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Shoe's On Other Foot For Prosecutor In Persecution Of Innocent Falls Man

By Mike Hudson

Abbigail died, this much is certain. But the Niagara County DA wanted a conviction whether they were certain or not, a lawsuit alleges.

Jason Kirchner went through the crucible. But for what reason?

Dr. James Woytash is accused of seeing only what DA Caldwell wished.

For Jason Kirchner, May 21, 2009, was the worst day of his life. His baby daughter, Abbigail, was dead. And to make matters worse, the detectives at the scene were acting as though a crime might have taken place.

With his wife, Sylvia out of town on business, Kirchner was left at the family’s Porter Road home to care for 7-month-old Abbigail and her 2-year-old sister Emma by himself.

A day earlier, he said, the sleeping infant had rolled off the couch and struck a television tray.  The baby seemed fine following the fall, Kirchner told detectives, and later he put her to bed in her crib. When he checked on her a short time afterward, he found she wasn’t breathing and called 911.

But there was a mark on the infant's forehead.

Dr. James Woytash, M.D., the former Chief Medical Examiner of Erie County, was called in, to conduct an autopsy the day after her death.

Dr. Woytash concluded the infant's death was caused by complications from a head injury the day prior, with a respiratory infection as a contributing factor.

Police investigators were satisfied that the young father hadn’t intentionally done anything to cause the death of his daughter.

County Assistant District Attorney Claudette Caldwell recommended in June 2009 that the case be closed.

Sometime later, Abbigail's mother, Sylvia, contacted Caldwell to suggest that the death was not accidental and convinced Caldwell to reopen the investigation.

Caldwell managed to get Dr. Woytash to take another look at the evidence and rethink his position.

According to attorneys for Kirchner, Caldwell told Woytash that “no criminal prosecution would be possible unless evidence could be presented to the grand jury that would place the time of the head injury to no more than six hours prior to the time of [the infant's] death [instead of the day before.]” 

Dr. Woytash changed his findings.

He now concluded that Abbagail’s head injury occurred just four to six hours before her death, not the day before as Kirchner claimed.

Caldwell got the grand jury to indict Kirchner of criminally negligent homicide and second-degree manslaughter on Oct. 15, 2009.

It was the second worst day of his life.

Kirchner’s trial lawyer, Assistant Public Defender Michele G. Bergevin, attacked Dr. Woytash’s flip flop on the case. She said the Erie County medical examiner had “used inaccurate, unscientific methods” in making his determinations.

In May 2010, Niagara County Court Judge Matthew J. Murphy III turned down a request from Bergevin for a pre-trial hearing to question Dr. Woytash about the inconsistencies.

Bergevin persisted.

“The autopsy was wrong in all respects," she told anyone who would listen.

Fortunately Kirchner's family not only listened, but also had enough money to retain a forensic pathologist of their own, Dr. Charles Whetley, a New Jersey forensic psychologist who concluded Abbigail did not die from a fall, or by the hands of Kirchner. She died of pneumonia.

Faced with that contradictory conclusion, Caldwell went to other medical experts, including a pediatric head trauma specialist from Women and Children’s Hospital in Buffalo and tried to get them to support Dr. Woytash's changed report.

They all sided with Dr. Whetley’s conclusion.

As the case headed for trial, Caldwell was suddenly replaced by Holly Sloma as the assistant district attorney handling the case.

With jury selection about to begin, just as suddenly as Caldwell was replaced, Sloma moved to dismiss the indictment on June 4, 2010, and County Judge Matthew J. Murphy III threw out the case.

“We would be unable to prove this matter beyond a reasonable doubt,” Sloma told Judge Murphy then.

The Niagara County DA admitted the medical experts they consulted would not support the autopsy report and conclusions made by Dr. Woytash.

“We consulted with other experts who said the methods (used by Woytash) were not methods that they have ever used,” Sloma said.

“The truth is, this may have been accidental,” Sloma said.

The move by prosecutors to drop the case brought a scolding from Judge Murphy. The judge said this was the second infant death case he had in recent months from the Niagara County District Attorney's office where prosecutors issued an indictment then dropped it.

“Look at the trouble you put Mr. Kirchner through,” Judge Murphy said. “I think your office needs to carefully scrutinize your standards for indicting these cases.”

All of this would have been moot, however, if Kirchner did not have an attorney like Bergevin or if his family did not have the money to hire their own independent pathologist, which is something, perhaps that Caldwell did not expect.

Kirchner would likely be in jail today.

Instead, Kirchner is now suing Niagara and Erie counties, as well as Caldwell and Woytash and his employer, University at Buffalo Pathologists, alleging the prosecution was based on the malice of his estranged wife and the dishonest intentions of Caldwell to press on with a homicide case despite lack of evidence.

Attorney Steve Cohen will represent Kirchner. Cohen is involved in several cases where the work of Dr. Woytash and the medical examiner’s office has been called into question.

"The Medical Examiner and Assistant District Attorney did a terrible thing here," Cohen told the Reporter. "An injustice like this needs to be brought out into the light."

The lawsuit alleges the "defendants initiated the prosecution of these charges maliciously, in bad faith and without probable cause."

Caldwell is accused of recruiting Woytash to produce "tailor-made" testimony allegedly initiating a campaign to bring charges against Kirchner despite knowing that Kirchner's wife was giving inconsistent information.

The lawsuit alleges Caldwell spoke with Woytash after speaking with plaintiff's wife and coached or encouraged him to lie about the cause of death and the time of the head injury.

Kirchner also alleges that Woytash fabricated findings and gave testimony that was not included in his autopsy report, and that Caldwell "coached Woytash to lie."

A June 28 decision by the state Supreme Court Appellate Division, a five-judge panel, ruled that Caldwell crossed the line between prosecution and investigation and forfeited her right to prosecutorial immunity.

The case was returned to State Supreme Court Justice Catherine Nugent Panepinto in Niagara Falls for further proceedings.

In the Kirchner case, did the actions of an overzealous, possibly dishonest prosecutor and a medical examiner of questionable values combine to try to frame an innocent man?

Is there reasonable cause to suspect that Caldwell and Woytash engaged in fraud and perjury?

It will likely cost Niagara County taxpayers a ton of money to find out.



Niagara Falls Reporter - Publisher Frank Parlato Jr. www.niagarafallsreporter.com

JUL 09, 2013