Guilty verdict was 1 vote away; prosecutors mull third Cutro trial
This story was originally published in The State on June 15, 1999.
It was Sunday morning and jurors in the Gail Cutro murder trial were tired and overwhelmed by medical testimony, but felt close to a unanimous guilty verdict as they returned to deliberate.
A night's rest at home had allowed two undecided jurors to switch their votes to guilty in the death of 4-month-old Ashlan Daniel, juror Charlotte B. Barker said Monday. That brought the tally to 11-1 for conviction.
But one steadfast holdout couldn't shake his reasonable doubt even after searching his conscience yet again, Barker said.
The vote by the holdout, whom Barker would not name, resulted in a mistrial.
It was the second trial of Cutro, a mother of three, on charges that she killed two babies and hurt a third in her former Irmo home day care. A different jury convicted her in December 1994 in Ashlan's death, but last August the state Supreme Court threw out the verdict because of legal errors.
Fifth Circuit Solicitor Barney Giese wouldn't say Monday whether he plans a third trial. But comments by Giese and lead Cutro prosecutor Johnny Gasser show they are leaning that way.
"There's no statute of limitations for seeking justice for murder, especially for young children," Giese said. He pointed out that he is about to start a fourth murder trial of Warren Manning, who is charged with killing a Highway Patrol trooper about 10 years ago.
Gasser, who is highly invested in the Cutro case and has been accused of being on a "witch hunt" for Cutro, said: "From those of us who worked on this case, there is no sense that we are defeated."
Inside the jury room at the Richland County courthouse Sunday, prosecutors were about to suffer their latest setback.
The six-man, six-woman jury was more divided on the death of Parker Colson and the severe shaking of Asher Maier in Cutro's Irmo day care.
The vote tallies listed in columns with the babies' names at the top showed that jurors had to focus on the case most likely to bring a conviction, Ashlan Daniel's, said Barker, who favored three guilty verdicts.
Five hours later, around 2:15 p.m. Sunday, the holdout reached his final decision.
"Send a note to the judge because I can't change my mind," Barker recalls him saying.
"We had to accept that," Barker said. "The judge said you can't violate your conscience.
"I just wanted to evaporate when I heard the judge say those words," she said of trial Judge James Williams Jr.' s declaration of a mistrial.
"I feel that we just failed them," Barker said of the babies' parents.
The holdout, "would have had to see a video to believe she had done it,'' Barker said. Despite 76 witnesses and 13 days of testimony, there was no direct evidence of homicide.
Other jurors contacted Monday either declined to be interviewed or did not return phone calls.
Barker, a grandmother with a degree in biology and a comparative anatomy teacher, was surprised by how the conflicting medical testimony confused other jurors. She believed the prosecution experts.
The group decided to put aside the medical evidence, including testimony about an unusual condition known as Munchausen Syndrome by Proxy. Generally in that form of child abuse, mothers hurt their children to get sympathy from doctors.
Instead of all that, the jury focused on "the facts,'' Barker said. "They were looking at, Did this really happen and who did it?'' That included studying timelines and witness credibility.
Some jurors suspected that Cutro's husband, Josh, could have been responsible because he had as much access as his wife to the infants. Others wondered if mothers who allowed the infants to sleep on their stomachs could have inadvertently contributed to Sudden Infant Death Syndrome.
SIDS is the unexplained death of a child younger than 1. Studies have shown SIDS is less likely when babies sleep on their backs or sides. Cutro's attorneys said that Parker and Ashlan slept on their stomachs. Cutro's defense was based on SIDS.
Cutro took the stand this time as she did in 1994. But her testimony hurt her, Barker said. "She was the least credible of the whole shebang. She was evasive.''
Cutro took cues from her husband during her testimony, Barker said.
Still, it was the sheer weight of the evidence that bogged down jurors.
When it became clear they could not settle on Parker's death and Asher's violent shaking, jurors looked at each other and said, "We've got to do something,'' Barker said. "We've got to stop this. We felt that she was capable of doing it again in another place, another time.''
And that is what prosecutors are still weighing.
Giese and Gasser are to meet today with two jurors who asked to speak with them. They wouldn't name the jurors.
"We want to know our weaknesses more than our strengths,'' Gasser said about preparations for a possible third trial.
But Cutro lawyer Lee Caggiola said the trials have exacted heavy tolls emotionally and financially. She estimates Cutro's defense this time could cost as much as $75,000. Prosecutors spent about $60,000 in the 1994 trial and are still tallying this one.
"It's time to stop,'' Caggiola said. "The state has certainly used ample resources. How many times do you do this?"
This story was originally published July 27, 2016 at 10:58 AM with the headline "Guilty verdict was 1 vote away; prosecutors mull third Cutro trial."