The News Courier in Athens, Alabama

October 24, 2013

The untimely death of Cecil Birge, part 3

By Jean Cole
jean@athensnews-courier.com

— Editor's note: This story is the final in a series of stories about the 2001 death of Cecil Birge in Limestone County and the capital murder case and sentencing that followed. The background in this story is based on News Courier coverage of Kathy Birge's 2003 trial by former reporter Rebekah Davis.

It took a Limestone County jury only three hours to convict Kathy Birge of fatally overdosing her husband Cecil for financial gain in 2001.

The day verdict was rendered — Aug. 25, 2003 — Circuit Judge George Craig sentenced Kathy to life in prison plus 20 years on the theft by deception conviction.

She had already pleaded guilty to forgery and received 20 years.

Kathy had been in prison for six years when, in 2007, the Alabama Court of Criminal Appeals reversed her capital murder conviction. Justices found the chain of evidence in the case had not been maintained. Brian Jones, the current Limestone County district attorney who as an assistant district attorney had gone to Indiana in 2001 to see the autopsy, said the appeals court called into question the transfer of blood and tissue samples from Cecil. Specifically, the slides bearing samples were transferred from the forensic pathologist by a person other than the examiner to the lab where tests were performed.

The only option was to retry Kathy.

Reversal, retrial

With the chain of evidence in question, the state, through the district attorney's office, would have to re-exhume Cecil for toxicology testing even though six years had passed since he was buried in Indiana.

Former Limestone County District Attorney Kristi Valls said she had asked a forensic pathologist after the 2007 reversal and was told there would not be enough fluid in Cecil’s body to obtain adequate evidence. Still, she hoped to find a way to try Birge, she said. But, in 2010, she lost the district attorney’s office in the Republican sweep of Democratic officeholders.

Jones, who took office in January 2011, also hoped to retry Kathy. It was not to be.

Deputy District Attorney Jim Ayers Jr. and Jones said several factors prevented a successful retrial. Among them, the unlikelihood that toxicological evidence obtained from re-exhumation would show a lethal dose.

"The chemical we are looking for, Soma, would have dissipated because it breaks down over time," Jones said. "Even if we had wanted to re-exhume him, when the original autopsy was performed, key organs like the liver and kidneys  were removed to do toxicology tests and are not there anymore. Even if we had gotten to exhume him, there was only a miniscule chance the chemical would be there in the amount to prove the case."

There were other reason preventing retrial: The chain of evidence issue that led to the reversal of the conviction; the loss of the original toxicology records extracted in 2001 in Indiana because the state purges records every seven years; the death of a key witness, Kristie Thompson; and the family's wish that Cecil remain at rest because successful retrial was unlikely.

Forward 6

For six years the case languished in the courts, and Kathy’s defense attorney, Patrick Hill, had argued that the delay was violating Kathy’s Sixth Amendment right to a speedy trial. A hearing on his request was held this past week in Limestone County.

Faced with the possible dismissal of the capital murder charge, Jones decided to settle the case. Kathy, 59, pleaded guilty to the lesser charge of manslaughter and received time already served — 12 years — on the forgery and theft charges.

Now clear of the murder charge, Birge hopes to be paroled from Julia Tutwiler Prison for Women in Wetumpka, where she has remained since 2001.

Her release date is 2021 but she is eligible for earlier parole.