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"Little Madison Below died because of Michael D. Below's cruel and craven physical abuse," says Van Hollen. "Both the Washington County jury and the Wisconsin Court of Appeals correctly held him responsible as a matter of law for Madison's death."
MADISON – A Washington County jury convicted Michael D. Below of first-degree reckless homicide and physical abuse of a child arising out of the death of his infant daughter, Madison, in August of 2008. This morning, the Wisconsin Court of Appeals rejected Below's claim that the jury should have been instructed it could consider the termination of Madison's life support as an "intervening cause" of her death.
Attorney General J.B. Van Hollen, whose office represented the State of Wisconsin in the Wisconsin Court of Appeals, expressed his agreement with the decision. "Little Madison Below died because of Michael D. Below's cruel and craven physical abuse," said Van Hollen. "Both the Washington County jury and the Wisconsin Court of Appeals correctly held him responsible as a matter of law for Madison's death."
On August 11, 2008, two-month-old Madison Below suffered profound and irreversible brain injuries inflicted by her father, Michael D. Below. On August 18, 2008, after consultation with Madison's mother and other family members, medical staff discontinued her life support but continued her comfort medications. Madison died five days later.
At trial on first-degree reckless homicide and physical abuse charges, Below asked the Washington County Circuit Court to instruct the jury that it could consider the decision to terminate Madison's life support an "intervening cause" of her death, and so relieve Below of legal responsibility for the reckless homicide. The court refused to give the instruction, the jury convicted Below, and he appealed.
To convict Below of first-degree reckless homicide, the State was required to prove beyond reasonable doubt that Below's intentional actions—his physical abuse of Madison—was a substantial factor in causing her death. Below challenged the absence of the jury instruction and the sufficiency of the evidence on this point, arguing that his conduct was not a substantial factor because her death was "caused" by the discontinuation of life support.
Relying on well-established Wisconsin case law, the Wisconsin Court of Appeals affirmed Below's convictions. From the Court's decision (with quotation marks, legal citations and footnotes omitted):
The trial court's decision to deny the intervening cause of death instruction was not clearly erroneous. We are satisfied that the overwhelming medical and other evidence viewed most favorably to the State and the conviction is sufficient to show that Below's undisputed intentional actions—his repeated striking of Madison's head against the changing table—were a substantial factor in causing Madison's death. That is the showing required under Wisconsin law and the State proved it beyond a reasonable doubt.
. . . .
Below does not contend that the State failed to prove he repeatedly struck his daughter's head against the changing table, causing her to suffer from severe skull injuries and irreversible brain damage. Rather, he argues that the State failed to prove his reckless conduct was a substantial factor in bringing about Madison's death. As we have clarified, the controlling law not only does not support Below's argument, it levels it.
The Wisconsin Court of Appeals' decision in State of Wisconsin v. Michael D. Below, No. 2010AP 798-CR, appears at the Court's website:
Wisconsin Department of Corrections records indicate that Michael D. Below remains incarcerated at the Wisconsin Secure Program Facility at Boscobel, Wisconsin.
Assistant Attorney General Daniel J. O'Brien represented the State of Wisconsin in the Wisconsin Court of Appeals.