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A family shattered by abuse allegations
02:16 - Source: CNN
CNN  — 

A father who has served nearly 23 years in prison for child abuse he says he did not commit, will not get a new trial, a Pinellas County, Florida, judge has ruled.

Emergency room doctors found Jim Duncan’s infant son, Kody, had 13 broken bones and a skull fracture in 1993.

Duncan was convicted and sentenced to 70 years in prison for the abuse.

His story was at the center of the CNN documentary “Broken Bones, Shattered Lives.”

Now 52 years old, Duncan still maintains his innocence and hoped a 2014 peer reviewed article published in the American Journal of Roentgenology would convince the courts he should get a new trial.

In an October hearing two of the paper’s authors, doctors David Ayoub and Marvin Miller, testified for the defense.

They believe a specific type of broken bone, called a “classic metaphyseal lesion,” which is widely seen as a sign of child abuse, could be caused by a bone condition like infantile rickets.

They testified Kody’s x-rays didn’t show forcible breaks; the original doctors who examined him 20 years ago argued they did.

To get a new trial, Duncan’s defense lawyers needed to convince Judge Michael Andrews there was new evidence that was not available during the original trial but would have persuaded the jury if it had been presented. In his ruling Tuesday, Andrews rejected both arguments, saying the evidence was not new and was not convincing.

“The court finds that the purported evidence of metabolic bone disease is not newly discovered evidence. According to all four experts that testified at the evidentiary hearing, metabolic bone diseases, including rickets, have been recognized for at least the last 100 years.”

“The article references old and dated studies but comes to a different medical opinion/conclusion than that generally accepted in the medical community,” Andrews’ ruling reads. “The doctors who evaluated (Kody) at the time of trial did in fact consider rickets, but ruled it out as a diagnosis.”

The judge also rejected Ayoub and Miller as credible witnesses, noting that they always testify for the defense and always find causes other than child abuse for these types of broken bones.

“The evidence also shows that neither is objective in their analysis of the evidence finding no case of actual child abuse where there is not a confession or witness to the abuse,” the judge wrote.

Andrews also said the doctors’ determinations are rejected by the majority of the mainstream scientific community.

“The opinion of Drs. Ayoub and Miller is clearly a fringe opinion and would be inadmissible or, if admitted, likely unpersuasive when compared to generally accepted opinions and evidence presented at the original trial,” the judge wrote.

Ayoub was disappointed by Andrews’ decision but said he understood that “technically difficult medical issues are challenging for courts, particularly when there are major shifts in the science.”

“In this case, the evidence shows that the baby had strong evidence of bone disease and thus an alternative explanation for fractures. I am confident that the judicial system will eventually prevail in embracing the truth,” Ayoub told CNN.

The evidence would also not be likely to produce an acquittal, he said, because of evidence admitted in the original proceeding that a neighbor’s child, who had also been in Duncan’s care, was later diagnosed with shaken baby syndrome. Any wrongdoing by Duncan was determined to be unfounded at the time.

No one was prosecuted for that alleged abuse.

Duncan’s lawyers Lisabeth Fryer and Bill Ponall were not notified the court’s decision was filed until contacted by CNN. They issued a statement to CNN, saying, “We have reviewed the court’s order. Respectfully, we strongly disagree with the court’s reasoning. We will be appealing the decision.”

They have 30 days to appeal.

Duncan has been held in the Pinellas County jail since the October hearing, hoping for a release, but will be transferred back to the state prison.

Now in his 20s, Kody believes his father is innocent, but cannot visit him in prison because under Florida law he is legally the victim of child abuse.

CNN’s Chris Perry contributed to this report.