Three days before Johnny Burr’s capital trial began in Alamance County in March 1993, his lawyers begged a judge to postpone the trial. They said they had not yet done the most basic work of defending their client, who was accused of beating a baby to death. The case hinged on hundreds of pages of medical records. They hadn’t begun to read them, nor hired any experts to help them decipher such complex information. Even as they selected a jury, the lawyers continued to plead with the judge to delay the trial, but the judge refused.
Johnny’s attorneys had been assigned to his case just two and a half months before, taking over for attorneys who left the case in disarray. The lead attorney was overwhelmed with capital cases. The other attorney had never tried a capital case, since his law practice focused on real estate transactions.
Johnny stood accused of inflicting the head injury that killed his girlfriend’s 4-month-old daughter, Tarissa “Susie” O’Daniel. He had no history of child abuse, and has always said he is innocent. On that night in August 1991, the baby’s mother left a sleeping Susie in Johnny’s care for 45 minutes. When she returned, she found the baby unresponsive and lying in her swing.
Susie’s mother told police that, earlier in the day, Susie’s 8-year-old brother accidentally dropped the baby on a gravel driveway and then fell on top of her. Afterward, she said, Susie had seizures and cried for more than an hour. Johnny’s attorneys never hired a medical expert to investigate whether the fall could have caused Susie’s death.
Instead, at trial, Johnny’s attorneys conceded in opening statements that Susie’s fatal injuries occurred while Johnny was babysitting her, which Johnny denied. Most damaging to Johnny’s defense, they allowed three doctors to testify that Susie had a severe skull fracture — it looked like “a pushed in ping-pong ball,” one doctor said — that could not have been caused by a fall. Even a quick read of Susie’s autopsy report would have told Johnny’s lawyers that the doctors were wrong. Susie never had a skull fracture.
Since Johnny’s conviction, his trial lawyers have readily admitted that they did not provide him adequate assistance of counsel as required by the Constitution. Experts hired by his new defense team have examined Susie’s medical records and found that her fatal injuries could have been caused by the fall her brother described. Doctors who testified at the trial now say their testimony about a skull fracture was wrong, and that the fall might have been more serious than they knew. Yet, while a federal district court concluded that Johnny’s attorneys provided inadequate representation, a higher court reversed the decision and denied him a new trial.
Johnny remains on death row.
