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Column

Hosey: If they only had a brain

Joe Hosey
Joe Hosey

Storey Trubiano would have turned 8 years old last month if she hadn’t been killed two months after she was born.

The baby stopped breathing in her Lockport home and was taken to Silver Cross Hospital, then brought to Children’s Memorial Hospital in Chicago. Her brain was bleeding, and so were her eyes, the police said, and she died three days later. This was in December 2009.

In the days before Storey died, her father, Mark Trubiano, was arrested and charged with battering her. He was put in jail, and his bond was set at $1 million. Then, after his daughter died, Trubiano was charged with her murder, and his bond was pushed up to $5 million. The bond later was dropped to $3 million, and Trubiano came up with the $300,000 to get out of jail.

And then Trubiano waited on his case for nearly eight years, right up until last month, when he pleaded guilty in Will County court to killing his infant daughter, but not murdering her. Trubiano only pleaded to the involuntary manslaughter of a family member, which still is a felony and could have put him in prison for 14 years. But it didn’t. The judge gave him a 16-day jail sentence, which was considered served because of the eight days Trubiano spent in the county jail before making bond in January 2010.

What made this possible for Trubiano was the Cook County Medical Examiner’s Office, which had been in possession of his dead daughter’s brain but somehow found itself without it.

In 2014, Trubiano’s lawyers said they were “informed that the brain has been lost, destroyed or is otherwise unavailable.”

So were Storey’s eyes, the lawyers said in a court filing.

This posed a problem for Trubiano’s criminal defense, as he had an expert who planned on conducting tests on the brain that he hoped would clear him in court. And now there was no brain to test.

That’s not to say the brain was completely gone, however. And it’s not as if the brain actually was lost, said Becky Schlikerman, the medical examiner’s spokeswoman.

“All I can say regarding this case is that the medical examiners did not misfile evidence,” Schlikerman said. “We are still in possession of tissue slides and paraffin blocks.”

And Trubiano’s defense team had somebody there when they went about gathering material for the tissue slides and paraffin blocks, she said.

“Not only was the Cook County medical examiner present at the time of the examination, but so was the pathologist hired by the defense attorneys,” Schlikerman said.

The pathologist might have been present, but Trubiano’s lawyers filed court papers saying the medical examiner’s office prevented their expert from taking any photographs when Storey’s brain was sectioned. Not only were no pictures allowed, but the expert, Dr. Shaku Teas, testified in court that she also was told not to touch the brain or to even speak.

The tissue slides and paraffin blocks weren’t going to work for the tests the expert had in mind, said Trubiano’s attorney, Paul DeLuca. The expert needed the actual brain. Without it, the tests that would exonerate Trubiano could not be performed. And if they could not be performed, who is to say they wouldn’t have played out the way the expert predicted?

So Trubiano, who had been looking at possibly spending the rest of his life in prison, walked out of court on probation for the next three years. He also has to perform 100 hours of community service.

To get this deal, Trubiano had to plead guilty to killing his daughter, albeit involuntarily, which is something his lawyer still maintains he didn’t do.

“Because of the circumstances, Mark did have to move on with his life,” DeLuca said.

Those circumstances were the 20 to 60 years in prison that would come with a murder conviction, and the prospect of putting your fate in the hands of a jury after the authorities tell them you killed your own baby.

“When you have a child case, you have so much emotion,” DeLuca said.

“It’s almost a mob mentality – ‘We want someone to pay for this child,’ “ he said. “It’s understandable.”

DeLuca said he recommended to Trubiano that he take the plea, but said, “It’s a tough thing to do.”

Accepting the plea wasn’t easy either, said Charles B. Pelkie, the state’s attorney’s office spokesman.

“The defense had a right to conduct its tests, and they were unable to,” Pelkie said. “They filed a motion to dismiss. They were denied, but it severely compromised our case. We were put in a situation where conceivably we could have gone ahead with the first-degree murder charge and lost the entire case, or the other option, accept a plea to a reduced charge, involuntary manslaughter of a family member.”

Pelkie said it was a “tough decision to make,” and didn’t sound much different than DeLuca when he said, “It’s a tough thing to do.”

“We wanted to seek justice for this child, and this was an unfortunate compromise we had to make,” Pelkie said.

Trubiano avoided prison, but he now is a felon for the rest of his life.

“It’s going to be difficult because he has an involuntary manslaughter conviction on his record,” DeLuca said.

Having a felony probably will be difficult for Trubiano. If they had the brain, maybe the tests clear him and he’s not a felon. Maybe they don’t, and he’s lucky with the way things turned out.

It would have been up to a jury to decide without a brain to prove it either way, his lawyer said, and that’s why he advised him to take the deal.

“We did recommend it,” DeLuca said, “because you don’t know.”

• Joe Hosey is the news editor at The Herald-News. Reach him at jhosey@shawmedia.com, 815-280-4094 or on Twitter @JoeHosey.

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