Lezlee Magee's baby died in 1990. Just 4 weeks old, she had a fractured skull, two broken ribs and a broken leg.
Both parents were charged with child abuse, but their conviction was for a misdemeanor with penalities equivalent to drunken driving or lewdness.Shelly Flemal's daughter died in 1994. Just 3 years old, her decomposing body was found stuffed under a bush on a hillside adjacent to the Ogden City Cemetery.
Her mother was charged with murder, a first-degree felony, and was sentenced to prison in 1996 with a parole hearing nine years away.
Both cases involve child abuse and mothers, both cases lacked witnesses who saw what happened to the victims, and both cases had medical evidence that was conflicting or inconclusive.
The outcomes of child abuse prosecutions are as varied and as disturbing as the crimes that happen to these babies.
Critics say the criminal justice system is failing the most innocent of victims: the children.
"It just seems like a child's life isn't worth as much as an adult's," said Salt Lake County sheriff's detective Mike Mitchell.
"Yet they are the most defenseless in our society."
A 1995 report by the U.S. Advisory Board on Child Abuse and Neglect estimates five children died every day -- or 2,000 a year -- due to abuse or neglect by their parents.
A survey by the National Committee to Prevent Child Abuse found the majority of victims, 85 percent, are under age 5, and nearly half never reach their first birthday.
Since the law was put on the books in 1994, state records show 10 people in Utah have been convicted of child abuse homicide.
Three of those people did not serve any time in prison, and two have been released.
Five people remain imprisoned on child abuse homicide convictions, compared to the 21 inmates serving time for automobile homicide and the 99 people convicted of first-degree felony murder.
Protecting the children
Historically, the criminal justice system in the United States has been ill-prepared to deal with the abuse of children.
The first child abuse case to go to court in the United States happened in 1874, when a volunteer church caseworker intervened on behalf of a frequently beaten girl named Maryellen.
Authorities told the caseworker they couldn't help Maryellen because there were no laws protecting children. The caseworker sought help through the New York Society for the Prevention of Cruelty to Animals, and the case was brought to court under a law protecting animals. The woman doing the beating got a year in jail.
While child abuse laws have improved dramatically since then, one child advocate said there's vast room for improvement.
"Philosophically, as a society, we are guilty of treating cases where children are murdered more lightly than cases where adults were killed," said Marilyn Sandberg, head of Weber County's Child Abuse Prevention Center.
Sandberg argues if an adult systematically beat on another adult day after day and the victim died, the adult offender would be in serious trouble.
"When a child is killed, methodically, in day-after-day instances of abuse and it is not a flat-out take-them-to-the-ground attack, there is this carry-over feeling that the child is the parents' property so they can do whatever they want to keep the child in line," Sandberg said.
Eric Duff, for example, admitted he was frustrated with his 14-month-old son's penchant for putting a rubber ball in his mouth. He took the ball and shoved it into the child's mouth with such force it was lodged in his airway and had to be removed by paramedics.
Although he was charged with murder, a first-degree felony, the charge was reduced to a third-degree felony after his wife said she didn't see the incident.
At a parole board hearing in 1995, authorities said Duff would serve every day of his 5-year sentence.
Difficult to prosecute
Prosecutors say child abuse homicide cases are tough, first and foremost, because people are reluctant to believe the worst in parents.
"Basically, the general public does not want to believe anyone would intentionally hurt a child," said Salt Lake District deputy attorney Jim Cope. "They are unwilling to say an accidental trauma is worth a homicide charge."
Often in child-abuse homicides, one parent protects the one who is accused, everyone clams up and medical evidence presented at trial can become compromised by "expert" testimony offered by the defense.
Bountiful Police Chief Paul Rapp was a detective who investigated the abuse allegations against Lezlee Magee back in 1990. Nine years later, she has been charged with child abuse again, this time stemming from alleged abuse of another daughter, 6-year-old Kayla.
In the first case, Rapp saw a second-degree felony case of a child abuse drop to a misdemeanor before a Davis County judge.
"Even the best investigator in the world is going to have no better than 50-50 odds on getting a conviction," Rapp said. "A dead infant can't testify, if you don't get an admission from the suspect or independent evidence, you can only go on circumstantial. It's really hard to get a judge or a jury to convict on circumstantial evidence."
Karissa Magee died due to lack of oxygen to the brain. Doctors said she had a seizure disorder. On the day she was rushed to the hospital, she had stopped breathing.
An autopsy, however, found the 4-week-old baby had a fractured skull, two broken ribs and a broken leg, all injuries that were older.
"It happened over different time frames. At that point, we thought we could clearly show child abuse, that there was not a single episode, that there were multiple impacts at different stages of healing," Rapp said.
However, the judge, in delivering the verdict on the misdemeanor, said the prosecution had failed to prove the injuries were intentional.
It's a common dilemma in these kind of cases.
Cope said it isn't unusual to have to rely on purely circumstantial evidence.
"And then it is turned over to a jury, and the defense is asking 'what kind of animal would do this to a child?' My client certainly wouldn't."
In the 1990 case of Jose Parra, he was charged with the most serious classification of homicide possible in the death of his girlfriend's 5-month-old baby.
The child was shaken to death while his mother was at work. After a trial, the jury came back with the lightest possible criminal conviction for Parra: a class A misdemeanor punishable by up to a year in jail.
Another man shook his own child to death back in 1993. Although convicted of manslaughter, which carries up to 15 years in prison, Tony Roy Day received a sentence of six months in jail. He also was able to maintain his job and obtain therapy while incarcerated.
Does a child's life count?
"If they beat the life out of an adult and they are a complete stranger, they're in serious trouble," Sandberg said. "Are we ever going to get to the point where we say a child's life counts more because they had a whole future ahead of them?"
But it's hard, both police and prosecutors admit, for the criminal justice system to frame a murder conviction around the seemingly distraught parent, who in a fit of frustration, took his or her child's life.
"It would be unusual for someone to plan to kill a child. Usually a person who inflicts injury does it out of anger, emotional frustration. It ends up with results that are not necessarily contemplated or intended," said Davis County deputy attorney Carvel Harward.
Cope said it was cases like Parra's that prompted the adoption of the child abuse homicide statute.
Parra was charged with murder by the violent shaking death of a 5-month-old baby. A jury convicted him of a misdemeanor. During the trial, he tearfully recounted the events of the day, and his girlfriend testified he loved the baby like he was his own son.
Cope said the law was intended to fill in the gaps.
"We are getting felony convictions now, sometimes before we were getting misdemeanors."
But child advocates like Sandberg say it's a sad irony to her that child abuse homicide, at most, is a second-degree felony. In contrast, rape of a child and sodomy of a child are first-degree felonies.
"Theoretically, I guess, if you molested a child you would be better off to kill them," Sandberg said.
Complicated circumstances
Some states, like Texas, have laws on the book that make killing a child under age 6 an offense that carries a possible death penalty.
But prosecutors and police point out child homicides are full of competing circumstances that make their investigation and prosecution unpalatable to the public.
Murder just doesn't always fit, Cope said.
"If all we had was murder, we would have a tough time proving a murder occurred every time a child died," he said.
Salt Lake Police detective Guy Yoshikawa said child deaths are emotionally charged for everyone involved.
"The family is often the suspect in this type of homicide, and they've been through a devastating tragedy. Losing a child is the worst tragedy. You're rubbing salt in the wound. Because of policy and protocol, you have to ask these questions."