Someone hurt Olyvia

Laurie Roberts, The Arizona Republic
October 4, 2008

This is Olyvia. She’s 3.

Just before her first birthday, somebody hurt her. Her grandmother, Gina McVicker, remembers the shock, as a doctor explained what Olyvia had likely endured.

“He said, it’s a shake, shake, shake, shake, and then it’s a slam down on a hard surface,” she recalled.

“The equivalent is throwing a child out a second-story window and falling on a hard surface.”

Two years later, nobody’s been arrested for hurting the little girl who suffered brain damage. And it appears the man who Chandler police and prosecutors believe hurt the child — a Mesa police officer — never will be.

The attorney for the officer says there’s a reason for that: He didn’t do it.

The case has left the McVicker family broken-hearted and wondering how it is that everybody can just walk away.

“I don’t know how this guy didn’t get charged,” said Michael Burkhart, their attorney. “I’m shocked, I honestly am.”

In August 2006, Janna McVicker, then 22, and Olyvia were living in Chandler with Janna’s boyfriend, Kevin Hernandez. Hernandez, then 22, baby-sat on his days off.

Janna said that Olyvia and Hernandez were close, but things changed when the baby’s father entered the picture. The father, according to the police report, was in a drug-treatment program and had been given court-ordered visitation with his daughter. He had his first unsupervised visit with Olyvia on Aug. 24, 2006.

According to police, Olyvia was with her father and his family from 5 to 8 that evening. She was in a high chair, eating a cookie when Janna arrived to pick her up.

Everything was fine, and everyone agrees the baby acted normally that night. At 1:30 a.m., Janna and Hernandez were awakened by Olyvia crying. She had thrown up.

The next morning, Janna said Olyvia seemed fine when she left for work. At 2:30 p.m., she got the call. Something was wrong with Olyvia.

Hernandez would later tell police that he went to check on her and she wouldn’t respond. “He stated he picked her up and the baby ‘just kind of flopped,’ ” the report said.

Olyvia had a skull fracture, was bleeding in her brain, and her retinas had hemorrhaged.

Somebody had shaken Olyvia.

Her doctor estimated the injury occurred eight to 10 hours before her seizure, “most likely” within two to four hours.

“The injury was forceful enough that it is very unlikely that she would have been acting normally at all after the injury,” wrote Dr. David Moss, the neurosurgeon.

Hernandez told police that Olyvia had been sleepy all day.

Chandler police gave voice stress tests to Janna, Hernandez, Olyvia’s father and his wife, asking each if they hurt Olyvia. Only Hernandez was found to have “responded with deception” when he said no, according to the report.

In July, prosecutors asked a grand jury to indict Hernandez for child abuse. Instead, grand jurors asked to hear from Hernandez, who had offered to testify. Afterward, they voted not to indict.

The case is now closed. “There’s just no more evidence to present,” said Mike Scerbo, spokesman for the Maricopa County Attorney’s Office.

Hernandez’s attorney, Craig Gillespie, said he is “absolutely convinced” of his client’s innocence, given that the baby vomited after visiting her father. He discounted Moss’ estimate of when the injury occurred, calling it “just one doctor’s opinion.”

“The scientific literature suggests that these cases of alleged shaken-baby syndrome, it’s far from a precise science, and the time frames can be expanded well beyond what a lot of medical people believe,” he told me.

The McVickers are at least hoping to renew the civil-court order that was issued shortly after Olyvia was injured, requiring Hernandez to stay away from the family. Gillespie is asking a Chandler city judge to lift the order so that Hernandez can carry a gun again and resume patrol duties.

“He’s just trying to get on with his life.”

As is Olyvia.

While she has amazed doctors with her recovery, brain injuries don’t go away. Some things will probably always be a struggle for her.

And for her family, which is having a hard time understanding how this can be justice.

“Something happened to this baby, and someone knows what,” Gina McVicker told me. “Are we just to accept that something happened to this baby, and ‘Oh, well’?”

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