Babysitter Blamed in Toddler`s Death

48 Hours (CBS) February 4, 2006 | Harold Dow Harold Dow 48 Hours (CBS) 02-04-2006 (BEGIN VIDEO CLIP) JOHN HOWES, FATHER OF ASHLEY HOWES: She`s a very caring child, very intelligent, has a big heart.

ASHLEY HOWES, FORMER BABYSITTER: I like kids, you know. It`s not like you`re babysitting them, it`s like you`re hanging out with them. You can do things, like play with dolls, and not feel stupid.

On that weekend, I was babysitting Madeline and Freya.

FILINA NIEMEYER, AUNT OF FREYA GARDEN: Her name was Freya. She was 19 months old. As soon as she saw you she would raise her chubby little arms up to you so she could be swept up into your world. Her smile was intoxicating. She loved sweets, the messier the better.

I was supposed to, like, help out and not baby-sit — only for a couple of hours at a time. When I walked in the house, I had Freya in my arms. The only furniture in there was, like, a futon, which was in the living room. So we just pretty much, like, put pillows and blankets down.

You know, it`s like, OK, seems like it`s going to be fun. And we hung out; watched movies. I cooked for them; changed diapers; baths.

I don`t think I was completely fully capable with the responsibilities that they were giving me. It felt like they were gone all the time. It just seems like a big old blob — hours and hours and hours.

Freya woke up. We heard a noise, a loud, like, thumping noise. I was like, “What was that?” Madeline and I, both at the same time, went in to the bedroom. Freya was in the fetal position with her butt about three inches above the floor. I picked her up. I brought her out to the futon thing, and she just fell over. I look at her, and her eyes are just halfway open. And I was like, oh, my God. And she started making, like, dinosaur noises, like, “Uh, uh.” I was freaked out.

UNIDENTIFIED 911 DISPATCHER: What is the problem?

A. HOWES: (UNINTELLIGIBLE) … the baby.

UNIDENTIFIED 911 DISPATCHER: What is the address, ma`am? What is your address?

A. HOWES: I don`t know.

Freya awake up!

I`m in Seattle right now, and…

UNIDENTIFIED 911 DISPATCHER: Ma`am, ma`am, get a grip. Find a piece of paper with an address on it.

A. HOWES: I was digging on that entire counter, going from one end to the other, and trying to find mail.

They didn`t leave me anything.

UNIDENTIFIED 911 DISPATCHER: Just look on the paper. People have envelopes with their addresses on it all the time.

A. HOWES: This never happened to me before, you know. “What`s wrong with this baby?” I looked, I looked. 5206 23rd Avenue, Southwest, Seattle.

In the hospital, I was like, “What happened.” They wouldn`t tell me anything.

All of a sudden, I`m hearing, “Killed, and died, and dead.” And I just look up, I`m like, “Whoa, wait a second.” You know, “She`s dead?” You know, “She`s dead?” My name is Ashley Howes. I`m 13 years old, and I`m being charged with second-degree murder. see here my babysitters a vampire

(END VIDEO CLIP) CBS ANNOUNCER: “Blaming the Babysitter:” Tonight`s 48 HOURS MYSTERY.

The mystery continues in 90 seconds.

(COMMERCIAL BREAK) (BEGIN VIDEOTAPE) FILINA NIEMEYER, AUNT OF FREYA GARDEN: As a society, we have readily endorsed the idea that teenagers baby-sit. It is almost a rite of passage for many.

My name is Filina Niemeyer, and Freya was my great-niece.

What other Freyas are out there, and who is watching them? And who is ultimately responsible for Freya`s death? Her baby-sitter is the obvious answer, yet, there is a question because the babysitter is only 13 years old.

MARY ROWE, MOTHER OF ASHLEY HOWES: She`s not your typical 13-year- old.

ASHLEY HOWES, FORMER BABYSITTER: You got a date?

ROWE: She really likes to interact with the younger kids.

HAROLD DOW, CBS CORRESPONDENT (voice-over): At 13, Ashley Howes may officially be a teenager. But she is truly a kid at heart.

A. HOWES: Go!

JOHN HOWES, FATHER OF ASHLEY HOWES: She just displays more of a younger character.

UNIDENTIFIED MALE: Are you OK?

A. HOWES: Still alive; still alive!

J. HOWES: And she is the last kid. They say that they do mature a little slower. I don`t know who “they” are but…

DOW: Ashley is the youngest of John Howes`s and Mary Rowe`s three daughters. They live in a small town near Seattle. If it were up to her dad, Ashley would stay young and innocent forever.

J. HOWES: I`m very protective of my girls, and I have a “no spend the night” policy. They only spend the night with family.

DOW: So it was very unusual when John Howes agreed to let Ashley spend the weekend in Seattle, acting as a mother`s helper for family acquaintance, Morningstar Garden.

J. HOWES: I never wanted her to go in the first place.

DOW (on camera): Why did you let her go?

J. HOWES: Because my wife thought that it would be good for her to get out of the house.

DOW (voice-over): Ashley would be babysitting for Morningstar`s two daughters — Madeline, five…

UNIDENTIFIED FEMALE: I want to be the one that has the red hat.

DOW: … and Freya, 19 months.

MORNINGSTAR GARDEN, MOTHER OF FREYA GARDEN: I just thought she was a nice girl. I knew that she did well in school. She`s smart. She was funny. She was friendly.

DOW: So on the Martin Luther King Jr. holiday weekend last January, Ashley came to Seattle to baby-sit while her father and stepmother attended a party with Morningstar and her boyfriend, Gracian Cline. The plan was for the kids to stay at a nearby motel while the parents were at the party.

Ashley`s 16-year-old stepsister, Seana (ph) would be in charge.

A. HOWES: I was going to be, like, watching them, but not, like, in charge of them. That way I wouldn`t have to make any decisions. I would just play with all the kids, because that`s what I do.

DOW (on camera): Yes.

(voice-over): But plans changed. Instead of checking into the motel that Friday night, Morningstar and Gracian took Ashley and the kids to this house that Gracian owned, but no longer lived in.

(on camera): What was the house like?

A. HOWES: It was kind of small. It didn`t have much food in it. And then there was no bed in that room that we had. There was just like a couple of blankets down and my sleeping bag and a little baby`s sleeping bag.

DOW (voice-over): Except for a television and a DVD player, there was very little for Ashley and the girls to do, which left Ashley in a bind, she says, since Morningstar and Gracian spent most of the day Saturday behind a closed bedroom door.

A. HOWES: They would, like, stay in that room all day. They, like, never, ever came out. Like, they didn`t have to go to the bathroom; they didn`t eat or anything. They just sit there, and when they went out, they just walked out.

DOW: Come Saturday night, the night of the party, Ashley`s parents were shocked to learn that their daughter was on her own across town with the two small children.

(on camera): If Ashley was meant to be Freya and Madeline`s primary babysitter, would you have let her go and baby-sit that weekend?

J. HOWES: I would have not.

DOW (voice-over): But when Morningstar assured Ashley`s parents that their daughter had everything under control…

A. HOWES: Hello.

DOW: … they felt slightly better.

J. HOWES: And she came up to me and told me, “Wow, you have such a beautiful daughter, and she has been so good with these kids.” DOW: The day after the party, Sunday, Ashley says she felt overwhelmed.

A. HOWES: They were there, and then I also felt that I was just doing this on my own. You need somebody checking up on you, making sure that everything`s OK, especially when they know the baby`s actual behaviors.

DOW (on camera): So what was Freya like?

A. HOWES: Well, she was kind of whiney, so I didn`t know, like, normal behavior for her. So I`m thinking, OK, this is normal, you know?

DOW (voice-over): That Sunday afternoon, Ashley and Madeline went to the movies, while Morningstar and Gracian were with Freya for two hours.

When Ashley got back, she gave Freya her bath .

A. HOWES: She was fussy, yes. I was just like, “Hey” — you know, very gently just, like, “Hey, look, it`s just a bath, you know. There`s nothing to be afraid of, just a splashy little bath” — because she was crying.

DOW: Morningstar felt Ashley was doing such a great job, she called Ashley`s parents and asked that she be allowed to stay a third night since it was a holiday weekend.

J. HOWES: You know, I go, “Shouldn`t she come home?” I go, “Isn`t a weekend long enough?” I just kind of gave in, I guess, again.

DOW: Right after that phone call, Morningstar and Gracian left Ashley alone again.

UNIDENTIFIED 911 DISPATCHER: Now what`s going on?

A. HOWES: Uh, well, she was sleeping.

UNIDENTIFIED 911 DISPATCHER: How old, how old is she?

A. HOWES: How old is your sister? She`s one?

OK, she`s one. And she woke up, and I came in, and she`s like, she was crying, and then she just totally stopped. And her head just slumped over. She`s not dead; she`s breathing.

DOW: Lieutenant Roger Sargeent (ph) was the first EMT on the scene.

UNIDENTIFIED EMT: At that point, we didn`t really know what had happened.

DOW: But within hours, police were starting to get a better idea.

A. HOWES: “You have no reason to be crying.” And she just kept screaming. So I said, “Freya, stop!” And I was shaking her, trying to get her to stop.

(COMMERCIAL BREAK) NIEMEYER: Freya`s story is one of unforeseen tragedy and sadness.

She was like a butterfly that was never completely let out of its cocoon.

Her beautiful wings were completely formed, but she was never allowed to fly.

A. HOWES: I`m in Seattle right now and, uh…

UNIDENTIFIED 911 DISPATCHER: Ma`am, ma`am, I need to know where you`re at.

NIEMEYER: I remember walking into the emergency room waiting area. I remember just going up to Morningstar and putting my arms around her, asking her if she had seen Freya yet. And she said, “No, that they were working on her.” DOW (voice-over): Filina Niemeyer is Freya Garden`s aunt.

NIEMEYER: I then remember seeing police officers walking around, and I knew that something really terrible had happened.

DOW: Morningstar Garden had last seen her 19-month-old asleep before she headed out to the grocery store around 6:00 p.m., Sunday.

GARDEN: She was plugged in to life support, and she just had a bunch of tubes and wires coming out of her, and she wasn`t good.

DOW: Freya had sustained major head injuries, including a blood clot, retinal hemorrhaging, and blunt force trauma — injuries doctors told police were consistent with being violently shaken.

CLARK KIMERER, DEPUTY CHIEF, SEATTLE POLICE DEPARTMENT: Ashley was our most important witness. She was the only one there at the time that Freya slumped over.

DOW: Deputy chief Clark Kimerer is second in command for the Seattle Police Department.

KIMERER: “What happened here? Why are we in the hospital with a 19- month-old who is clinging to life?” DOW (on camera): According to most doctors, the only other way for Freya to have sustained these kinds of injuries would have been from a high-speed car accident or a fall from a great height, two things she was not involved in that weekend.

So who had hurt Freya? Police now had a crime to solve and a short list of suspects to question: (voice-over): Morningstar Garden, the mother; Gracian Cline, the boyfriend; and Ashley Howes, the babysitter.

KIMERER: The detectives involved were looking at everybody.

DOW (on camera): What was your first impression of her — Ashley?

UNIDENTIFIED EMT: She`s a 13-year-old, that she was under control, and that she was afraid. I was impressed that she had a presence about her.

DOW (voice-over): On the other hand, EMT Roger Sargeent (ph) says, Morningstar`s reaction caught him by surprise.

UNIDENTIFIED EMT: She didn`t really have a reaction.

DOW (on camera): Did she ask you what happened?

UNIDENTIFIED EMT: No.

DOW: She never even asked what was wrong with her child?

UNIDENTIFIED EMT: No, she did not.

DOW (voice-over): Late Sunday night, police brought in all three for questioning. A Detective Stephens (ph) interviewed Ashley until the morning hours, before deciding to videotape her statements.

UNIDENTIFIED DETECTIVE: And are you aware of the fact that I`m recording you on videotape as we speak?

A. HOWES: Yes.

UNIDENTIFIED DETECTIVE: And that`s OK with you? I have your permission to do that?

A. HOWES: Yes.

DOW: Police provided Ashley with a doll to recount what happened in the hours leading up to Freya losing consciousness.

A. HOWES: And I was washing her hair and putting her back, and then she started kicking me and screaming. And I said, “Freya, stop screaming.

It is a bath.” UNIDENTIFIED DETECTIVE: After the bath, was she acting OK?

A. HOWES: After the bath?

UNIDENTIFIED DETECTIVE: Yes.

A. HOWES: She was just — it seemed like she was like, “laa (ph)” because she wouldn`t really walk. She just like…

UNIDENTIFIED DETECTIVE: OK.

DOW: The more Ashley talked…

A. HOWES: I got up…

DOW: … the worse it got.

A. HOWES: … and I said, “OK, what`s wrong? You have no reason to be crying.” And she just kept screaming. So I said, “Freya!” KIMERER: When Ashley stated that she may have shaken the baby, and then went into further detail, and then ultimately demonstrated it to Sharon Stephens (ph), that`s when the world changed.

DOW: While Ashley`s world was changing, her parents, John Howes and Mary Rowe were at home sleeping.

ROWE: Actually, we received a call that night, at 9:00, from Gracian, telling us that Freya was in the hospital. And I offered to go over to Seattle and pick up Madeline and Ashley so they could focus on Freya, and Gracian told me that he would call me right back.

DOW: But that call never came. Instead, the next time they heard from anyone wasn`t until 4:00 a.m. Monday morning, and it was the Seattle police detectives, to inform them of Ashley`s arrest for the assault of Freya Garden.

KIMERER: The proof did not point to Morningstar. The proof did not point to Gracian. The proof pointed to Ashley.

DOW: At that point, Ashley`s parents went to catch the ferry to Seattle.

J. HOWES: We had no information about anything. I mean, we had nothing. Nobody told us anything.

DOW: Meanwhile, Morningstar and Gracian went back to the hospital to be with Freya.

GARDEN: They`d been working on her for hours and hours. And it did finally come out that they were continuing to work on her to try to make me feel better, and I just told them to stop.

DOW: Nineteen-month-old Freya Garden was pronounced dead at 5:20 Monday morning, nearly 12 hours after the 911 call from Ashley, who was now a murder suspect.

NATHAN JANES, DETECTIVE: It was definitely shaken baby. She had two, um — she had pressure on the brain, and all that stuff from the shaking.

That`s definitely what killed her.

A. HOWES: She`s dead JANES: She`s dead. She died this morning, early this morning from the brain trauma, brain injuries. And I`m sorry to be the one to tell you this and, uh, but she did die from the brain injuries.

A. HOWES: She`s dead.

JAMES: She`s dead. Freya`s dead. Sorry.

DOW (on camera): What did you think when you heard that she died?

A. HOWES: I then, I just felt like I was stabbed to death. I just held my breath, and I was like — I was — I didn`t know what I was thinking. I started crying. I just couldn`t speak. I just felt — went down, like, something really heavy just dropped on me, like. And just having to hear that, that somebody died in your care is just terrible.

It`s like, somebody`s trying to hit you with a hammer and they`re hitting you, and you`re getting the wind knocked out of you while being stabbed, repeatedly, in the heart. You just…

DOW (voice-over): Dr. Brian Johnston is the chief of pediatrics at Harborview Medical Center.

DR. BRIAN JOHNSTON, CHIEF OF PEDIATRICS, HARBORVIEW MEDICAL CENTER: I think this was an inflicted injury. In severe or fatal shaken baby cases the symptoms would be apparent immediately after the shaking. They have difficulty breathing, they lose consciousness.

DOW: He did not treat Freya that night but has studied shaken baby cases.

DOW (on camera): Would a 100-pound child be able to create enough force to kill a 26-pound baby?

JOHNSTON: A 100-pound child is the size of many average-sized, grown women, and, unfortunately, we know that people that size are capable of inflicting these injuries on children.

A. HOWES: “Stop!” DOW (voice-over): But Ashley insists she never hurt Freya, although the toddler did take a few falls that weekend while in her care.

A. HOWES: I know that I had nothing to do with killing her at all.

Not even did I accidentally do anything. I didn`t purposely do anything.

I wasn`t shaking her. I wasn`t shaking her hard at all. I was just trying to get her calm down to let her have a good weekend along with me, too.

DOW: At the end of that horrible weekend last January, two things were certain: Freya`s short life was over; and 13-year-old Ashley`s would never be the same.

(COMMERCIAL BREAK) (BEGIN VIDEO CLIP) CBS ANNOUNCER: Next Saturday, can you solve the mystery?

UNIDENTIFIED MALE: You don`t meet many people in your life like my daughter.

CBS ANNOUNCER: It wasn`t your typical college romance. Carmin Ross was a student who fell in love with her professor, Tom Murray.

UNIDENTIFIED MALE: She came home and immediately said, “I met this person. He`s so wonderful. We have so much in common.” UNIDENTIFIED MALE: A very gentle guy.

UNIDENTIFIED MALE: He was a great teacher.

UNIDENTIFIED MALE: He had a very sharp mind.

CBS ANNOUNCER: It should have lasted a lifetime, but it didn`t.

UNIDENTIFIED MALE: She tried to make it work.

CBS ANNOUNCER: Eighteen years of marriage, an affair, divorce, then murder.

UNIDENTIFIED MALE: We never found any bloody clothing. We never found a murder weapon.

CBS ANNOUNCER: But there was a tantalizing clue.

UNIDENTIFIED MALE: The search term was, “How to murder someone and not get caught.” CBS ANNOUNCER: Was it a script for CSI or his plan for murder?

UNIDENTIFIED MALE: This crime will be solved, or I`ll spend ever damn penny I`ve got.

CBS ANNOUNCER: Next Saturday.

(END VIDEO CLIP) (COMMERCIAL BREAK) NIEMEYER: Freya was not meant to be taken. It was not her destiny to leave this world at such a young age and in such a violent way — her life taken by her babysitter, in an act of complete and uncontrollable rage.

DOW (voice-over): It is easy to mistake 13-year-old Ashley Howes for a typical teenager in the outskirts of Seattle, Washington.

A. HOWES: This is my room!

DOW (on camera): OK, this is your room, Ashley. You have got a lot of stuff in here.

(voice-over): But what many of her neighbors don`t know is this energetic teen…

A. HOWES: Don`t mix them up!

DOW: … is under house arrest for murder.

(on camera): So you get home by 2:35. And now you wear an ankle bracelet.

A. HOWES: Yes.

DOW: Show it to us.

A. HOWES: And, actually, it`s giving me a rash, and it`s getting too small.

DOW (voice-over): If she isn`t at school, she`s at home.

(on camera): Now, exactly how far can you go with that monitor on your ankle?

A. HOWES: To here.

DOW: That`s as far as you can go?

A. HOWES: Yes.

DOW (voice-over): Ashley is being monitored 24 hours a day.

(on camera): In other words, you can`t go on the grass?

A. HOWES: Nope.

DOW (voice-over): Part of the agreement hammered out to allow her to remain free….

(on camera): So that means you can`t join them?

A. HOWES: No.

DOW (voice-over): … while awaiting trial in the death of 19-month- old Freya Garden.

(on camera): That`s as close as you get?

A. HOWES: Yes.

DOW: They think you`re guilty, and that`s why they want you to put this on?

A. HOWES: Yes.

DOW: Guilty of what?

A. HOWES: I don`t know — of doing something to hurt a kid, a baby that died. And I didn`t have any part in hurting her at all.

DOW (voice-over): But King County prosecutors say, 13-year-old Ashley Howes is a killer.

KATHY VAN OLST, ASSISTANT CHIEF DEPUTY PROSECUTOR, KING COUNTY: This is a child homicide case, a case in which we have filed charges of murder in the second-degree.

DOW: Assistant Chief Deputy Prosecutor Kathy Van Olst.

VAN OLST: This is Kathy.

We have probable cause to believe she, in fact, did kill Freya.

DOW: According to the state, the evidence they need for a conviction comes directly from Ashley.

A. HOWES: “You have no reason to be crying.” VAN OLST: Those statements are important to us, not only because it tells us what Ashley and when she did it, but it also provides critical information that the medical examiner was going to rely on with regard to the timing of the death.

A. HOWES: It wasn`t really hard, and Madeline was with me right there…

BRYAN HERSHMAN, DEFENSE ATTORNEY: This is astounding to me that they charged her. There is no evidence.

DOW: Defense attorney, Bryan Hershman, says, detectives coerced Ashley`s statements when they questioned her without a parent or lawyer present.

JANES: Everybody loses their temper, every now and then.

HERSHMAN: When you have four professionals, each of whom have more experience than her years on earth, who`s going to win that battle?

DOW (on camera): So before her trial begins, Ashley`s attorney is asking a judge to throw out all of the statements she gave to police. But it won`t be easy. In Washington state, law enforcement can legally question anyone 13 years of age without a parent or an attorney present.

And police claim, Ashley knowingly and willingly waived her rights.

A. HOWES: It`s sad to be called things that you`re not. I`ve been called a “baby killer.” I`ve been called a “baby strangler.” I`ve been called a “bad babysitter.” DOW (voice-over): If Ashley is found guilty, she could go to prison until she`s 21, a thought that is on everyone`s mind as they head to court.

HERSHMAN: I`ve never had a murder case where I went into it feeling like I`ve got them where I want them, and this case is no exception. The courtroom`s not a friendly environment.

VAN OLST: The state is ready to proceed. We`re ready to go to trial.

UNIDENTIFIED MALE: All rise.

DOW: Eight months after Freya Garden`s death, Judge Mary Roberts is presiding over a pretrial hearing.

MARY ROBERTS, SUPERIOR COURT JUDGE, KING COUNTY: Good morning.

Please be seated.

DOW: The prosecutors need to prove the detectives who questioned Ashley…

JANES: We deal with bad people all the time. And you are not. here my babysitters a vampire

DOW: … did nothing wrong and followed the letter of the law.

ROBERTS: Raise your right hand, please.

DOW: Detective Carl Chilo interviewed Ashley that Sunday night while Freya was at the hospital.

CARL CHILO, POLICE OFFICER, SEATTLE: She said she had shaken her when she cried for no reason, and she had shaken her a second time when she cried, splashing water in the bathtub.

DOW (on camera): Suspicions grew when Ashley was given a pen and paper, and she wrote this letter. It said, in part, “She does not deserve this. I do. I should have been more gentle with Freya. She did nothing for this, all because of me. I am going to just totally hate myself for this.” (voice-over): After several hours of questioning, detectives were convinced Ashley had killed Freya. It was approximately 3:00 a.m. Monday morning when they rolled the videotape.

A. HOWES: I didn`t realize that shaking her like this could have done anything.

VAN OLST: I think that what they realized from the videotaped statement was that Ashley was, in fact, implicating herself as a suspect in this case.

DOW: It was only then that detectives read Ashley her Miranda Rights.

A. HOWES: And she just went…

DOW: She was arrested and sent to the juvenile detention center.

Early that Monday morning, her father, John, was allowed to see her.

(on camera): And when you saw her there, what did you think?

J. HOWES: I went into tears.

DOW (voice-over): Howes had no idea what his daughter had told police, but he gave her strict instructions not to say anything more.

J. HOWES: She was sitting on my lap, and I told her, “Definitely, do not talk to anybody until I get a lawyer.” DOW: But after John Howes left, Ashley was brought back to the police station, where she was interviewed by homicide detectives Nathan Janes and Paul Takomoto (ph).

UNIDENTIFIED PROSECUTOR: Did she ever tell you that she did not want to talk to you?

UNIDENTIFIED DETECTIVE: No.

UNIDENTIFIED PROSECUTOR: Did she ever ask for a lawyer?

UNIDENTIFIED DETECTIVE: No.

UNIDENTIFIED PROSECUTOR: Did she ever ask for a parent?

UNIDENTIFIED DETECTIVE: No.

DOW: Detective Janes even had Ashley read over her rights before he began questioning her.

UNIDENTIFIED PROSECUTOR: Why is that?

JANES: Because I wanted it make sure that she did understand that she did not have to talk to us and what these rights actually mean.

UNIDENTIFIED PROSECUTOR: Did the respondent indicate in any way to you that she understood her rights?

JANES: Yes.

DOW: But under cross-examination, he had a different story.

HERSHMAN: Was she able to explain the rights to you?

JAMES: No, not right at that moment, no.

HERSHMAN: Detective Janes says, “Do you understand those rights? Can you explain them to me?” And she just sat there with this blank look on her face.

You said to Ashley: JANES: OK. Do you still want to talk to us then? It`s up to you.

HERSHMAN: Her response was: A. HOWES: My dad said I`m not supposed to talk to anybody unless him or a lawyer is present.

DOW: Hershman says, Ashley was invoking her right to remain silent, but the detectives kept on pushing her.

HERSHMAN: And then you say, “OK, it`s not like we`re trying to railroad you or anything like that.” She says, “I`m supposed to wait.” A. HOWES: I`m supposed to wait.

HERSHMAN: Do you recall that?

JANES: Yes, that`s correct.

DOW: They did wait, for about an hour. And it was during that break that John Howes got a hold of Detective Janes on the phone.

J. HOWES: He said, “Well, we`re doing more questioning. Is that all right?” I said, “Well, no it`s not all right.” And he said, “Well, John, to tell you the truth, we`re really looking at the parents.” JANES: Hey, I`m sorry this took so long. I was just talking to your dad.

DOW: So John agreed to let his daughter talk.

J. HOWES: “As long as you don`t ask her any questions that have, you know, to do with her.” DOW: But detectives talked about a lot more than Morningstar and Gracian.

UNIDENTIFIED DETECTIVE: How many times did you shake Freya?

Twice. OK.

DOW: And after being detained for more than 19 hours, they say there were no more questions about who killed Freya.

(COMMERCIAL BREAK) HERSHMAN: This is the most emotional case I`ve had in memory. I have not slept well. I find myself trying to deal with my family. I`m pacing.

My mind is a thousand miles off. This is horrible.

DOW (voice-over): In his 20 years as a defense attorney, Bryan Hershman says he`s never defended anyone like 13-year-old Ashley Howes.

HERSHMAN: I`m going to hold the state to its burden because my client hasn`t confessed to anything. My client`s innocent.

DOW: He believes, detectives manipulated Ashley into saying she shook Freya.

(on camera): Ashley, for the record, did you ever shake Freya?

A. HOWES: No.

And I said, “OK, what`s wrong?” DOW (voice-over): Ashley says her demonstration in the police video does not show shaking, but rather: A. HOWES: It was a vibrating, wiggling, rocking, and a comforting mode situation.

DOW: As the pretrial hearing continues, Hershman points out that detectives are the ones who suggested the word “shake.” HERSHMAN: Detective, would you agree or disagree with the proposition that until you told Ashley that the doctors said, “This child has been shaken,” she never brought up the topic of shaking?

CHILO: That`s right.

HERSHMAN: Ashley repeatedly said she wiggled the child. The testimony from the detectives was, she didn`t use the word “shake,” they did.

DOW: And that`s what, Hershman says, Ashley wrote in that letter during her interrogation.

A. HOWES: “Saturday, I grabbed her and, well, not necessarily shook her, but wiggled her for about three, four, maybe five seconds at the most.” DOW: The defense says, almost 19 hours after she was brought in for questioning, the detectives went after Ashley during her weakest moment, insisting she had killed Freya.

A. HOWES: She`s dead?

JANES: She`s dead. Sorry to tell you this way. I actually forgot that you didn`t know it, for a second.

The only thing that can cause these injuries is the shaking. That`s it. You just lose your temper for a second or something…

A. HOWES: I didn`t lose my temper. I know that.

JANES: OK, well I know you shook her because everything you`ve told me, there`s no one else could have. That`s the problem.

A. HOWES: If you keep being told something over and over and over and told the details of what they want you to say, then you start thinking of it. I know I didn`t do anything. But being pressured is also difficult to deal with. So it`s kind of hard, you know, when there`s — when a professional is telling you did something.

HERSHMAN: My client, who had been up a day and a half being interrogated, finally buckled.

DOW: Hershman says that in the detectives` rush to judgment, they failed to pursue the other suspects.

(on camera): Do I think Gracian and Morningstar were investigated thoroughly in this case?

HERSHMAN: No, no, absolutely not. They were nervous and — what was the other word? Evasive. Nervous and evasive were the words used by one of the officers.

DOW (voice-over): After their initial statements, it took investigators eight days to bring Morningstar and Gracian back in for questioning.

JANES: First of all, Morningstar would not get on the phone with me at all. Gracian kept putting off having interviews done with them.

HERSHMAN: Would it have been beneficial to this investigation to get to Gracian and Morningstar before a week had passed?

JANES: Yes.

DOW: There were obvious signs of suspicious activities. Cocaine and marijuana were found in Gracian and Morningstar`s bedroom.

HERSHMAN: When they said to you that the drugs weren`t theirs, did they look like they were telling the truth, best you can tell?

JANES: Well, I think they were lying to me, but I couldn`t prove it.

DOW: There was also a receipt that shows the couple was buying beer, malt liquor, and baking soda that weekend.

HERSHMAN: Would you please tell her Honor why baking soda can be significant to a scene where cocaine is found?

JANES: Cocaine is normally cut with baking soda.

DOW: But no drug charges were after filed.

(on camera): Were you and Gracian using crack cocaine that weekend?

GARDEN: Not they know of. I can only speak – I can only really speak for myself. I can`t say I know that he wasn`t on drugs.

HERSHMAN: They made their choice. There were three people they could have pointed a finger at, and they chose my client.

DOW: Bryan Hershman says he was prepared to present some critical information he uncovered during his own investigation.

HERSHMAN: There was a lot of reason to look at Morningstar.

Morningstar had a child die about 10 or 11 years ago under suspicious circumstances.

DOW (on camera): Can you tell us what happened?

GARDEN: He died of crib death. When the autopsy happened, I thought maybe they would come up with some kind of concrete facts, that there was a genetic deficiency or something like that, but nothing.

DOW (voice-over): Hershman also found, child protective services had investigated Morningstar on numerous occasions.

(on camera): Can you address for us the CPS record?

GARDEN: It was just harassment. I mean, the number of times that they`ve gotten these crank calls, it`s like, they`ve come over my house a bazillion times, and all they ever see is great stuff.

DOW: Morningstar says, those calls to CPS began during a custody battle with Madeline`s father.

GARDEN: Everywhere that I go, I always get compliments on my parenting. I mean, I`m almost patient to a flaw.

DOW: And then there is Morningstar`s boyfriend, Gracian Cline, who declined to talk to 48 HOURS. His criminal history includes convictions for drug possession and harassment.

GARDEN: It didn`t affect my comfort level of him interacting with my kids, because he`s just a really kind, loving person.

DOW (on camera): I have to ask you, did you have anything to do with Freya`s death?

GARDEN: No.

DOW: Did Gracian have anything to do with Freya`s death?

GARDEN: No.

DOW (voice-over): After eight days of pretrial testimony…

ROBERTS: Good morning. Please, be seated.

DOW: … the judge is ready to make her decision. And she has some harsh words for the detectives: ROBERTS: Virtually, all of the questioning was aimed at Miss Howes`s conduct, not at the conduct of the other suspects. Detective Stephens`s (ph) questioning can only fairly be characterized as an interrogation.

Detective Chilo`s nervous and defensive demeanor was such that this court found his testimony almost completely without credibility. Miss Howes was unable to explain her rights back to Detective Janes when he asked her to do so. And when asked whether she wanted to go ahead, regardless, she said – quote — “I`m supposed to wait” – unquote.

These statements from a 13-year-old in the circumstances of this case are a clear invocation of her right to remain silent and her right to counsel. The videotaped statement is not admissible.

DOW: None of Ashley`s videotaped statements can be used at her trial.

Freya`s family is devastated.

NIEMEYER: The truth is being suppressed. The fact that someone is going to be possibly found not guilty, not because they`re not guilty but because of a technicality, is pretty upsetting.

DOW: But the trial is still going forward, and Ashley faces the possibility of spending the next eight years of her life behind bars.

(COMMERCIAL BREAK) UNIDENTIFIED REPORTER: Judge Roberts ruled yesterday, half the statements the teenager had given Seattle police were not admissible in court.

DOW (voice-over): Day one of the trial: After getting those police videos thrown out, attorney Bryan Hershman`s job now is to keep Ashley out of prison.

A. HOWES: I`m not going to take the rap for something I didn`t do.

And the person that did it, should go down for it, and not me.

UNIDENTIFIED MALE: All rise.

ROBERTS: Good morning. Please, be seated. Go ahead when you`re ready, Ms. Herrman.

DOW: In her opening statements, prosecutor Christine Herrman says, Ashley shook Freya to death.

CHRISTINE HERRMAN, DEPUTY PROSECUTOR, KING COUNTY: Freya Garden died due to the respondent`s assaultive (ph) behavior of her. That`s why we`re here.

DOW: The defense says, there are other explanations.

HERSHMAN: What the court is going to find at its conclusion is that the state has nowhere near the evidence sufficient to establish proof beyond a reasonable doubt…

DOW: But before calling their first witness, the prosecution calls for an unexpected recess.

UNIDENTIFIED PROSECUTOR: I am asking the court at this time for a recess for the rest of the day.

HERSHMAN: Right now, the prosecutors are upstairs making some very difficult decisions.

DOW: The next day, a stunning announcement: HERRMAN: We are unable to proceed. I will be asking the court to dismiss.

A. HOWES: I didn`t do that.

DOW: Without those videos, prosecutors say they no longer had a timeline to prove that Freya was fatally injured in Ashley`s care. The timeline was so critical because, most experts say, babies that are shaken show symptoms almost immediately.

VAN OLST: It was critical evidence in that the statements that Ashley made about when things happened and what she did and what the baby`s reactions were, were findings that the medical examiner could then use to state an opinion as to what — when the baby was injured and when was the baby was fine.

ROBERTS: Well, I will grant the motion to dismiss.

DOW: The case is dismissed.

NIEMEYER: This is the little girl that everyone should be talking about. And the police department and the judges need to realize that sometimes people that play a role in murders don`t look like monsters.

Sometimes they`re teenagers, and they have blue eyes and blond hair, and they seem innocent.

GARDEN: We have two videotaped confessions.

NIEMEYER: And they threw everything out GARDEN: And she threw them out.

HERSHMAN: I don`t want this little girl to live the rest of her life with people saying she got off on a technicality. She didn`t. She`s innocent.

J. HOWES: I`m just happy that we can go on and just move through the next stage of what life has to bring.

DOW: That next stage begins with the removal of Ashley`s monitoring bracelet.

A. HOWES: I`m going to live. Go out, and I get to go places with my parents, so I don`t have to stay in my house and do nothing. Yes!

UNIDENTIFIED MALE: All right.

DOW (on camera): So you`re done, you`re free.

A. HOWES: Yes, I am — let`s go!

DOW (voice-over): So what really happened to Freya?

(on camera): If Ashley didn`t kill Freya, who did?

HERSHMAN: I can`t say what, and I won`t say that. I can only tell you, if this was an intentional act, there were only one of three people who could have done it: Ashley, mom, and mom`s boyfriend.

DOW (voice-over): Police and prosecutors say they thoroughly investigated Morningstar and Gracian and are adamant the couple is innocent.

KIMERER: When Ashley laid out the circumstances of what occurred that night, it pretty much definitively excluded the possibility that either Morningstar or Gracian were the cause of the trauma that led to the death of Freya.

DOW (on camera): Is that to say that the Seattle Police Department believes to this day that Ashley Howes is responsible for the death of Freya Garden?

KIMERER: We have no information, no basis to believe anything different at this time.

UNIDENTIFIED FEMALE: Happy birthday, dear Ashley…

UNIDENTIFIED FEMALE: Happy birthday, dear Ashley…

UNIDENTIFIED FEMALE: Happy birthday, dear Ashley…

DOW (voice-over): A year has passed since Freya`s death, but she`s never far from the now-14-year-old`s thoughts.

A. HOWES: I talk to her. I have had dreams. I ask her to try to show me in any way what happened to her. I tell her I miss her.

DOW: And now, all sides are left to struggle with the reality that no one is being held responsible for Freya`s death.

NIEMEYER: Every parent that hires a baby-sitter needs to make sure, is the babysitter responsible? The parents of the babysitter also need to be responsible. We need to protect each other. I wish that had happened for Freya.

NIEMEYER: I often think about the things that Freya will miss, the joys in life that will escape her. The world will never know how many lives she would have touched.

(END VIDEOTAPE) END