Old Cases, New Cases, Sad Cases, True Cases

An exasperating series of convictions and exonerations has reminded me both how big a price child-care providers are paying in this arena and how hard it is to pin down the facts about shaken baby syndrome.

Mary Weaver, Exonerated

If more people had been paying attention in the 1990s, for example, the story of 11-month-old Melissa Mathes would have been a valuable case study in both timing and mechanism.

On a January morning in 1993, care provider Mary Weaver called 911 for help when the infant Melissa fell unconscious after about 45 minutes in her care. Autopsy revealed a healing skull fracture, but doctors concluded the girl had been shaken to death—and based on the common wisdom that the symptoms of a serious pediatric head injury are immediate and obvious, prosecutors targeted the babysitter.

Weaver’s first trial ended with a hung jury, her second in a conviction and a life sentence. Then new witnesses came forward to report that Melissa had been knocked unconscious in a fall at home on the morning of that critical day. Weaver was granted a new trial in 1996, and was acquitted by a jury in 1997.

The case changed the mind of forensic pathologist Dr. Vincent Di Maio, for many years the editor-in-chief of The Journal of Forensic Medicine & Pathology. Called in for his opinion, Di Maio read Melissa’s medical records and realized the common knowledge about timing of infant head injuries was wrong. The girl had been seen by her family doctor three times for the flu in the week before she quit breathing in Weaver’s care.

“That case is very disturbing,” DiMaio told me in 2000, “because everybody agrees that the skull fracture is seven days old, and everybody agrees that the doctor saw this child and thought she looked normal… But we know she already had cortical necrosis [dead brain tissue] and thrombosis [clots inside the vessels]… Whether or not you believe the babysitter killed the kid, you know a serious brain injury went unnoticed by a professional observer.”

The case has not appeared in the medical journals, but Mary Weaver was in the news last month when her name was added to the National Registry of Wrongful Convictions, maintained by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. The registry offers a summary of Weaver’s case, and her local newspaper covered the registration story. 2014 update: There is now a book about Mary’s case.

Kelly Kline, Not Guilty

Fifteen years after Weaver’s exoneration, Ohio child care provider Kelly Kline found herself in the same spot, fighting shaking allegations even though the child who fell unconscious in her care had a healing skull fracture revealed at autopsy.

Even more remarkable in the case of 15-month-old Ella Young, the treating physicians had a plausible explanation for the fracture:  The girl had fallen down the stairs at her mother’s split-level home a week before developing breathing problems at Kline’s house. Dr. Richard Daryl Steiner, however, a pediatrician at Akron Children’s Hospital, concluded that the fracture was irrelevant and Ella had died of shaking injuries inflicted immediately before her meltdown. He and Summit County Medical Examiner Dr. Lisa Kohler both testified for the prosecution at Kline’s trial

Forensic pathologist Dr. John Plunkett testified for the defense, arguing that the fall six days earlier could have set off a slow neurological response that reached a critical threshold without a violent trigger.

The good news is that the jury found Kline not guilty—the Wooster Daily Record, which had earlier published the charges without question, including Kline’s name and address, also covered the not guilty verdict this past fall.

The tragedy is that child protection professionals continue to press these cases. Kline says she understands that she was lucky to be found innocent, but she and her family are still struggling to recover from the financial and emotional costs.

“I see a police officer, and I know it’s not rational, but my hands shake. I can’t think,” she said in early April, months after the innocent verdict. She’s trying to shed her anger at the officers and social workers who dealt with her over the year and a half she stood accused. “Not one person ever tried to help me or listen to my story,” she said, “They just accused me and accused me.”

Throughout more than one difficult interrogation, Kline never wavered from her original story, although keeping her head wasn’t easy, she recalled. “Lieutenant [Kurt] Garrison told me, ‘All fingers are pointed toward you. The forensic science says you did this. Dr. Daryl Steiner says you did this. There are no other suspects’ . . . He had me so frustrated the way he was turning it around, he almost made me believe I did something wrong.”

Ashley Howes, Compensated

At 13, Ashley Howes was not an experienced babysitter. She was the daughter of a family acquaintance, expecting to act as a “mother’s helper” for the weekend, playing with a pair of sisters, 5 years and 19 months old.

The girls were having a good time, and on Sunday afternoon Ashley agreed to extend her stay. But then, less than an hour after she was left alone with the sisters, Ashley called 911 for help with an unconscious toddler, her charge Freya.

The shaking diagnosis came quickly. Police picked up Ashley at the hospital and took her to the station, where they interrogated her for a total of 19 hours, turning on the video recorders at about 3 am. You can see what the Seattle police considered to be the damning portion of the interview in the 48 Hours coverage of the case.

Ultimately, Judge Mary Roberts excluded the tapes from evidence, noting that detectives had ignored what she considered Ashley’s recorded invocation of her right to remain silent. With the tapes excluded, prosecutor Kathy Van Olst then asked the court to withdraw the charges, with the argument that the tapes were essential to proving the necessary timeline.

The 48 Hours coverage in 2006, after the charges were withdrawn, offered this background information on shaken baby syndrome:

According to most doctors, the only other way Freya could have sustained these kinds of head injuries would have been from a high-speed car accident or a fall from a great height, two things she was not involved in that weekend…

Dr. Brian Johnston, the chief of pediatrics at Harborview Medical Center, says he thinks Freya suffered an inflicted injury.

“In severe or fatal shaken baby cases, the symptoms would be apparent immediately after the shaking. They have difficulty breathing. They lose consciousness,” says Johnston.

Johnston did not treat Freya that night but has studied shaken baby cases. Does he think a 100-pound child could create enough force to kill a 26-pound baby?

“A 100-pound child is the size of many average-sized grown women. Unfortunately, we know that people that size are capable of inflicting these injuries on children,” says Johnston.

After the charges were withdrawn, the police, the district attorney’s office, and Freya’s family all told reporters for 48 Hours that they still believe Ashley is guilty. Her defense attorney Bryan Hershman, however, said, “I don’t want this little girl to live the rest of her life with people saying she got off on a technicality. She didn’t. She’s innocent.”

Ashley Howes was not convicted, but at the age of 13 she endured hours of hostile interrogations by a series of police officers who insisted she had murdered a little girl. She spent nearly a year under house arrest with an ankle monitor, not even allowed onto her own back lawn, and when she finally returned to school, any hopes of a normal adolescence were put to rest by taunts and jeers at the presumed baby-killer.

Ashley’s story was in the Seattle Times in March when the city reached a financial settlement with her parents, who had filed a civil suit in 2011 against the police for their callous and deceptive treatment of their daughter.

What I wish is that the doctors who make these black-and-white pronouncements about causation and timing would speak personally with the people they’re accusing, and not just send the police in to badger out confessions. I think they are missing out on a lot of valuable information. The police claim that Ashley confessed to “shaking” Freya twice, for example.  One of those two incidents was earlier in the day while she was giving the girl a bath, before the parents left the house.  If Ashley shook Freya violently at that time, and the symptoms are as immediate as Dr. Johnston says, would Freya’s mother really have called Ashley’s mother later in the afternoon and asked to keep her longer? If that “confession” isn’t accurate, what about the other one? I just don’t understand their sureness in the face of these uncertainties and conflicting tales.

Suzanne Johnson, Supported

Grandmother and child care provider Suzanne Johnson was convicted in 1999, during the first wave of shaking accusations. Counting time served waiting for trial, she is now 15 years into a mandatory sentence of 25 years to life.

Johnson’s conviction politicized her young jury consultant, Toni Blake, who was sure her client was innocent. While studying the medical literature for Johnson’s trial, Blake realized how unprepared most defense attorneys are for infant head injury cases, so she now offers a collection of SBS references  on the web site for her consulting business, Second Chair Services.

After years of work by Blake and others, the California Innocence Project has now taken on Johnson’s case.

Later this month the project is starting an Innocence March to the state’s capitol in Sacramento, where marchers will ask for pardons from Governor Jerry Brown for 12 convicted prisoners. The first leg of the walk, from San Diego to Ocean Beach, is dedicated to Johnson. Blake reports that Innocence Project attorneys have drafted a habeas corpus brief in the case that will be filed in 2013.

Inspired by the walk, supporters of Suzanne Johnson have started a Facebook page under the name Team Sue, at https://www.facebook.com/pages/Team-Sue-California-Innocence-Project-Innocence-March/479414115446391. You can read more about her story on her Innocence March entry.

Marina England, Convicted

A case of witnessed shaking has led to a felony conviction for aggravated battery in Illinois, where a mother told police she arrived to pick up her two daughters and found care provider Marina England screaming at the 3-month-old and shaking her. 

The child seems to have shown no behavioral changes or diagnostic signs like bleeding or swelling, but Ariel Cheung writing in the The Register-Mail reports that two days after the incident, when the infant was brought in for an abuse evaluation, Dr. Channing Petrak, medical director of the University of Illinois Pediatric Resource Center in Peoria, diagnosed “a mild traumatic brain injury, more commonly known as a concussion.”

I’m not sure what criteria Dr. Petrak used to reach her diagnosis, but according to the news report, her testimony was key to the judge’s verdict.

If you are interested in more on witnessed shakings, please see this blog posting from the fall of 2012. If you know of other witnessed shakings, please submit a comment. If you tell me it’s intended as a private communication, not a public comment, I will not post it but respond privately.

copyright 2013, Sue Luttner

If you are not familiar with the medical debate surrounding shaken baby syndrome, please see the home page of this site.