JACKSON • An Itawamba County man convicted of second degree murder will get a new day in court, thanks to a decision handed down Tuesday by the Mississippi Court of Appeals.
In 2016, the state accused Joshua Clark in the “Shaken Baby Syndrome” death of his child. He was convicted of second degree murder and sentenced to 40 years in prison. The 7-3 split decision released Oct. 29 reversed the conviction and remanded the case back to circuit court for a new trial.
“This is a great day for us,” said Clark’s attorney Jim Waide, “but Josh is not free yet. (The state) still has 14 days to ask the court for a rehearing. Or they could ask the (state) supreme court to hear it.
“It’s not common, but the supreme court could take up a court of appeals case. That could cause a significant delay.”
Since Clark was only convicted of second degree murder and has already spent about 12 years in custody, he should be eligible for bail, Waide said.
Clark is accused of killing his 4-month-old daughter, Kylie, in January 2008. During his second trial in late 2016, the state’s medical expert, Dr. Karen Lakin, testified that in her opinion, the child had been violently shaken, causing a fatal brain injury.
During his appeal in late 2018, Waide argued that new medical science has disproved Shaken Baby Syndrome, the arguments prosecutors used to convict him of second degree murder in late 2016.
In oral arguments before the court of appeals, Waide cited a study by the Swedish government that concluded there is insufficient scientific evidence on which to base a diagnosis of Shaken Baby Syndrome. He also pointed out that Lakin offered no medical studies or reports to base her opinion that the child’s injuries occurred during the two-hour period the child was left alone with the father.
“It has now been showed as junk science,” Waide said.
Thursday’s ruling said Lakin did not provide supporting materials for her findings and her testimony should not have been allowed. It will now be up to a new circuit court judge to decide how much, if any, of Lakin’s testimony can be admitted in a new trail.
Waide noted that there are several shaken baby cases across the region that will be watching the Clark case closely – especially ones where Lakin was an expert witness.
Clark was left alone for several hours with four small children on Jan. 5, 2008, including Kylie and her twin brother. When the mother and two friends returned, Kylie was limp and lifeless in a recliner.
The child was initially taken to Gilmore Hospital in Amory before being transferred to Le Bonheur Children’s Hospital in Memphis. Doctors there found injuries to the brain, eyes, as well as a fractured collar bone and rib fractures that had already started to heal. Those injuries led prosecutors to believe it was Shaken Baby Syndrome.
Clark was originally charged with capital murder. During his first trial in 2010, he accepted a plea agreement, pleaded guilty to depraved heart murder and was sentenced to life in prison. On direct appeal, that plea was vacated by Senior Circuit Court Judge Thomas Gardner on the grounds of ineffective counsel. Gardner also presided over the second trial.
During that five-day trial in September 2016, the Itawamba County jury found Clark guilty of the lesser charge of second degree murder. Gardner then sentenced him to the maximum 40 years allowed by law.