Natacha Tiger - False Confession / Misleading Forensic Evidence

Tiger, Natascha endangering the welfare of a disabled person NRE: false confession, plea, no crime, false/misleading forensic evidence

Suggestibility issues

48 N.Y.S.3d 685 2nd Dept. 3/1/17 denial of motion to vacate without hearing (by Judge Jeffrey G. Berry ) reversed hearing ordered re: actual innocence and ineffective assistance of counsel

"On November 23, 2011, a severely disabled child was admitted to Westchester Medical Center suffering from what appeared to be scald burns. [Tiger], a licensed practical nurse who had given the child a bath earlier that day, was subsequently charged with several crimes on the theory that she had burned the child with hot water. [She] thereafter pleaded guilty to endangering the welfare of a...physically disabled person...admitting that she had recklessly causedserious physical injury tothe child. Nearly two years later, [Tiger] moved...to vacate her conviction, primarily alleging that she was actually innocent because medical evidence established that the child's injuries had been caused by an adverse reaction to medications."

"Alejandra A....was born in May 2001. She had profound disabilities. As of November 2011, the child had a permanent tracheostomy and feeding tube, was completely immobile, was blind, and was dependent on others for all activities of daily living."

"On November 30, 2011, [Tiger]...made a statement to an investigator in which she stated, in part, regarding the date of the incident:

'I was working in the. . . home with [the child]...I...turned on thewater and started rinsing her body...[T]he water hit my hand and I could feel that the water was very hot. I then turned the cold water on to try to adjust it so it wasn't so hot...I wrapped [the child] in a towel and took her to her bed and when I pulled the towel down to put lotion on her arms and help her stretch and when I opened the towel more I noticed redness and peeling on her legs. I knew then that I had burned [the child] because the water was too hot when I was bathing her...I knew that I had burned [the child] with the hot water when I called [the child's mother] earlier but was afraid to tell her about what happened when I was bathing her earlier in the day.'"

"Accordingto [Tiger], the investigator started to ask [her] general questions about the child's bath on November 23, 2011, and [she] gave her account. After a time, it became apparent to [her] that the investigator did not believe her. The investigator confronted [her] with 'terrible, shocking photographs of [the child's] condition -- much, much worse than it appeared when [she] had last seen her -- which seemed to [her] to depict serious burn injuries. [She] was stunned and upset, and started gently crying. The investigator, in a stern voice, accused her of boiling water and throwing it on the child. [She] denied the accusation and again explained what had occurred. The investigator, looking angry and agitated, raised his voice and said that no one would believe [her]. He then said that he was going to give the [her] time to think and left the room."

"[She] asserted that when the investigator returned to the room, he sat down, held [her] hand, and said that he was trying to help her. He said that the [she] would be going to jail for a very long time, but that it would be 'safer' for her if she admitted to burning the child, even accidentally. He reminded her that she was the last person with the child and asked how it could be that the child was being treated at WMC's burnunit and getting skin grafting for scald burns if she had not burned the child. [She] asserted, 'I was afraid and confused because I could not explain any of these things, yet did not understand how it was that I could possibly have scalded [the child].'

"[She] claimed that, by that time, she had been at the CPS office for hours. She asked about the Interim manager who had accompanied her and was told that the manager hadleft. Although Interim sent a text message to [her] during the interview, the investigator would not allow her to send a text message in response. When [she] told the investigator that she needed to call her family, the investigator made her turn off her cell phone. She explained, 'Isolated, tired, and confused, I was eventually convinced by [the investigator] that I must have burned [the child] because I could not otherwise explain the photographs, her treatment in the burn unit, or her need for skin grafting.'"

"According to [her], her attorney advised her that if she were to plead guilty, she might, in view of her background, reasonably hope for a sentence of probation and community service, and avoid the risk of a lengthy term of imprisonment. Based on her attorney's advice and her inability to afford medical experts, [she] agreed to plead guilty."

"In his supporting affirmation, physician Bruce F. Farber noted that he had been involved in the practice of internal medicine and infectious diseases from 1980 to the present. He had specialty training in infectious diseases and had treated burn patients and patients diagnosed with toxic epidermal necrolysis (hereinafter TEN). He had reviewed, among other things, the child's medical records and photographs of the child.

"Farber gave a narrative of events leading up to and including the child's hospitalization. He noted that on November 16, 2011, a week before the incident in question, the child was evaluated by her pediatrician, who diagnosed pneumonia and prescribed the antibiotic Biaxin."

"Farber opined, based on his review of medical records, photographs, and [Tiger's] statements, as well as his education and experience in treating patients with TEN and burns, that the child's injuries were caused not by a thermal scald burn from bathing but by TEN.

"According to Farber, the family pediatrician and all WMC physicians -- emergency room, burn, pediatric, dermatologic, and infectious disease -- who evaluated the child on November 23 and 24, 2011, found, based on clinical presentation, that her condition was consistent with TEN, StevensJohnson syndrome (hereinafter SJS), or staphylococcus scalded skin syndrome (hereinafter SSSS). The biopsy results ultimately confirmed a diagnosis of TEN. Despite the history that the child had been bathed shortly before the onset of her condition, none of those physicians diagnosed or even considered a diagnosis of scald burns.

"Farber explained that TEN and SJS are life-threatening dermatological conditions thought to be an adverse reaction to medications. While their exact cause is unknown, they are thought to involve an autoimmune process characterized by exfoliation of the skin, i.e., blistering. They often are associated with certain medications and bacterial infections. Drugsfrequently found to be associated with TEN and SJS include antibiotics and antiseizure medications. The child was taking the antibiotic Biaxin as well as an antiseizure medication..."

[In both TEN and STS:] "The top layer of the skin, the epidermis, separates from the lower layer, the dermis, giving an appearance that is very similar to a scald burn...The loss of epidermis results in a high risk of infection, loss of fluids, and death. Prompt treatment is required and does not appreciably differ from the treatment burn patients receive."

[However, the Court of Appeals subsequently partially reversed the above finding that Tiger was not entitled to a hearing on the actual innocence claim.]

71 N.Y.S.3d 169 2nd Dept. 7/13/22 County Court's [ Robert H. Freehill ] denial of ineffective assistance of counsel claim reversed, plea vacated

"[D]espitereferencesin the hospital records indicating that a skin biopsy was ordered, [Tiger's] former counsel failed to obtain the skin biopsy pathology report, which would have supported the conclusion that the child's skin condition was caused, not by thermal burns, but by toxic epidermal necrolysis (hereinafter TEN), a condition associated with an allergic reaction to a medication that the child had been taking." "[Tiger] also demonstrated that her former counsel failed to consult a medical expert, or take steps to either seek the services of a court-appointed medical expert, or find a source of funding to secure the services of a medical expert before counseling [Tiger] to plead guilty. At the hearing, [Tiger] offered the expert testimony of Bruce Farber, a physician board-certified in the fields of internal medicine and infectious diseases, who reviewed all the medical records, including the subject pathology report. He opined that, based upon his review of medical records, as well as the pathology report, the child's skin condition was caused by TEN, and not thermal burns. He testified that the medical records, including the hospital chart, showed that the various medical providers, including a pediatrician, emergency room physician, dermatologist, infectious disease expert, and a burn fellow formulateddifferential diagnoses including SJS, TEN, or staphylococcal scalded skin syndrome, none of which included thermal burns.

"Notably, Farber testified that a board-certified dermatologist who treated the child documented a positive 'Nikolsky sign,' which was a finding seen with immunological skin reactions, and not thermal burns. He also testified that, based upon his review of the photographs of the child, the child's wounds appeared to grow and spread for days after her hospital admission, which was inconsistent with a diagnosis of thermal burns. "[Tiger] testified that the reason that she pleaded guilty was based upon her counsel's advice that nothing in the medical records supported her defense."

"Contrary to the County Court's determination, the evidence adduced at the hearing sufficiently established that there is a reasonable probability that, but for her attorney's errors in failing to obtain the pathology report and seek an expert consultation, [she would not have pled guilty]."

from NRE synopsis (by Ken Otterbourg):

"On July 13, 2022, the [Second Dept.]...ordered a new trial." "The state dismissed the charge in August 2023."*

[* Thus, the prosecution left Tiger 'hanging' for over a year before finally doing the right thing. That would appear to be something of a record.]

[All emphases added unless otherwise noted.]