Blaming The Babysitter
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Ashley Howes (CBS)
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(CBS) On a long holiday weekend in January 2005,
13-year-old Ashley Howes was asked to babysit the
daughters of a family acquaintance. A rite of passage
for many teenaged girls, the assignment would be "fun,"
Ashley thought.
But on that Sunday night, the fun ended when Ashley
frantically called 911 to report that 19-month-old Freya
Garden, a toddler in her care, lost consciousness.
Within hours, the toddler was dead and Ashley would find
herself accused of second-degree murder.
Correspondent Harold Dow reports on this shocking case,
and the stunning courtroom development that would change
everything.
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At age 13, Ashley Howes may officially be a teenager but
she is truly a kid at heart.
"She just displays more of a younger character," says
her father, John Howes.
Ashley is the youngest of John Howes' and Mary Rowe’s
three daughters. They live in a small town near Seattle
and, if it were up to her dad, Ashley would stay young
and innocent forever.
"I’m very protective of my girls. I have a 'no spend the
night' policy. They only spend the night with family,"
says Howes.
So it was very unusual when Howes agreed to let Ashley
spend a weekend in Seattle acting as a mother’s helper
for family acquaintance, Morningstar Garden.
Howes says he never wanted Ashley to go in the first
place. Why did he change his mind?
"Because my wife thought that it would be good for her
to get out of the house," he says.
Ashley would be babysitting for Morningstar’s two
daughters, Madeline, age 5, and Freya, 19 months old.
Morningstar Garden says she thought Ashley was a nice
girl. "I knew that she did well in school. She’s smart.
She was funny. She was friendly," she says.
So on the Martin Luther King Jr. holiday weekend in
January 2005, Ashley came to Seattle to babysit while
her father and stepmother attended a party with
Morningstar and her boyfriend, Gracian Cline. The plan
was for the kids to stay at a nearby motel while the
adults were at the party. Ashley’s 16-year-old
stepsister, Shauna, would be in charge.
"I was gonna be watching them but not in charge," says
Ashley. "That way, I wouldn’t have to make decisions. I
just play with all the kids. Because that’s what I do."
But plans changed. Instead of checking into the motel
that Friday night, they all ended up at a house that
Cline owned, but no longer lived in.
Ashley remembers the house being sparse. "It was kind of
small. It didn’t have much food in it. There was no bed
in the room that we had. There was just like a couple of
blankets down and my sleeping bag and a little baby's
sleeping bag."
Except for a television and a DVD player, there was very
little for Ashley and the girls to do, which left Ashley
in a bind, she says, since Morningstar and Cline spent
most of the day, Saturday, behind a closed bedroom door.
"They would stay in that room all day," Ashley says.
"They never, ever came out. It’s like they didn’t have
to go to the bathroom and they didn’t eat anything. They
just sit in there and when they went out, they just
walked out."
Come Saturday night, the night of the party, Ashley’s
parents were shocked to learn that their daughter was on
her own, across town, with the two small children.
Asked if he would have allowed Ashley to babysit,
knowing that she was the primary sitter for Freya and
Madeline, Howes says he would not have given permission.
But when Morningstar assured Ashley’s parents that she
had everything under control, they felt slightly better.
"She (Morningstar) came up to me and told me, 'Wow, you
have such a beautiful daughter. And she is so good with
kids,' " says Howes.
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Ashley Howes (CBS)
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The day after the party, Ashley says she felt
overwhelmed. "I don’t think that I was completely, fully
capable with the responsibilities they were giving me,"
she says. "They were there, and I also felt I was doing
this on my own. You need somebody checking up on you,
making sure that everything is OK. Especially when they
know the baby’s actual behaviors."
What was Freya like?
"Well she was kinda whiney. I didn’t know what normal
behavior was for her. So I’m thinking 'OK, this is
normal,' " says Ashley.
That Sunday afternoon, Ashley and Madeline went to the
movies. Morningstar and Cline were with Freya for two
hours; when Ashley returned, she gave Freya her bath.
"She was like, fussy, yes. I was like, you know, very
gently, 'Hey … it’s just a little bath,' you know?
'Cause she was crying," says Ashley.
Morningstar felt Ashley was doing such a great job that
she called her parents and asked that she be allowed to
stay a third night since it was a holiday weekend.
"Shouldn’t she come home? I go 'Isn’t a weekend long
enough?' And I just kinda gave in, I guess, again," says
Howes.
Right after that phone call, Morningstar and Cline left
Ashley alone again.
Less than an hour after Morningstar and Cline had left
the house, Ashley says Freya lost consciousness. She
frantically dialed 911 to get help.
Ashley told the operator: "She woke up, and then I went
in to check on her to make sure she was OK, you know.
And I came in and she's like, she was crying and then
she just totally stopped, and her head just slumped
over. She's not dead; she is breathing."
Lt. Roger Sargeant was the first EMT on the scene and
remembers that, "at that point we still didn’t really
know what had happened."
But within hours, police would start to get a better
idea.
"I remember walking into the emergency room waiting
area. I remember — just going up to Morningstar and
putting my arms around her, asking if she had seen Freya
yet," remembers Filina Niemeyer, Freya Garden’s
great-aunt. "I then remember seeing police officers
walking around. And I knew that something really
terrible had happened."
Freya's mom, Morningstar Garden, had last seen her
19-month-old asleep before she headed out to the grocery
store around 6 p.m. Sunday.
"She was plugged in on life support. And she just had a
bunch of tubes and wires coming out of her. She wasn't
good," Garden says.
Freya had sustained major head injuries, including a
blood clot in her brain. Doctors told police it looked
as if Freya had been violently shaken.
"Ashley was our most important witness. She was the only
one there at the time Freya slumped over," says Deputy
Chief Clark Kimerer, the second in command for the
Seattle Police Department.
According to most doctors, the only other way Freya
could have sustained these kinds of head injuries would
have been from a high-speed car accident or a fall from
a great height, two things she was not involved in that
weekend. So who had hurt Freya?
Police now had a crime to solve and a short list of
suspects to question: Morningstar Garden, Gracian Cline
and babysitter Ashley Howes.
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Ashley Howes (CBS)
(CBS)
"The detectives involved were looking at everybody,"
remembers Chief Kimerer.
Late Sunday night, police brought all three in for
questioning; a Detective Stevens interviewed Ashley into
the early morning hours before deciding to videotape her
statements, after getting her permission to do so.
Police provided Ashley with a doll to help her recount
what happened in the hours leading up to Freya losing
consciousness.
"I was like washing her hair and putting her back and
she started kicking me and screaming and I said, 'Freya,
stop screaming! It is a bath!" Ashley recalled on tape.
Asked what happened after the bath, Ashley told police,
"After the bath, she was just like 'whoooohhhh.' 'Cause
she wouldn’t really walk, she was just like…," she
explained, showing the baby doll slumping over.
The more Ashley talked, the worse it got.
"'You have no reason to be crying.' And she just kept
screaming. So I said 'Freya!'" Ashley told police.
"When Ashley stated that she had shaken the baby and
then went into further detail and then ultimately
demonstrated it to Detective Stevens, that’s when the
world changed," says Kimerer.
While Ashley’s world was changing, her parents, John
Howes and Mary Rowe were at home sleeping.
"We received a call that night at 9 o’clock from Gracian
telling us that Freya was in the hospital. I offered to
go over to Seattle and pick up Madeline and Ashley so
they can focus on Freya. And Gracian told me that he
would call me right back," recalls Mary Rowe.
But that call never came. Instead, the next time they
heard from anyone wasn’t until 4 a.m. Monday. Seattle
police detectives called to inform them of Ashley’s
arrest for the assault of Freya Garden.
"The proof did not point to Morningstar," says Chief
Kimerer. "The proof did not point to Gracian. The proof
pointed to Ashley."
At that point, Ashley’s parents went to catch the ferry
to Seattle.
"We had no information about anything. We had nothing.
Nobody told us anything," remembers John Howes.
Meanwhile, Morningstar and Cline went back to the
hospital to be with Freya.
"They've been working on her for hours and hours,"
Morningstar Garden tearfully recalls. "It did finally
come out that they were continuing to work on her to try
to make me feel better. And I just told them to stop."
Freya Garden was pronounced dead at 5:20 a.m. Monday,
nearly 12 hours after the 911 call from Ashley, who was
now a murder suspect.
What went through Ashley's mind when she heard Freya had
died?
"I just felt like I was stabbed. I just held my breath,"
says Ashley. "I didn’t know what I was thinking. I
couldn’t speak. I really just felt, went down like
something heavy just dropped on me. It’s something bad
to try and think when you hang out with kids all the
time that now one is dead. And they died in your care
pretty much, that somebody died — you care — it’s
terrible. It’s like somebody’s trying to hit you with a
hammer and they’re hitting you. And you’re getting the
wind knocked out of you while being stabbed repeatedly
in the heart."
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Ashley Howes (CBS)
(CBS)
Dr. Brian Johnston, the chief of pediatrics at
Harborview Medical Center, says he thinks Freya suffered
an inflicted injury.
"In severe or fatal shaken baby cases, the symptoms
would be apparent immediately after the shaking. They
have difficulty breathing. They lose consciousness,"
says Johnston.
Johnston did not treat Freya that night but has studied
shaken baby cases. Does he think a 100-pound child could
create enough force to kill a 26-pound baby?
"A 100-pound child is the size of many average-sized
grown women. Unfortunately, we know that people that
size are capable of inflicting these injuries on
children," says Johnston.
But Ashley insists she never hurt Freya, although the
toddler did take a few falls that weekend while in her
care.
"I know that I had nothing to do with killing her at
all," says Ashley. "I didn’t do anything accidentally. I
didn’t purposely do anything. I wasn’t shaking her hard
at all. I was just trying to calm her down. To have her
have a good weekend along with me, too."
At the end of that weekend, two things were certain:
Freya’s short life was over and 13-year-old Ashley’s
would never be the same.
Ashley was being handcuffed and would find herself
charged in Freya's death.
Eventually, after her arrest, Ashley was released and
placed under house arrest. She was only allowed to leave
to attend school.
With her ankle bracelet, Ashley says, she thinks people
assume she is guilty.
Guilty of what? "I don’t know. Of doing something to
hurt a kid. A baby that died. And I didn’t have any part
in hurting her at all," she says.
But King County prosecutors say 13-year-old Ashley Howes
is a killer.
"This is a child homicide case. A case in which we have
filed charges of murder in the second degree," says
Assistant Chief Deputy Prosecutor Kathy Van Olst. "We
had probable cause to believe that she, in fact, did
kill Freya."
According to the state, the evidence they need for a
conviction comes directly from Ashley.
"Those statements are important to us, not only because
it tells us what Ashley did and when she did it," says
Van Olst, "but also provides critical information that
the medical examiner was gonna rely on with regard to
the timing of the death."
But defense attorney Bryan Hershman says there was no
evidence and that he was astounded that authorities
charged Ashley. Hershman says detectives coerced
Ashley’s statements when they questioned her without a
parent or lawyer present.
"When you have four professionals, each of whom have
more experience than her years on Earth, who’s gonna win
that battle?" asks Hershman.
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Ashley Howes (CBS)
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Before her trial began, Ashley’s attorney asked a judge
to throw out all of the statements she gave to police.
But it wasn't easy because, in Washington state, law
enforcement can legally question anyone 13 years of age
without a parent or an attorney present and police claim
Ashley knowingly and willingly waived her rights.
If Ashley is found guilty, she could go to jail until
she’s 21, a thought that was on everyone’s mind as they
head to court.
"I’ve never had a murder case where I went into it
feeling like — I’ve got 'em where I want 'em. And this
case is no exception," says Hershman.
Eight months after Freya Garden’s death, Judge Mary
Roberts presided over a pre-trial hearing. The
prosecution needed to prove the detectives who
questioned Ashley did nothing wrong and followed the
letter of the law.
Det. Caril Chilo interviewed Ashley that Sunday night
while Freya was at the hospital.
"She said she had shaken her when she cried for no
reason. And she had shaken her a second time when she
cried in the splashing water in the bathtub," Chilo says
on the stand.
Suspicions grew when Ashley was given a pen and paper
and she wrote a letter, which read in part: "She does
not deserve this. I do … I should have been way more
gentle with Freya. She did nothing for this all because
of me. I am going to just totally hate myself for this."
After several hours of questioning, detectives were
convinced Ashley had killed Freya. It was approximately
3 a.m. Monday, when they started videotaping the
questioning.
"I didn’t realize that shaking her like this could have
done anything," Ashley says on tape.
"I think that what they realized from the videotape
statement was that Ashley was in fact implicating
herself as a suspect in this case," Van Olst says.
It was only then that detectives read Ashley her Miranda
rights. She was arrested and sent to the juvenile
detention center.
Early that Monday morning, her father, John, was allowed
to see her.
Howes had no idea what his daughter had told police, but
he gave her strict instructions not to say anything
more. "She was sitting on my lap and I told her that
definitely do not talk to anybody until I get a lawyer,"
he recalls.
But after Howes left, Ashley was brought back to the
police station where she was interviewed by homicide
detectives Nathan Janes and Paul Takemoto.
Asked by the prosecutor if Ashley ever told him she
didn't want to talk police or wanted a lawyer, Takemoto
said no.
Janes even had Ashley read over her rights before he
began his questioning.
Asked why he did that, Janes testified, "I wanted to
make sure she did understand that she did not have to
talk to us and what these rights actually mean."
The detective also stated on the stand that Ashley had
indicated that she understood her rights.
But under cross examination, Janes had a different
story.
"Was she able to explain the rights to you?" Hershman
asks.
"No. Not right at that moment. No," Det. Janes says.
"Det. Janes says, 'Do you understand those rights? Can
you explain them to me?' And she just sat there with
this blank look on her face," Hershman says.
"You said to Ashley, 'OK, do you still want to talk to
us then? It’s up to you.' Her response was, 'My dad said
I’m not supposed to talk to anybody unless him or a
lawyer is present,' " says Hershman.
Hershman says Ashley was invoking her right to remain
silent, but the detectives kept on pushing her.
"And then you say, 'OK, so — but the decision is up to
you, it’s not like we’re trying to railroad you or
anything like that.' She says, 'I’m supposed to wait.'
Do you recall that?" Hershman asks Janes on the stand.
"Yep, that’s correct," Janes replies.
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Ashley Howes (CBS)
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They did wait for about an hour and it was during that
break that John Howes got Janes on the phone.
"He said, 'Well, we’re doing more questioning. Is that
all right?' And I said 'Well, no, it’s not all right,"
recalls John Howes. "And he’s all, 'Well, John, you
know, to tell you the truth, we’re really looking at the
parents.' "
So John agreed to let his daughter talk. "As long as you
don’t ask any questions that have to do with her," he
recalls telling the detectives.
But detectives talked about a lot more than Garden and
Cline.
And after being detained for more than 19 hours, they
say there were no more questions about who killed Freya.
Their primary suspect was Ashley Howes.
In his 20 years as a defense attorney, Bryan Hershman
says he’s never defended anyone like Ashley. "I’m gonna
hold the state to its burden because my client hasn’t
confessed anything. My client’s innocent," he says.
Hershman believes detectives manipulated Ashley into
saying she shook Freya.
Asked if she ever shook Freya, Ashley replied, "No."
Ashley says her demonstration in the police video does
not show shaking, but rather, "there was a vibrating,
wiggling, rocking in a comforting mode situation."
As the pre-trial hearing continues, Hershman says the
detectives are the ones who suggested the word shake.
"Would you agree or disagree with the proposition that
until you told Ashley that the doctors said this child
has been shaken, until you told her that, she never
brought up the topic of shaken?" Hershman asked
Detective Chilo.
"That’s right," the detective replied.
"Ashley repeatedly said she wiggled the child. The
testimony from the detective was, 'She didn’t use the
word shake, they did,'" Hershman told 48 Hours.
And that’s what Hershman says Ashley wrote in that
letter during her interrogation.
"Saturday I grabbed her hands and well, not necessarily
shook her but wiggled her for about three, four, maybe
five seconds at the most," Ashley writes in the letter.
The defense says almost 19 hours after she was brought
in for questioning, the detectives went after Ashley
during her weakest moment, insisting she had killed
Freya.
"The only thing that can cause these injuries is the
shaking, that’s it. You lose your temper for a second or
something," Janes says to Ashley on the tape.
"I didn’t lose my temper. I know that," she replies.
"Well, I know you shook her because everything you’ve
told me is no one else could have. That’s the problem,"
Janes says.
"If you keep being told something over and over and over
and told details of what they want you to say, then you
start thinking of it," says Ashley. "I know I didn’t do
anything, but being pressured is also difficult to deal
with, along with that. So it’s kind of hard —when
there’s a professional telling you, you did something."
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Ashley Howes (CBS)
(CBS)
Hershman says that in the detectives' rush to judgment,
they failed to fully pursue the other suspects.
Asked if he thinks Cline and Garden were investigated
thoroughly, Hershman says: "No. Absolutely not. They
were nervous and … what’s the other word? Evasive.
Nervous and evasive were the words used by one of the
officers."
After their initial statements, it took investigators
eight days to bring Garden and Cline back for
questioning.
"First of all, Morningstar would not get on the phone
with me at all. Gracian kept putting off having an
interview done with them," Janes testifies.
Asked by Hershman if it would have been beneficial to
the investigation to get to Cline and Morningstar before
a week had passed, Janes says, "Yes."
Obvious signs of suspicious activities — cocaine and
marijuana — were found in Cline and Garden’s bedroom,
says Hershman.
"When they said to you that the drugs weren’t theirs,
did they look like they were telling you the truth, best
you could tell?" Hershman asks Janes.
"Well, I think they were lying to me, but I couldn’t
prove it," the detective replies.
There was also a receipt that shows the couple was
buying beer, malt liquor and baking soda that weekend.
Asked to testify why baking soda can be significant to a
scene where cocaine is found, Janes said on the stand,
"Cocaine is normally cut with baking soda."
But no drug charges were ever filed.
And Garden denies any drugs use. Asked if she and Cline
were using crack cocaine that weekend, Garden says: "Not
that I know of. I can only — I mean I can really only
speak for myself. I can’t say I know that he wasn’t on
drugs."
What bothers Bryan Hershman the most is what he says he
uncovered during his own investigation. "There was a lot
of reason to look at Morningstar. Morningstar had a
child die about 10 or 11 years ago under suspicious
circumstances," he says.
Asked what happened to the child, Garden says her son
died from crib death. "When the autopsy happened, they
thought maybe they would come up with some kind of
concrete facts that said there was a genetic deficiency
or something like that. But just nothing."
Hershman also found that child protective services had
investigated Garden on numerous occasions.
Asked about the CPS record, which is sealed, Garden
says, "It was just harassment. I mean the number of
times that they've gotten these crank calls is, like,
they've come over to my house a gazillion times and all
they ever see is great stuff."
Garden says those calls to CPS began during a custody
battle with the father of Madeline.
"Everywhere that I go, I always get compliments on my
parenting, no matter what's happening, I mean, I'm
almost patient to a flaw," she says.
And then there is Garden’s boyfriend, Gracian Cline, who
declined to talk to 48 Hours. His criminal history
includes convictions for drug possession and harassment.
"It didn't affect my comfort level of him interacting
with my kids because he's just a really kind, loving
person," says Garden.
Asked if she or Cline had anything to do with Freya's
death, she says no.
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Ashley Howes (CBS)
(CBS)
After eight days of pre-trial testimony, the judge was
ready to make her decision and she has some harsh words
for the detectives.
"Virtually all of the questioning was aimed at Ms. Howes'
conduct, not at the conduct of the other suspects," the
judge said. "Det. Stevens' questioning can only fairly
be characterized as an interrogation …. Det. Chilo’s
nervous and defensive demeanor was such that this court
found his testimony almost completely without
credibility."
The judge continued: "Miss Howes was unable to explain
her rights back to Det. Janes when he asked her to do so
and when asked whether she wanted to go ahead
regardless, she said quote, 'I’m supposed to wait,'
unquote. These statements from a 13-year-old and the
circumstances of this case are a clear invocation of her
right to remain silent and her right to counsel. The
videotape statement is not admissible."
None of Ashley’s videotaped statements can be used at
her trial.
Freya’s family was devastated by the ruling.
"The truth is being suppressed," says Freya's great-aunt
Filina Niemeyer. "And, you know, the fact that someone
is going to be possibly found not guilty, not because
they’re not guilty but because of a technicality, is
pretty upsetting."
But the trial still went forward and Ashley faced the
possibility of spending the next eight years of her life
behind bars.
On the first day of the trial, after getting those
police videos thrown out, attorney Bryan Hershman’s job
is to keep Ashley out of prison.
In her opening statements, prosecutor Christine Herman
says Ashley shook Freya to death. "Freya Garden died due
to the respondent’s assaultive behavior of her. That’s
why we’re here," the prosecutor said.
But Hershman argued that there are other explanations,
saying, "What the court is gonna find at its conclusion
is that the state has nowhere near the evidence
sufficient to establish proof beyond a reasonable
doubt."
Soon after their opening statements, the prosecution
called for an unexpected recess. The next day, the
prosecutor dropped a bombshell when she made a stunning
announcement, telling the judge, "We are unable to
proceed. I will be asking the court to dismiss."
Without those videos, prosecutors say they no longer had
a timeline to prove that Freya was fatally injured in
Ashley's care. The timeline was so critical because most
experts say babies that are shaken show symptoms almost
immediately.
"It was critical evidence, statements that Ashley made
about when things happened. What she did and what the
baby’s reactions were, were findings that the medical
examiner could then use to state an opinion as to when
the baby was injured," says Kathy Van Olst.
Judge Roberts granted the motion, dismissing the case.
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Ashley Howes (CBS)
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Freya's family was shocked at the verdict and expressed
their anger outside the courtroom.
"This is the little girl that everyone should be talking
about. And the police department and judges need to
realize that sometimes people that play a role in
murders don't look like monsters. Sometimes they're
teenagers and they have blue eyes and blond hair and
they seem innocent," says Niemeyer, holding up a poster
with photos of the little girl.
"We have two videotaped confessions. We have two
video-taped confessions. Two!" says Freya's mother,
Morningstar Garden.
Meanwhile, Ashley's defense attorney Bryan Hershman says
he believed in his client's innocence. "I don't want
this little girl to live the rest of her life with
people saying she got off on a technicality. She didn't.
She's innocent."
After the dismissal, the monitoring device was going to
be cut off Ashley's leg.
"I get to live. I get to go out and I get to go places
with my parents and I don’t have to stay in my house and
do nothing," she said.
So what really happened to Freya?
Asked who he thinks killed Freya Garden, Ashley's
attorney Bryan Hershman says, "I can't say that. And I
won't say that. I can only tell you if this was an
intentional act, there were only one of three people who
could have done it. Ashley, mom, and mom's boyfriend."
Police and prosecutors say they thoroughly investigated
Garden and Cline and are adamant the couple is innocent.
"When Ashley laid out the circumstances of what occurred
that night, it pretty much definitively excluded the
possibility that either Morningstar or Gracian were the
cause of the trauma that led to the death of Freya,"
says Deputy Chief Clark Kimerer.
Asked if the Seattle Police Department still believes
that Ashley Howes is responsible for Freya Garden's
death, Kimerer says, "We have no information, no basis
to believe anything different at this time."
A year has passed since Freya’s death, but the toddler
is never far from Ashley's thoughts. "I talk to her. I
have had dreams. I ask her to try to show me in any way
what happened to her. I tell her I miss her," says
Ashley, now 14 years old.
And now all sides are left to struggle with the
unanswered question about who ultimately was responsible
for Freya’s death.
"I think that every parent that hires a babysitter needs
to make sure, is the babysitter responsible?" says
Filina Niemeyer. "On the other end, the parents of the
babysitter also needs to be responsible. We need to
protect each other. And I wish that had happened for
Freya."
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