A Killer Goes Free Part 1: Lexington woman who left her baby to die now out of prison

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Tonya Nicole Brown gave birth to a baby and left it in a trash bin. She pleaded guilty and agreed to serve a prison term. Now she's free.

By Lisa King

On a cool spring day, April 6, 2008,Tonya Nicole Brown, nine months pregnant and feeling labor pains, entered the restroom of the White Castle Restaurant on Mount Eden Road and gave birth in a stall to a baby girl with dark, curly hair.


She placed that healthy baby inside a plastic garbage bag, tied that bag at the top, placed it in a trash can and walked out of that public restroom, less than 200 feet from the safe haven of a fire station.

Four days later, Kentucky State Police trooper Luke VanHoose dug that garbage bag out of a trash-filled Dumpster outside the restaurant.

Inside he found the baby, 7 pounds, 6 ounces, dead of asphyxiation.

Brown, 27, was arrested and charged with murder and tampering with physical evidence, and she later pleaded guilty to second-degree manslaughter and tampering with physical evidence, agreeing in Shelby County Circuit Court to serve 15 years in prison.

But on Nov. 23, 2010, Brown was released from custody, free to go home to her family in Lexington.

Senior Judge Steven Mershon, the man who had presided over her sentencing, granted Brown shock probation, allowing her to walk out of jail and back into her life as a wife and mother.

For pleading down on charges of murdering her baby, Tonya Nicole Brown served 72 days in the Shelby Detention Center and 13 months and two days at the Kentucky Correctional Institute for Women at Pewee Valley.

And in one strike of his gavel he released from prison a woman who had admitted in court to killing her child and allowed her to go free to care for the one she already had.

Mershon read psychological evaluations, heard pleas from Brown and her family and friends and judged that she had been terribly shocked by having been sent to prison and was needed at home to care for her husband, Josh, and another daughter, Morgan, now 4.

 “While [the] court agrees with Commonwealth that granting probation would have unduly depreciated the seriousness of the defendant’s offenses, the court does not feel the same as to shock probation,” Mershon wrote in his decision.


‘No prior record’

The theory behind shock probation, which is practiced in only six other states,is that for first-time offenders, the experience of being in jail is such a shock to them that they probably will not commit a crime again.

This option is employed primarily at the circuit court level and is intended for first-time offenders who have received jail time. They must serve a portion of their sentence, usually between one month and 180 days, and then may ask the judge for shock probation. It is up to the judge whether or not to grant it.

Most judges receive few requests, and most of them grant half or less, according to statistics acquired by The Sentinel-Newsfrom state court and law enforcement officials.

Mershon, who has served 23 years on the bench, said that he applies a couple of basic approaches in evaluating shock probation cases, one general and one personal:
“The purpose and philosophy of shock probation is to take someone who has made a mistake, sometimes a horrible mistake, the idea is that that experience has shocked them so much that we can now place them on probation, and hopefully, they’re not going to be a danger to themselves or others, and they can now become a productive member of society.”
And, he said, his personal criteria for granting shock probation is that the person must not have been granted that privilege before.
Even though Mershon acknowledged that cases like Brown’s are “flabbergasting, especially for the fifty percent of us who don’t have a uterus,” he said it was clear to him that Brown was sincerely trying to turn her life around.
“The bottom line with Ms. Brown is that she had no prior record at all,” he said. “She had never been in trouble. She had worked almost from the get-go with a counselor and a psychiatrist, and was committed to keep doing that,” he said.

Brown declined to be interviewed for this story. Her attorney, James Lowry of Lexington, did not return repeated phone calls from The Sentinel-News.

But in his motion to Mershon for shock probation for Brown, Lowry painted a picture of a young woman filled with remorse and in doing so revealed her apparent motive for such a heinous crime.

“The acts that led to the child’s death were so out of character for the defendant,” he wrote.

“Either she emotionally blocked her pregnancy or she failed to grasp that she was pregnant. In either event, the child’s birth placed her in shock. Her actions were those of a person acting as a result of a traumatic and shocking event. She will live the rest of her life in that same emotional jail cell. She will never escape the constant reminder of her responsibility for Bailey’s death [referring to name later given the child]. It is a punishment she will suffer for her lifetime.”

The psychological reports were withheld from the public record because they were not part of the criminal court file. But those who helped gather the evidence and prosecute it, speak with outrage and wonder that someone who admitted a crime so distasteful would be allowed to go free.


Pleas for release
A brief but certain profile of Brown, known as “Nicole” to family and friends, emerges from 16 letters sent to Mershon on her behalf as he pondered her request for shock probation.

That image –of a loving mother and devoted wife – is direct and dramatic contrast to the account of Brown’s actions that day in 2008.

In his letter, Josh Brown referred to himself as “the proud husband of Tonya Nicole Brown.

“I would like to start by saying that almost eight years ago, I met the kindest and most caring and thoughtful person I had ever known,” he wrote.

He talked about how, when his wife was in the last weeks of her pregnancy with their first child, Morgan Elizabeth, she developed complications and chose to be hospitalized rather than risk putting their unborn child in danger. He talked about Brown being a great wife and mother to their 3-year-old.

“It is clear that mommy is her hero in all things,” he said.

Marcia H. Southworth, a friend of Brown’s of 12 years, describes her as a “compassionate, courteous and honest young lady,” saying how good she was with children.

“She was the first person that we ever entrusted to watch our only grandchild.”

Family friend Ronald D. Smith of Frankfort wrote that Brown’s parents, Karen and Eddie Rosenberg of Lexington, were always proud of her, especially the athletic and cheerleading abilities she displayed at school.

Another friend, Linda G. Wilson, wrote that while growing up in Lexington, Brown was always active in school activities, playing in the orchestra in middle school, and getting involved in church and community activities.

Brenda Haydon told Mershon that Brown served as wedding coordinator for both her daughters’ weddings and was more than just a business associate, and that she epitomized the image of motherly love toward her daughter Morgan.

“She is like a third daughter to my husband and me,” she wrote.

 “God is a just and forgiving God. We all make mistakes, but we need to be given a second chance. I pray you can find it in your heart to see the real Nicole, not the broken, sad and scared little girl that made a mistake that affected so many lives.”

Brown’s former employer, Jack Croucher, president of Continental Sewing Center in Lexington, where she worked for a year and half before becoming pregnant with the doomed child, called her an excellent employee and a wonderful person.

Gretchen Blackburn, Brown’s former teacher at Lafayette High School, said Brown often babysat with her three children.

“It was commonplace to arrive home after an evening out to find crafts, cookies and other treats she had lovingly made with our kids,” she said. “Therefore, it is extremely out of character for Nicole to behave in any way contrary to a loving, caring, compassionate mother.”

Brown’s mother, Karen Rosenburg, also emphasized her daughter’s maternal instincts and love of children.

“She would spend her weekends babysitting; she enjoyed this not so much for the money but she just enjoyed being around children,” she said.

Rosenburg, like the others who wrote to Mershon, was exceptionally understanding of her daughter’s “mistake.”

“Nicole will pay for this mistake and live with it for the rest of her life,” she said.


Brown’s own words

Then, there was a letter from Brown herself, which she wrote to the judge from her jail cell, telling him how she had requested solitary confinement for 71 days at the Shelby County Detention Center – which Shelby Jailer Bobby Waits said is standard procedure in such cases – forsaking all human contact, reading and doing soul searching.

She told him that she was very remorseful about “what has taken place,” and that she wanted the opportunity to prove that she is a good person, a good wife and a “good mommy.”
In that letter, Brown referred to the child she placed in the trash as “Bailey.”

The circumstances surrounding when or who named the child have not been made public, but, apparently, a funeral was held for the baby, according to a letter from Anne Salibotine, the mother of one of Brown’s friends.

Salibotine, who also wrote to Mershon on Brown’s behalf, talked about how Brown’s family has suffered during the ordeal,  “from the funeral of this child, to the care of Morgan.”

Brown said in her letter to Mershon, “The loss of my daughter Baileyis something I will have to cope with and live with for the rest of my life with the support of my family and friends.”

Brown told the judge she had been undergoing counseling and had learned a lot about herself and also that she wanted to go back to school and continue a side business that she had started two years previously.

“I have been working and paying taxes for 10 years and being able to support my family is very important to me,” she said in the letter.

The crime

But Brown’s remorse doesn’t comfort VanHoose, the officer who untied the garbage bag and discovered the little girl’s blood-stained body.
“I’m the one who found her in the Dumpster,” he said.

Four days after she gave birth,Brown developed complications from the delivery. She went to the University of Kentucky Medical Center in Lexington, where medical personnel suspected she recently had given birth and called police.
When officers arrived, Brown admitted to them that she had given birth and disposed of her infant, and she told them where she had put the body.
VanHoose said when he arrived at the location Brown described, he didn’t find anything in the top of the Dumpster, which was full, so he called in a cadaver dog, who narrowed the search down to a few garbage bags.
“She was in the first bag that I opened,” he said, his voice choking with emotion. “She had all her fingers and toes, and she had a full little head of hair. I’m a father myself, and finding her like that…well, it was rough.”
VanHoose said he felt fortunate to be able to recover the body, lucky that the Dumpster had not been emptied – “The Lord was with us on that,” he said – but that what bothered him most was the lonely way that the little girl had lain in the Dumpster until he knelt down and untied the bag that had served as her coffin.

He was flabbergasted that there was a fire station just 172 feet away, where Brown could have dropped off her child with no questions asked under the Safe Child Law.

But she didn’t.

“The toughest part of this case was, there was just no voice for this little child that I met there beside that Dumpster that day,” he said. “This child, little Bailey, was just thrown away like a piece of trash.

“So I had to stand up and do what was right for her, because her mother had her family to support her, and this little child had nobody at all, nobody except for me and Laura Donnell.”

The prosecutor

Donnell is Shelby County’s Commonwealth Attorney. She prosecuted the case against Brown, and she said she made her feelings known to Mershon before he made his decision.

“The judge noted on his order that I had objected and that he disagreed,” Donnell said. “But I think that something like this is the highest offense you can commit against mankind, especially when it’s an innocent child.”

Lowry had filed his petition for shock probation on Oct. 18, and Donnell objected because Brown had wantonly caused the death of her newborn and had concealed her birth.

It was Donnell who negotiated Brown’s plea down from a murder charge to second-degree manslaughter. She said she took many factors into account when arranging this plea agreement, which cut the penalty from 20 years to life in prison down to 10 years in prison, with five additional years for the tampering with physical evidence charge.

Manslaughter typically means that a victim was allowed to die, which is in contrast to Brown’s having placed the child in a bag and tied up that bag, causing her death. Donnell said the decision to change the pleading wasn’t that simple.
“Everything was taken into consideration, her mental state, working with a behavioral analyst [from the FBI Academy in Quantico, Va.], reviewing similar cases across the nation,” Donnell said. “Based on all of that information, I thought we did what was best for the case, and for him to grant her shock probation so easily was disturbing to me.”
The ruling
In evaluating whether to release Brown, Mershon reviewed the letters from her husband, parents, other family members, friends, ministers, her counselors, and co-workers, all commending her virtues as a wonderful person and mother, many of them asking specifically to grant her shock probation.

He also received a short letter from Donnell, entitled, “Response to Defendant’s Motion for Shock Probation, in which the prosecutor wrote: “On April 6, 2008, the defendant, acting wantonly, caused the death of her newborn infant and thereafter, concealed the evidence of the birth. Further, on May 25, 2010, the defendant entered a guilty plea to Manslaughter, second-degree, and tampering with physical evidence. The Commonwealth objected to probation at that time. The Commonwealth continues their objection to probation in this case and argues that shock probation would unduly depreciate the seriousness of the crimes committed and would not be appropriate in this case. Wherefore, the defendant’s motion for shock probation should be DENIED.”

In an interview with The Sentinel-News,Mershon referred to Lowry’s statement that his client acted as she did because she didn’t know she was pregnant and going into labor threw her into a state of shock.

“Without talking about Tonya specifically, these cases are flabbergasting, especially for those fifty percent of those who don’t have a uterus,” he said. “It’s hard enough to try to get myself in somebody else’s shoes and try to understand where they’re coming from, much less when it’s a woman. As a man, it’s hard for me to imagine how could you possibly be pregnant, but either not know it, or bury your head in the sand.”

Nevertheless, Mershon granted her request and said that one factor that ultimately led to his decision was that Brown willingly participated in a study by federal researchers at the FBI Academy at Quantico.

“One of the conditions with Tanya is that she cooperated with a federal program through the FBI,” Mershon said. “They have done studies nationwide on that, with many women who have gone through that process.

“I don’t pretend to understand that kind of stuff. The bottom line with Ms. Brown was, she had no prior record at all. Never been in trouble before. She had worked almost from the get-go with a counselor and a psychiatrist, and was committed to keep doing that, and then cooperating with this national program.”
The BAU, the unit of the FBI that is glorified in television shows such as Criminal Minds, employs psychological studies, statistical probabilities and trends to predict and solve crimes.

FBI behavioral analyst Joy Shelton, who worked with Brown at Quantico, said details of the study that Brown participated in at the National Center for the Analysis of Violent Crime at Quantico, are classified information and that she could not discuss the matter.

We don’t know how Brown is living her life these days, but she apparently continues to abide by the terms of her conditional discharge, because as of Friday,there were no violations noted in her file.

Mershon set Brown’s probation for 5 years and ordered her to continue to cooperate with the FBI.

He also ordered her to avoid “injurious or vicious habits, as well as people and places of disrepute, keep regular, suitable employment, and continue with counseling.”

And, if she follows those requirements, Tonya Nicole Brown, who admitted to killing her baby, is free to get on with her life.