Judge: Henderson should get new trial

AUSTIN (KXAN) - A retired Travis County District Judge has recommended a new trial for a woman convicted of killing an infant in her care in 1994.

Cathy Lynn Henderson was sentenced to death for the murder of Brandon Baugh, but her most recent appeal could lead to a new trial.

Judge Jon Wisser told the Court of Criminal Appeals he believes a jury would not have convicted Henderson if new science had been available at the time of her trial.

The star witness for the prosecution in the trial had been then-Travis County Medical Examiner Dr. Roberto Bayardo, who testified that the cause of death for Brandon was homicide. Now, he said he could not make the same conclusion -- based on new science about the nature of head injuries.

"If you're the prosecution, you're going to be looking at all the other evidence that was presented in trial," said KXAN Legal Analyst, Mindy Montford. "She didn't call for medical attention. If she dropped this baby, the prosecution is going to argue if it's an accident, you're going to call 911, you're going to try to get medical attention for that child -- especially if you're a caretaker and that's what you do."

Henderson has always maintained the death was an accident. She said she panicked, packed Brandon's body in a wine cooler box and buried him in a shallow grave 60 miles away. Henderson then left Texas before being apprehended in Missouri under an assumed name.

"This is so not fair. It should have been over with a long time ago," said Brandon's father, Eryn Baugh. "It's something that you just cannot imagine the amount of pain, anger and frustration for having to live through this experience day in and day out without a resolution."

Baugh and his wife Melissa said they can hardly bare the thought of a new trial.

"It's going to be a living hell on us, having to go back through and relive all that court testimony from all the trials we've already gone through," said Baugh. "It would be devastating to us emotionally and financially. I don't know if we could do that or not."

The Baughs said they believe the testimony from Dr. Gil King, who told the court there were three distinct blows to Brandon's head. However, Bayardo maintains there was only a single blow.

The Court of Criminal Appeals will make a ruling in the case, likely still months away.

Henderson remains on death row in Gatesville, Texas.

In 2007, she was only two days away from her scheduled execution when the Court of Criminal Appeals granted her a reprieve and ordered the lower court to hear arguments in her appeal.