IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,

IN AND FOR ORANGE COUNTY, FLORIDA

ALAN R. YURKO

v. Case No.: CR 98-1730

STATE OF FLORIDA

______________________/

MEMORANDUM IN SUPPORT OF MOTION FOR POST CONVICTION RELIEF

RHOTON & HAYMAN, P.A.

Loren D. Rhoton
Florida Bar Number 0055735
412 Madison Street
Suite 1111
Tampa, Florida 33602
(813)226-3138

TABLE OF CONTENTS

Preliminary Statement ...................................................................... vi

Statement of the Case ...................................................................... 1

Statement of the Facts ...................................................................... 2

Issue One

SUBSEQUENT TO HIS JUDGMENT AND SENTENCE,

MR. YURKO UNCOVERED NEWLY DISCOVERED

EVIDENCE IN THE FORM OF NATIONAL VACCINE

ADVERSE EVENT REPORTING SYSTEM DOCUMENTS

DEMONSTRATING THAT OF THE SIX VACCINATIONS

GIVEN TO HIS SON JUST SHORTLY BEFORE DEATH,

AT LEAST ONE WAS A "HOT LOT" VACCINE, AS

DETERMINED BY THE FOOD AND DRUG

ADMINISTRATION; ADDITIONAL NEWLY DISCOVERED

EVIDENCE HAS BEEN UNCOVERED IN THAT

NUMEROUS MEDICAL PROFESSIONALS HAVE

REVIEWED MR. YURKO*S CASE AND DETERMINED

THAT THE DEATH OF MR. YURKO*S SON WAS IN FACT

DUE TO THE VACCINATIONS , OF WHICH AT LEAST ONE

WAS A DOCUMENTED "HOT LOT", AND NOT FROM

SHAKEN BABY SYNDROME; AS SUCH, MR. YURKO*S

JUDGMENT AND SENTENCE SHOULD BE VACATED

AND A NEW TRIAL SHOULD BE GRANTED ...................... 29

Issue Two

IN THE ALTERNATIVE, IF THE EVIDENCE RELATING

TO THE "HOT LOT" VACCINES AND BABY ALAN*S

ADVERSE REACTIONS TO HIS CHILDHOOD

VACCINATIONS COULD HAVE BEEN DISCOVERED

THROUGH DUE DILIGENCE OF COUNSEL, THEN MR.

YURKO WAS DEPRIVED OF HIS CONSTITUTIONAL

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS

DEFENSE COUNSEL FAILED TO, THROUGH DUE

DILIGENCE, INVESTIGATE, DISCOVER, AND PRESENT

AT TRIAL, THE EXCULPATORY EVIDENCE REGARDING

THE VACCINE THAT LIKELY CAUSED THE DEATH OF

BABY ALAN; MR. YURKO WAS PREJUDICED BY HIS

ATTORNEYS INEFFECTIVENESS AS THERE IS A

SUBSTANTIAL LIKELIHOOD THAT MR. YURKO WOULD

HAVE BEEN ACQUITTED HAD SAID EVIDENCE BEEN

PRESENTED TO THE JURY .................................................. 35

Issue Three

MR. YURKO WAS DENIED HIS CONSTITUTIONAL RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS

ATTORNEY FAILED TO OBJECT AND MOVE FOR MISTRIAL

WHEN THE PROSECUTOR, IN HER CLOSING ARGUMENT,

ARGUED FACTS THAT WERE NOT IN EVIDENCE TO THE

JURY TO IMPEACH DEFENSE EXPERT WITNESS, DR.

DOUGLAS SHANKLIN .................................................... 38

Issue Four

MR. YURKO WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY

FAILED TO EFFECTIVELY IMPEACH DR. SASHI GORE

ON CROSS EXAMINATION WITH THE NUMEROUS

INCONSISTENCIES, FALSITIES, AND MISTAKES THAT

WERE APPARENT IN DR. GORE*S AUTOPSY REPORT ...... 47

Issue Five

SUBSEQUENT TO HIS JUDGMENT AND SENTENCE,

MR. YURKO UNCOVERED NEWLY DISCOVERED

EVIDENCE THAT STATE EXPERT WITNESS DR.

MATTHEW SEIBEL IN FACT DID NOT SPEAK TO

FRANCINE REAM AT BABY ALAN*S BEDSIDE; SAID

EVIDENCE WOULD HAVE SERVED TO IMPEACH DR.

SEIBEL*S TESTIMONY AND THUS STRENGTHEN MR.

YURKO*S DEFENSE .............................................................. 54

Issue Six

IN THE ALTERNATIVE, IF THE EVIDENCE RELATING

TO THE HOSPITAL SIGN-IN SHEET COULD HAVE BEEN

DISCOVERED THROUGH DUE DILIGENCE OF COUNSEL,

THEN MR. YURKO WAS DEPRIVED OF HIS

CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE

OF COUNSEL AS DEFENSE COUNSEL FAILED TO,

THROUGH DUE DILIGENCE, INVESTIGATE, DISCOVER,

AND PRESENT AT TRIAL, THE EVIDENCE OF THE

HOSPITAL SIGN-IN LOG; SAID EVIDENCE WOULD HAVE

BEEN EFFECTIVE IN IMPEACHING DR. SEIBEL AND,

THUS CALLING THE RELIABILITY OF HIS TESTIMONY

INTO QUESTION .............................................................. 58

Issue Seven

MR. YURKO WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL WHEN HIS TRIAL

ATTORNEY FAILED TO USE AVAILABLE MEDICAL

EVIDENCE TO DEMONSTRATE THE FALLACIES OF

THE STATE EXPERT WITNESSES' OPINIONS ...................... 61

Issue Eight

SUBSEQUENT TO HIS JUDGMENT AND SENTENCE MR.

YURKO OBTAINED NEWLY DISCOVERED EVIDENCE

IN THAT SCIENTIFIC DISCOVERIES THAT DID NOT

SOLIDLY MANIFEST THEMSELVES IN THE REALM OF

FORENSIC NEUROPATHOLOGY AT THE TIME OF TRIAL

HAVE NOW BEEN GENERALLY ACCEPTED BY THE

FORENSIC COMMUNITY; SAID EVIDENCE IS DIRECTLY

CONTRARY TO TESTIMONY AND EVIDENCE

PRESENTED BY THE STATE AND ITS EXPERT WITNESSES

AT TRIAL RELATING TO DIFFUSE AXONAL INJURY ......... 74

Issue Nine

MR. YURKO WAS DENIED HIS CONSTITUTIONAL RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS

ATTORNEY FAILED TO ADEQUATELY OBJECT TO THE

ADMISSION OF EVIDENCE OF BABY ALAN*S PRIOR RIB

FRACTURES; SAID EVIDENCE WAS IRRELEVANT AND

UNDULY PREJUDICIAL TO MR. YURKO*S RIGHT TO A

FAIR TRIAL ........................................................................ 79

Issue Ten

THE CUMULATIVE EFFECT OF THE TRIAL ATTORNEY'S

NUMEROUS DEFICIENCIES AND OTHER ERRORS

RELATING TO THE MR. YURKO*S TRIAL SEVERELY

PREJUDICED MR. YURKO*S RIGHT TO A FAIR TRIAL AND

DEPRIVED MR. YURKO OF HIS CONSTITUTIONAL RIGHTS

TO EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR

TRIAL ................................................................................... 86

Conclusion..................................................................................... 93

Certificate of Service ........................................................................ 94

Oath ....................................................................................................... 95

PRELIMINARY STATEMENT

In this Memorandum, the Movant, Alan R. Yurko, will be referred to as Mr.
Yurko. Mr. Yurko's son, Alan Joseph Ream, will be referred to as "Baby Alan." In
this Memorandum Mr. Yurko will be referring to the transcripts from his trial. The
trial transcripts will be cited as "T" followed by the corresponding page number(s),
i.e., (T.1). Additionally, Mr. Yurko has prepared an Appendix to this Memorandum
and will be referring in this Memorandum to the various exhibits contained in the
Appendix.

In this Memorandum there will be repeated use of the terms Shaken Baby
Syndrome and Diffuse Axonal Injury. Shaken Baby Syndrom will be abbreviate as
"SBS" and Diffuse Axonal Injury will be abbreviated as "DAI".

STATEMENT OF THE CASE

On February 9, 1998, the Movant, Alan Yurko, was charged in the instant case
with: Count One, first degree murder of Alan Joseph Ream; and, Count Two,
Aggravated Child Abuse. A jury trial was held before the Honorable R. James Stoker
on February 22-24, 1999.

Mr. Yurko was found to be guilty as charged. This Honorable Court sentenced
Mr. Yurko to life imprisonment on Count One, and ten years imprisonment on Count
Two. The sentences are to run concurrently.

Mr. Yurko timely appealed his Judgment and Sentence to the Fifth District
Court of Appeal of Florida. The Fifth District Court affirmed, per curiam, Mr.
Yurko's Judgment and Sentence on March 7, 2000. The Mandate was issued by the
district court on March 24, 2000. Subsequent to his appeal Mr. Yurko has not filed
any petitions or motions, in this or any other court, collaterally attacking his
Judgement and Sentence in the instant case.

STATEMENT OF THE FACTS

Alan Joseph Yurko (hereinafter "Baby Alan) was born on September 16, 1997.
During the gestational period the mother, Francine Ream, encountered numerous
complications with the pregnancy, including:

(1) gestational diabetes;

(2) group B Streptococcal vaginal infection;

(3) chronic maternal E coli urinary tract infection, which was present even

six months postpartum;

(4) malnutrition;

(5) weight gain of only two pounds during the entire pregnancy;

(6) Oligohydramnios (amniotic fluid deficiency); and,

(7) emergency induction of pregnancy.

During the pregnancy the mother became sick and remained so throughout. The
mother suffered from dehydration and lost weight during her pregnancy, dropping
from her original weight of 130 pounds down to 120 pounds and then regaining
weight up to 132 pounds at the time of her pregnancy.

Baby Alan's delivery was induced early at 35 weeks gestation due to a
deficiency of amniotic fluid which was apparent on an ultrasound test. Baby Alan
was born with a birth weight of 5 pounds, 8 ounces. Respiratory Distress Syndrome
was immediately apparent upon birth. Shortly after birth Baby Alan was placed in an
oxygen hood and ampicillin and gentamycin were administered. Thereafter Baby Alan
remained at the hospital for seven days, spending three days in the intensive care unit
where he was on life support. Baby Alan also suffered from neonatal jaundice.

Following his discharge from the hospital, Baby Alan continued to suffer from
chest congestion and had difficulty breathing. Also following his discharge, Baby
Alan's mother also noted grunting and raspy breathing patterns along with brief
periods of apnea (temporary stoppage of breathing). Furthermore, Baby Alan
remained grossly jaundiced for a month after returning home (much longer than
would be expected from normal neonatal jaundice). Upon being discharged to his
parents (Francine Yurko, nee Ream, and Alan Yurko), Baby Alan was examined
weekly by a Pediatrician. After being released from the hospital Baby Alan had
weekly examinations by a pediatrician. At the weekly examinations none of the
pediatricians ever noted external injuries or bruises, nor acute pain or discomfort
which would have indicated broken ribs. Such a condition almost certainly would
have been noticed by examining physicians, nurses, and numerous caretakers
involved with the child.

On November 24, 1997, Mr. Yurko was home alone with Baby Alan and
Francine Yurko's daughter. In rapid succession Mr. Yurko observed
Baby Alan wheezing, followed by spitting up and cessation of breathing. After delays
from unsuccessful attempts to revive Baby Alan, Mr. Yurko borrowed a neighbor*s
car and rushed Baby Alan to Princeton Hospital of Orlando, where Baby Alan was
successfully resuscitated. Initial laboratory tests at Princeton Hospital showed, among
other things, that there was an elevated white blood count of 20,900 (with a
predominance (61%) of lymphocytes).1

Baby Alan was then transferred to the Florida Hospital in Orlando, Florida, and
placed on life support. His temperature at admission was 105 degrees. A brain Ct
scan was interpreted as showing a small right subdural hematoma and one or two
sites of intraparenchymal bleeding. A chest x-ray showed bilateral pneumonitis and
healing fractures of the 6th and 7th ribs on the left. After 75 hours in the hospital
Baby Alan was pronounced dead and his organs were harvested. Specifically, Baby
Alan donated the following organs: heart, liver with gallbladder, spleen, pancreas,
lymph nodes, and parts of the small intestine. (Exhibit A, Autopsy Report, page 5).

On February 9, 1998, Mr. Yurko was charged with the first degree murder of
Alan Joseph Yurko and aggravated child abuse. A jury trial was held before the
Honorable R. James Stoker on February 22-24, 1999.

On January 15, 1999, Mr. Yurko's attorney filed a Motion in Limine which
inter alia asked this Honorable Court to prohibit the State from introducing any
evidence relating to Baby Alan's rib fractures. (Exhibit B). It was defense counsel's
position that the State could not prove that Mr. Yurko was responsible for the rib
fractures and, thus, that said fractures were irrelevant and prejudicial to the
proceedings. On February 22, 1999, just prior to the commencement of opening
statements, Mr. Yurko's Motion in Limine was addressed by this Honorable Court.
At said time the following dialogue occurred between the court and defense counsel:

THE COURT: WE HAVE A REMAINING SINGLE ISSUE

ON MOTION IN LIMINE. YOU WISH TO ADD ANYTHING TO YOUR

MOTION?

MR. BARRETT [DEFENSE COUNSEL]: NO, YOUR HONOR.

(T.18).

Defense counsel thus made no argument whatsoever to support his request that
the court prohibit the introduction of any evidence relating to the rib injuries.
Furthermore, the Motion in Limine itself provided no support or argument for such a
motion other than the following: "[d]efendant contends that any testimony or
argument relating to all the above listed evidence is not relevant to the issues involved
in this case and should be excluded under Florida Statutes 90.401, 90.402 and
90.403." (Exhibit B, page 2). After defense counsel declined to present any argument
in support of the Motion in Limine, the State presented an argument consisting of
approximately three pages of trial transcripts to support its position that the evidence
of the rib injuries was admissible. (T.18-21). In support of its argument the State
relied on Estelle v. McGuire, 502 U.S. 62 (1991). After hearing the State's unrefuted
argument, this Court denied Mr. Yurko*s Motion in Limine. (T.21). Furthermore,
when evidence of the rib injuries was presented by the State during trial, defense
counsel registered no objections.

At trial the State presented the testimony of numerous "expert witnesses".
Testifying first for the State was Dr. Ben Guedes. Dr. Guedes is a pediatrician who
worked primarily out of the Florida Hospital in Orlando, Florida. (T.37). Dr. Guedes
worked on the Child Protection Team as a medical consultant. Dr. Guedes was
tendered and accepted as an expert witness in the field of pediatric critical care. (T.
39).

On November 24, 1997, Dr. Guedes examined Baby Alan at the Princeton
Hospital. At that time Baby Alan was flaccid and was not breathing. (T.41). Dr.
Guedes ordered a Ct Scan of Baby Alan. (T41). Dr. Guedes testified that Baby Alan
had a subdural hemorrhage and "interbrachial" hemorrhaging.2 (T.42). It was
explained that a subdural hemorrhage is one where there is blood in the membranes
between the brain and the skull wall but not in the brain itself. (T.42). Dr. Guedes
further explained that such a condition can be problematic because the blood causes
increased pressure on the brain. (T.42.) Such a buildup of pressure can cause a
cessation of breathing because it causes pressure on the brain stem where the
breathing centers are located. (T.42). It can also cause seizures and unconsciousness.
(T.42). According to Dr. Guedes, the only thing that could cause such a subdural
hemorrhage was a blow to the head, shaking of the head, or some sort of action
which would cause rapid acceleration and deceleration of the head. (T.43).

Dr. Guedes also testified that the "interbrachial" hemorrhage is a hemorrhage or
bleeding inside of the brain matter itself. According to Dr. Guedes, such a
hemorrhage would occur as the result of a rapid vigorous shaking motion which
would shear the blood vessels to the brain, thus causing bleeding within the brain.
(T.44). In Dr. Guedes' opinion, the "interbrachial" and subdural bleeding were fresh
injuries and were approximately one day old or less at the time he observed them.
(T.45).

It was the testimony of Dr. Guedes that the injuries he witnesses were traumatic
injuries. Dr. Guedes stated that where there are injuries such as shearing of the blood
vessels "...there isn't really a disease that produces that sort of injury, it's virtually
always a traumatic injury." (T.48).

At trial Dr. Guedes also testified as to his definition of Battered Child (BCS)
Syndrome. According to Guedes, BCS occurs when a child is "...traumatized
physically by some sort of care taker, it can be either through hitting or damaging a
child some way or other..." (T.51). When asked if Baby Alan was a battered child,
Dr. Guedes replied: "Yes, I think so. Sure." (T.51).

On cross-examination Dr. Guedes admitted that if a doctor was doing a
"complete evaluation" of a child such as Baby Alan, the doctor would want to review
pediatric and birthing records. (T.59). Nevertheless, Dr. Guedes admitted that at the
time he evaluated Baby Alan, Dr. Guedes did not have the family history of Baby
Alan. Nor did Dr. Guedes know at the time that Baby Alan was born prematurely.
(T.54). Dr. Guedes could not recall ever speaking with Baby Alan's mother about
any health problems suffered by Baby Alan. (T.56). Baby Alan's pediatrician was
not contacted either to determine if Baby Alan had been having any health problems.
(T.56). Additionally, Dr. Guedes was fully unaware that Baby Alan had suffered
respiratory distress in the past. (T.62).

It was also brought out on cross examination that Dr. Guedes' report indicated
that Baby Alan's white blood cell count was 20,900 (this conflicted with the medical
charts which indicated a white blood cell count of 11,200). (T.55). A white blood cell
count of 20,900 is considered high and could indicate the existence of some sort of
infection. (T.56). Baby Alan had a fever of 105' while in the hospital. Such a
temperature could also indicate the existence of an infection. (T.56).

Dr. Guedes also testified that he noted evidence of at least one and possibly two
or three old rib fractures. According to Dr. Guedes, the rib fractures appeared to have
been healing for a period of at least ten days prior to Baby Alan's admission to the
hospital. (T.42).

Also testifying on behalf of the State was Dr. Matthew Seibel. Dr. Seibel is a
general pediatrician who was on the Child Protection Team out of the Children's
Hospital in Orlando, Florida. (T.153). Dr. Seibel examined Baby Alan in the pediatric
intensive care unit at the Florida Hospital. (T.154). After viewing Baby Alan's chart,
Dr. Seibel came to the conclusion that the child had received inflicted trauma which
the doctor felt was evident in both the brain injury and the injuries that had occurred,
at some unknown time, to the ribs. (T.157). According to Dr. Seibel, the injuries
were indicative of an abusive situation. Dr. Seibel further testified that the injuries to
the ribs likely came from a vigorous squeezing-type of force. (T.157).

Dr. Seibel testified that rib fractures are not described in the medical literature as
ever being the result of birth trauma. (T.158). Instead, he felt that the rib fractures
were the result of abuse. (T.166). In Dr. Seibel's opinion, the ribs were in different
stages of healing because the callouses where the ribs were healing were different
sizes. (T.158).

According to Dr. Seibel, the Ct brain scan showed subdural bleeding and
bleeding within the brain itself. It was this head injury, said Dr. Seibel, which
eventually killed Baby Alan. (T.160-161). Dr. Seibel informed the jury that the
symptoms associated with severe brain injury, such as in the instant case, occur
within one hour or less. (T.162). He further stated that a very violent shaking force is
necessary to cause the types of injuries that he observed in Baby Alan. (T.165).
According to Dr. Seibel, Baby Alan would have exhibited severe symptoms within a
very short period of receiving his injuries. (T.166). The doctor opined that Baby Alan
would have been unable to do much of anything after receiving his injuries because
of the bleeding in and around the brain. (T.167).

In coming to his medical conclusions about Baby Alan, Dr. Seibel admitted that
he only spent "some time" reviewing the chart, and a "few minutes looking over the
X-rays and Ct scan, along with examining Baby Alan." (T.170). It was also Dr.
Seibel's testimony that he spoke with Baby Alan's mother, Francine Ream, at Baby
Alan's bedside. (T.170-172). Ms. Ream testified, on the other hand, that she had
never spoken with Dr. Seibel. (T.330) Additionally, neither of Dr. Seibel's two
reports reflected that he spoke with Ms. Ream. (T.172). Furthermore, hospital sign-in
logs reveal that Dr. Seibel was not present at the bedside at the same time as Ms.
Ream.

On cross examination Dr. Seibel testified that it would be improper to come to a
conclusion in a case such as the instant case without considering all relevant facts.
(T.193). Nevertheless, Dr. Seibel admitted on cross examination that he did not
obtain Baby Alan's prior medical and/or prenatal records. (T.194). Additionally, Dr.
Seibel admitted that he did not speak to the caretaker and defendant, Alan Yurko.
(T.194).

Also testifying at trial on behalf of the State was Chief Medical Examiner for
Orange and Osceola Counties, Dr. Sashi Gore. Baby Alan's autopsy was performed
by Dr. Gore on November 29, 1997. (T.212). Ultimately, Dr. Gore's conclusion was
that the cause of death was Shaken Baby Syndrome. Before addressing Dr. Gore's
examination and conclusions, it is important to note that there were numerous
deficiencies in, and problems with, Dr. Gore's examination of Baby Alan. At trial,
Dr. Gore testified that after performing the autopsy he checked over the autopsy
report and it appeared to be accurate. (T.273). But, there were numerous
inaccuracies in Dr. Gore's report. Firstly, in his report Dr. Gore listed Baby Alan as a
"two-month-old black male." (T.273). In fact, Baby Alan was a white male, as was
admitted by Dr. Gore at trial. (T.273). Additionally, Dr. Gore admitted that in order
to reach a conclusion that a death was caused by SBS, he would have to get the
child*s history from the caretaker. (T.247). Nevertheless, Dr. Gore never spoke to
Alan Yurko nor did he speak to Francine Ream. (T.247-249). Furthermore, Dr. Gore
could not demonstrate that he ever received a sufficient medical history for Baby
Alan. (T.247-253). Even more troubling is the fact that Dr. Gore could not even
testify that he had received the birth and pre-natal records for Baby Alan from Baby
Alan*s doctor. (T.253).

It is also important to take into consideration that Dr. Gore testified that he
"...REMOVED THE ANTERIOR PART OF THE ENTIRE CHEST BONE AND
THEN WE REMOVED THE HEART, THE LUNGS, AND ALL THE
ORGANS..." (T.218, emphasis added). Contrary to Dr. Gore's testimony, Baby
Alan was an organ donor and, thus, Dr. Gore would not have been able to remove
the heart and "...all the organs..." (T.218). Dr. Gore's report also indicated that there
was a microscopic examination of Baby Alan's Heart. (Exhibit A, page 10). This
would be impossible as Baby Alan's heart was one of the organs which were
harvested.3 Dr. Gore's testimony further made clear the fact that he never examined
the heart. (T.246).

Furthermore, Dr. Gore's testimony is called into question in relation to his
measurements of the circumference of Baby Alan's head. In the autopsy report
prepared by Dr. Gore, it was stated that the circumference of Baby Alan*s head was
22 centimeters. (See Exhibit A, page 6). But, medical records prior to death indicate
that the circumference of Baby Alan's head was 32.5 centimeters. Finally, in the
autopsy report, Dr. Gore reported that Baby Alan was two months old at the time of
his death. (See Exhibit A, pages 1 and 10). In fact, Baby Alan was ten weeks old at
the time of death.

At trial Dr. Gore testified that Baby Alan's death was caused by a subdural
hemorrhage due to SBS. (T.213). Dr. Gore explained:

"WHEN THE HEAD OF THE BABY IS SHAKEN VIGOR-

OUSLY, THERE IS ACCELERATION-DECELERATION.

CHANGES OCCUR IN THE MINUTE BLOOD VESSELS

BETWEEN THE BRAIN AND THE LAYERS OF THE

BRAIN. THEY RUPTURE AND YOU GET HEMORRHAGE

THERE AND THAT IS WHAT WE CALL SUBDURAL

HEMORRHAGE AND THAT IS A RESULT OF SHAKING

THE BABY." (T.213).4

According to Dr. Gore, subdural hemorrhaging could be caused either by an accident
or some type of abuse. (T.222). On cross examination, Dr. Gore used a visual aid5 to
demonstrate what he meant by vigorous shaking. (T.264-265). Although Dr. Gore
could not quantify in words what he meant by vigorous, he did shake the visual aid
while testifying to explain to the jury what vigorous shaking was. (T.265). When
asked if there was any possibility that a subdural hemorrhage could be the result of a
"spontaneous bleed" without trauma Dr. Gore answered: "No." (T. 238).

Dr. Gore testified that there are several types of injuries that occur with SBS.
Firstly, he explained that a subdural hemorrhage will be apparent. (T.227).
Additionally, Dr. Gore stated that there will also be Diffuse Axonal Injury (DAI). To
explain Diffuse Axonal Injury, Dr. Gore testified:

"WELL, DIFFUSE AXONAL INJURY, THIS OCCUR WITH

THE ROTATIONAL TYPE OF FORCE AND YOU GET

VERY MINUTE PINPOINT HEMORRHAGES IN AXONS,

LOWER PART OF THE NERVE CELLS. NOW THIS

CAN OCCUR WITHIN A VERY SHORT PERIOD OF

TIME. THAT MEANS YOU DON'T HAVE TO - - ONCE

YOU SHAKE THE BABY VIGOROUSLY, IF THERE IS

A ROTATIONAL FORCE INVOLVED IN THAT YOU

CAN SEE THAT THEY MAY OCCUR IMMEDIATELY

WITHIN MINUTES PERHAPS AND THERE ARE

EFFECTS ON THE HUMAN BODY AS A RESULT OF

THAT. THESE ARE, AGAIN TO REPEAT, VERY FINE

PINPOINT OR EVEN SMALLER THAN THAT MICRO-

SCOPIC HEMORRHAGES OCCURRING IN THE

AXONAL AREA OF THE BRAIN." (T.226-227).

Dr. Gore testified that he did observe both a subdural hemorrhage and Diffuse
Axonal Injury in Baby Alan's case. (T.227). But, nowhere in the autopsy report did
it indicate that Diffuse Axonal Injury was present. (T.281). Additionally, no
microscopic slides were presented to the jury to show the alleged Diffuse Axonal
Injury.

According to Dr. Gore, the subdural hemorrhage probably occurred twenty to
thirty minutes, and maybe up to an hour, prior to Baby Alan's admission into the
hospital. (T.229). It was Dr. Gore's opinion that once a child suffers such an injury,
the child would become immediately unconscious and would possibly go into a
comatose condition. (T.229).

Dr. Gore also testified that he noted fractured ribs on Baby Alan. (T.219). It
was Dr. Gore's opinion that the ribs were in different states of healing, meaning that
they had been fractured at different times. (T. 219). According to Dr. Gore, the rib
fractures were at least three weeks old at the time of Baby Alan's death. (T.236).
Although Dr. Gore did testify as to the definition of Battered Child Syndrome, he did
not testify that Baby Alan was a victim of Battered Child Syndrome. Dr. Gore also
testified that one of Baby Alan's ribs broke while being handled during the autopsy.

Dr. Gore further testified that he did observe a retinal hemorrhage in Baby Alan.
Dr. Gore stated that the retinal hemorrhage was only present in Baby Alan's right
eye. (T.272). The retinal hemorrhage was minor in that there was not a lot of blood
in the back of the eye. (T.272). According to Dr. Gore, retinal hemorrhaging is
present approximately 25% of the time in SBS cases. (T.272).

While inspecting Baby Alan's lungs, Dr. Gore noted Pneumonitis, which is a
type of pneumonia. (T.278). Dr. Gore testified that the pneumonitis would not have
caused the brain injuries in Baby Alan. (T.278). He stated that Baby Alan did not die
of pneumonitis. (T.278).

Also testifying on behalf of the State was Dr. Gary Pearl. Dr. Pearl is a
pathologist who specializes in neuropathology. (T.292). Dr. Pearl was a consultant
with the Orange County Medical Examiner's office. He was involved in Baby Alan's
autopsy. Dr. Pearl testified that he did cut into Baby Alan's brain as well as
reviewing microscopic slides of the brain. (T.298). Dr. Pearl explained that the axon
is the part of a brain cell that connects to other brain cells; when there is DAI, the
axon is swollen and balled up. (T.299). According to Dr. Pearl, Baby Alan's brain
did show Diffuse Axonal Injury. (T.299). While Dr. Pearl claimed to have viewed a
microscopic slide that showed the DAI, he did not photograph or present evidence of
the alleged slide to the jury. (T.315). Dr. Pearl also testified that there was no
evidence of eight week old hypoxia in Baby Alan's brain. (T.309).

Testifying on behalf of Mr. Yurko was, among others, expert witness Dr.
Douglas Shanklin. Dr. Shanklin is a physician and dual professor at the University of
Tennessee College of Medicine. (T.345). Dr. Shanklin is a board certified pathologist
(T.356) and was previously an associate medical examiner in the Eighth Judicial
Circuit of Florida. (T.347). Dr. Shanklin works in the area of perinatal injuries and
pathology (T.350), and teaches classes relating to diseases of newborns and diseases
related to pregnancy. (T.356).

Mr. Yurko's trial counsel retained Dr. Shanklin to review the findings of the
autopsy of Baby Alan. (T357). Dr. Shanklin reviewed the slides from the autopsy.
(T.357). After reviewing the slides and the autopsy report, Dr. Shanklin concluded
that Baby Alan's death was a result of natural causes. (T.358). In explaining his
conclusion, Dr. Shanklin testified that there were two disease states within the tissues
which were sufficient to have caused the death of Baby Alan. (T.358).

In viewing slides of Baby Alan's lungs, Dr. Shanklin observed numerous little
dark blue dots scattered throughout the lungs. (T.366). Dr. Shanklin explained that
the blue dots were inflammatory cells which are a form of white blood cells; the
presence of the inflammatory cells was an indication of pneumonia. (T.366). The
pneumonia was scattered throughout the substance of the lungs. (T.367).
Additionally, the pneumonia was also apparent in the terminal air passages. (T.366).
Dr. Shanklin also noted that Baby Alan's bone marrow showed an increased white
blood cell count. (T.367-368). Such a high count would have likely been caused by
some sort of infection. (T.370).

Dr. Shanklin also showed the jury slides of Baby Alan's brain. It was pointed
out to the jury that the dura (the heavy membrane that coats the brain and lines the
inside of the skull case) contained large numbers of chronic inflammatory white cells.
(T.369). Thus, explained Dr. Shanklin, the white cells indicated a
"LONG-STANDING INFECTION OF SOME KIND." (T.369). Additionally, Dr.
Shanklin noted a blood clot in the back part of the brain within the skull, and not on
the spinal column. (T.373). There was also recent bleeding around the clot. Dr.
Shanklin pointed out that there were dark purplish-brown dots present; he stated that
the dots were "either a fungus or bacteria." (T.373). According to Dr. Shanklin, the
dots would "[get] there as a matter of disease process." (T.373).

Dr. Shanklin also testified that he noted meningitis in Baby Alan. (T.378). He
defined meningitis as "...AN INFLAMMATION OF THE MENINGES, MOST
ALWAYS DUE TO AN INFECTION OF SOME SORT." (T.384). Dr. Shanklin
noted a "TREMENDOUSLY THICKENED [meningeal] MEMBRANE LOADED
WITH... INFLAMMATORY VESSELS AND... INFLAMMATORY CELLS AND
THESE ARE THERE AND THEY HAVE BEEN THERE FOR A LONG TIME."
(T.379). In fact, Dr. Shanklin did not believe that the Ct scan demonstrated a
subdural hemorrhage. Instead, he felt that what was seen in the Ct scan was actually
evidence of extensive meningitis. (T.395).

Dr. Shanklin disagreed with the State's claims of Diffuse Axonal Injury. He felt
that the injury to the nerve axons was related to a perinatal event and, to a lesser
extent, to meningitis. (T.411). Dr. Shanklin explained that the nerve cells which pass
signals to the brain from the spinal cord had been largely destroyed by "A VERY
OLD PROCESS." (T.374). He further explained the nerve cells were replaced by the
presence of hundreds of small blood vessels which were thick walled, rounded and
slit-like. According to Dr. Shanklin, this would be the normal reaction of a damaged
brain and spinal cord tissue to a "LOW ORDER, LONG-STANDING PROBLEM."
(T.374). Ultimately, Dr. Shanklin concluded: "I DON'T THINK THERE IS AN
INJURY INVOLVED IN THE FINAL EVENTS. I THINK IT IS A TOTALLY
NATURAL PROCESS." (T.411).

Dr. Shanklin also testified about Baby Alan's failure to thrive. Dr. Shanklin
testified that one of the best ways to determine the physical maturity of an infant is to
look at the kidneys. (T.362). From his review of the slides of Baby Alan*s kidney,
Baby Alan was not fully matured even though he was ten weeks old at the time of his
death. (T.363). This meant that Baby Alan did not develop as a normal child of his
age should have. (T.364). Additionally, a slide of Baby Alan's fatty tissues showed
an abnormal metabolic state which is consistent with poor development of the child.
(T.364).
During the State's closing argument, the prosecutor made improper and
extremely prejudicial remarks relating to Dr. Shanklin's credibility. In attempting to
discredit Dr. Shanklin, the prosecutor told the jury: "I SUBMIT TO YOU... THAT
YOU CAN REJECT EVERYTHING DR. SHANKLIN SAID, IF YOU FIND
THAT HE'S TESTIFYING IN AN AREA HE'S NOT AN EXPERT IN." (T.492).
Then the prosecutor grievously misrepresented the facts to the jury by telling them:

"...LO AND BEHOLD, HE'S DONE THAT [testified in

an area that he is not a witness in] BEFORE. WELL, HE

FORGOT ABOUT THE CASE IN TEXAS WHEN HE

WAS TESTIFYING. BUT, WHEN REMINDED

SPECIFICALLY OF THE NAME OF THE PLAINTIFF

HE WAS WORKING FOR, ALL OF A SUDDEN HE

REMEMBERED. AND HIS TESTIMONY WAS STRUCK.

IT WAS FOUND HE WAS TESTIFYING IN AN AREA

THAT WAS NOT SUPPORTED BY SCIENTIFIC

RESEARCH. DOES THAT GIVE YOU AN INFERENCE

OF WHERE DR. SHANKLIN IS COMING FROM?"

(T.493-494, emphasis added).

The prosecutor committed an atrocious offense to Mr. Yurko's right to a fair
trial when she made the above misstatements. It was never established at trial that
Dr. Shanklin's testimony was stricken in an unrelated case in Texas. In relation to
the Texas case, the following colloquy took place between Prosecutor Robin
Wilkinson and Dr. Shanklin:

Q. DR. SHANKLIN, HAS YOUR TESTIMONY EVER

BEEN OFFERED AS AN EXPERT BEFORE IN COURT IN

WHICH YOUR TESTIMONY WAS NOT ALLOWED?

A. YES, IT WAS ONCE OVER ON THE WEST COAST OF

FLORIDA BUT THAT RULING BY THE JUDGE WAS OVER-

TURNED ON APPEAL IN THE SECOND DISTRICT COURT

OF APPEALS OF THIS STATE.

Q. HOW ABOUT IN TEXAS?

A. TEXAS?

Q. YES, SIR.

A. I KNOW OF NO SUCH CASE.

Q. DO YOU REMEMBER THE CASE NOVARDIS (PH.)

PHARMACEUTICAL WHICH, I BELIEVE, HAD A PREVIOUS

NAME. IT WAS A TEXAS DISTRICT COURT IN TRAVIS

COUNTY. YOU WERE LISTED AS THE PATHOLOGIST AND

IT WAS A CASE INVOLVING PLAINTIFF WILLIE LLOYD

REVELS (PH.)?

A. THAT CASE IS ON APPEAL NOW, THAT DECISION.

SEVERAL WITNESSES WERE STRUCK FROM THE LIST AND

THAT IS ON APPEAL PRESENTLY.

Q. BUT THE COURT HELD THAT THE PATHOLOGY

REPORTING THE EXPERT'S OPINION WAS NOT SUFFICIENTLY

LIABLE (sic) OR RELEVANT, CORRECT?

A. I DON'T KNOW WHAT THE OPINION SAID. I

KNOW THAT IN REVIEW OF THE AUTOPSY MATERIALS IN

THAT CASE I GAVE MY OPINION IN DEPOSITION AS TO THE

FINDINGS AT AUTOPSY. WHAT THE COURT DID WITH

THAT AND OTHER OPINIONS, I HAVE NO SPECIFIC

KNOWLEDGE OF, BUT, THE MATTER IS UNDER APPEAL

PRESENTLY.

(T.354, emphasis added). No other questions were asked about the Texas case, nor
were any further answers given regarding the outcome of said case. As is clear from a
review of the record, Prosecutor Wilkinson flagrantly misrepresented the facts as
they applied to Dr. Shanklin's credibility. There simply was no evidence to indicate
that Dr. Shanklin had ever testified in an area in which he was not an expert. Thus,
Ms. Wilkinson's question "DOES THAT GIVE YOU AN INFERENCE OF
WHERE DR. SHANKLIN IS COMING FROM?," was uncalled for and not based
upon any evidence elicited at trial. Exacerbating the egregious misstatements by the
prosecutor was the fact that trial counsel never objected to the improper and
prejudicial closing arguments of the State.

Subsequent to his conviction and direct appeal, Mr. Yurko requested
information from the Vaccine Adverse Event Reporting System (VAERS), in regard
to the vaccinations Baby Alan received just shortly before his death. Specifically, Mr.
Yurko requested information on Connaught Labs DTaP (Diphtheria Tetanus and
Pertussis) vaccination lot number 7H81507.6 Upon review of the records received
from the VAERS, Mr. Yurko discovered that the that lot number 7H81507 was one
of the "hottest" lots, according to VAERS files, ranking highest in infant deaths
among more than 800 vaccine lots of DTaP reported to VAERS in the years1990
through 1999. Mr. Yurko learned that the Connaught Labs vaccine was associated
with at least seventy serious adverse events and numerous permanent disablements as
well as five deaths in infants/children.

Mr. Yurko requested the VAERS information because several doctors had
informed him that it appeared that Baby Alan's death was vaccine related.
Subsequent to his Judgment and Sentence Mr. Yurko's case was reviewed by
numerous doctors, including Dr. Harold Buttram, M.D., FAAEM, and Dr. F. Edward
Yazbak, M.D., FAAP.7 It was the opinion of Doctors Buttram and Yazbak that
Baby Alan's death was caused by an adverse reaction to one or more of the
childhood vaccines received by Baby Alan just shortly before his death. Pursuant to
the Doctors' evaluation and conclusion, Mr. Yurko requested information from the
VAERS regarding Baby Alan's vaccines.

After extensive investigation into Mr. Yurko's case, Doctors Buttram and
Yazbak, and numerous others, have determined that an adverse reaction to the
vaccines was likely the cause of Baby Alan's death. In a recent article, Doctors
Buttram and Yazbak noted the numerous health problems that affected Baby Alan
and concluded:

Under these and other severely compromised conditions the

baby was administered a total of 6 vaccines, including the [DTaP],

Hib, OPV, and hepatitis B. at approximately 8 weeks of life.

A serious, possibly catastrophic reaction to the vaccines would

have been predictable under these circumstances. Almost

certainly a medical consensus would agree that vaccinations

would have been contraindicated and should not have been

given. In this regards, The Physicians' Desk Reference

provides warnings or precautions for all of these vaccines to

inquire into the health of the recipient before their

administration. For the DPT there is a warning that immunizations

should be deferred during an acute infection, the clear

implication being that there are heightened risks of reaction in the

presence of infection or serious illness. Prematurity has also

been listed as a contraindication to vaccines in early infancy.

Doctors Buttram and Yazbak ultimately concluded that Baby Alan's death was
vaccine related. It is proposed by Doctors Buttram and Yazbak that there were two
possible mechanisms which, either separately or in combination, likely caused Baby
Alan's death. The first possible cause would be that of immune paralysis due to the
vaccines that Baby Alan received shortly before his death. Said immune paralysis
could have caused a fulminating spread of the lung infections (pneumonia) to other
parts of Baby Alan's body, including the brain.

The second mechanism mentioned by Doctors Buttram and Yazbak would have
been vaccine induced encephalomyelitis. According to Doctors Buttram and Yazbak,
the encephalomyelitis would likely have been caused by the pertussis, hepatitis B,
and/or Hemophilus influenza bacillus vaccines, either singularly or in combination.
According to Doctors Buttram and Yazbak, the immune paralysis and the
encephalomyelitis could have caused the brain damage (apparent subdural
hemorrhage and apparent DAI) that was present in Baby Alan. Dr. Buttram and
Yazbak have concluded that adverse reactions to the vaccinations received by Baby
Alan could have brought about a combination of brain edema, hypercoagulability of
the blood, and inflamation of blood vessels, which in turn resulted in a shearing effect
on subdural blood vessels and subdural hematomas, thus mimicking what is now
thought to represent SBS. In other words, Baby Alan's brain injuries were caused by
an adverse reaction to the vaccinations and only appeared to be trauma induced brain
injuries when in fact there was no traumatic injury inflicted upon Baby Alan. Mr.
Yurko has also obtained the review of numerous other experts in various medical
fields, all of whom have concluded that Baby Alan's death was not the result of
trauma.

The existence of the new evidence relating to the "hot-lot" vaccinations and the
new medical evidence relating to an adverse reaction to vaccinations casts significant
doubt on Mr. Yurko's convictions. In fact, it appears that the newly discovered
evidence of the Connaught Labs "hot lot" is exculpatory and would have likely
resulted in the acquittal of Mr. Yurko. Unfortunately, though, Mr. Yurko's attorney
never discovered that the DTaP vaccine that was administered to Baby Alan
belonged to a vaccination lot that had likely caused serious injuries and death to other
infants. As a result, the issue of the dangerous DTaP vaccine was never investigated
by defense counsel, nor was it ever presented to the jury in Mr. Yurko's defense. It
is interesting to note that none of the expert witnesses, prosecution or defense,
addressed the possibility of Baby Alan's recent vaccinations being responsible for his
death. This was an issue that was never taken into account by any of the doctors
who investigated Baby Alan's death. Consequently, the issue was never considered
by the jury as presenting a reasonable hypothesis of Mr. Yurko's innocence.

Also, after Mr. Yurko's trial and direct appeal, an agent for Mr. Yurko
submitted questionnaires, via U.S. mail to all of the jurors involved in Mr. Yurko's
trial. Some of the questionnaires were filled out be the jurors and returned to Mr.
Yurko's wife, Francine Yurko. (Exhibit D, Juror Questionnaires). Question number 8
of the questionnaire asked "What was the most persuasive evidence that lead to the
conviction of the defendant?" (Exhibit D, page 4). In response to question number 8
of the questionnaire, juror Thomas C. Miller answered: "ALL OF THE EXPERTS
CONVINCED ME THE BABY DIED OF BRAIN DAMAGE, FROM SHAKING."
(Exhibit D, page 4). In response to question number 8 of the questionnaire, juror Etta
C. Luft answered: "Medical evidence about child". (Exhibit D, page 6). In response to
question number 8 of the questionnaire, juror Edward M. Russell, Jr. answered that
the "...evidence of prior injury" was in part what led to Mr. Yurko's conviction.
(Exhibit D, page 10). Question number 9 of the questionnaire asked the jurors "What
were your feelings on why the defendant did not testify on his own behalf?" (Exhibit
D, page 10). In response to question number 10 juror Edward M. Russell, Jr.,
answered: "self-incriminating." (See Exhibit D, page 10)

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