Ohio Appeals Court Affirms Murder Conviction After Child Died from Complications of Brain Injury

Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation

Jason Milby at trial. (Dayton Daily News)

An Ohio Court of Appeals affirmed the convictions of Jason Milby on December 7, 2020. Milby was convicted of murder after a child died due to complications from a severe brain injury sustained while in Milby’s care.

In 2011, B.S., who was 2 years old, was left in a permanent vegetative state because of a brain injury that was the result of abusive head trauma. Milby, who was caring for the child at the time, was convicted of felonious assault and child endangering and was sentenced to 8 years in prison. B.S. died in 2016 from pneumonia due to complications from his brain injury. Milby was subsequently charged with murder.

At trial, Milby claimed that B.S. and his siblings were outside playing on the day B.S. was injured. Milby claimed he “picked up [B.S.] and playfully tossed him in the air” but his foot slipped and “both he and [B.S.] fell onto concrete.” Milby further asserted that B.S. played and ate after the injury before he became unresponsive.

The state claimed that B.S.’s injury was not an accidental fall. The state’s pediatrician “indicated that Milby’s version of events was not consistent with the serious brain injury [B.S.] suffered” and testified that he “found no accidental causes to account for the trauma inflicted on [B.S.]’s brain.” On cross-examination at trial, Milby admitted that he had lied to the police and had never told them his version of the events. The state also cited Milby’s motion for judicial release in which he expressed remorse for injuring B.S., which Milby later claimed to have not written. Milby was convicted, and he appealed.

Milby raised four claims on appeal. First, he asserted that the trial court denied him his right to a fair trial by denying him funds for an expert to testify that the brain injury was accidental. The appellate court found no merit in this argument because Milby only speculated that he could find an expert to aid him. The court similarly found no merit in Milby’s second or third claims.

In Milby’s fourth argument, he contended that there was insufficient evidence to convict him of B.S.’s murder. The court cited the state’s expert evidence that B.S.’s death was the result of pneumonia resulting from his brain injury and evidence that B.S. was well-cared for between his injury and death, indicating that the injury was the cause of death. The court also noted that the only evidence Milby presented was his testimony about the events on the day of the injury, which was contradicted by “expert medical evidence indicating that the injury to [B.S.]’s brain was so severe, he would have been incapable of engaging in any of the activities claimed by Milby.” Thus, the court overruled this argument and affirmed Milby’s conviction of murder.

Citation: State v. Milby, 2020 WL 7137028

Keywords: Ohio, traumatic brain injury (TBI), expert testimony, vegetative state

This post is the 86th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.