A tough case: Defending child-neglect suspects

Indefensible.

That's the most common reaction to the starvation death of 14-year-old Danieal Kelly.

But under the law, the nine people accused of playing some part in Kelly's gruesome, tortuous death two years ago - her parents, four social workers, and three of her mother's friends - are innocent until proven guilty.

Devising their defense is the challenge facing nine Philadelphia lawyers in a case that drew an unprecedented amount of public outrage and news media attention - before anyone was charged.

It's a challenge even veteran defense lawyers don't envy: How does a 14-year-old with cerebral palsy starve to death in a two-bedroom apartment occupied by her mother and eight siblings?

"I don't care how poor you are, everybody understands the consequences of not eating," said L. George Parry, a noted Center City defense litigator, summing up the defense task.

Parry - who is not involved in the Kelly case - was quick to add that without a detailed knowledge of all the facts in the case, and possible expert testimony that might aid the defendants, it is difficult to say how well potential defenses would play out.

"It depends on which defendant you represent," said Parry, a former assistant district attorney.

The lawyer with the most difficult job is Richard Quinton Hark, who represents Andrea Kelly, Danieal's mother.

Hark said it was too soon for him to discuss defense strategy when he had not even seen the evidence presented to the grand jury. Indeed, most of the defense attorneys were appointed just last week for a trial that has yet to be scheduled.

"Everyone has seen the [grand jury's] report," Hark said. "What we haven't seen is the underlying evidence."

Perhaps the defense lawyers' biggest challenge, if and when the case goes to trial, will be picking a jury.

Hark said the publicity and news coverage about Danieal Kelly's death and the subsequent criminal charges were overwhelming.

"There's no defense to how the outraged comments of [District Attorney] Lynne Abraham and Mayor Nutter are tainting the jury pool," Hark added.

Hark said he was angry at the murder charge against Andrea Kelly, a poor woman with limited education and no job prospects, pregnant and living with eight children in a two-bedroom apartment without electricity or running water.

"Clearly, Danieal would not be able to be exposed to this had they done their job," Hark said, referring to the social workers charged.

"That the mother is charged with murdering her kid is absolutely ridiculous," Hark continued. "This [grand-jury] report says that everybody else abandoned her and lied about it to cover it up and now we're going to charge her with murder."

The July 31 presentment by a Philadelphia investigating grand jury basically charges three types of defendants.

There are the parents, Andrea and Daniel Kelly. Andrea Kelly, 39, is charged with murder, endangering the welfare of children, and involuntary manslaughter in her daughter's death. Her 37-year-old estranged husband is charged with endangering the welfare of children for abandoning Danieal Kelly to her mother's care though he knew the child was being neglected.

There are the social workers for the city Department of Human Services - Dana Poindexter, 51, and Laura Sommerer, 33 - who the grand jury accused of failing to ensure Danieal Kelly and her family were visited regularly by social workers and received needed help. Both are charged with endangering the welfare of children and reckless endangerment; Poindexter is also charged with perjury involving his grand-jury testimony.

Also charged were two employees of a private company, MultiEthnic Behavioral Health - cofounder Mickal Kamuvaka, 59, and caseworker Julius Juma Murray, 51 - assigned to provide direct care to Kelly and her family. Both are charged with involuntary manslaughter in the girl's death and with falsifying records to make it appear she received regular visits and care.

Finally, there are three friends of Andrea Kelly's - Andrea Miles, 18, Marie Moses, 34, and Diamond Brantley, 22 - who were allegedly at the Kelly house almost daily in the months before Danieal died. All three are charged with perjury for lying to the grand jury to try to protect Andrea Kelly.

If the facts of Danieal Kelly's death are unusual, they are not unprecedented.

In October 2003 a Collingswood resident discovered a 19-year-old boy - weighing 45 pounds and standing just 4 feet tall - rooting through a garbage can.

The discovery of Bruce Jackson led to three equally malnourished brothers and the arrest of their adoptive parents, Raymond and Vanessa Jackson. The Jacksons' two adopted girls, a foster daughter, and two adult biological children were well-nourished in a case then-Camden County Prosecutor Vincent Sarubbi called one of the worst child-abuse cases he had ever seen.

Raymond Jackson died of a stroke at age 51 a year after he and his wife were charged. In November 2005 Vanessa Jackson pleaded guilty to endangering the welfare of a child by denying proper nutrition and medical care. Jackson, now 53, is serving a seven-year term in a New Jersey prison.

Sarubbi, now in private practice in Haddonfield, said Jackson's defense attorney initially made a "causation" defense: The boys' weight loss was caused by an underlying medical condition.

Although the four boys did have preexisting medical conditions, Sarubbi said, they also started gaining weight as soon as they were removed from the Jackson house and were regularly fed.

"That defense was also disingenuous," Sarubbi said, "because they were also denied access to medical care. If you believe your child had a medical condition, the solution is to take them to a physician."

The causation defense might be more difficult in the Kelly case. The grand-jury report already includes testimony from an expert in cerebral palsy that that condition would not have caused Danieal to lose weight and starve to death.

Parry, however, said it might be possible for some of the DHS or MultiEthnic defendants to argue that they were unfamiliar with the effects of cerebral palsy and assumed the girl's appearance was connected with the condition.

Richard Josselson, the Cherry Hill lawyer who represented Raymond Jackson, said he believed it might be possible to defend Andrea Kelly as a poor, uneducated, overwhelmed mother.

"She's stuck with all these children, and she realizes she has a problem," Josselson said. "Who is she supposed to go to? To DHS."

Josselson said the defense's big problem was picking a jury that "could appreciate the grinding impact of overwhelming poverty. But that's the job of a good defense lawyer."

Parry said such arguments could also be used, if not to acquit, at least to convince a jury not to convict Andrea Kelly of first-degree murder - which carries a penalty of death or mandatory life in prison - but third-degree murder or involuntary manslaughter.

Prosecutors, of course, will argue the facts presented to the grand jury: that Andrea Kelly did not let her other children starve to death and that two of Danieal Kelly's siblings testified she refused to contact police, DHS or emergency medical care - even when the 14-year-old was dying.

As for the social workers, the grand-jury presentment alleges that they rarely if ever saw Danieal Kelly despite the regular home visits they were supposed to make.

Each of these scenarios assumes the case will actually go before a jury.

"If it were me, I'd be working hard for the best deal possible," said Parry.

But whether at trial or a guilty-plea hearing, the nine defendants' futures are now in the hands of nine people who until this month were likely strangers.

"You've got to come out swinging for your client no matter how unpopular the case is," added Parry. "You've got a firm obligation to your client because, frankly, often the only person standing up in public for them is their lawyer."