Former Milwaukee County medical examiner's botched autopsy forces dismissal of child homicide case

A prosecutor recently dismissed a homicide case after learning of a botched autopsy by former Milwaukee County Medical Examiner Dr. Brian Peterson .

The autopsy of the victim, a 2-month-old baby named Kai Ivy, did not meet national standards for investigating sudden infant deaths, said Deputy District Attorney Matthew Torbenson.

Torbenson dismissed the homicide charge he filed against the baby’s father, 23-year-old Jakob Ivy , last month.

The case raises questions about the forensic work of Peterson, who abruptly retired in September 2022 .

His retirement and subsequent failure to testify to his prior work in ongoing court cases delayed at least one case, the homicide trial of former Milwaukee police officer Michael Mattioli, who ultimately was acquitted by a jury .

Peterson has told other media outlets he was forced to retire. Both he and County Executive David Crowley have not provided details about the circumstances of his departure. In response to a public records request after Peterson's retirement, Milwaukee County officials said there were no disciplinary records or complaints in his personnel file.

After Peterson retired, Torbenson asked the new medical examiner, Dr. Wieslawa Tlomak , to review the file for the Ivy case and provide an independent opinion.

Tlomak could not do so, in part, because too little tissue was preserved to be retested, according to the prosecutor.

Peterson did not return phone calls and text messages requesting an interview about the Ivy case or his prior work. Tlomak did not respond to an interview request.

Travis Schwantes, the public defender who represented Ivy, suggested if the autopsy had been done correctly, his client may never have been charged in the first place. An outside expert hired by the defense theorized the baby likely died from a bacterial infection based on initial lab results at the hospital.

“Had there been a complete autopsy … maybe the process never swings into motion and this isn’t a homicide investigation," Schwantes said.

Torbenson remained unconvinced, telling the Journal Sentinel there was “clear evidence” of blunt force trauma in this case.

“The issue is we don’t have a medical expert to say the injuries resulted in the child’s death,” he said.

What happened to baby Kai

Just after 2:30 a.m. April 26, 2021, Ivy called 911 to report his son was not breathing.

Kai was taken to Children’s Wisconsin where medical staff tried to revive him. He was pronounced dead at 3:34 a.m.

At the time, there were “no signs of injury or trauma” and “no obvious signs of abuse or neglect,” according to a medical examiner’s report.

But the doctor “felt the story provided was ‘odd,'” the report says.

Ivy had told investigators he was feeding his son formula when the baby started choking and formula came out of his nose. He notified his mother, whom he lived with, and she started CPR while he called 911.

The child’s mother told authorities her son had a swallowing problem and history of regurgitating from the nose while feeding.

On April 27, Peterson performed an autopsy on the infant. He noted bleeding in the retina and signs of brain bleeding and traumatic brain injury, according to the criminal complaint. He ruled the cause of death “blunt force head injury” and the manner as homicide.

The next day, Milwaukee detectives arrested Ivy and interviewed him again. They started by asking him about a text message he sent to his son’s mother in which he apologized for killing the baby. Ivy explained he felt responsible because his son had died while in his care, the complaint says.

Then, the detectives told Ivy the results of the autopsy. Ivy initially denied shaking or abusing his son in any way.

But eventually, the complaint says, he told detectives he shook his son on April 24 and that the infant was lethargic the entire next day.

Autopsy did not meet standards set by National Association of Medical Examiners

At the hospital, staff took blood from baby Kai and sent it to a lab for testing.

The initial results found Group B strep in his blood, a bacteria that can cause severe, even fatal, infections and sepsis.

Dr. Jane W. Turner , an outside expert hired by Ivy’s attorney, noted Peterson’s autopsy did not include microbiology testing as recommended in standards set by the National Association of Medical Examiners. Such testing could provide more detail about what role, if any, an infection may have played in the baby's death.

The infant also was not tested for COVID-19 or other respiratory viruses despite his death occurring during the pandemic.

The autopsy was narrowly focused on inflicted head trauma “at the onset” and the lack of testing or investigating of strep B as a potential cause showed Peterson’s “bias,” Turner wrote.

“There was every indication in this case to do that testing,” Schwantes, the defense attorney, said. “There were blinking red caution lights.”

Schwantes submitted Turner’s report to the court in June 2022.

Peterson retired three months later, after a series of controversies, including statements he made on a listserv for pathologists in response to a 2021 study examining how often Black and white infants' deaths were ruled homicides .

The study suggested that medical examiners' roles in the criminal justice system might be more subjective than usually presumed, as well as being influenced by cognitive bias.

“What is woke today is fodder tomorrow," Peterson wrote. "Is there anyone in our profession that has not, at one point or another, quipped about 'spinning the wheel of death' and picking one? How many cases do we see in which there are multiple competing causes of death, any one of which, or combination, would work just fine?"

At least one pending child homicide case involves an autopsy review by Peterson.

Ronald Schroeder , 54, who used to work professionally as Silly the Clown, was charged in the 1991 death of his 1-month-old daughter, Catherine. Schroeder had long been suspected of the homicide but was not charged until August 2021.

In that case, there was enough tissue and records saved for Tlomak, the current medical examiner, to provide another opinion. She found the death was the result of blunt force trauma and the manner was homicide, according to the prosecutor.

Without a medical expert to testify about death, charge dismissed

Soon after Peterson's retirement, the prosecutor asked officials at the medical examiner's office to review all available evidence in the Ivy case.

Tlomak requested the police reports in February 2023.

Her review found Peterson’s autopsy of Kai did not meet the standards of the National Association of Medical Examiners' recommendations regarding autopsies on infants who die suddenly and unexpectedly — the same issue identified by the defense expert.

There was no microbiology testing for infection, no staining of brain tissue samples to look for injuries and a limited description of the severity of the brain injuries, Torbenson said.

“Moreover, there was little tissue preserved that would allow for additional follow-up testing,” the prosecutor said.

As recently as this February, Torbenson expected Tlomak to appear in court and testify that the baby died of blunt force trauma to the head, according to court filings.

Then, just days before the trial was to begin, the medical examiner’s office informed Torbenson it could not render an independent outside opinion in the case.

Without a medical expert witness to testify to the cause and manner of death, Torbenson said he "made the difficult determination that the interests of justice required that the charges be dismissed at this time."

Ivy, who had no prior criminal record, had been free on $5,000 bail while the case was pending.

The homicide case was dismissed April 19, nearly three years after baby Kai died.

Vanessa Swales of the Journal Sentinel staff contributed to this report.

Ashley Luthern can be reached at ashley.luthern@jrn.com.

This article originally appeared on Milwaukee Journal Sentinel: Former Milwaukee County medical examiner's botched autopsy forces dismissal of child homicide case