Federal appeals court denies Melissa Dovala's petition for release from prison

A federal appeals court in Cincinnati has rejected a convicted killer's appeal for release from prison on the grounds she did not receive adequate legal representation. Judges on the U.S. 6th Circuit Court of Appeals on Tuesday denied 50-year-old Melissa Dovala's petition for a court-ordered release from prison. Dovala was found guilty of killing Riley Smath, a 5-month-old boy who was in her care at her Amherst home on Feb. 6, 2004. She was convicted of murder, felonious assault and endangering children and was sentenced to 15 years to life in prison in July 2005. In court filings, Dovala argued that her former defense attorney, James Burge, was ineffective because he decided not to hire an expert to challenge Riley's cause of death as well as a finding for the time that the injury was inflicted. "The (9th District) Court of Appeals disagreed, reasoning her attorney's decision to aggressively cross-examine the prosecution's medical witnesses" was improper, the federal appeals court wrote in its decision. Even a lower federal court was divided on the issue. Magistrate Judge James Knepp recommended that the U.S. District Court for northern Ohio reject Dovala's petition in a report he issued in October 2019. However, U.S. District Judge Pamela Barker refused to accept that report and granted Dovala a conditional release in October 2020. That order was the one taken up by three 6th Circuit judges, who rejected Dovala's most recent petition. Established law "compels us to disagree with the district court," Judge Richard Griffin wrote. The U.S. Supreme Court recently ruled that the law "does not require a defense attorney to present an expert whenever a prosecutor does so" and even "endorsed the very strategy Burge utilized as an alternative to expert-testimony: Cross-examination." Dovala's defense was hampered because she gave a statement to Amherst police in which she said Riley did not have an accident in her home and there was no one else there to inflict the fatal head injury on him. "Those admissions limited Burge's options for undermining the prosecution's charge that the injury occurred while in her care (or) that someone else in her home was responsible, by accident or purpose," the federal appeals court wrote. Burge consulted several medical professionals while preparing his defense, and raised the idea that a congenital birth defect or other genetic abnormality could have led to the child's death. However, "Burge testified that he raised this possible line of defense with Dovala … she worried what his strategy would be if the test showed no congenital abnormalities," according to the federal appeals court. Burge not putting a medical expert on the stand in his client's defense was a reasonable trial strategy, the federal appeals court ruled. Dovala has argued her case for years in state and federal courts. At trial, prosecutors argued Riley died from a blow to the head while Dovala was babysitting him, though Burge argued Riley's death could have been caused by his brain pushing against his slow-growing skull, according to Chronicle-Telegram archives. In a 2010 deposition, Burge testified he had consulted with a neurologist who gave the opinion that the killing was deliberate, according to Chronicle archives. In 2013, Visting Judge Thomas Pokorny ruled Dovala wasn't entitled to a new trial because there wasn't enough evidence Burge failed to provide an adequate defense. That ruling was overturned on appeal, but a second attempt by Dovala to have her murder conviction overturned in 2014 met with the same result when heard in front of Pokorny. Dovala's first parole hearing is scheduled in September, according to the Ohio Department of Rehabilitation and Correction. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.