S02 Ep06: The Trial

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Speaker 1 Nobody Should Believe Me is a production of Large Media. That's L-A-R-J Media.

Speaker 1 Before we begin, a quick warning that in this show we discuss child abuse and this content may be difficult for some listeners.

Speaker 1 If you or anyone you know is a victim or survivor of medical child abuse, please go to munchhausensupport.com to connect with professionals who can help.

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Speaker 1 And as of right now, all of season two is available there to bench.

Speaker 1 People believe their eyes.

Speaker 1 That's something that actually is so central to this whole issue and to people that experience this:

Speaker 1 we do believe the people that we love when they're telling us something. I'm Andrea Dunlop, and this is Nobody Should Believe Me.
Hello, I have exciting news.

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Speaker 1 Up until now, we've covered a lot of what's happened on the CPS and family court side of this case, and we've also talked a lot about Mike's investigation into Brittany Phillips.

Speaker 1 This was the first medical child abuse case that he worked on that actually went to trial. And the way it plays out is really really interesting.

Speaker 1 I sat down with Don Ferguson, the prosecutor who took this case to trial. You entered the situation when the case was going to trial.

Speaker 4 Yes. It had already been indicted.
I'm trying to remember.

Speaker 4 I want to say it had been pending for a while because I think I was probably the second or third prosecutor that had had hands on it at the time. And it had been set for trial.

Speaker 4 Now, you can be set for trial, at least here in Tarrant County, for two, three years before you actually get to trial. That was, I think it had been on the trial docket for a while.
And,

Speaker 4 you know, my first role was really just getting acquainted with it.

Speaker 4 And that took several months, three to six months of just meeting with doctors and reading the file and learning all of the terminology.

Speaker 4 I mean, at the time, I had no idea what a G button or anything was.

Speaker 1 Can you explain what a G button is?

Speaker 4 Yeah, so a G button is the feeding device that is used

Speaker 4 for some kids when they have legit issues processing milk.

Speaker 4 Or if some kids, when their babies, if they can't breastfeed and they're not taking the bottle and it gets to be so necessary that they're not gaining weight, the doctors will start with an NG tube, which is like the nose tube that milk goes through to keep them thriving.

Speaker 4 And then if that doesn't work, they do a G button, which is a feeding tube that goes directly into the stomach.

Speaker 1 And that's a surgical procedure?

Speaker 4 That's a surgical procedure because they have to make an incision and put the tube directly into their stomach. But it is a surgical procedure.

Speaker 4 And when you relate it to the legal field, anytime you're having surgery, you know, we call that serious bodily injury of you're making a child get a procedure that they didn't need.

Speaker 4 So there was just so much terminology that we had to learn.

Speaker 4 And then a lot of it was once we got through all the paper and reading it, it was going to Cooks and meeting with these actual physicians and going to Dallas because there were, she had kind of split the doctors between Cooks and Dallas.

Speaker 4 And so a lot of it was just. plain dumb, although I didn't have to play because I really was like, please teach me and tell me what this means and break it down.

Speaker 4 Because, you know, going through medical files on any case is not easy because you're having to google what all the medical terms mean but a lot of it was just reading it and then going and having sit-downs with all the various doctors that sounds like a lot of took a long time yeah took a long time several months of prep you know a normal case as a prosecutor you can get ready for a normal case in a few weeks but something like this i think we had at least six months to get it ready.

Speaker 1 Wow. So the workload is just way bigger than.

Speaker 4 Yeah. And I mean, when you had something like that that you knew, you know, once when I came into it, we knew that trial was inevitable.
So I remember having to put a lot of my old cases at the time.

Speaker 4 You probably have like 50 to 100 cases as a prosecutor, but a lot of them had to kind of get the cold shoulder so you could focus on this one.

Speaker 1 Detective Mike Weber explained that this process is a lot more complicated than what you might be familiar with from watching episodes of Law and Order.

Speaker 3 You know, on TV, they always just show show you guilty and then they pronounce sentence. Well, that's not the way it works.
You have the guilt-innocence phase.

Speaker 3 In Texas, that can be either to the judge or the jury. It's the defendant's choice.
And she chose a jury trial. If you're found guilty, then you go to punishment.

Speaker 3 And in punishment, what we call extraneous bad acts, basically any other crime you've committed can come in. Guilt-innocence is focused on this particular crime, right?

Speaker 3 So let's say Brittany, she didn't, but let's say Brittany had a previous sexual assault conviction. Well, we can't talk about that in guilt innocence.

Speaker 3 We can in punishment, because then we can talk about all the bad things she's done in her life.

Speaker 1 Yeah, like how bad of an actor is this person? How much of a menace are they to this person?

Speaker 3 Right, but guilt innocence is a picture of this abuse. The slap was not allowed in during guilt innocence.

Speaker 3 Now, certain things should be allowed to come in, and the slap should have come in under Texas law.

Speaker 1 And why do you feel why?

Speaker 3 Because it shows the prior relationship between the victim and the suspect. Right.

Speaker 3 And there's actually law that says that's why it should come in

Speaker 3 to show that in a child abuse case. But the judge,

Speaker 3 and I really had, I admired this judge. He's a darn good judge.
I just think he was trying to make it fair. And

Speaker 3 that's not your role. Your role is to interpret the law.
And again, you have a judge who's never seen one of these cases. Right.
And he's putting it in a box that it doesn't belong.

Speaker 1 So he's seeing them as sort of these compartmentalized incidents rather than a

Speaker 3 whole pattern. Than a whole pattern.

Speaker 1 Getting a judge to understand this was one thing, but it was Dawn's job to present it to a judge and jury in a way that they could grasp. And it was hard even for her to wrap her head around.

Speaker 4 I mean, I remember being skeptical at first and talking with Mike about, you know, the different cases that he had seen. But Brittany was different because of the facts of the case.

Speaker 3 I struggle with,

Speaker 4 you know, I still struggle with understanding why people do this and whether it's a mental illness or not.

Speaker 4 I still struggle with that because part of me thinks something's got to be wrong with you in order to do that.

Speaker 4 But I could never have tried her and put all the effort into the case if I had doubts about her innocence.

Speaker 4 That's, you know, prosecutor 101 of you've got, you know, if you have any doubts, your job as a prosecutor is not to convict, it's to do what's right in the end.

Speaker 4 And sometimes what's right in the end is dismissing a case or giving probation at versus this or being lenient as opposed to being harsh.

Speaker 1 I thought it was really interesting listening to Don Ferguson, who's an experienced prosecutor, struggle with this question of the horror of this abuse and this question of whether or not someone would have to be mentally ill to commit it.

Speaker 1 And I just wanna remind you, as we've talked about a lot on this show, though there is a mental disorder associated with this abuse, it is not the kind of mental illness that makes someone less culpable for a crime.

Speaker 1 These offenders understand right from wrong. They're not having delusions and they understand what they are doing.

Speaker 1 It can take a really long time for one of these cases to go to trial, even after an indictment. And this is very tough on the family involved.

Speaker 1 And in many cases, the suspected offender still may have full visitation with a child while all of this is happening.

Speaker 1 And even if they have, quote, supervised visitation, if that's supervised by a family member who doesn't believe the abuse is happening, as happened in my sister's case and as happened in Mary Welch's case, which we heard about, this can mean that an alleged offender can have full access to their child.

Speaker 1 I wanted to talk to the Wayburns about what this strange interim period was like for them.

Speaker 1 This was several years between you guys taking Alyssa into your home and the trial. Did Brittany have visitation throughout that whole period of time?

Speaker 5 No, she didn't. There was a point where CPS closed their case and they left it up to us to terminate her rights.
Whenever we closed the case, we made an agreement.

Speaker 5 There was still going to be visitation at that time, but there was some very strongly worded rules.

Speaker 5 And pretty soon after those visitations had started, Brittany broke those rules and we were able to stop the visits within just a few months of that, which was the single best thing that happened.

Speaker 5 And then, you know, it did take years. It took forever.
It seemed like forever and ever and ever for the criminal trial to happen.

Speaker 1 And what was the trial like for you?

Speaker 3 You know,

Speaker 2 it was longer than I thought it would be, but the biggest anxiety I had during that trial was putting Alyssa through the trauma of testifying. And she did remarkable.

Speaker 1 How old was she at the time?

Speaker 2 Let's see. I'm thinking seven.

Speaker 1 So she's seven years old and she has to go testify against

Speaker 2 her biological mother. And not only testify against her biological mother.
Now,

Speaker 2 this was the most amazing thing. Laura and I were both witnesses, so we couldn't enter the courtroom.
So we had...

Speaker 2 people who were connected to us and who loved Alyssa and her first grade teacher Stevie Benford was a hero that day. Stevie is front and center.
And Alyssa loved Stevie and Stevie loved Alyssa.

Speaker 2 So she knew she was among friends. And that baby testified against and told all of the things that she told.

Speaker 2 And then she stood up and she was asked to pull up her shirt so that people could see the scars.

Speaker 2 And you can quickly see those, the scars that she'll carry forever. So that happened.
But the most miraculous things that happened is Brittany's sitting right there in the courtroom.

Speaker 2 She's sitting at the defense table right in front of the witness stand. Alyssa comes off of there.

Speaker 2 Stevie grabs her by the hand, goes out the court doors where we're waiting to leave with her to go get ice cream, I believe it was.

Speaker 2 And Alyssa took Laura's hand and they're walking down the hallway, but it was like, I didn't see Brittany anywhere in the courtroom. They didn't see her.
God's protection.

Speaker 6 I testified basically to some of the stuff that I observed Brittany to be liked prior to, you know, Alyssa being placed with us.

Speaker 6 And then I also testified to some of the things that Alyssa had done after she came to live with us.

Speaker 6 She had a couple of very specific things that she did that were, for lack of a better term, good for the case. One time she was acting like she was choking and making this weird noise.

Speaker 6 And I asked her, what is that? And she said, Mama Brittany, that's what she called her, Mama Brittany told me to do that for the doctors. And so, you know, that came in.

Speaker 6 We talked about her walking on her toes. She walked on her toes all the time.
And she had said that Mama Brittany made her practice doing that, going up and down the stairs.

Speaker 6 And, you know, that was another thing to do for the doctor.

Speaker 1 And what was that meant to demonstrate?

Speaker 6 I don't know for sure, but I think probably, you know, toe walking can be related to a lot of different things. One thing is a lot of autistic children will toe walk.
And so

Speaker 3 developmental self-just to, yeah.

Speaker 6 And think that that's what led to the braces on the legs. So I mean we we had to work really hard to get her to walk on her flat feet.
That was part of her therapy program was just walking.

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Speaker 3 I was under what's called the rule in Texas. They simply call it the rule.

Speaker 3 And what the rule is, is if you're a witness in a case, the defense can or the prosecution can invoke the rule, which means you cannot sit in the courtroom during other people's testimony.

Speaker 3 So the only testimony I saw was, well, my own, when I was in the courtroom. And I saw closing arguments.
Those are the only things that I saw during court. Now I can speak to my testimony.

Speaker 3 When I testified, it became clear that the defense's strategy was to blame it on doctors. I mean,

Speaker 3 it's the only strategy that they're going to have is to play on the ignorance of the jury about what this is and how this happens. And they attempted to play on that.

Speaker 3 One of their arguments was that she didn't even have time to read the piece on the lady in Austin who poisoned her child and was caught on video surveillance.

Speaker 3 When she Googled that on her computer and found that article, she only had it open for two minutes before she started Googling Poopin Fitting 2, P.M.E.S., P.M.

Speaker 3 Blood, and that she didn't have time to fully read that article on her computer. That was their argument.
That was one of their arguments.

Speaker 3 During trial, I do know that Brittany sat at the table, tried to look as dumb as possible, pretended to just look lost. This was noticed by our prosecutors, by everyone.

Speaker 3 I felt that she was playing dumb. There was something that we forgot to do because frankly, none of us thought of it.
I mean,

Speaker 3 we hadn't worked these cases. And this became a motion that the defense filed.

Speaker 3 a pretty smart move on their part. Our argument, what she was charged with was for putting theces in, which caused a polymicrobial blood infection.

Speaker 3 The defense's argument was that it was a contaminated test. Well, guess who I never interviewed? And guess who we didn't have a statement from, the phlebotomist who took the test.

Speaker 3 And we didn't have anyone who could testify that the test was taken. That was the defense's argument because we didn't have the phlebotomist on our witness list.

Speaker 3 Thank God we have one of the nurses who was in the room when she took the test on our witness list. But they made a big deal that we didn't have the phlebotomist testify.

Speaker 3 And that Alyssa could have put the poop in the feeding tube or central line herself. To me, that makes no sense.
But to a jury looking at a mom, a crying mom, it can be a different picture.

Speaker 1 And a jury who's just been told one of the most wild pieces of information they've probably ever heard in their lives.

Speaker 3 Correct. I mean, you're talking about an abuse pattern that is pretty draw-dropping, right? That people,

Speaker 3 hell, I don't see in my regular life, much less a regular person with a normal job see in theirs. It's just.

Speaker 1 I think that it's really like you can't understate the layers of sort of horror and disbelief people have to work through.

Speaker 3 And we didn't have videotape, right?

Speaker 2 We didn't have her videotape doing this.

Speaker 3 We had, this was a, this was a completely circumstantial case. We tried her on her computer records and her behavior in the hospital and a pattern of abuse.

Speaker 3 And you have to connect those, all of those dots. And the jury had to do that whenever they got into jury deliberations.

Speaker 1 The period of time where the jury is deliberating is really stressful for both sides, as Don Ferguson explains.

Speaker 4 I mean, there is nothing worse than waiting on a jury verdict and having no idea what they're saying in there or if they're getting along or if they're arguing over what they need to be arguing over.

Speaker 4 Because some juries will send you notes with questions.

Speaker 4 And sometimes the questions are really dumb and you want to respond like, why are you wasting your time on this? That has nothing to do with it.

Speaker 3 Worry about it. Right.

Speaker 4 Don't be worrying about that. But you can't tell them anything.
So when they send out dumb questions, all the judge can say is, please keep deliberating. I cannot comment on that.

Speaker 1 The outcome of the trial was not what anyone expected or what anyone wanted.

Speaker 6 I was devastated. It was so disappointing that the evidence could have been given and clearly demonstrated, and somebody still didn't buy it.
It was just devastating.

Speaker 4 At the end of the trial, you know, we had a hung jury.

Speaker 4 I would almost rather lose and just have the closure of a not guilty verdict than getting a hung jury because you're like, I've been working on this case for months.

Speaker 4 Am I going to have to do this all over again?

Speaker 4 You know, are we going to be able to get a plea out of it? There were just so many unknowns for several weeks.

Speaker 6 I mean, people just, they just don't believe that a mother could do that or that, you know, a mother could figure out how to do that or that a mother would want to do that or that, I mean, one person couldn't find her guilty.

Speaker 4 We had 11 people that said that they were leaning towards guilty and we had one guy that wasn't.

Speaker 4 And

Speaker 4 the male that admitted that he was never going to change his mind because he didn't think we had proven the case, he was a dentist. So he was in the medical field.

Speaker 4 And that was something that we debated of like, do we want to leave people on the jury that have a medical background or do we not?

Speaker 4 And, you know, we were frustrated with that aspect of, because I think in his mind, he knew what he thought about medical child abuse.

Speaker 4 And he was like, there's no way that she would have done that. Like, you can't, you can't tell me that she would have done that.
And so he did get stuck on the

Speaker 4 she's crazy or mentally ill and

Speaker 2 didn't vote.

Speaker 4 But it ended up working out in the end because when you get a hung jury like that, you have to make a decision.

Speaker 4 Do we retry the case and try this with a panel of 12 people and see if we can convince them or do we try to negotiate and reach a plea bargain?

Speaker 4 And luckily, Brittany was willing to sign for prison time. as opposed to going to another trial.

Speaker 4 So we reached a plea deal where she admitted that she did it, which was the big deal of like she had never, you know, she pleaded not guilty the entire time and would never admit what she did.

Speaker 4 But in the end, we got a guilty plea out of her and she took five years in prison.

Speaker 2 She pled guilty, admitted guilt in the courtroom, and took a five-year sentence. Now, do I think she believed that when she said it? Probably not.

Speaker 2 But I think her attorneys was saying, you know, you could face a long time in prison. And so she took the plea and we were there.
We were there during that plea, Laura and I were.

Speaker 2 So that was a significant moment.

Speaker 1 How did that feel to hear her say that she had done those things?

Speaker 2 Well, it felt like that we had reconciled a few things. It felt good.
It felt like that's great.

Speaker 2 If there's any question in anybody's life, we can go back to that and say she admitted it right here at that moment in that time. Now, she can come back and say she doesn't.
She was lying.

Speaker 2 But at that moment, before a district judge in the state of Texas, she said she was guilty. And very clearly,

Speaker 2 it wasn't any mumbling. It was very clear that he made her admit to that.

Speaker 6 I was glad that it was going to be over and that Alyssa wouldn't have to testify again. But, you know, five years, that just...
Five years is not a reasonable sentence for what she did to Alyssa.

Speaker 6 It's just not.

Speaker 1 That didn't feel like justice.

Speaker 6 No, no, it didn't. And at least her being in prison some was comforting to me.

Speaker 6 But to know that she would get out before Alyssa was even grown, you know, I would have liked to see her staying a bit longer.

Speaker 1 Bill and Laura Wayburn weren't the only family members who were let down by the amount of time that Brittany was given with her plea deal.

Speaker 1 Faith Preston, Laura and Bill Weyburn's niece, who was a big part of building the case against Brittany, felt the same way.

Speaker 8 All of us were very upset at that point and kind of,

Speaker 8 I don't know, it felt like justice wasn't served at all. Like nobody was protecting this child that we were all fighting so hard to protect.

Speaker 4 And they let her down.

Speaker 8 They let our whole family down, really. And then, whenever I found out that she took a plea in Dallas, I was like, finally, some justice.
She's not going to get to be with her kid anymore.

Speaker 8 And it was great. So there was kind of, it was kind of a roller coaster.
Like everybody was kind of down. And then

Speaker 8 finally, I don't think she served enough time. She should still be sitting in there.
So I'm thankful that she can't have any interaction with Alyssa.

Speaker 1 Regardless of the trial outcome, Laura Wayburn was very resolute about one thing.

Speaker 5 I can tell you that I wasn't giving her back to Brittany. I can say that.
I knew that Brittany had almost killed her and I couldn't have given her back.

Speaker 5 I would have just laid over and died before that would have happened.

Speaker 1 See, so Laura, like you're the hero of the story too.

Speaker 1 I mean, I'm serious because without you to advocate for that and to push so hard, because I know you and Bill, I mean, this was so much much work on your behalf and so much money that you guys had to put into this to be able to get Alyssa.

Speaker 5 It's never about the money, but of course it costs money to hire lawyers because, you know, you don't have a voice in the courtroom otherwise.

Speaker 5 I mean, whenever I say I wasn't going to give her back, I wasn't going to like run to Mexico or something with her. You know, we have to,

Speaker 5 because my husband's in law enforcement, we have to obey the law. We just have to.
But we had enough evidence to know that she was unsafe.

Speaker 5 And so any reasonable person seeing it is entirely different than, you know, a jury completely ruling on it, obviously. Unfortunately, I still don't understand how that happened.

Speaker 1 Have you had any contact with Brittany at all since, I mean, since the trial?

Speaker 2 No.

Speaker 5 She used to occasionally send.

Speaker 5 things

Speaker 5 to the house, but no, not since she went to prison. There's been no contact contact whatsoever, and I don't expect to have any.

Speaker 1 If you could say anything to Brittany, what would you say to Brittany?

Speaker 5 Here's what I would say to her: I would say, I hope that you can take responsibility for what you did to Alyssa.

Speaker 5 I hope that you can move forward in life and have a successful and productive life, staying away from all children always,

Speaker 5 because there are consequences for your behavior and that needs to be one of them. You need to never have anything to do with children ever again.

Speaker 5 And other than that, I wish you well and stay away from us. That's what I would say.

Speaker 6 We have a great big God who obviously has protected Alyssa and she is a wonderful and strong young lady and she's fine even though, you know, somebody almost killed her.

Speaker 1 This last bit of the interview with Laura Wayburn leaves me with some really big feelings.

Speaker 1 And I think there's a lot to be said about what justice looks like in any of these cases and sort of this lasting anger that a lot of us who've been through these cases have for the people that we feel looked the other way.

Speaker 1 So, in this case, the juror, in my case, some folks that I outlined in the previous episode. And I love the idea that God was looking out for Alyssa, and she deserves that.

Speaker 1 But I wonder where God is for the rest of these kids that don't get what they deserve. And that's just a hard thing to live with.

Speaker 1 Next time, we'll take a closer look at some of the intricacies of family court, and I have some updates for you.

Speaker 1 I've uncovered a lot about what went on in my sister's case, and I'm going to spend some time unpacking that with Detective Mike.

Speaker 1 That's next time on Nobody Should Believe Me.

Speaker 1 Nobody Should Believe Me is produced by Large Media. Our music is by Johnny Nicholson and Joel Schupak.
Special thanks to our lead producer, Tina Noll, and our editor, Travis Clark.

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