Justices consider taking case involving death of baby

The Indiana Supreme Court heard argument Thursday morning in a case involving the death of a baby, hearing testimony as to whether the baby’s father claimed the child died accidentally.

The case, Jeffrey Fairbanks v. State of Indiana, 49A02-1707-CR-1675, was heard by the justices on petition to grant transfer. Jeffrey Fairbanks was charged with murder and Level 1 felony neglect of a dependent resulting in the death of his infant daughter after he allegedly placed a pillow over her face to stop her from crying. Fairbanks told police he and the baby fell asleep, but when he awoke, she was dead.

Fairbanks argued evidence that he had twice previously placed a pillow on his daughter’s face to silence her was inadmissible under Indiana Evidence Rule 404(b) because he never affirmatively claimed his daughter’s death was an accident. While the Court of Appeals found that “defendants must affirmatively claim mistake or accident" before the state can admit evidence pursuant to Rule 404(b) that the act was not an accident, the court also denied Fairbanks’ motion in limine to prohibit the introduction of the evidence, finding Fairbanks had sufficiently claimed accident through statements to police and media.

“However, the State readily acknowledged that Jeffrey Fairbanks never claimed this was an accidental death,” attorneys Robert Saint and John Siskopoulos argued in Fairbanks’ petition to transfer. “…As a result, the defense and the prosecution both agreed that Mr. Fairbanks never raised the defense of accident.”

Siskopoulos maintained before the justices Thursday that the high court should grant transfer to the case to clarify the “confusing precedent” set by the COA and reverse the appellate court’s introduction of 404(b) evidence.

“I think the case law here is not clear,” he said. “I believe that you have to clarify when this comes in, how it should come in, and ultimately, I think that you should reverse the case because I believe that a person has to affirmatively state it in their case.”

Justice Mark Massa then asked opposing counsel Laura Anderson how Fairbanks’ prior instances of putting a pillow on the child's face could hurt the accident defense.

“It seems like it's almost propensity evidence to show that he's done this before, and, therefore, he knowingly murdered the child,” Massa said. 

Anderson responded that because there was no physical body available for an autopsy of the cause of death, the state had to put on evidence to rebut that the child died of something other than some sort of criminal agency.

“And the evidence showed we did have an ear witness from one of the child witnesses that said she'd heard the muffled crying,” she said. “Muffled crying could be due to the position of the baby in the bed, something like that that would also be accident or could lead to SIDs with the accidental suffocation, but instead, the pillow evidence was used to show, no, this wasn't that sort of accident. It was the defendant knowingly placing a pillow on the child's face and leaving it there for hours.”

State’s counsel further stated it could live with the COA’s opinion because it believes Fairbanks is going to be “the rare case where a defendant doesn't explicitly raise accident as a defense if that's going to be the issue in the case.”

“The state's position is that a defendant does not have to affirmatively or explicitly raise accident/mistake in order for the state to introduce that evidence as long as it is genuinely at issue in the case, which is the requirement under 404(b),” Anderson said.

The state concluded by requesting that the high court deny transfer, but if accepted, requested that it decide that accident does not have to be affirmatively raised or open the door before that evidence can come in.

Siskopolus countered the state’s argument, requesting the opposite.

“Not everybody's going to react in the same way with a traumatic sudden death of a child. He is a loving father who, unfortunately, on that day, he completely flipped out, but that doesn't mean he's guilty of a crime,” Siskopoulos said. “Their case here on harmless error is tenuous.”