A flawed medical examiner's report broke up a family and put a boy at risk say experts

JACKSON, Mich. (WXYZ) - The 7 Action News Investigators have learned that a Jackson County Medical Examiner's report used to accuse a couple of murdering their four-year old daughter – and to take their son from them -- was very flawed, say several medical experts.

7 Action News Investigator Bill Proctor has been on the story of the Giroux family who was reunited last week. Two days after our story aired pointing out how the investigation into the death of 4-year old Birklee Giroux's was flawed, the Jackson County Prosecutor held an emergency hearing. 

The prosecutor referred to a letter from four medical experts he asked to review the case. And they say, "We are appalled that such a unbelievable and damaging conclusion was reached…" by the county medical examiner who ruled little Birklee's death a homicide. They also say the real cause is unknown. But despite all this the prosecutor is still pushing its case against this couple.

"There are five medical experts saying nothing happened to this child, but they're still pushing the issue," says Billie Giroux, Birklee's mom.

As well as the four medical experts who wrote the letter criticizing the Jackson County Medical Examiner, the Giroux's hired their own medical examiner—who also said the death of their daughter is unknown.

Despite all this, the Jackson County Prosecutor – which has never charged the couple with anything—has still not dropped the case.

"We do, we live in fear every day," says Brian Grioux, Birklee's dad.

They fear what the prosecutor may do, given how Billie and Brian Giroux's lives were turned upside down after the couple's daughter was found dead in her bed August 7.

Two weeks later, Jackson County Medical Examiner Patrick Cho ruled Birklee's death a homicide, and that the cause was asphyxiation. That's when Child Protective Services took the Giroux's eight-year old son Brody, claiming the boy needed protection from parents, who a prosecutor said in court murdered his little sister.

"Brody didn't lose his baby sister. She was murdered in her bed, and either Mom or Dad did it," said Kathlene Rezmierski, Assistant Jackson County Prosecutor in court Aug 23, 2012 "They are the only two suspects in the investigation. "

After the Girouxs passed polygraphs showing they didn't hurt their daughter, hired a medical examiner who said the same—the prosecutor asked doctors at Sparrow Hospital in Lansing to re-evaluate the facts. This included the little girl's medical history of seizures that was not considered by the county medical examiner.

They say Dr. Cho's used inappropriate science to come to "imprecise" and "irresponsible" conclusions. They also say that his test results did not suggest acute asphyxia as the cause of death, and that with no external evidence of injury, a homicide conclusion is in no way supported by facts.

Another major problem with Dr. Cho's report is it says that Birklee died 18 to 24 hours before her body was discovered. But the Birkleey's discovered her body at 9:30 in the morning—about 12-and-half hours after the family was at the Jackson Wal-Mart at about 9pm the night before she died. And this is all on security video tape.

But what upsets Billie Giroux most is the Sparrow Hospital doctors also point out that what may have killed her daughter could have put their son in danger.

"It suggested in the letter that rather than remove Brody from his family it was of greater importance that he be tested immediately for any cardiology issues he may have. There's a family history of heart issues," she said.

And not only did the Sparrow doctors say Brody should be tested, but also his dad—and that Dr. Cho should have suggested this testing be done.

Even eight-year old Brody knows about his father's heart problems. His dad was in the hospital the day protective services took Brody away from his home and family.

"We were at the hospital because my dad had some heart pains and so he went to the doctor," said Brody. "Then I had to go back there because that's where I was picked up to go to the foster care home."

Brody still has good days and bad after months in foster care. But his parents are quick to add they're still worried that any day the phone could ring, or the sheriff could come calling to arrest them.

The Jackson County Prosecutors office confirms a criminal investigation is still underway. They also say that a rare coroners inquiry, a panel of six people, will hear from all of the five doctors who have weighed in on little Birklee's death. They could recommend charging the parents, or finally decide that the cause of death cannot be determined, and to charge anyone in this case would be an injustice.

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