The motion is also asking for grand jury testimony to be reviewed “in camera” or by a judge and attorneys, specifically that of forensic anthropologist Dr. Elizabeth Murray, who examined the remains of the baby girl when they were unearthed.
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The defense attorneys say the prosecution presented information about Murray’s testimony to a grand jury when seeking to indict Richardson that she has since recanted.
“The indictment and prosecution in this case are defective because both are based on Dr. Murray’s recanted belief that the bones she examined were charred,” the defense attorneys wrote in the motion.
Murray later realized that her belief that the bones were charred was incorrect after a second examination of remains on Aug. 17, 2017, according to the defense.
“While the Warren County Prosecutor’s Office unintentionally presented false information to the grand jury in this case, the indictment and prosecution are defective all the same and should be dismissed in accordance with Miss Richardson’s rights to a fair trial and due process,” the defense team said in the motion.
The motion includes email messages between Murray and Dr. Susan Allen, forensic pathologist at the Montgomery County Coroner’s Office. In an email sent on Sept. 6, 2017 about the charred body issue, Murray indicates the baby had skull fractures.
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“I even said to them, whether the bone was burned or not, that baby was still dead, had unexplained skull fractures, and was buried in the back yard,” Murray wrote to Allen. “I don’t understand why the burning takes it up a notch. They told me it’s all about what she said at one time or another and how her story changed. Well that’s their problem, I guess I am sorry if I spoke out of turn, but it was my strong feeling the bones were burned in July and then less so in August - which is perhaps some basis for always doing a second look. If we only had time.”
Two years ago, Warren County Prosecutor David Fornshell said the cause of the baby’s death is uncertain.
“We may never know the medical cause of the baby’s death,” he said in August 2017.
The defense said in the motion that the email correspondence between Murray and Allen refers to Murray’s erroneous belief that the bones were charred as “a crucial part of (the Warren County Prosecutor’s Office’s) game plan.”
Murray told Allen that when it came to the Warren County Prosecutor’s Office and her decision to recant her original opinion that the bones were burned, “I ain’t gonna lie to them, but I sure ain’t gonna lie for them,” according to an email.
Fornshell declined comment on the latest defense motion but said the prosecution would be filing a response.
The motion comes a week after Warren County Common Pleas Judge Donald Oda II denied the defense motion for three trials.
The defense team requested that the court order one trial for the aggravated murder charge, one trial for involuntary manslaughter and endangering children charges and a third trial for tampering with evidence and abuse of corpse charges.
The defense argued the prosecution has admitted it does not intend to keep its presentation of each offense “simple and direct.”
But in the prosecution’s response, the state wrote, “In this case, Richardson’s offenses constitute parts of a common scheme or plan and are part of a course of criminal conduct. She delivered her baby in secret in her home, caused the baby’s death, then buried the baby in the backyard.
“The defense does not provide an affirmative proof of prejudice that Richardson would suffer if all counts were tried in a single trial, the prosecution said in the motion. The defense argued the jury is likely to get confused by the charges.”
According to prosecutors, the same evidence of all offenses would be admissible at all trials if the court were to order separate trials.
Another pre-trial hearing is set for Aug. 19 ahead of Richardson’s scheduled trial on Sept. 3.
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