Back in 2003, Dad MARTIN HERNANDEZ shook his 2-month-old son so violently that he wasn't expected to live. Despite a fractured skull and other injuries, the baby did survive, but with multiple and severe handicaps. Six years later, the child has died of appendicitis, and authorities are pondering whether murder charges now apply.
2003 shaken baby case: 6 years later, police ponder murder charges
Brian Hernandez dies of appendicitis six years after abuse
By Ruth Fuller
Special to the Tribune
December 4, 2009
Brian Hernandez was shaken so violently when he was just 2 months old that a police officer didn't expect him to live more than a few days. Even though he never walked or talked, Brian survived until Oct. 12, just shy of his sixth birthday, leaving authorities with the conundrum of whether his abuser can be held responsible for his death.
His father, Martin Hernandez, was convicted of the December 2003 abuse of Brian, who was found to have a fractured skull, fluid on the brain and a leg broken by being twisted. Hernandez spent nearly 18 months in prison and was deported to his native Mexico.
Brian died of appendicitis and now authorities must decide if that can be blamed on the earlier abuse, the way some deaths of shooting victims who linger for years can be traced back to the gunmen.
Brian's injuries made the otherwise treatable appendicitis difficult to diagnose, which contributed to his death, said Lake County Coroner Richard Keller.
While he has not yet made an official ruling on the cause of death, he said the boy "almost definitely" would have lived had the abuse not damaged his brain. Brian required a feeding tube and suffered from seizures, he said.
"He could not complain of abdominal pain, as one would expect in the case of a child with appendicitis, so he died from it," Keller said. "In this day and age, it is very rare to die from appendicitis. You have abdominal pain which gets worse with movement in a normal 5-year-old. This child didn't move, so that clue was not there."
Mundelein Police Investigator Mark Hergott believed it would have been a homicide case much earlier, saying of Brian, "He didn't seem like he had a prayer."
Officials said a decision on any new charges won't be made for at least several weeks. Lake County Assistant State's Attorney Steve Scheller said Hernandez would be extradited if murder charges are filed but declined further comment.
In general, said Scheller, chief of felony review, if someone is convicted of abuse and the victim later dies, charging the defendant with murder is an option if prosecutors can link the cause of death to the original crime.
Between 20 percent and 30 percent of shaken-baby victims die immediately from the abuse, according to Amanda Fingarson, a doctor and member of the protective services team at Children's Memorial Hospital in Chicago. She said complications among survivors can include seizures, severe mental retardation, blindness and cerebral palsy.
Shaken babies who suffer severe brain damage can die years later from something they wouldn't have developed if they had not been abused, Fingarson said, not specifically referring to Brian.
"It can absolutely happen," she said. "If the child is severely impaired, he can die later from a secondary infection or complication."
Keller is waiting for the results of toxicology tests and plans to review the case with his staff in the next few weeks to make a final ruling.
Brian was airlifted to Children's Hospital of Wisconsin in Milwaukee on Dec. 7, 2003, from Condell Medical Center in Libertyville where he had been taken by his parents. Milwaukee doctors called police because he arrived with a fever of 106 degrees, a fractured skull and fluid on the brain, which are associated with shaken baby syndrome, according to Hergott and court records.
Brian also was suffering from week-old rib fractures, and an interior fracture to his ribs appeared to be from a blow to the chest, according to records. A spiral fracture on his right tibia was consistent with it being twisted.
Martin Hernandez, then 21, was arrested two days later and charged with three counts of aggravated battery. The former Mundelein High School student worked at a service station in the village, where he was living with his wife of three years, Maria Hernandez, and their two children.
Hergott recalled the father telling police that he was "frustrated with life and couldn't take the pressure that was building on him." Hernandez admitted several incidents that included dropping the baby, squeezing his ribs, shaking him and twisting his leg, Hergott said.
Hernandez pleaded guilty to attempted aggravated battery of a child. He was paroled on June 3, 2005, and deported later that month, Hergott said.
Hernandez's defense attorney, Dwight C. Adams, called it a stretch to link the boy's death from appendicitis to shaken baby syndrome.
"It isn't like you shoot someone and they linger there for a few years and then die," he said.
One legal expert said that given the abuse, it's worth considering the new charges.
"These are an overwhelming set of circumstances, so I can understand why the state would be inclined to bring the additional charge," said Bruce A. Boyer, a professor at the Loyola University School of Law and director of the university's Civitas Child Law Clinic.
Boyer said the case would be hard to prove at trial, though.
"The defense would say, 'This is preposterous, the kid lived for six years,' " he said.
"I am sure you can get a (medical examiner) to say that they were clearly linked, but in a criminal case you have to be able to prove it beyond a reasonable doubt."
Maria Hernandez's memories of her son remain pleasant, if tinged with sorrow.
"Even though he was handicapped, he was always happy," said Hernandez, who is divorced from Martin, during a brief interview at her Waukegan home. "He is our angel now, and that is how we want to think of him."
Now 28, Maria Hernandez is about six months' pregnant. The dining room table in her tidy two-story home serves as a memorial to Brian, adorned with candles, flowers, and pictures of him.
"He was happy with the whole world," she said.