James City County’s top prosecutor said Friday that he won’t be filing a murder charge against the father of a boy who died in 2009, three years after being seriously injured — apparently by his father’s hands — in a well-known local case.
Williamsburg-James City Commonwealth’s Attorney Nate Green told the Daily Press in 2013 that he hoped to bring a homicide charge against David Curtis Patton, whose 3-year-old son, Jared Nicholas Patton, died three years after his injury.
At the time, Green said he could likely overcome legal obstacles to the charge if only he could get the cooperation of Jared’s mother, Nicole Patton.
“We met with the mother and found out that she was no longer going to cooperate nor testify the same way that she had in the past,” Green said in 2013. “She did not believe Mr. Patton was the cause” of Jared’s injuries.
But Green said Friday that his legal analysis has changed in light of additional research. Even if he got the mother’s cooperation, he said, charging Patton, now 36, in Jared’s death would create a “double jeopardy question,” given that Patton was already convicted of felony child abuse in the same case.
Under the Fifth Amendment to the U.S. Constitution, people can’t be charged with the same crime twice. For a new charge to proceed on top of the previous ones, Green said, the “conduct” giving rise to the charge must be different.
“The question is: Are you using the same conduct multiple times, and does the law specifically allow for that?” Green said. “What I ultimately came to realize was that he was prosecuted for abusing this child, and he was convicted of abusing the child. … And we’re going back to the exact same conduct.”
The “additional fact” that Jared died, he said, doesn’t change that.
Before the initial trial, Green said, prosecutors have a choice to make. “You could wait to see if the person passes away and then charge him with murder,” he said. But once you take him to trial “on that conduct, then you’re foregoing being able to charge him with another offense later if the facts change.”
The case is back in the news this month because Patton has landed two new jail terms.
Late last month in Hampton, he was sentenced to five years in prison stemming from a separate 2013 child abuse case. Then, on March 2, a Williamsburg judge imposed two years of prison time that was still suspended in the James City County case.
“If the law allowed me to impose more, I would,” Circuit Judge Randolph T. West said at that hearing, according to Green.
The background to the James City case began in October 2006, when Patton was charged with abusing Jared, then 3 weeks old, after investigators said he was suffering from bleeding on the brain and other trauma.
At a 2007 trial — when Jared was still alive — Patton was acquitted of aggravated malicious wounding but convicted of felony child abuse. He was sentenced to seven years in prison, with two of those years suspended.
Jared’s fight to overcome his health issues were chronicled in the Daily Press and other local media over the next three years. Though he could move his arms and legs, Jared could not walk or grasp a toy. But Jared died in December 2009, with the State Medical Examiner’s Office listing the cause of death as “inflicted brain injury” and “shaken and/or blunt trauma to head.”
Patton was released from prison in 2011.
In May 2013, Hampton police got a call from a Norfolk hospital, saying that Patton’s 3-month-old baby girl was being treated for severe bruising on the brain. Patton told police he stepped outside to smoke, leaving his daughter in her bouncer. His 120-pound dog, he said, heard something outside, jumped off the couch and flipped the girl’s bouncer over.
Hampton police called that story “inconsistent” with the baby’s injuries, arresting Patton a week later. Later, a maiming charge was added. At a jury trial in September 2016, Patton was acquitted of the maiming but convicted of felony child abuse — with the jury recommending 10 years behind bars.
Late last month, Hampton Circuit Judge Bonnie L. Jones suspended five of those years, calling five years to serve “a good compromise” between the jury’s recommendation and the two years and nine months at the high end of state sentencing guidelines.
Working in Patton’s favor was that his daughter, now 4 years old, appears to be doing well both physically and mentally.
Kathy Blouse — the girl’s mother’s aunt who is helping care for the child in Pennsylvania — spoke highly of the girl. Blouse also said she doesn’t believe that Patton abused either child, saying that she has witnessed his interactions with the girl.
The Hampton case’s prosecutor, Assistant Commonwealth’s Attorney Kathryn Fennig, contended that some cognitive delays don’t show up for decades. Patton’s lawyer, J. Ashton Wray Jr., said there was nothing to indicate that would happen.
Before being sentenced in the Hampton case, Patton asserted that judges have long denied him chances of showing his innocence in the 2006 case.
Though it was a five-year sentence, Patton stood to get out of jail in about August on the Hampton case, after accounting for good behavior and time already served in jail awaiting trial since 2013.
With the additional two years in James City, he now stands to get out in about April of 2019.
But Green, for his part, said that, “I wish we had more than two years to revoke.”
“This whole situation is the worst story for prosecutors,” he said. “We had him, had him charged with a crime of doing a harm to a child … To have him get out and go do it again to another child, that’s exactly what you want not to happen.”
Dujardin can be reached at 757-247-4749
