the sole of foot. Ms. Ventura admitted to a CPS worker that the bruise on the sole ofL.G.?s foot could have been caused by a heel stick. Ms. Venture then dismissed that bruise was due to a heel stick because she assumed that the last time L.G. had a heel stick was as a newborn. She did not disclose that a heel stick had been performed on LG. the day before. L.G. did, however, have a heel stick the day before as part of the child abuse investigation. Ms. Ventura failed either to notice or to disclose (or both) that her own investigation had caused heel bruise. EXHIBIT G. All of this exculpatory information was omitted from the criminal complaint. c. The criminal complaint describes Dr. Petska?s Opinion with respect to the alleged bruises, but omits that Dr. Petska recognized that some of the skin lesions were not bruises, but rather birthmarks. Dr, Petska sent a text message to Dr. Cox indicating that she knew and had documented that these were birthmarks. EXHIBIT F. This exculpatory information was not documented in the criminal complaint. The criminal complaint alleges that the skin lesions found on LG. could not have been caused by routine handling. Dr. Sarah Hylwa, pediatric dermatologist at the University of Minnesota, provided the opinion that the provided history was consistent with the lesions on L.G.. EXHIBIT H. She further cpined that non-mobile infants can ?absolutely? have one or more bruises that were not intentionally in?icted. This exculpatory evidence was presented to DDA Torbenson on 11/15/19. He did not include these exculpatory facts in the complaint. .nr' Case 20200F000344 Document 9 Filed 01-27-2020 Page 9 of 15 5. e. The criminal complaint alleges that Dr. Nancy Harper, a child abuse physician, diagnosed L.G. with vertical linear patterned bruising to the posterior region of both arms. Dr. Harper did not examine L.G. Dr. Harper is not a board-certi?ed dermatologist. The criminal complaint omits the diagnoses of Dr. Yvonne Chiu, board-certi?ed pediatric dermatologist, who did, in fact, examine L.G.. Dr. Chiu did not ?nd ?vertical linear patterned bruising.? Dr. Chiu documented in the medical record that on 5/13/19, L.G. had no de?nitive bruises on her arms. EXHIBIT A. Dr. Chiu noted that she viewed photographs taken by Dr. Pomeranz and the lesions may have been bruises, but that she could not state with certainty that they were and that the scenario Dr. Cox described is a plausible mechanism for bruising. This information was omitted from the criminal complaint. f. The criminal complaint alleges that skin lesions have not continued with foster care placement. Dr. Chiu authored a report on 7/22/19 in which she wrote, ?even though the left extensor upper arm lesion has resolved, that does not automatically signify bruising or in?icted injury. EXHIBIT I. Newborns (and people in general) have many transient skin lesions that spontaneously resolve over time as evidenced by the other skin lesions resolving.? This exculpatory information is part of medical record, but it was not included in the criminal complaint. THE CRIMINAL COMPLAINT OMITS EXCULPATORY INFORMATION ABOUT BLOOD TESTS AND INCLUDES MISLEADING AND INCORRECT STATEMENTS ABOUT THE SAME BLOOD TESTS Case ZOZOCF 000344 Document 9 Filed 01-27-2020 Page 10 of 15 a. The criminal complaint alleges that ?at the time of Rita Ventura?s child abuse work-up, lab results for bleeding disorders were still pending, as were the results of the initial skeletal survey.? This statement is false. Rita Ventura?s dowmentation, signed 5/14/19, states ?for this reason labs to check for bleeding disorders have been ordered. Results available at this time indicate no concern for a clinically significant bleeding disorder. . .lnitial skeletal survey completed.? EXHIBIT J. Additionally, the hematologic workup (CBC, DIC screen, 1:1 mixing study) were resulted on 5/9/19 (one day prior to Rita Ventura?s evaluation), which showed the BIG resulted and was abnormal. EXHIBIT S. The skeletal survey was resulted on 5/9/19 (one day prior to Rita Ventura?s evaluation) and the skeletal survey was normal. EXHIBIT T. b. The criminal complaint alleges that LG. had bleeding studies completed with ?reassuring, age-adjusted results.? This statement is false. Dr. Malec, the Medical Director of the Comprehensive Center for Bleeding Disorders at the Medical College of Wisconsin, reviewed the hematology labs initially performed on L.G. and authored a report about them. EXHIBIT K. Dr. Malec wrote that hematological testing was abnormal. DDA Torbenson was provided with an opinion by Dr. Malec on 10/2/19. Attorney Torbenson omitted this letter from the criminal complaint. c. The criminal complaint alleges, the absence of a plausible explanation or clinically signi?cant bleeding disorder, the findings in this case are highly concerning for in?icted trauma and child physical abuse.? The criminal complaint fails to include the opinions of Dr. Veronica Flood, Dr. Shawn 10 ?1 :4 Case 2020CF000344 Document 9 Filed 01-27-2020 Page 11 of 15 Jobe, and Dr. Rowena Punzalan, hematologists, each with more than 15 years of clinical experience in the treatment of pediatric patients with bleeding disorders. Dr. Punzalan, notably, has been a key participant in the development of the Children?s Hospital of Wisconsin?s guidelines for the evaluation of non-accidental pediatric injury. These expert hematologists explained in their letter that hematology lab values were abnormal. They are of the opinion that suf?cient testing was not done to rule out a bleeding disorder in L.G., contrary to the allegations in the criminal complaint, and that it is improper to say that there is ?no concern for a clinically signi?cant bleeding disorder.? EXHIBIT L. Further, these expert hematologists believe that?from a hematological perspective--the skin lesions L.G. had were consistent with the mechanism Dr. Cox described. DDA Torbenson received these opinions on 12/13/19. Attorney Torbenson omitted these exculpatory facts from the complaint. 6. THE CRIMINAL COMPLAINT OMITS EXCULPATORY EVIDENCE REGARDING CLAVICLE FRACTURE AND INCLUDES MISLEADING AND INCORRECT STATEMENTS ABOUT THE FRACTURE a. The criminal complaint alleges that an overlying incident could not cause a clavicle fracture. Dr. Matthew Wichman, orthopedic surgeon, provided a report in this matter. His report concluded that he would have no reason to be concerned about child abuse, given these facts. EXHIBIT M. Dr. Wichman explained that clavicle fractures are common, accounting for 15% of all pediatric upper extremity injuries. Dr. Wichman explained that the clavicle fracture could be explained by an overlying incident. He concluded that the 11 Case 20206F000344 Document 9 Filed 01-27-2020 Page 2 of 15 mechanism of injury Dr. Cox described ?makes complete sense.? This opinion was given to DDA Torbenson on 10/ 15/19. He omitted this exculpatory evidence from the complaint. b. The criminal complaint alleges that an overlying incident could not cause a clavicle fracture. Dr. McCarthy, an orthopedic surgeon, reviewed medical records. Dr. McCarthy concluded that the mechanism Dr. Cox described (accidentally rolling on LG.) is consistent with the clavicle fracture. EXHIBIT N. DDA Torbenson received these opinions on 11/15/19. Attorney Torbenson omitted these exculpatory facts from the complaint. c. The criminal complaint alleges that an overlying incident could not cause a clavicle fracture. Dr. Weinstein, an orthopedic surgeon, reviewed medical records. Dr. Weinstein concluded that the mechanism Dr. Cox described (accidentally rolling on LG.) is a plausible cause of the clavicle fracture. EXHIBIT 0. DDA Torbenson received these opinions on 12/13/19. Attorney Torbenson omitted these exculpatory facts from the complaint. d. The criminal complaint alleges that ?[t]he clavicle fracture is not an expected injury from gradual compression by an adult in a bed-sharing Orthopedic surgeon Dr. Jared Daniel reviewed the medical records. Dr. Daniel concluded that a crush injury like the one described is a known mechanism of clavicle fracture. EXHIBIT P. Dr. Daniel further explained that clavicle fractures have a low Specificity for non-accidental trauma. DDA Torbenson received these opinions on 10/2/19. Attorney Torbenson omitted these exculpatory facts from the complaint. 12 .. . .. Case 20200F000344 Document 9 Filed 01-27-2020 Page 13 of 15 7. THE CRIMINAL COMPLAINT OMITS CRITICAL EXCULPATORY EVIDENCE REGARDING THE EXPERT MEDICAL OPINION OF DR. i The criminal complaint omits the information from Dr. Newberger?s report dated 11/12/19. EXHIBIT V. Dr. Newberger states ?It is my opinion, within the bounds of scienti?c and professional certainty, that these data, taken in the aggregate, indicate that is not a victim of child abuse.? He went on to state . .I am baf?ed by why there was such a rush to label and judge Dr. Cox as a child DDA Torbenson received this report on November 15, 2019, but did not include this exculpatory information in the criminal complaint. 8. The criminal complaint does not disclose statements by IASW (CPS worker), who indicates that ?though the marks seen were very small and initially unremarkable. . EXHIBIT 9. The criminal complaint omits any information related to the police investigation conducted by Wauwatosa Police Department. Speci?cally, the criminal complaint omits the statement of Of?cer Cefalu of the Wauwatosa Police Department on 5/10/19 who arrived at the hospital and ?requested IAS Barber contact the CAC to discuss the injuries as he did not observe EXHIBIT R. The criminal complaint omits that when IASW arrived at the hospital, Detective James Donovan from Wauwatosa Police spoke with her privately. Det. Donovan stated ?at this point, he wasn?t sure why they were even out there as he did not see anything criminal.? EXHIBIT R. Dr. Newberger?s expertise comes from ?ve decades of practice and research as a pediatrician, in which he has focused on the manifestations, risk factors, differential diagnosis, and methods to treat and prevent child abuse. 13 Case 20200F000344 Document 9 Filed 01-27-2020 Page 14 of 15 10. The criminal complaint includes the language ?This constellation of injuries including cutaneous trauma and a clavicle fracture is clinically diagnostic of child physical abuse or in?icted injury.? This statement is not true. The criminal complaint omits the documents signed by ?fteen highly trained and specialized physicians provided to DDA Torbenson between 10/2/19-12/13/19 that disprove this claim. These exculpatory facts were omitted from the complaint. The result of these omissions, errors and mischaracterizations precluded the required independent evaluation by a neutral and detached magistrate, and mandates a full hearing on the issue pursuant to Franks v. Delaware, 438 US. 154 (1978) and State v. Mann, 123 Wis. 2d 375, 367 N.W. 2d 209 (1985). Inclusion of that information may well have prevented a ?nding of probable cause that a felony was properly alleged in the Complaint. (?False statements and material omissions in reckless disregard of the truth require a hearing.? See Franks, supra, at 155?56 (1978); Mann, supra, at 385?86, 388, as cited in the recent case of State v. Bender, No. 2014AP2418-CR, 2015 WL 4557249 (Wis. Ct. App. July 30, 2015).) [Unpublished decision cited for persuasive authority only.] For all of these reasons the Complaint is defective. 14 Case 20200F000344 Document 9 Filed 01-27-2020 Page 15 of 15 WHEREFORE, the defendant respectfully requests dismissal of the Criminal Complaint ?led in this action, or alternatively, to schedule a hearing on the matters herein before the scheduling of a preliminary hearing. Dated at Milwaukee, Wisconsin this 2Wh day of january, 2020. LAW OFFICES OF ROBERT A. LEVINE Attorneys for Defendant, John M. Cox Electronically signed by [Michael G. Levine P.O. ADDRESS: Michael G. Levine 630 N. Broadway State Bar No. 1050078 Milwaukee, WI 53202 Tele: (414) 271?9585 Fax: (414)271-8506 Email: mlevine@rlevinelaw.com 15