Denise Buchanan

Case record: Denise Buchanan

Status

Denise Buchanan received two consecutive terms of life in prison with the possibility of parole in 1999.

Background

In 1987, Denise Buchanan and Francisco Leal moved in together. Later that same year, Buchanan gave birth to her first child, Joseph. Joseph was not Leal's child, but Leal raised him as his own son.

Buchanan became pregnant again shortly after Joseph's birth. In 1988, Buchanan gave birth to Joshua, her second son, her first with Leal. Leal testified that the couple experienced financial pressure to the point that they separated while Buchanan was pregnant with Joshua. Later, after Joshua was born, they moved back in together.

Leal testified that he could see that Buchanan was disappointed with Joshua when he was brought to her in the hospital. Leal also testified that she wanted a girl. Joshua was in the hospital several times during his infancy.

Leal and many other witnesses testified that Buchanan had a close, loving relationship with Joseph, but she was very distant and always seemed irritated with Joshua. Witnesses testified that she favored Joseph in every way, even in providing food. Teachers testified that Joshua would come to school in first grade without having been provided any breakfast. Leal testified that Buchanan favored Joseph over Joshua such that “Jo[seph] could do no wrong, and Joshua could do no right.”

Within weeks after Joshua's birth, Buchanan became pregnant again. Jeremiah, Buchanan's third son, was born in 1989. Jeremiah died at four months of age.

Buchanan became pregnant with her fourth son, John, in 1990, after Jeremiah's death had been ruled a SIDS death and John was brought home with an apnea monitor.

In 1992, Buchanan became pregnant again. Leal testified that Buchanan stated she did not want to be pregnant, but she wished for a girl. Leal testified that Buchanan expressed her desire to join a SIDS group's counseling session, but he discouraged her.

Jacob, Buchanan's fifth son, was born in July 1993. Leal testified that although Jacob was a healthy baby, Jacob was also placed on an apnea monitor. Leal testified that as time progressed, Jacob was hospitalized several times for various ailments, including apnea.

The offence

Buchanan was charged with three counts of first-degree murder in the deaths of her three infant sons. After a four-week trial with 100 witnesses, Buchanan was convicted of two counts of first-degree murder, and sentenced to two consecutive terms of life in prison with the possibility of parole. The jury acquitted Buchanan of murder in connection with the death of Jeremiah.

In 1999, Buchanan was found guilty of two counts of first degree murder for her sons, John and Jacob. She was acquitted of the charge for Jeremiah's murder.

Individuals

• Denise Buchanan — defendant, mother of Joseph, Joshua, Jeremiah, John, and Jacob.
• Francisco Leal — Leal testified about household conditions and described relationship dynamics between Buchanan and the children.
• Joseph — first child; Leal raised him as his own son; Joseph was not among the murdered infant counts.
• Joshua — Buchanan’s second son and a child discussed in trial testimony.
• Jeremiah — Buchanan’s third son; died at four months of age.
• John — Buchanan’s fourth son; died at almost three months of age.
• Jacob — Buchanan’s fifth son; died just a few days before his first birthday.

Timeline

• 1987 — Denise Buchanan and Francisco Leal moved in together; Buchanan gave birth to Joseph.
• 1988 — Buchanan gave birth to Joshua.
• 1989 — Buchanan gave birth to Jeremiah; Jeremiah died at four months of age.
• 1990 — Buchanan became pregnant with John; John was born and was brought home with an apnea monitor.
• 1992 — Buchanan became pregnant again.
• July 1993 — Jacob was born.
• 1999 — Buchanan was found guilty of two counts of first degree murder for John and Jacob and was sentenced to two consecutive life terms with the possibility of parole.
• May 30, 2003 — Nevada Supreme Court opinion was issued in Buchanan v. State.

Investigation

The police officer who responded to the scene of Jeremiah’s death testified that Buchanan told him that she had found Jeremiah that morning in his crib with blankets over his head. Buchanan told the officer that Jeremiah normally awoke around 8 a.m. or 9 a.m., and that the officer was not called to the scene until approximately 10:20 a.m. The officer testified that because of the condition of the body and the appearance of a brown and white substance around the mouth and nose, he suspected the child had vomited and aspirated.

After Jacob’s death, the coroner, Vernon McCarty, proceeded with the investigation following conflicting stories from Buchanan concerning the events leading up to Jacob’s death. McCarty issued death certificates reflecting differing causes and manners of death for the three sons.

McCarty testified that his office issued the death certificates, stating:

• Jeremiah: cause of death stated as SIDS.
• John: cause of death stated as “undetermined after autopsy and toxicology,” and manner of death stated as “undetermined.”
• Jacob: cause of death stated as “undetermined due to third unexplained infant death in same family,” and manner of death stated as “homicide.”

McCarty included as the answer to the statement, “ Describe How Injury Occurred, ‘history consistent with suffocation.’ ”

McCarty testified that there was general agreement among forensic professionals that when there are three unexplained infant deaths in the same family, the first is recorded as “Sudden Infant Death Syndrome,” the second as “Undetermined,” and the third or subsequent deaths as “Homicide.” McCarty testified that the incidence of a SIDS death is approximately 1 in 1,000 births, and that it is virtually a statistical impossibility that a second SIDS death would occur in the same family.

McCarty testified that the certificate of death for Jacob was filed over a year after the death because he was trying to get all the information he could. He consulted with both the Reno and Sparks police departments to get all the information they had gathered as a result of their investigations. He consulted with the district attorney's office and local doctors, as well as out-of-state medical experts, before filing the death certificate.

Dr. Ellen Clark, board-certified anatomic, clinical, and forensic pathologist, testified that she was contacted after Jacob’s death by the coroner, coroner's investigators, and detectives from the Reno and Sparks police departments. She reviewed all three cases, including autopsy protocols, microscopic slides, and the tests conducted.

Dr. Clark suggested the case should be sent to other persons with particular expertise in looking at multiple, unexplained infant deaths in a family. Dr. Clark contacted Dr. Janice Ophoven in St. Paul, Minnesota, who referred her to her partner Dr. Susan Roe, a forensic pathologist and assistant medical examiner in Minnesota. Dr. Clark sent Dr. Roe the autopsy and medical reports and the slides for the three children, as well as the police reports on the Leal family.

Dr. Clark told Dr. Roe:

“particularly interested in your opinions regarding the possibilities of occult inheritable fatal diseases.”

Dr. Clark said she had found no evidence of such diseases but wanted someone with specific expertise to re-examine the cases and exclude those possibilities.

After receiving a report from Dr. Roe, Dr. Clark sent some of Jacob's specimens to Dr. Michael Bennett at the Department of Pathology at the Children's Medical Center of Dallas for additional tests for potential metabolic disorders. Dr. Bennett was described as a specialist in evaluating infant tissues for metabolic or inheritable disorders. Dr. Bennett reported that no abnormalities were detected.

Dr. Clark testified regarding SIDS incidence being from 1 in 1,000 live births to 1 in 1,500 live births depending on the part of the country. She also testified that statistically, the probability of a second SIDS death in the same family would be 1,000 times 1,000 and the probability of a third SIDS death in the same family would be 1,000 times 1,000 times 1,000. Her conclusion of homicide was based on physical findings and surrounding circumstances, not on statistics. She stated that Jeremiah’s death could fit SIDS because he was a healthy child with no apnea monitor and no antecedent medical history or preceding history of other infant death in the family. She stated Jacob’s death could not fit SIDS because he barely fit the age category, did not appear healthy, was emaciated, and had injuries and bruising.

Dr. Roe testified at trial after consulting with Dr. Ophoven and with Dr. Michael Coleman regarding apnea monitor records. Dr. Roe concluded that the deaths of the three children were not natural deaths, but were caused by another person, most likely by asphyxiation. Dr. Roe cited evidence of child abuse including failure-to-thrive in Joshua and Jacob with hypernatremic dehydration indicating child abuse. Dr. Roe also testified that only Buchanan reported apnea episodes, and other tests and records available in hospital did not show evidence of apnea of significance.

Dr. Ophoven testified about specialized training and experience in serial deaths of children less than five years of age within a single family. She testified that there had been a theory before 1996 that hereditary apnea caused SIDS, and that the basis of that theory had been refuted when a mother confessed to killing her five children. Dr. Ophoven testified that at the time, it was considered almost incomprehensible that mothers would kill their children, affecting earlier death determinations.

Dr. Ophoven concluded that the deaths of Jeremiah, John, and Jacob resulted from homicide, explaining that there was no underlying disease, evidence of neglect and emotional abuse, injuries to Jacob’s head suggestive of physical abuse, inconsistencies in Buchanan’s stories, failure-to-thrive, pulmonary hemorrhage in Jeremiah, lack of apnea observations by anyone except the mother, and monitors being turned off at the time of deaths, and that none of the deaths were consistent with SIDS or other known disorders. Dr. Ophoven testified:

“they were killed.”

Dr. Ophoven testified that metabolic disease did not account for all the problems because it typically demonstrates abnormalities in tissue, and she provided discussion of why she believed metabolic disease was not the cause in the Leal case.

Dr. Patrick Colletti, Jacob's pediatrician, testified that upon reviewing the autopsy report, he determined Jacob was a “failure to thrive” child, but Jacob did not suffer from starvation prior to his death. Dr. Colletti testified that he did not have an alternative cause of death for Jeremiah other than SIDS, and believed Jacob died as a result of renal hypoplasia. He also testified that he believed John suffered from an “obstruction uropathy” and that infection was probably sepsis.

During testimony regarding social service contacts, Dr. Ophoven testified that standard procedure in a death investigation includes reviewing social service records, referrals to child protective services, and contacts made with the family. She testified that investigators had noted the Leal children were quite filthy and physically neglected and had been referred to social services, but the Leals did not follow up.

Arrest

The record did not state any arrest.

Trial

Evidence presented at trial

Leal and multiple witnesses provided testimony about the children and Buchanan’s behavior. Joshua’s teacher testified that Joshua was not fed and was emotionally neglected and abused. The teacher testified that Buchanan refused to allow Joshua to meet with the school counselor despite requests from the counselor because of Joshua's apparent, severe emotional problems.

There was testimony about physical abuse of Joshua. A grocery store clerk testified that she heard an apnea alarm sound when Buchanan was in the store with a baby, but she saw that the baby looked normal and healthy. Later, when Buchanan told Leal about the episode, she said Jacob had a drastic color change, and the record also included testimony that Buchanan had told a nurse that Jacob's monitor never went off.

Several witnesses testified that Buchanan showed little or no emotion regarding the deaths of her three sons. At Jacob's funeral, the priest mistook Leal's sister, who was crying, for Jacob's mother, and Buchanan showed no emotion at any funerals.

Dr. Samuel Parks conducted Jacob’s autopsy and described external findings including underweight and short stature for age, and a linear-like bruise on his scalp. Internal examination included possible hemorrhagic areas and smaller kidneys. Toxicology tests were negative for blood alcohol, heavy metals, aspirin, Tylenol, and cyanide. Phenobarbital was found in the blood at below a therapeutic level, and Dr. Parks knew Jacob had been prescribed Phenobarbital. Dr. Parks did bacterial and viral cultures, which were negative. After consultation, Dr. Parks concluded that the cause of death was “undetermined.”

Jeremiah’s autopsy was performed by Dr. Terrance Young, who attributed the cause of death to Sudden Infant Death Syndrome (SIDS), explaining he could not “discern another reasonable cause of death.”

John’s autopsy was performed by Dr. Ellen Clark. Dr. Clark testified that John showed petechiae of the lungs, capillary bursts beneath tissue surface. Dr. Clark testified that while these commonly accompany asphyxial injury or suffocation, they are not infrequently found in SIDS cases. She also testified that she found bleeding on the thymus, which could have been caused by vigorous attempts at resuscitation. Toxicology results were negative. Dr. Clark listed the cause of death as “undetermined,” stating that her conclusion was based in part on knowledge of a previous SIDS death in the family.

Apnea monitor evidence was presented in relation to John and Jacob. Leal testified that John died at almost three months of age and Buchanan told him she was awakened by the sound of the apnea monitor, called Leal, and that Leal performed CPR. A police officer testified Buchanan was “very calm.” The police officer testified Buchanan told him the apnea monitor alarm had sounded around 5 a.m., she found John breathing properly, reset the monitor, checked John, and turned the monitor off, and then John stopped breathing. A paramedic testified Buchanan told him, “My child is a victim of SIDS,” rather than the usual, “My child has stopped breathing.” Dr. Clark and others testified accordingly.

Regarding Jacob, Leal testified that Buchanan said she had turned off Jacob's apnea monitor to give medicine, that the dog had begun barking, and she left Jacob to determine why the dog was barking, and when she returned Jacob had stopped breathing and was turning blue. Leal testified Buchanan told him she sent Joseph next door to summon their neighbor.

A police officer testified Buchanan told him that around 7 a.m. she had turned Jacob's apnea monitor off to give medicine and went about her morning chores. Buchanan told the officer she had lain down and had forgotten to turn the monitor back on. When Buchanan returned around 9 a.m. to check on Jacob, she found he was not breathing.

A representative of the apnea monitor company testified the internal memory showed the monitor was turned off at 3:56 a.m. the morning Jacob died, not at 7 a.m., as Buchanan told the police officer. The representative testified Buchanan seemed “very unemotional.”

Expert testimony and competing theories

The State’s experts, including Dr. Clark and Dr. Ophoven, concluded homicide/asphyxiation was the cause of death for the relevant children. Dr. DiMaio testified for the State as a rebuttal witness and explained an axiom about handling multiple unexplained infant deaths, stating:

[T]he way it's applied is when you get a first case that appears to be SIDS, you always treat it as SIDS. And you assume that this is a natural death. That's the way you should do it. You should not be suspicious of the parents and such, and you know, be insulting, essentially. In the second case, we know that in all probability it's not a SIDS. It's a homicide. But still, you always give them the benefit of the doubt. So, in the second case you always give them the benefit of the doubt, rather than be-you would rather give too much away than to falsely accuse them. It's only when-you get suspicious and you have the police investigate a second one. Do a lot more. It's when you get to the third one, then you've gone beyond reasonable doubts and you have to call it a homicide.

Dr. DiMaio testified about concerns with statistical probabilities, including that approximately forty percent of death certificates are incorrectly filled out, and that statistics before 1995 were not reliable because they included homicides as SIDS cases. He also testified he did not believe SIDS recurs in a single family and explained his basis by experience.

Defense experts called for alternative causes, including metabolic and genetic disorders. Dr. Cyril Wecht testified it was possible for SIDS to occur more than once in the same family and that risk factors including a short duration between pregnancies must be taken into account. Dr. Wecht testified that extensive testing was not conducted to determine metabolic or genetic cause. He testified he did not find evidence of suffocation in any children and concluded Jeremiah died as a result of SIDS. Dr. Wecht testified for John and Jacob that, depending on additional tests and results, cause of death might be listed as undetermined or SIDS.

The defense also called Dr. Berkley Powell, Dr. Enid Gilbert-Barness, Lewis Barness, and Dr. Robert Steiner, who testified about concerns for hereditary renal issues, metabolic disorders, the adequacy of testing, and critique of the “first death is SIDS, the second death is undetermined, and the third death is homicide” approach.

Closing and verdict

Based on the evidence, the jury convicted Buchanan of two counts of first-degree murder in the deaths of John and Jacob.

Sentencing

Buchanan was sentenced to two consecutive terms of life in prison with the possibility of parole.

Appeals

Buchanan appealed, contending that her judgment of conviction should be overturned because:

1. there is insufficient evidence to support her judgment of conviction;
2. she was prejudiced by the State's failure to gather evidence and by the State's destruction of evidence;
3. the jury instructions regarding premeditation, deliberation, and reasonable doubt constituted reversible error;
4. the district court erred by allowing the State to present rebuttal evidence; and
5. the district court erred by failing to instruct the jury on an advisory verdict of acquittal.

The Nevada Supreme Court found the allegations were without merit and affirmed the judgment of conviction.

The opinion stated that after viewing evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that the deaths were caused by criminal agency, and it addressed competing expert medical testimony and witness accounts. The opinion also addressed Buchanan’s contentions regarding lost or destroyed evidence and the legal standard requiring proof of bad faith or prejudice and apparent exculpatory value prior to loss or destruction.

The opinion addressed the premeditation and deliberation instruction, discussing the Kazalyn instruction and noting that the court disapproved it in Byford v. State in 2000, but did not require reversal of prior convictions using the Kazalyn instruction. The opinion also addressed the reasonable doubt instruction and other claims regarding rebuttal testimony and failure to issue an advisory verdict.

A concurrence agreed with the analysis and conclusion but expressed concern about the use of statistical evidence in criminal trials.

Outcome

The Nevada Supreme Court affirmed Buchanan’s judgment of conviction. The record indicates Buchanan was acquitted of Jeremiah’s murder and convicted of first-degree murder for John and Jacob, receiving two consecutive life terms with the possibility of parole.