Even with son's support, father convicted of abusing him loses bid for new trial

James Duncan, who has been in prison for abusing his son, hoped to have his conviction and sentence tossed out. His son has stood by him. But a judge ruled against him.
James Duncan, 52, hoped to have his child abuse conviction and sentence tossed out. But a judge this month ruled against him. He is scheduled to be released in 2028, according to prison records. [Florida Department of Corrections]
James Duncan, 52, hoped to have his child abuse conviction and sentence tossed out. But a judge this month ruled against him. He is scheduled to be released in 2028, according to prison records. [Florida Department of Corrections]
Published December 29 2018

Kody Duncan had been looking forward to developing a relationship outside of prison with the father convicted of abusing him.

His dad, James Duncan, 52, has been in state custody for 22 years after a jury in 1996 found him guilty of inflicting infant Kody with more than a dozen bone fractures.

But Pinellas-Pasco Circuit Judge Michael Andrews earlier this month denied Duncan's bid for a new trial, which was based on what his lawyers called "a groundbreaking scientific study." Now the pair won't be able to see each other outside of a prison setting for at least nine more years, when the elder Duncan is scheduled to be released.

"It was gut wrenching for us," said Duncan's attorney, Lisabeth Fryer. "We're deeply disappointed, but we're not finished fighting."

Duncan has maintained his innocence since his 1994 arrest. A year earlier, Kody Duncan's mother noticed that the infant, just eight weeks old, couldn't move his left hand. Doctors determined he had 13 bone fractures, including in his arm, leg, ribs, clavicle and skull. It took a jury only one hour to convict Duncan of 13 counts of aggravated child abuse and a judge sentenced him to 70 years in prison, though Department of Corrections records show he is scheduled for release in January 2028.

PREVIOUS COVERAGE: After two decades in prison, St. Petersburg father will try to prove a medical condition caused his infant son's injuries

The latest turn in the case happened in 2015, when Duncan's lawyers filed a motion for postconviction relief, a tack defendants can take to raise new concerns or introduce new facts after a conviction. In it, Duncan's lawyers argued that Kody Duncan's injuries were the result of a rare bone deficiency, not abuse. The motion cited a 2014 article published in the American Journal of Roentgenology — another word for radiology — claiming that bone injuries that look like they are caused by trauma can also be due to a metabolic bone disease like rickets, which is caused by a vitamin D deficiency and makes bones fragile.

The motion was initially denied, but an appellate court ordered a hearing so Duncan's team could present evidence.

Two of the doctors who wrote the article, David Ayoub and Marvin Miller, testified at the October hearing. They had evaluated x-rays taken of Kody Duncan as an infant, according to a summary of the proceeding in Andrews' order.

Ayoub said x-rays showed the son had rickets. Miller said it was unlikely Kody Duncan's injuries were from child abuse because his body did not bruise and there were no internal injuries, despite the multiple rib fractures.

Two doctors from the original trial also testified, strongly opposing the testimony of Ayoub and Miller. Both said rickets is uncommon in the U.S., and one said the conclusion reached by Ayoub and Miller is "not generally accepted in the medical community," according to the judge's order.

Kody Duncan testified, too. Now 25, he's a college tennis coach in Pennsylvania. He said he hasn't had any bone fractures since he was a baby.

The son could not be reached for comment, but he submitted a letter alongside his father's motion.

"This situation that I have had to live my entire life, knowing that (my father) is in jail for something I believe he did not do, has been very hard and stressful," he wrote.

Andrews' order came Dec. 11. In it, he eviscerated Duncan's arguments.

"The opinion of Drs. Ayoub and Miller is clearly a fringe opinion," he said, and likely wouldn't be admissible at trial. If admitted, he wrote, the evidence would be "likely unpersuasive when compared to the generally accepted opinions and evidence presented at the original trial."

Andrews also said Ayoub and Miller were likely not credible, as together they have testified in nearly 200 abuse cases and "not once … has either defense expert found a case where child abuse was the cause of the child's injuries" or testified for the prosecution.

"This Court is challenged to believe that any jury, presented with these revelations, would believe that either doctor's opinions are credible," he wrote.

The legal fight isn't over, though. After the judge denied Duncan's motion, his legal team sought to have Andrews removed from the case. That was also denied. They plan to appeal both rulings.

Contact Josh Solomon at [email protected] or (813) 909-4613. Follow @ByJoshSolomon.

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