Gail Cutro

Parties and names

• Gail Cutro (home daycare operator; appellant)

Status and legal outcome

Gail Cutro was convicted of killing Parker Colson and Ashlan Daniel (two infant deaths) in her home daycare and was sentenced to life in prison on July 3, 2000. She was acquitted of an assault and battery charge relating to a third infant, Asher Maier.

Background

Gail Cutro and her husband Josh Cutro operated a home daycare in Irmo, South Carolina.

Between January and September of 1993, two infants, Parker Colson and Ashlan Daniel, died at the Cutros’ home. A third infant, Asher Maier, became ill at their home and was subsequently diagnosed with serious brain damage.

The State presented evidence that all three infants were victims of Shaken Baby Syndrome. The State’s theory was that the actions were motivated by Munchausen Syndrome by Proxy (MSBP). The State’s medical experts defined MSBP as a form of child abuse in which the perpetrator harms a child to garner sympathy and attention for herself.

The evidence included attention-seeking behavior regarding the purported SIDS deaths of the two infants who died in her daycare, including keeping obituaries, photos, and items of clothing, frequently visiting their gravesites, and emotionally discussing their deaths repeatedly with others. The State also said she fabricated that she had lost one of her own children and that a baby had died in her care in 1992.

The defense maintained there was no physical evidence suggesting Gail Cutro harmed the children in her care or linking her to their deaths, and argued that the prosecution could not decisively prove that the two infant deaths and injury to Asher Maier were intentional or the result of shaking or suffocation. The defense argued child abuse and MSBP were convenient attempts to explain events and to use Gail Cutro as a scapegoat.

Timeline

• January 4, 1993 — Four-month-old Parker Colson was found dead in his crib at the Cutros’ home daycare; emergency personnel were called and he was declared dead.
• June 7, 1993 — Four-month-old Asher Maier began daycare with the Cutros.
• June 23, 1993 — Asher Maier’s mother dropped him off; Gail Cutro later called her and reported the baby was “inconsolable”; Asher was diagnosed with shaken baby syndrome.
• September 9, 1993 — Ashlan Daniel died after being dropped off at the Cutros’ home daycare and EMS personnel arrived.
• July 13, 1994 — Gail Cutro was arrested for the alleged murders and the suspected assault on Asher Maier.
• May 3, 2005 — The Supreme Court of South Carolina heard arguments.
• August 15, 2005 — The Supreme Court of South Carolina filed its opinion.
• August 31, 1998 — The Supreme Court of South Carolina reversed a conviction in an earlier appeal.
• July 3, 2000 — Gail Cutro was sentenced to life in prison.

The offence

The conviction was for two counts of homicide by child abuse for the deaths of two infants in her home daycare: Parker Colson and Ashlan Daniel.

She was acquitted of the assault and battery charge regarding Asher Maier.

Victims

Parker Colson

• Age: almost five months old (when found dead in his crib)
• Circumstances of death: Parker was found dead in his crib at the Cutros’ home daycare.
• Call to emergency personnel: At 1:57 p.m., emergency personnel received a call to the Cutros’ home; on arrival at 2:11 p.m., Parker was not breathing.
• Hospital: He was rushed to the hospital where he was declared dead.

Autopsy and medical evidence:

• After an autopsy, the coroner’s office reported Parker’s cause of death as Sudden Infant Death Syndrome (SIDS), given when an infant’s cause of death cannot be identified.
• Dr. Daniel, who performed the autopsy, noted petechial hemorrhages in the cortical section of Parker’s brain, which was described as unusual in a SIDS case.
• In July 1994, Parker’s body was exhumed and re-autopsied.
• Dr. Ophoven, who reviewed the autopsy report, concluded that the presence of petechial hemorrhages and a sub-dural hematoma indicated Parker died of a traumatic death caused by shaking and asphyxia.
• Dr. Gilbert-Barness testified that Parker died of Shaken Baby Syndrome, which damaged the medulla causing heart and respiration to stop.
• Other medical testimony indicated Shaken Baby Syndrome can occur with no external sign of trauma, and that violent shaking damages the brain vital center controlling breathing, causing death by asphyxiation; the presence of petechial hemorrhages indicated asphyxia.
• Expert testimony indicated Shaken Baby Syndrome symptoms manifest immediately after shaking, with head injury occurring within seconds and a baby possibly dying immediately.

Testimony attributed to Gail Cutro about Parker’s death:

“She told me that Parker was taking a nap. She went in and checked on him. He was asleep. She went in the kitchen, reached up in the cabinet to get his food down. Josh came in behind her and screamed, Parker’s not breathing, call 9-1-1. . . . . Q: After she left the room where Parker was and went into the kitchen, how long a period of time did she indicate it was before Josh entered the room and screamed? A: The way she explained it to me was she checked on Parker, walked in the kitchen, and reached in the cabinet. Josh walked in behind her and screamed, Parker’s not breathing, call 9-1-1 – however long it takes to get from the living room into the kitchen and reach into a cabinet, a few seconds. And her kitchen was right beside the living room. Q: So according to Gail Cutro, who was the last person who had contact with your son Parker before Josh Cutro found him not breathing? A: Gail.”

Asher Maier

• Age: four months old when began daycare with the Cutros
• Start of daycare: June 7, 1993
• Illness and changes: A couple of days after beginning daycare, Asher became irritable and stopped sleeping through the night.
• Mother’s drop-off and symptoms: On June 23, 1993, his mother dropped him off at about 7:30 a.m. She reported Asher was not feeling well.
• Telephone call: Between 10:30 and 10:50 a.m., his mother received a telephone call from Gail Cutro stating the baby was “inconsolable” and suggesting she pick him up and take him to the doctor.
• Arrival and physical condition: When his mother arrived a short time later, the baby was already in his car seat; she immediately handed him to the doctor’s office; when she removed him, she discovered Asher was limp and unable to control his neck.

Medical evidence:

• Dr. Alexander testified that Asher had been the victim of two shaking episodes; an MRI and CT scan showed old and new blood in his brain indicating an earlier episode that had healed to some extent.
• Asher exhibited retinal hemorrhages indicative of Shaken Baby Syndrome.
• MRI/CT indicated an earlier episode probably two weeks previous.
• Other testimony described symptoms as manifesting immediately after shaking and related timing between observed normal behavior and presentation for medical care.
• The State’s narrative included that investigators sought evidence of injury occurring in a relevant time window, and that the jury acquitted Cutro on the assault and battery charge regarding Asher Maier.

Ashlan Daniel

• Age at start of daycare: about two months old when began daycare with the Cutros in June 1993
• Daycare schedule: She was in daycare for about only two hours a day while Mrs. Daniel worked part-time.
• Drop-off: On September 9, 1993, Mrs. Daniel dropped Ashlan off at the Cutros’ at noon.
• Pickup and EMS arrival: When Mrs. Daniel left work at 2:30 p.m., she went to pick Ashlan up at the Cutros’ home and pulled up as EMS personnel were arriving.
• Notification of death: Josh Cutro told Mrs. Daniel that Ashlan was dead.

Testimony attributed to Gail Cutro about Ashlan’s death:

• Mrs. Daniel testified that Gail Cutro told her that she found Ashlan not breathing and that Josh was out of the house at that time.
• Another parent testified Gail Cutro told her Josh went to pick up children from school and that she was the only adult in the room when Ashlan stopped breathing.
• Another parent testified that Gail Cutro told her “was in the room with Ashlan when she died. . . and that she couldn’t believe that she didn’t notice that [Ashlan] had stopped breathing.”

“was in the room with Ashlan when she died. . . and that she couldn’t believe that she didn’t notice that [Ashlan] had stopped breathing.”

Medical evidence:

• Dr. Reynolds, who autopsied Ashlan’s body, testified petechial hemorrhages were present in her brain; he had never seen those in a SIDS death; because he could not determine cause of death, he concluded it was SIDS.
• Ashlan’s body was exhumed and re-autopsied in July 1994.
• Dr. Ophoven testified that Ashlan’s brain had a subdural hematoma in addition to petechial hemorrhages indicating death from trauma and asphyxia.
• Dr. Gilbert-Barness concurred and stated the injuries indicated Shaken Baby Syndrome.

Investigation and evidence

Investigators focused on the Cutros’ home daycare operations and the medical circumstances surrounding the infants’ deaths and Asher’s injury.

In the State’s narrative, investigations began probing focused on Asher’s mother and Gail and Josh Cutro, and after Ashlan Daniel’s death on Sept. 9, 1993, investigators looked more closely at Gail Cutro.

The State introduced evidence of attention-seeking behavior regarding the purported SIDS deaths, including keeping obituaries, photos, items of clothing, visiting gravesites, and emotionally discussing the deaths repeatedly.

The State introduced evidence that Gail Cutro fabricated that she had lost one of her own children and that a baby had died in her care in 1992.

The defense argued against intent and causation, asserting that prosecutors could not prove intentional harm or shaking/suffocation and that child abuse and MSBP were scapegoating explanations.

Arrest

Gail Cutro was arrested for the alleged murders and the suspected assault on Asher Maier on July 13, 1994.

Trial

Gail Cutro faced multiple trials in connection with these deaths.

• She was convicted in the death of Ashlan Daniel at a trial in 1994.
• The Supreme Court overturned the decision two years before the retrial narrative described later, and a mistrial occurred at a second trial because the jury could not reach a decision.
• A third trial led to a verdict and sentencing.

Verdict and acquittal:

• The jury returned a guilty verdict on the murders involving Parker Colson and Ashlan Daniel.

Jury deliberations and verdict timing:

• The jury reached its verdict shortly before 3:00 p.m. Sunday afternoon.
• The trial judge sent the jury back to the conference room Sunday even after they told him they were deadlocked; the jury began deliberations on Saturday.

Statements attributed to the prosecution and family:

• Lexington County Deputy Solicitor Johnny Gasser described it as “This has been a road that's been filled with a lot of valleys and not too many peaks. And, today, we're at the top of a peak.”
• Mother Lindy Colson thanked the jury after the verdict was announced:

“They really, really thought this out and they worked so hard. We can never say thank you enough to all of you guys and maybe now our children can rest in peace.”

Prosecutors’ sought charges in the August 16, 1999 retrial narrative:

• Prosecutors sought a conviction on assault and battery with the intent to kill and two counts of first-degree murder.
• If convicted, Gail Cutro could have faced life in prison without the possibility of parole for 20 years.

Hung jury prior to the life sentence:

• In the retrial described as occurring on August 16, 1999, a jury narrowly failed to reach a verdict beyond doubt on two infant deaths and permanently injuring one in her care.
• The jurors could not reach a unanimous vote on a murder conviction in Ashlan Daniel’s death, voting 11-to-1 in favor of guilty.
• Prosecutors said they would seek a new trial against Gail Cutro.

Sentencing

Gail Cutro received life in prison for the deaths of Parker Colson and Ashlan Daniel, with the sentencing described as concurrent life sentences for killing Parker Colson and Ashlan Daniel.

• Sentence date: July 3, 2000

Appeals

Supreme Court of South Carolina (2005) — AFFIRMED

The Supreme Court of South Carolina addressed issues including joinder of charges, evidence used to prove MSBP, and admissibility of autopsy reports of other SIDS deaths.

• Justice MOORE wrote: “Appellant was convicted of two counts of homicide by child abuse for the deaths of two infants in her home daycare. We affirm.”
• The Supreme Court affirmed.

Issues considered

1. Whether the trial court’s refusal to sever the charges unfairly prejudiced the appellant.
2. Whether evidence used to prove MSBP unfairly prejudiced the appellant.
3. Whether autopsy reports of other infants were improperly admitted.

Joinder of charges analysis

The Supreme Court found the charges were properly tried jointly, describing the offenses as similar in kind, place, and character, with the State’s case involving Shaken Baby Syndrome inflicted on an infant in the Cutros’ daycare.

Evidence of MSBP (memorabilia)

The Supreme Court held that evidence of memorabilia indicating MSBP was admissible for motive and related purposes, and that it did not unfairly prejudice the appellant.

Autopsy reports of other SIDS deaths

The Supreme Court held the trial judge did not err in allowing Dr. Ophoven’s testimony regarding other SIDS autopsies, concluding:

• The evidence was relevant to the significance of petechial hemorrhages in determining cause of death.
• Autopsy reports were not hearsay under described hearsay rules and were admissible under evidentiary standards, including exceptions for public records and records of deaths, and were permissible under Rule 703 when relied upon by experts.
• It found confrontation rights were not infringed.

Dissent

Justice PLEICONES filed a dissenting opinion stating that, as understood, she would have reversed on joinder grounds and described that the charges did not involve “connected transactions closely related in kind, place and character.” Justice PLEICONES’s separate opinion concluded she would reverse and remand.

Supreme Court of South Carolina (1998) — REVERSED

In an earlier appeal described with “Opinion No.” and procedural context, the Supreme Court reversed a conviction and held that evidence admitted under State v. Lyle was improperly admitted.

• The opinion concluded: “REVERSED.”
• The reversal related to admission of evidence of Parker Colson’s death and Asher Maier’s diagnosis of Shaken Baby Syndrome as prior bad acts for common scheme or plan.

Outcome

• Gail Cutro was convicted of two counts of homicide by child abuse for the deaths of Parker Colson and Ashlan Daniel.
• She was acquitted of assault and battery regarding Asher Maier.
• The Supreme Court of South Carolina affirmed the conviction in the 2005 decision.
• Gail Cutro was sentenced to life in prison on July 3, 2000.

Other details

Family and courtroom statements

• Mother Lindy Colson expressed thanks to the jury after the verdict.

Procedural history described

• Gail Cutro was described as facing a third trial.
• She had been convicted in 1994 in the death of Ashlan Daniel; the Supreme Court overturned that decision; a second trial ended in a mistrial.

Case costs and representation plans

• The case was described as one of the most expensive to prosecute in Richland County history.
• Cutro’s attorneys said they planned to appeal the decision after sentencing.