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Debbie Cook noticed that Marsha Colbey was no longer pregnant but did not have a baby,
which stirred her interest in the details of the stillbirth. Marsha didn’t trust the woman and
was evasive when she made inquiries. Cook, who worked at the elementary school attended
by Mrs. Colbey’s children, eventually instructed one of the school cafeteria workers to call the
police about the absent infant. Officer Kenneth Lewellen spoke with Ms. Cook and then went
to Ms. Colbey’s home. Marsha, still grieving the loss of her baby and frustrated by the
meddling, reacted badly to the police questioning. She initially attempted to misdirect the
officer and the investigators in an effort to protect her privacy. It wasn’t a smart thing to do,
but she was outraged by their prodding. When Lewellen noticed the marked grave beside the
Colbey’s home, Marsha admitted it was the burial site for her recently delivered stillborn son.
Kathleen Enstice, a forensic pathologist who worked for the state, was summoned to
exhume the infant’s body. Marsha was shocked that law enforcement would do something so
upsetting without justification. As soon as the baby was exhumed but before she had an
opportunity to formally examine the body, Enstice told an investigator that she believed that
the baby had been born alive. She later conceded that she had no basis for such an opinion
and that without an autopsy and tests there was no way she could know if a baby had been
born alive. As it turned out, Enstice had a history of prematurely and incorrectly declaring
deaths to be homicides without adequate supporting evidence.
The pathologist subsequently performed an autopsy at the Department of Forensic Sciences
laboratory in Mobile. She not only concluded that Marsha Colbey’s baby was born alive but
also asserted that the child would have survived with medical attention. Even though most
experts agree that forensic pathologists—who primarily deal with dead people—are not
qualified to estimate survival chances, the State allowed prosecutors to pursue criminal
charges.
Unbelievably, Marsha Colbey—a few short weeks after delivering her stillborn son—found
herself arrested and charged with capital murder. Alabama is among the growing list of states
that make the murder of a person under the age of fourteen a capital offense punishable by
the death penalty. The child-victim category resulted in a tremendous increase in the number
of young mothers and juveniles who were sent to death row. All five women on Alabama’s
death row were condemned for the unexplained deaths of their young children or the deaths
of abusive spouses or boyfriends—all of them. In fact, nationwide, most women on death row
are awaiting execution for a family crime involving an allegation of child abuse or domestic
violence involving a male partner.
At trial, Kathleen Enstice testified that Timothy was born alive and had died by drowning.
She testified that her conclusion of a live birth was a “diagnosis of exclusion”—that is, she
could not find evidence that the baby was stillborn and did not have another explanation for
his death. Her testimony was exposed as unreliable by the State’s own expert witness, Dr.
Dennis McNally, an obstetrician/​gynecologist who examined Mrs. Colbey two weeks after the
stillbirth. Dr. McNally testified that Mrs. Colbey’s pregnancy was at high risk for “unexplained
fetal death” because of her age and lack of prenatal care. Enstice’s conclusion was further
discredited by Dr. Werner Spitz, who had authored the medical treatise Enstice had relied on
in her forensic pathology training. Dr. Spitz testified for the defense that he would “absolutely
not” declare a live birth, let alone a homicide, under the circumstances of this case.
With no credible scientific evidence that a crime had occurred, the State introduced