"Choices. Choices. That's what this case is about," began Ripley County Prosecuting Attorney Ric Hertel as the trial for Zeb Hildebrand got underway on Monday, August 27 in Ripley County Circuit Court. Hildebrand is a former reserve deputy for the Ripley County Sheriff's Office.
Hildebrand, 31, was charged with two Class B Felonies: Battery Resulting in Serious Bodily Injury and Aggravated Battery.
The case revolved around the injuries to Hildebrand's infant son, who was eight-weeks old, when he was in his care in August of last year.
Judge Jon Cleary of Dearborn County Superior Court, presided over the court proceedings after Ripley County Circuit Court Judge Carl Taul recused himself.
The trial took three days for all the evidence to be presented with the closing arguments set for Thursday morning, August 30 and the jury expected to get the case for their decisions yet that day.
In opening statements, Prosecutor Hertel went through a list of witnesses the state would then proceed to present, including doctors and social workers in the case. He said Hildebrand had told several different "stories" or versions of what had happened on the day his son nearly lost his life.
Hertel used quotes from Hildebrand that he had made to Indiana State Police Detective Tracy Rohlfing, such as "I had to jerk the xxxx out of him two or three times" and, "I shook the hell out of him."
The prosecutor continued by telling the jury that with the defendant explaining that "he's (the baby) not breathing, he's out cold…there's no form, no air, no color…" he still did not call 911. Instead he called his wife Sarah, who is a dispatcher at the Ripley County Jail. Not once, but twice. Then he awaited her response call before going to the hospital. "We don't know the delay. Who knows how long?" Hertel asked.
Hertel went on to say Hildebrand's story was ever evolving about how the child was hurt so badly he couldn't breathe. He said the defendant's story ranged from the defendant fell with the child in his arms to he may have been tripped by another child in the home and rolled onto the baby. He went on to say the defendant could provide few details to hospital staff to assist in the baby's treatment.
The baby was taken to Margaret Mary Community Hospital by the defendant and then immediately transferred to Children's Hospital in Cincinnati via medical helicopter.
Hertel said at Children's Hospital, Hildebrand told hospital staff he was doing "stuff like CPR" on the baby, and thinks he might have performed chest compressions. The baby had suffered subdural hematoma, brain injury, retinal hemmorraging in both eyes and a lacerated liver, according to prosecution. He was intubated for six days and in Children's Hospital for ten.
Dr. Kathi Makoroff, a consulting doctor at Children's Hospital and board certified child abuse pediatrics specialist said the injuries were not accidental and the story told by the father (Hildebrand) "didn't fit." Other doctors testified that the injuries were not possible unless they were intentionally inflicted.
Defense attorneys Jay Hoffman and Brian Newcomb of Hoffman, Admire and Newcomb Law Office out of Franklin, would tell another story.
Hoffman began by saying Hildebrand dropped the baby, the baby turns white, he's not breathing. He says at the first hospital someone asked Hildebrand if he would like for a priest to be called. He said his client simply shut down and was unable to provide needed information to medical staff. He said the ordeal continued at the next hospital where surrounded by doctors and medical staff, the parents were told, "We're not sure we can bring him back." He said people were questioning Hildebrand and he again was not able to provide the correct information.
Hoffman went on to say a few days after the initial event, when the police arrived to question Hildebrand, the defendant was sleep deprived. He said the parents were separated and both questioned.
The defendant was most extensively questioned and according to defense, for a long period of time by police even before they began to tape record the conversation. (This was done by ISP Det. Rohlfing)
Hoffman said, "He (Hildebrand) dropped the child, over reacted, but is he criminally responsible?"
Det. Rohlfing testified that he did in fact talk with both parents. He realized that the defendant's wife was not even at home during the time the child was injured. He then focused on the one person who was caring for him, his father, which is Hildebrand.
He said after police were called from Children's Hospital with the situation saying someone is responsible for this and it was not accidental, he, along with ISP Det. Vance Patton and Prosecutor Hertel drove to the hospital.
Det. Rohlfing testified that he asked to talk with Hildebrand, and the defendant knew he was free to go at any time. He was not placed under arrest at any time during the interview or afterwards for quite some time. He said he did talk with him at first without the tape recording, which is standard procedure for him, and then told Hildebrand he was going to use the recording device.
That tape was played for the jury, although at times it was a little hard to follow. Hildebrand seemed to be confused on what exactly happened and as he demonstrated how he shook the baby, said the phrase, ‘I had to jerk the xxxx out of him two or three times." He also said, "I must have punched him two or three times." He testified that his other two children then under the age of two, were running around, bumping into him, and he thought he lost his grip on the baby.
When the detective asked him if he had lied, Hildebrand said "yes". He said he was mad at the other children, and "he (the baby) got in the way." He said he had been giving the baby his bottle and the other children were running around and they knocked something off. He could hear that. He admitted that he yelled at them and then it was very confusing. He said the shaking was to try to resuscitate the infant, not harm him.
The prosecutor maintained that Hildebrand was hiding what had really happened, saying from the defendant's comments on the tape recording he was helping himself by not cooperating with the medical staff.
On the tape recording Hildebrand said, "How do you shake your own kid? You don't. You never do. You never talk about it."
After the state rested, defense brought in their witnesses. First was ISP Det. Vance Patton, who was grilled as to why he did not document any of the case.
Det. Patton said as the assisting officer he didn't make notes, or document the case because Det. Rohlfing had already done so. However, defense continued by reading law that says the assisting officer must take notes etc. when helping on a case.
Defense also talked about the difference in someone being interviewed and interrogated. They suggested that the "interview" with their client was more of an interrogation.
Prosecutor Hertel argued that Hildebrand, as a reserve officer for the Ripley County Sheriff's Office would know that he was free to leave during the interview with Det. Rohlfing, due to procedure. ISP Patton testified that Hildebrand was told he wasn't under arrest.
It went back and forth with defense and prosecution on exactly how the interview was conducted and whether police behavior was appropriate.
The next witness for defense was Hildebrand's younger brother, Abe Hildebrand, who is a detective for the Ripley County Sheriff's Office.
Det. Abe Hildebrand testified that he looked up to Detectives Patton and Rohlfing as mentors, since he has only been in the detective position for less than a year with the department. He said he was advised to always carry a tape recorder.
Testifying that he received a call from Det. Patton from the hospital about the situation, Det. Abe Hildebrand said he was told that Det. Patton didn't think his brother did anything intentionally."
Det. Patton said he made the call at the request of the defendant's wife, Sarah.
"If my brother did anything intentional to hurt my nephew, I'm done with him," Hildebrand testified to telling Det. Patton.
When asked by Prosecutor Hertel if he (Det. Hildebrand) thought testifying would jeopardize his job or position in the law enforcement community, he replied, "I would hope not."
Det. Abe Hildebrand said he refers cases to ISP a lot because he doesn't have the experience and they are better equipped. He said he would like to be involved with the cases to get the needed experience. He knew about Children's Hospital, the Mayerson Center and admitted they were the best in these kinds of cases.
Det. Hildebrand testified that he had a good relationship with his brother and has even let him watch his own children since the incident occurred. He also agreed that he was the person who signed off as the primary instructor when his brother took classes required to be a reserve deputy.
The prosecutor asked Det. Hildebrand if he knew he didn't get the whole story about what had happened. Det. Hildebrand said "I figured there were things left out." He said he was aware his brother lied to his wife.
Det. Hildebrand agreed that he as a law enforcement officer, is mandated to report child abuse. He was reminded of the discovery process and withholding information would be improper and unethical. He was then asked why he didn't contact his brother's attorneys for 373 days or the prosecutor's office at all.
"I'm here as a brother, not a detective," Det. Hildebrand noted.
Det. Hildebrand was asked by defense if he would lie for his brother. His answer was "no". He said while he had not read the documents pertaining to the case, he didn't need to because "I know my brother would never do what they said he did. He would never hurt his children."
"You're going to stick by your brother through thick and thin?" questioned Prosecutor Hertel. "Yes" replied Det. Hildebrand.
Other witnesses for defense would include the defendant's wife, Sarah, and also Olive Asbury, a counselor that the defendant was ordered to see.
The defendant's wife described the past year as "hell" saying she has had the full responsibility of their three children. She said her mom had been a great help to her, but it was still hard. She testified that she loved and missed her husband.
Sarah Hildebrand also told about the extended care the injured infant has had since the incident. She said he's been on two different kinds of seizure medications, and is a little slow with his milestones, but getting there. She testified that he is now walking, which is a great feat. She testified that she does care about the situation as a whole…but it doesn't change her opinion about her husband. "It doesn't change what you feel in your heart of hearts?" prosecutor Hertel asked, to which she said, "no".
The children were separated from the defendant according to a CHINS (Child in Need of Services) order, which neither parent, Zeb or Sarah, agreed to. However, the defendant said while it was hard, he never breached the order in any way. He has been out on bond since the arrest last September.
The defendant testified that the past year has been "hell" and he misses his family. He said, "It's the worst thing I've ever been through."
While prosecution went through the testimony of all the doctors who said the injuries couldn't possibly be an accident, Hildebrand maintained that is exactly what transpired. He said he doesn't know all the details, but he knows one thing for sure, he would never harm his own children.
The defendant said he's been fired from a good paying job since last year, and can't find a job because no one wants to hire someone accused of such a thing. He said he's been living with grandparents, and it's been hard. He said if he goes online and Googles his name, it comes up that he's accused of this.
"I try to be the best dad I can be," he passionately told the jury. He told about the chaotic morning of one child waking up early, another needing a bottle and then the incident where it seemed everyone was running around and he was fumbling for his infant son. "I fumbled him, he hit the floor. It's a mess. I didn't punch him." He said he freaked out when the baby wasn't breathing and that is when he shook him. "I don't believe it was a violent shake, but I don't know."
The defendant told the jury he held each of his three children in his arms when they were born and vowed to protect them. Now, he said he's failed one of them badly, been kicked out of his house, and is looking at two Class B Felonies.
The prosecutor asked how the defendant could dispute that the third best hospital in the nation, who sees up to 35,000 child abuse/neglect cases a year, would say it couldn't have happened the way Hildebrand described. He said their finding was child abuse period.
The prosecutor hammered the defendant asking why he didn't call 911, why he wasted precious minutes at the house. He also asked him why he kept intentionally lying about the case. He said, "If you hadn't done anything wrong, why not tell doctors immediately so they could give the proper treatment to your son?" He asked the defendant if he had ever taken his other children to the hospital. When the defendant said, "yes…for things such as strep throat, ear infections etc." the prosecutor asked if he could provide information to the doctors then.
On the witness stand Hildebrand continued to say he would never hurt his children intentionally. Never.
Editor's note: At press time the case was still in session. The outcome of the trial will be published in the Osgood Journal September 4.