'New' evidence clears Davis, lawyer contends 

By Mannix Porterfield 
Register-Herald Reporter

LEWISBURG - Working the past few years without charging a fee, Paul Detch has plowed into reams of long-dormant medical records, tissue slides and official notes in a one-man crusade to free Marybeth Davis from prison. 

Now, the Lewisburg attorney says he has uncovered proof the one-time nurse is innocent of fatally poisoning her daughter and severely injuring an infant son nearly two decades ago. 

Davis was convicted Sept. 15, 1997, of first-degree murder. Prosecutors said she fed daughter Tegan a lethal dose of caffeine with time-release diet pills. 

The same jury found her guilty of injuring son Seth months earlier with an injection of insulin that left him in a permanent, near-vegetative state. 

But Detch, now joined by Charleston public defender George Castelle, argues the state withheld evidence showing a vital ingredient of Dexatrim diet pills failed to surface in Tegan's autopsy. 

Even more critical to the latest appeal in circuit court is a recent test of Seth proving the child suffers human growth hormone deficiency, explaining why that, not insulin, turned him into a brain-damaged child, the co-counsel say. 

Those major points, along with others, are to be spelled out in yet another hearing next Tuesday, Dec. 12, seeking a new trial for Davis, serving life without mercy in the women's prison at Pruntytown. 

Seth Davis was stricken Sept. 30, 1981, with seizures and low blood sugar, leading to severe brain damage. 

His sister was hospitalized five months later, on March 10, 1982, with severe vomiting, eventually dying en route to another hospital. 

Despite a "thorough investigation" by police at the time, no charges were filed, Detch says in his latest motion. Only after the matter was revived in 1995 was Davis ultimately indicted, tried and convicted. 

- - - Tissue slides not in the defense's hands at the time of trial were reviewed by Dr. Edward Friedlander, chief of pathology at the University of Health Services in Kansas City. 

Friedlander is quoted in the motions as saying his examination of the slides of Tegan's liver, spleen, lymph nodes and brain show the child died naturally of either Reye's syndrome or a mimic of the child disorder. 

The physician also faults Greenbrier County's pathologist, Dr. Anne Hooper, for mislabeling two key slides. 

Another key issue Detch and Castelle intend to raise is the state toxicologist's report that caffeine levels in Tegan's blood were 10 times higher than in her tissues. 

Detch has maintained notes kept by a nurse show Tegan was administered Valium inside a hospital to counter seizures, suggesting caffeine was fed to her at the hospital to reverse a suspected overdose of the drug. 

"The administration of caffeine just before death contradicts the prosecution's theory of intentional poisoning with diet pills over a four-day period," the motion reads. 

Buttressing this argument is an affidavit by Dr. Arthur Hupka, a board certified toxicologist at the West Virginia School of Osteopathic Medicine. 

Detch says the physician concluded "only a small therapeutic" amount of caffeine was in Tegan at the time of her death, equal to about 1 1/2 cups of coffee. 

Hupka said the caffeine in Tegan's blood and tissues was "the exact amount that would have been injected approximately 15 minutes prior to her death to counteract the effects of a Valium overdose." 

In his affidavit, he says it would have been "a medical impossibility" to have been an oral injection of caffeine based on the official figure supplied by the state's toxicologist. 

"It is a scientific impossibility for caffeine to concentrate into a liquid (blood) at a higher level than in the tissue," he states. 

- - - The state contended Davis fed the daughter diet pills and used discarded, plastic containers of Dexatrim found in her garbage pail as evidence against her. 

Besides caffeine, the pills contained phenylpropanolamine (PPA), and the state's chief medical examiner at the time, Dr. Irvin Sopher, said a separate test would have been needed to ascertain this. 

But Detch and Castelle allude to a note Hooper kept showing no PPA was found. 

Had this document been available at trial, Detch says, he could have shown without doubt the state's theory of diet pill poisoning was flawed, since Dexatrim contains PPA and none appeared in Tegan's body. 

As for Seth, the lawyers maintain the only test for human growth hormone deficiency at the time would have endangered his life. 

Since then, however, new, safer tests have come on line, and one performed by Dr. Dale Willis of Pediatric Endocrinology Associates in Richmond, Va., show the child's injury was caused by the disorder, providing "strong support" for Davis' innocence. 

The hearing will be conducted by Circuit Judge Frank Jolliffe. 

Davis already has lost an appeal in a unanimous decision by the West Virginia Supreme Court. 

In a June 15 hearing, Jolliffe hit Detch with sanctions for filing a "frivolous" suit against doctors the state used as material witnesses against Davis in the 1997 trial. 

Detch was ordered to pay the four physicians $1,500 apiece, along with a $2,500 penalty to the state.

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