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CLINTON - Whether toddler Kyleigh Hamm's body temperature showed she was underwater for as long as 40 minutes will be a matter for the jury in the Maurice LaGrone Jr. murder case to decide.

LaGrone is expected to go to trial Feb. 21 on charges accusing him and his ex-girlfriend, Amanda Hamm, of drowning her three children on Sept. 2, 2003, in Clinton Lake.

DeWitt County Circuit Judge Stephen Peters ruled Thursday that a jury may hear differing views on whether body temperature can be used to determine how long a body has remained in water.

Dr. Kris Bysani, who treated Kyleigh at a Peoria hospital, based the opinion on the fact that the girl's body temperature was 85 degrees when she was being treated. A defense expert, forensic pathologist Dr. Daniel Schultz, said the fact that Kyleigh lived for some time after the rescue invalidates Bysani's theory.

"We have two competing opinions here. This is a factual matter that has to be determined by the jury," said Peters.

Kyleigh, 23 months, and her brothers Christopher Hamm, 6, and Austin Brown, 3 drowned after their mother's car sank in the lake. Hamm, 29, and LaGrone, 30, who have pleaded innocent to nine counts each of first-degree murder, say the car went into the lake by accident.

Prosecutors argue the couple deliberately put the car in the water, and Bysani's opinion seems to support that by saying the toddler was underwater for longer than necessary if the couple really did call for help promptly as they say.

Youngsters who are underwater for the 30 to 40 minutes estimated by Bysani normally do not survive, Schultz said. The Florida doctor based his view in part on the fact that the toddler was resuscitated by hospital physicians.

She died the following day at a Peoria hospital.

"The fact that they got a pulse back tells me it was fairly short order until she was out of the water and brought back," said Schultz.n;"Most kids who are in water 10 minutes don't live, at all."

Defense attorney Jeff Justice said Bysani's estimates came two months after the lake incident under questioning by a DeWitt County sheriff's detective. He said no scientific data was used to make the calculations about the child.

Bysani did not testify at Thursday's hearing.

Eleven minutes elapsed from the time the mother called 911 until the children were removed from the water by rescue workers, according to police information disclosed in Thursday's hearing.

Several factors could have contributed to the child's lower body temperature, said Schultz. Those included the fact she was in wet clothing and the outside air temperature the night of the incident was 65 degrees.

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Special prosecutor Roger Simpson argued that Bysani's opinion is valid and comes from his observation of the child during treatment. The doctor also had access to information on the water temperature - 78 degrees - and the time the 911 call was placed, said Simpson.

"This isn't just a shot in the dark. This is a decision for the jury to make," Simpson told Peters.

In offering his decision, Peters told attorneys he may change his mind about the ruling before or during the trial after evidence is presented in the case.

The relevance of the physician testimony will be determined by a jury, he said.

LaGrone will be back in court Feb. 3, when attorneys for both sides are expected to present certificates of readiness for the trial.

The defense provided the state with about 1,000 pages of records this week concerning psychiatric treatment for Amanda Hamm, whose trial is expected sometime after LaGrone's. Special prosecutor Ed Parkinson said the voluminous reports will not delay the trial, which is expected to take place in Bloomington.

"All the preparations have been made and the judge is firm about the date. We will start on Feb. 21," said Parkinson.n;

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