Matthew Burry and his late son, Dominic.
Matthew Burry and his late son, Dominic.
Fox31 file photo

Why a Jury Acquitted a Sex Offender of Killing His Baby

In July 2015, Matthew Burry, a sex offender who spent more than a decade in prison, was arrested and charged with child abuse resulting in death after the passing of his four-and-a-half-month-old son, Dominic. But an Adams County jury has now found Burry not guilty of the crime after his legal team presented evidence that the child actually died as a result of meningitis that had afflicted him since birth.

Matthew's wife, Brittany Burry, backed him throughout the process, earning unwanted media attention as a result. "When the story came out, it was portrayed as sort of this crazy mom who was standing by her man," says David Jones, whose law firm, Decker & Jones, represents Burry. "But the truth was always on our side."

Over the years, we've shared several stories about alternative explanations for infant deaths that were presented at trial, often with stunning results. In March 2014, for example, a death-penalty bid against Edward Montour for killing guard Eric Autobee in prison was dropped in favor of life without the possibility of parole after the El Paso County Coroner's Office changed the official finding in the 1997 death of Montour's twelve-week-old daughter from "homicide" to "undetermined." Why? The child apparently suffered from a rickets-like ailment that made her injuries seem like abuse when she may simply have been accidentally dropped, as Montour had long claimed — and had he never been imprisoned for her death, he wouldn't have had the opportunity to kill Autobee.

That December, Justin Hale was acquitted in the death of thirteen-month-old Brookelynn Palmer, the daughter of his girlfriend, after the revelation that a pre-existing injury missed by several medical pros may have contributed to the child's death. And this month, a new trial was ordered in the case of Krystal Voss, who was convicted for the death of her nineteen-month-old in 2004. Our Alan Prendergast pointed out that "the reversal is another setback for advocates of 'shaken baby syndrome,' a diagnosis that's been used in court to prosecute hundreds of caregivers for abuse over the past three decades but has been attacked by skeptics as junk science."

Matthew and Brittany Burry.
Matthew and Brittany Burry.
Fox31

As for Burry, Jones says his story was consistent from the beginning: "He said he went to check on the baby, but the child was unresponsive. He tried to give him CPR, and when that didn't help, he panicked and slapped him in the face, trying to revive him — but he didn't wake up."

The slap was the key to law enforcement's focus on Burry, Jones acknowledges. "It left a handprint on the child's face, and when they see things like that, and things like retinal hemorrhages, they assume child abuse."

Burry's status as a sex offender hardly made him a sympathetic figure. Jones says he received this designation as a result of a homosexual experience while he was at a group home/drug treatment facility. He was eighteen, while the other party was fourteen, and even though Burry insisted that the act was consensual, he was given a ten-years-to-life sentence of intensive supervision — and when he violated his probation (for drug use, Jones says), he was sent to prison and wound up serving thirteen years. Upon his release, Jones maintains, he "started a new family and was complying with his parole. And then this happened."

When asked if Burry's sex-offender past had an impact on his prosecution for Dominic's death, Jones replies, "They certainly didn't give him any breaks. If they were going to look at him with the presumption of innocence, that certainly seems to have clouded their view."

Dominic Burry struggled with health difficulties throughout his short life.
Dominic Burry struggled with health difficulties throughout his short life.
Fox31 file photo

In an attempt to prove that Matthew's actions didn't kill the baby, Jones says, "we hired two pathologists — one from Virginia, one from California — and they found the disease. Dominic had acute and chronic meningitis with vasculitis; that's when the blood cells become inflamed and burst. And they found that blood in his brain predated his release from the hospital. He was eleven weeks early and spent the first seven weeks after he was born in the hospital. They did an ultrasound on December 22, not long after his birth on December 11, and didn't find anything, so they didn't test him again. But meningitis is prevalent in premature infants, and we were able to show that he'd been bleeding on and off the entire time he'd been alive."

These discoveries were made several months before Burry went to trial, and "after we disclosed the disease, we asked prosecutors to dismiss the case," Jones notes. "But they wouldn't do it." Instead, the 17th Judicial District Attorney's Office lessened the charge, pursuing Burry for negligent child abuse resulting in death.

Jones countered with what he calls "voluminous evidence" to back up the meningitis theory — and in his closing argument, he talked about "guilty goggles, where you see everything as child abuse even when it doesn't exist. A case like this makes you wonder how many other parents or nannies or child guardians get convicted because investigators don't look that heavily into diagnosing other causes."

In the end, Burry was acquitted of all charges against him, and Jones says he's looking forward to getting on with his life in the wake of Dominic's tragic death. "His wife has always been supportive, always believed in him. Both sides of the family believed in him. The only people who didn't believe in him were in the DA's office."

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