Blaming The Babysitter

This story originally aired on Feb. 4, 2006.

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.

"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.

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.

"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."

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 horrible 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.

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.

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."

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.

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.

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."

Ashley's parents are planning to file a civil suit against the state of Washington.
By Mary Noonan