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Sunday, December 8, 2013
WIERZ
FROM A1
thing possible to help you on
this.”
An audiotape of the meeting was obtained by the Tulsa
World.
The irst-degree murder
case in Kay County against
Hayden Wierz’s father — Michael Wierz — is cloaked in
secrecy.
A gag order issued by a Kay
County judge prevents anyone
associated with the case from
talking about it, including to
the news media or in postings
on social media. A description
of the gag order online states
it applies to “all state employees.”
The case docket — normally a public document listing
each development and record
iled in a criminal case — was
missing for weeks from a
court website until the World
inquired.
Wierz’s attorney, Lloyd
Palmer, said he can’t say much
about the case due to the gag
order. Palmer has asked that
the gag order be rescinded,
saying prosecutors had no basis to request it, court records
show.
“My client has maintained
from Day 1 that he’s innocent
and thankfully that’s one of
the things we still can say in
this case,” Palmer said.
District Attorney Brian
Hermanson, whose district
includes Kay County, said he
couldn’t discuss the case due
to the gag order.
A iling by his oice earlier this year states: “The state
wholly denies that there has
been any pressure put upon
the Oklahoma State Medical
Examiner to amend the autopsy.”
Wierz, 29, has served ive
overseas deployments in the
U.S. Navy and as a sergeant
in the Oklahoma Army National Guard, including deployments to Iraq and most
recently Afghanistan.
Wierz told police he fell
asleep after running a bath for
his son, who had soiled himself, and awoke to ind the boy
dead in the bathtub.
The Sept. 18, 2012, autopsy
by the state Medical Examiner’s Oice ruled the boy’s
cause of death was drowning
due to “multiple injuries, likely that of a canine attack.” The
report also notes “numerous
traumatic injuries of the head,
chest and abdomen,” including two cracked ribs.
Wierz told police the family pit bull jumped on Hayden
and bit him earlier in the day
as the boy held a cat, knocking
him down several stairs. The
autopsy noted several bite
marks and scratches on his
body. Though Hayden did not
appear to be seriously injured,
Wierz told police he planned
to have his mother, a nurse’s
aide, examine the boy that
evening.
Other relatives told police
the boy was autistic, prone to
injury and on several medications for ADHD and autism.
Police and an emergency
room doctor said Hayden’s
body was covered with bruises and that they suspected
abuse, records show. Wierz is
being held in the Kay County
jail on $200,000 bond.
The Kay County District
Attorney’s Oice iled an escalating set of charges against
Wierz, irst accusing him of
child abuse by neglect and
later irst-degree murder.
The most recent charge
was iled in May: irst-degree
child abuse murder “or in the
alternative by willfully or ma-
Mike Wierz of Ponca City holds his son, Hayden, who died in July 2012 in what Wierz says was
a tragic bathtub accident. Prosecutors charged Wierz with murder, but an audiotape indicates the
state Medical Examiner’s Oice was urged to change an autopsy report. Wierz has served ive overseas military deployments, including trips to Iraq and Afghanistan. Courtesy
liciously” neglecting the child
by failing to provide medical
care after the child was injured.
Palmer countered with a
motion asking the judge to
throw out the charge due to a
lack of evidence and the fact
that Wierz essentially faced
the same charge already.
In a separate civil proceeding, prosecutors moved to
terminate Wierz’s parental
rights to his surviving child,
a 6-year-old daughter. After a
three-day trial in May, a jury
terminated his parental rights,
inding him guilty of child neglect but not abuse of his son,
records show.
“A little boy died,” Palmer’s
motion states. “The Oklahoma
State Medical Examiner ruled
that the boy drowned. She
cannot say how or why. A Kay
County jury ruled that Defendant did not abuse his son.
“State has accused the boy’s
father of murder. It will not
say why or how, because it
does not know. State simply
hopes a second jury will guess
defendant into the penitentiary based on some highly disturbing, but ultimately nonprobative, photographs of the
child.”
The Kay County District Attorney’s Oice responded that
the state “must prove only
general intent to commit the
act which causes the injury.”
The parental rights case was
a separate action and has no
relation to the criminal case,
states a response iled by prosecutors Aug. 5.
“This is ‘textbook’ irst-degree murder by child abuse,”
the prosecutor’s motion states.
‘It’s my fault’
An energetic 4-year-old,
Hayden enjoyed playing
Power Rangers, “ninjas” and
rough-housing with his cousin, who also lived in Ponca
City.
The day Hayden died was
near the end of a visit that he
and his sister had with their
father. Wierz had just returned from duty in Afghanistan and had arranged with
his ex-wife, Breanna, to keep
his children for a month at his
home in Ponca City.
After the two divorced in
2006, Breanna moved to Texas
with the children and Wierz
remarried in 2011.
Wierz’s parents, Kyle and
Teresa Tapp, said their son is a
good father who would never
hurt his children. Kyle Tapp
said his son fell into a depression and blamed himself for
failing to watch Hayden.
“He said, ‘Dad, I can take 30
guys into the valley of hell and
bring them back but I can’t be
responsible enough to watch
my own 4-year-old.’ ”
Kyle Tapp said Hayden’s
death “was an accident — un-
fortunately an accident with
fatal results.”
“My biggest concern is the
political people here in this
area are trying to make it their
own personal mission to see to
it he gets put away for the rest
of his life,” Tapp said.
One motion iled in the case
alleges that the investigating detective has a personal
grudge against the family due
to a ight he had with Tapp 30
years ago. Other records allege
Wierz was assaulted in jail by
a relative of the detective, who
had tried to get him to talk
about the case.
In a videotaped interview
with police that day, Wierz
sobbed and said he felt responsible for his son’s death.
“It’s my fault. I shouldn’t
have let him take a bath by
himself,” an emotional Wierz
states on the taped interview.
Wierz had taken Hayden
and his sister to Kaw Dam, a
reservoir created by a dam in
the Arkansas River.
“We had just got back from
the river. We were looking
for arrowheads on the (river)
bank. It got hot, so we came
home.”
On the way home, Hayden
had an accident in his pants,
Wierz said. At home, he said
he ran a bath for his son.
“I was trying to get him
cleaned up. He wouldn’t wait.
I told him we had to wait for
the tub to ill up; we needed to
check the temperature.”
Wierz told Ponca City Police
Detective Jimmy Sherron that
as the water ran, “I went to my
room and sat down watching
TV” and fell asleep.
“I got up 10 or 15 minutes
later to go check the water and
ind him. He was under the
water,” Wierz said.
He would later acknowledge he could have been sleeping much longer.
An emergency room physician told police “it appeared
to me that this child had been
dead for awhile.” The doctor
also said the boy had many
bruises that looked “suspicious.”
Wierz said he pulled his
son’s body out of the tub but
accidentally dropped the boy.
Then he said he began to perform CPR and called his wife.
Police would later question
why he didn’t call 911. Wierz
said he was performing CPR
and just hit redial for the last
number called.
Becky Wierz told police her
husband called and was frantic and crying, telling her to
come home but didn’t say why.
She raced to the house, calling
Teresa Tapp on the way.
Tapp, a certiied nurse’s aide
who works in an emergency
room, told police she took
over CPR from her son when
she arrived.
“I don’t believe those are
bruises on his body. I think it’s
lividity,” Tapp would later tell
police, referring to a term used
to describe post mortem discolorations of skin.
“If he does have bruising on
his chest, it’s from the chest
compressions,” she told police.
Hayden was declared dead
at a hospital.
In the two weeks following
Hayden’s death, police and
Department of Human Services workers interviewed his
sister, 6-year-old Kylie, three
times, records show. Each
time she told essentially the
same story: She was asleep,
and her brother died in the
bathtub.
“I have not seen anyone be
mean to my brother,” she told
police.
Breanna Wierz told police
she had called her son several
times during his visit with his
dad “and he was having fun.”
She told police that she and
her husband separated due to
“domestic violence.”
Records show a domestic
assault and battery charge
was iled against Wierz one
month after his son’s death
but dropped because his wife
declined to cooperate.
During the parental rights
termination hearing, Breanna
Wierz testiied that Mike Wierz “never hurt his children,”
court ilings state.
“Breanna
stated
that
Hayden has numerous behavioral issues and she said that
he will bite himself,” a police
aidavit states.
topsy report “problematic”
and said he had charged Wierz with child abuse by neglect
“because of the medical examiner’s report.”
“If we get a good medical
report, we probably would
charge in the alternative,” he
said.
Steumky told Hermanson:
“We are going to do everything
possible to help you on this.
We agree with you the ME’s
report is an unmitigated disaster in my opinion.”
As the meeting ended, a
man who appeared to be a
Ponca City police oicer said:
“Let’s get the SOB.”
More than seven months
later, the state Child Death
Review Board was preparing to review Hayden’s death,
records show. The board reviews child deaths and makes
recommendations to policy
makers and others about how
to prevent deaths from abuse
and other causes.
Records show Lisa Rhoades,
administrator of the board,
wrote to Dr. Chai Choi, the
doctor with the state Medical
Examiner’s Oice who performed the autopsy.
“The Oklahoma Child Death
Review Board is reviewing the
death of Hayden Matthew
Wierz … and respectfully requests a review of the autopsy
report and consider amending
the manner of death to homicide,” Rhoades states in the
letter, dated May 15, 2013.
“I need your help. thank
you,” states a handwritten
note at the bottom.
Other notes on the letter
indicate Rhoades had several
conversations with Sherron,
the investigating detective, in
June.
On June 25, Timothy Dwyer,
chief investigator for the Medical Examiner’s Oice, wrote a
supplemental report about the
case: “On this date I spoke w/
Det. Sherron w/Ponca City PD
about this case after receiving
a letter from the Child Death
Review Board about changing
the manner. … Det. Sherron
asked if there was any way to
amend the mannder (sic) to
relect homicide, which they
believe is what occurred.”
A month earlier during the
termination trial, Choi told a
judge she stood by the report’s
conclusions, which remain
unchanged.
In court ilings, Palmer has
stated that the taped meeting and other records indicate
prosecutors and police may
have been engaging in “witness tampering.” He has asked
the OSBI to investigate.
“The Child Death Review
Board has been complicit in
state’s eforts to build a case
against defendant. There is
no need to conjecture regarding State’s eforts to make the
evidence it the crime: the
prosecutor stated as much at
a star-chamber-style meeting,”
Palmer states.
Rhoades said she couldn’t
discuss the matter due to the
gag order, and Steumky could
not be reached for comment.
In a iling in August, the District Attorney’s Oice latly
denied pressuring the Medical
Examiner’s Oice.
“The state has sought to ensure that the autopsy report
is accurate and at no time has
acted in any way that is improper,” the iling states.
Amy Elliott, a spokeswoman
for the Medical Examiner’s
Oice, stated in an email she
could not discuss the Wierz
case due to the gag order. She
was not able to provide statistics regarding how many
autopsy reports have been
changed after being issued.
In general, Elliott said: “Our
policy is if, when additional
information is received, we
will consider that with the
case. However, in our experience, we have never been
asked to render or change an
opinion for the sake of prosecution or defense.”
Ziva Branstetter 918-581-8306
ziva.branstetter@tulsaworld.com
Autopsy called ‘disaster’
About two months after
Hayden’s death, the state Medical Examiner’s Oice released
the autopsy listing his cause
of death as drowning and the
manner as “undetermined.”
During an Oct. 24, 2012,
meeting, Kay County District
Attorney Brian Hermanson,
police and DHS workers involved in the case met with
Steumky and other child
abuse experts.
An audiotape of the meeting, part of discovery material
in the case, reveals discussion
focused on whether the medical examiner would change
her report.
While several court ilings
refer to the Oct. 24 gathering as a meeting of the state
Child Death Review Board,
the board did not meet on that
date, records show. However
Steumky, a board member, led
the meeting and said the board
would be reviewing the case.
Numerous times during the
meeting Steumky said he was
certain Hayden’s injuries were
caused by abuse. Others asked
if the bruises could have been
from lividity and the injuries
due to the dog attack or vigorous CPR, theories Steumky
rejected.
Hermanson called the au-
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