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Army court martial panel deliberating charges in boy's death

Posted: Monday, August 21, 2000

FAIRBANKS (AP) -- A military court-martial panel deliberating the fate of Army Sgt. Scott Buber must decide whether his stepson's death was a tragic accident or the act of an abusive father under a lot of stress.

The four officers and three enlisted men who began deliberating Sunday will have to rule without a reasonable doubt whether the Fort Wainwright soldier killed 4-year-old Ja'lon Jercorious Johnson by striking him.

Buber also is charged with assaulting the boy and making false statements to two Army Criminal Investigation Division agents immediately after the boy was injured. He could face life in prison and lose his rank and privileges if found guilty on all charges.

If the panel decides against unpremeditated murder, then they could find Buber guilty of a lesser charge of murder while engaging in a dangerous act.

This would be determined from arguments that the more than 200-pound Buber placed the 31-pound Johnson's life in grave danger when the two played football in the living room on Nov. 29, 1999.

''This is not a case of murder,'' defending attorney Chris Zimmerman said in his closing argument Sunday. ''This is a case of a tragic accident.''

Zimmerman said the boy's death was the culmination of head injuries sustained from a fall downstairs at the family's house on Fort Wainwright on Nov. 16, and an accident as the father and son were playing football two weeks later.

Capt. Richard Rivera argued for the prosecution that the injuries were inflicted by a man who had been pushed too far as a soldier and while at the same time taking care of two children as his wife worked nights.

''The accused was stressed out,'' Rivera said. ''He succumbed to all this stress, and he snapped.''

In the first incident, Johnson suffered head injuries that Zimmerman said attending physicians agree are consistent with a fall down the stairs. The boy received several scrapes and bruises to his forehead, inner ear, a swollen eye and a cut lip that required several stitches.

Caregivers and Buber testified that in the next 13 days the boy was lethargic, vomiting, suffering headaches and ''was not his normal self,'' Zimmerman said.

Buber took Johnson back to Bassett Army Community Hospital for a follow-up examination and to have his stitches removed, each time telling physicians that the boy was recovering nicely, Rivera said.

''He never bothers to tell one doctor about any of'' the headaches, vomiting and sleepiness, Rivera said.

On the night of Nov. 29, the boy sustained additional injuries when Buber and Johnson butted heads as the father was teaching his stepson football moves in the family's living room, Zimmerman said.

They collided and the impact forced the boy's head to hit the floor, his lawyer said.

Johnson became unresponsive soon afterward. He died at Providence Alaska Medical Center in Anchorage 10 days later of severe blunt head trauma.

Rivera disputed the football injury. He asserted that both incidents were inflicted by Buber.

''Only abusive force can lead to those injuries,'' he said in his closure.

Rivera stressed testimony by attending physicians, a neurosurgeon, a pediatric forensics specialist and the medical examiner that the fatal injuries were due to ''severe massive forces'' usually found in a fall from three stories or a car accident.

''Beyond a reasonable medical certainty, it was inflicted trauma,'' he said.

But, as Zimmerman pointed out, none of those doctors disputed the possibility that the presence of a first impact made the boy more susceptible to injuries from a second fall.

Rivera held up graphic photographs of the boy's autopsy showing severe brain swelling and bleeding. Physicians determined the bleeding was from wounds inflicted within 10 days before the boy's death on Dec. 9, he said.

Zimmerman referred to testimony made by the only radiologist to take the stand who said he had seen evidence of both old and new bleeding in the boy's head.

Rivera also showed the panel photographs of two impact bruises on the back of the child's head. He held up a picture showing bruises on the back of Johnson's arms that he said looked like someone had grabbed him.

Rivera's theory was that Buber threw the child against a table.

The prosecutor also claimed that the boy's death was the result of child abuse inflicted over time.

Rivera outlined several other injuries. When questioned by caregivers about a black eye, a mark on his back and a sore backside -- the boy said he fell down, the prosecutor said.

''It was programmed. That was his standard response,'' Rivera said.

Zimmerman argued that testimony from family members indicated the boy couldn't keep secrets.

''If there was something going on in his life, he would go and tell everyone,'' Zimmerman said.

Buber also is charged with giving two Army investigators false statements when they interviewed him after the child was critically injured.

In the first interview, the agent questioned Buber at his house while he packed for a trip to Anchorage to see the boy at the hospital

He told the agent then that he couldn't wake the child after the two had fallen asleep watching television.

''He wasn't thinking clearly at that time,'' Zimmerman said. ''His only focus was he needed to catch that plane so he could go be with his son, so he could be with his wife.''

The second interview came the morning after he arrived at the hospital in Anchorage. Buber omitted telling the agent about the fall in the living room because he was tired and stressed out, Zimmerman said.

Rivera said that it wasn't until physicians told Buber and his wife the injuries were only 24- to 36 hours old that he mentioned the football incident.

Zimmerman denied that, saying Buber had offered those details to the emergency room doctor at Bassett. The doctor was 60 percent sure that Buber had told him about the collision in fragmented conversations during the boy's treatment on Nov. 29, Zimmerman said.



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