Christopher Barber served nearly five years in a Pennsylvania prison in the 1990s for shaking his fussy baby boy and flinging him onto a couch so hard that he suffered catastrophic brain damage.
Now Barber is behind bars again, charged with homicide, following his son’s death at age 23 after he lingered in a vegetative state the rest of his life, hooked to a breathing machine and fed through a tube.
Barber, 46, was arraigned Wednesday and jailed without bail. Prosecutors had him arrested after a pathologist ruled Christopher Kostenbader’s death last May a homicide, saying he succumbed to “complications due to the severe head injury that occurred in 1991 at the hands of the defendant.”
Cases like this one – in which prosecutors file new, more serious charges after the victim takes a turn for the worse much later – are unusual but hardly unprecedented. In November, a Southern California jail inmate who abused a baby girl in 2005 was charged with murder over her death a decade later.
The challenge for prosecutors in such cases is showing that the defendant’s long-ago actions led to the victim’s death.
Court records do not list an attorney for Barber, who was living in Plainfield, Illinois, at the time of his arrest.
Barber told police nearly a quarter-century ago that his son would not stop crying while being fed on New Year’s Eve in 1991 in Saylorsburg, about 25 miles north of Bethlehem. He said he shook Christopher – though he claimed the shaking “wasn’t that rough” – and threw the baby on the couch. Christopher bounced at least twice, Barber told police.
The infant was taken to the hospital, where doctors found “tons of damage” to the brain, bleeding behind the eyes and rib fractures that led them to diagnose shaken baby syndrome, court documents said.
Barber pleaded guilty to aggravated assault and related offenses. He was paroled in 1997. Kostenbader’s condition, meanwhile, never improved.
Jules Epstein, a Temple University law professor, said that if Barber contests the homicide charge, his lawyer will be sure to look closely at the medical evidence.
“How clear is it that the original injury could have caused the death? And then, the separate issue, did they do a fair look to make sure it wasn’t really something independent?” Epstein said Thursday.
In Utah, Warren Hales was convicted of murder for shaking a baby who died after 12 years in a vegetative state. But an appeals court overturned his conviction and sentence in 2007 because his lawyers were ineffective, and prosecutors dropped the charges.
In 2010, a Philadelphia jury acquitted 75-year-old William Barnes, who was charged in the 2007 death of a police officer whom Barnes shot and paralyzed 41 years earlier during a botched burglary. Prosecutors argued the shooting ultimately caused Barclay’s death. But the defense successfully argued the officer suffered from other ailments that contributed to his demise.
Barnes’ attorney, Sam Silver, said Thursday that “there were multiple factors that broke the causal chain” in Barclay’s death, leading to his client’s acquittal.
In the case of Christopher, “the prosecution’s going to say there are only two things that happened in this person’s life: The guy shook the baby, and the baby grew into an adult and died 23 years later, and nothing else happened,” Silver said. “It’s a really tricky case for the defense.”
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