Attorney Alexander Silvert, author of “The Mailbox Conspiracy,” joins producer/host Coralie Chun Matayoshi to discuss the jury’s guilty verdict in the babysitter manslaughter case, why the defense is moving for a mistrial, and what kind of sentence could the defendant receive if the jury’s verdict stands.
Q. Seven-month-old Abigail Lobisch died under the care of her babysitter. The autopsy revealed that baby Abigail had a fatal amount of diphenhydramine, commonly sold as Benadryl, in her system. Babysitter Dixie Denise Villa was charged with causing her death and after 7 hours of deliberation, the jury found her guilty of manslaughter. What is manslaughter, how is it different from murder, and what did Prosecutors have to prove?
Both murder and manslaughter involve the unlawful killing of another person. Manslaughter is a lesser crime because it doesn't involve the element of malice like murder, which is intentionally or knowingly causing the death of another person. Manslaughter is the act of recklessly causing the death of another person, and “but for” this recklessness, the victim would be alive.
Q. Could the jury have rendered a verdict of crimes less serious than manslaughter?
Yes. The jury could have found the defendant guilty of lesser included offenses including assault in the second degree and reckless endangerment in the second degree. Second-degree assault is when the defendant intentionally or knowingly causes substantial bodily injury to another person or recklessly causes serious or substantial bodily injury. Reckless endangerment in the second degree is amisdemeanor that occurs when someone recklessly puts another person in danger of death or serious bodily injury. In this case, the jury believed that the defendant didn’t just cause substantial bodily harm or put baby Abigail in danger of death, but recklessly caused her death.
Q. This case received quite a bit of media, first because the trial was in state court where cameras are allowed (vs. federal court where cameras are prohibited), and secondly, some of the proceedings were available on Court TV. Piecing together courtroom video and various news accounts, can you tell us what happened?
On February 23, 2019 at 10:45 am, Anna Lobisch dropped her 7-month old baby Abigail and 2-year old son off at Aulani Disney Resort with babysitter Dixie Denise Villa. Villa spent the day at the pool with the 2 Lobisch children, 2 of her own younger children, and 3 older girls (including her 2 older daughters Ariana Rivera and Amaya Gordon and their friend Briana Calderon). Late that afternoon, an argument broke out between the defendant and her daughter Ariana, and defendant told the girls to pack up and leave when they got back to Villa’s home. Everyone left the Aulani hotel sometime after 5:30 pm and when they arrived at the defendant’s Aliamanu Military Reservation home, Abigail was crying but stopped by the time the older girls packed up and left by 7 or 8 pm.
The defendant was left to care for 4 young children under the age of 5 because the older girls were gone, and her then-husband Aaron Villa was deployed. The defendant went to sleep with the 4 children in her bed, cradling Abigail in her arms. When she woke up the next morning, Abigail was lying face down on the bed. The Defendant called 911 and said that the baby was unconscious, not breathing, and then began CPR. Federal Firefighter/paramedic arrived 4 minutes later and find baby Abigail cold to the touch, slightly stiff, with mottled skin and no pulse. Police questioned Abigail’s mother Anna Lobisch and the defendant and took photos of the defendant reenacting her sleeping position and how the baby was found. Five months later, after an autopsy report showed that Abigail had a fatal amount of diphenhydramine in her blood, the defendant was arrested and charged with manslaughter. The defendant has been released on bail for the last five years up to the trial.
Q. What did the prosecution argue?
The Prosecution argued that “Abi is dead because of a series of choices the defendant made.” Defendant threw out the 3 older girls who were supposed to help her care for 4 young children overnight. Defendant couldn’t handle all of those kids by herself and gave iPads to the slightly older children and Benadryl to Abigail to make her sleep. Tests done at an accredited laboratory showed Abigail’s heart blood had 2,400 nanograms per milliliter of diphenhydramine, more than twice the fatal amount found in case studies of other babies.
Q. What did the defense argue?
The defense argued that the defendant was not guilty “because after all of these witnesses, no one has told us how Abigail Lobisch died.” There were no witnesses and no one can say what specific brand of diphenhydramine she died of or whether it was pills, liquid or topical. Five other people had access to Abigail and could have given her the fatal dose of Benadryl (mother Anna, father James, or the three older girls Ariana Rivera, Amaya Gordon and Briana Calderon) and “there is the same amount of evidence against Denise as these five individuals.” The defense accused Anna Lobisch of lying about reasons for needing a babysitter that weekend, co-sleeping with Abigail, taking Tylenol PM and expressing concern to her friend that they might test her breast milk and hold it against her. Defense argued that Anna Lobisch could have delivered the fatal dose of diphenhydramine through her breast milk since Tylenol PM contains that drug, especially because Anna is allergic to diphenhydramine and she may lack the enzyme to break down the drug, thereby allowing it to pass on to her baby.
Q. How did the prosecution counter these defense arguments?
We use common sense and reason to solve problems every day without having every detail to complete the picture. Things that happen at home are rarely witnessed by others. “You do not need to decide whether it is pill or topical or oral. What you do need to agree on … is that it was the defendant who gave her the diphenhydramine, and it was the defendant who caused her death.” Tylenol PM taken by Anna Lobisch is a red herring, and pediatric emergency physician Dr. Paul Eakin testified that it’s not possible for an infant to ingest in breast milk a fatal amount of diphenhydramine. “Breast milk cannot excrete enough to cause a fatal dose of diphenhydramine and Abi does not have a metabolic disorder.” “The only metabolic disorder that was identified does not affect the body’s ability to break down the enzymes in question for diphenhydramine.” Dr. Jon Gates, who performed the autopsy, testified there was no acetaminophen, found in Tylenol PM, in Abigail’s system. If Abigail had received diphenhydramine before being dropped off with the defendant, the baby would have manifested symptoms within 30 minutes to a few hours (e.g. breathing difficulty). In the 12 hours prior to Abigail’s death, no one else but the defendant was present who could have given her diphenhydramine. Also, while the defendant’s 911 call was frantic, 4 minutes later when the paramedics arrived, the defendant was calm and showed no emotion, implying that the emotion in her 911 call was fake.
Q. Why didn’t the defendant take the stand in her own defense?
The defendant declined to testify at trial because the judge had ruled that the prosecution would be allowed to ask her about running an unlicensed day care out of her Aliamanu Military Reservation home, being accused of endangering toddlers and babies in a pending civil lawsuit and telling her daughter’s friend Briana Calderon to lie to military police that several of the children being babysat belonged to Calderon. Defendant could have also been cross examined about being arrested for theft on July 1, 2024.
Q. In order to find the defendant guilty of manslaughter, the jury had to find that the prosecution proved its case beyond a reasonable doubt. What is reasonable doubt?
The prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. If the jury looks at all of the evidence and has a reasonable doubt, or isn’t convinced one way or another, then they have to acquit. All the defense needs to do is put reasonable doubt into the minds of jurors – that it’s possible that the defendant did not give Abigail the fatal dose of Benadryl.
Q. Immediately after the verdict was read, the defense moved for a mistrial and asked for a new trial – on what grounds?
“Yesterday, the government gave us evidence that Anna Lobisch lied on the stand regarding co-sleeping with her child and we believe that this greatly affects the trial.” The defense argued that this evidence was important because it challenges the credibility of Anna Lobisch. The prosecution confirmed that that new information emerged as the jury was deliberating, and that this information was turned over to the defense. In addition, the defense said they received new evidence Friday morning (the day the jury verdict was read) from a potential witness claiming that information was provided to the Honolulu Police Department that Anna Lobisch needed to see a doctor for mental health reasons around the time of the baby’s death. The defense argued that these crucial details should have been turned over if they were in the prosecution’s possession. The judge advised the defense to submit a motion for a mistrial.
Q. If a motion for a mistrial fails, the defendant will be sentenced for committing manslaughter on February 26, 2025. How much jail time could she face?
Manslaughter is a Class A felony that can be punished by up to 20 years in prison and fines up to $50,000. Unlike in the federal system, the defendant could be eligible for parole.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.