Category Archives: AHT

Finding a Voice, and a Community

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere of The Syndrome.

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere showing of The Syndrome.

The premiere earlier this month of The Syndrome, a documentary that questions shaken baby theory, was even more thrilling than I’d expected: The film is riveting, and its first public showing, at the Kansas International Film Festival, drew a crowd so excited to meet each other that the lobby buzzed for an hour afterwards.

Beth Fankhauser was smiling, with tears in her eyes. “We thought we were the only ones,” she marveled. She and her husband John, who are now rearing their grandchildren while their daughter serves her prison time, met half a dozen other accused families that afternoon, reinforcing their decision to start speaking up after six years of waiting quietly and praying for justice.

“We allowed ourselves to be shamed… We thought we had to protect our family from the notoriety,” Beth explained, “But the system has betrayed us, and it’s time for the truth. I feel empowered to know that others are also walking this path.”

Denver, Colorado

Denver, Colorado

A weekend like that was the antidote I needed to get past my disappointment at the 14th International Conference on Shaken Baby Syndrome, in September in Denver, where the emphasis seemed to be on discrediting all critics.

In a breakout session on the first morning, for example, pediatrician Robert Block named me personally as one of the child abuse denialists who have “fooled the media,” and some judges, into thinking there is a controversy in this arena. “I would ask the parents who are here whether they think SBS is a myth,” he admonished, pointing out that writing a blog requires no qualifications and no certification, just like writing a book or making a movie—like Flawed Convictions and The Syndrome. Block objected that all our works disregard the real victims—the injured babies—and focus instead on the perpetrators.

Prosecutor Shelley Akamatsu from Boise, Idaho, reported that prosecutors are pressing abusive head trauma cases harder than ever in the courtroom. She remembered the first shaken baby conference, in Salt Lake City, Utah, in 1996, when “convictions in AHT cases were not common,” she said, because only a few prosecutors, those who had taught themselves, knew how to handle the medical content. Eighteen years later, national training programs have prepared prosecutors “to meet untrue defenses, prove the severity of the forces inflicted, and effectively educate jurors,” she said, so that now “convictions in AHT cases are the norm rather than the exception.”

scalesAkamatsu called for an organized response now to defending these cases on appeal. “True justice means expertly defending the convictions we’ve worked so hard to get,” she said. “There’s a place for Innocence Projects,” she acknowledged, but “not in this arena, because these cases are so factually driven.”

Law professor Joëlle Anne Moreno argued that the courts, the press, and the public are all misinformed about infant head trauma. She dismissed on legal grounds the adequacy of the “new evidence” that was behind the reopening of the Jennifer Del Prete and Quentin Louis cases, the reversal of the Audrey Edmunds conviction, and the minority opinion in the U.S. Supreme Court decision in the Shirley Ree Smith case. “We need to clear up these legal questions,” she said. “Don’t confuse causation with culpability. That’s what Professor Tuerkheimer is doing when she says this is a medical diagnosis of murder.”

Dr. Sandeep Narang, who is both a physician and an attorney, dismissed the idea of any real controversy about abusive head trauma as a fallacy manufactured by the defense and parroted by the media. He devoted the first hour of his talk to the medical literature, concluding that serious brain injury or death from a short fall is “very rare,” bleeding disorders are easy to identify, and both subdural hematoma and retinal hemorrhages are highly correlated with child abuse. The second hour he spent rebutting the “straw man” argument that shaken baby syndrome is “medically diagnosed murder.” He said he was puzzled by the claim that the child abuse literature exhibits circular reasoning:

There’s a lot of accident literature where we just looked at accidents. We didn’t look at abusive cohorts. We just looked at accidents. How is that circular?

Because Dr. Narang had the floor, no one answered his rhetorical question, but this is my blog, so please let me explain: These studies typically start with a series of patients seen at the authors’ hospitals over a period of time. Not infrequently, researchers studying accidenbabySilhouettetal injury simply remove from the study any cases of presumed child abuse, with the stated goal of limiting the study to verifiable accidents. The filtering out of abuse cases is typically done by the local child abuse team, or sometimes by the authors. The problematic result is that, if a child comes in with a serious injury and a history of a household fall during the study period, the case is diagnosed as abuse and therefore never appears in the data. This self-fulfilling sorting algorithm also taints the studies that attempt to describe for physicians how to recognize child abuse—for an on-line example, please see

Which brings me back to something that bothered me when I first read the trial transcripts of the 1996 case that brought this medico-legal tragedy to my attention:  As long as the child abuse teams continue to treat every one of these cases as obvious abuse with immediate symptoms, there is almost no way to gather evidence to the contrary. Decades of convictions have been based entirely on sincere but unproven medical opinion, and at this point, the opinion is based on decades of convictions.

Kathy and Kevin Hyatt at the Glenwood Arts Theater.

Kathy and Kevin Hyatt at the Glenwood Arts Theater, where The Syndrome premiered.

Last weekend I met not only Beth Fankhauser, who says her daughter Megan was watching a 15-month-old who fell off a bed, but also Kathy Hyatt, found innocent at trial in 2009 after a baby she was watching rolled off the couch, and the family of Amanda Brumfield, now in prison, who told emergency responders her goddaughter had fallen trying to climb out of a portable crib. I don’t understand what makes the doctors so sure that all these women, wives and mothers with good reputations in their communities, simply lost it and attacked babies they had been watching for months, babies they knew and loved.

If you are not familiar with the debate surrounding infant head injury, please see the home page of this blog site.

© 2014, Sue Luttner


Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, parents accused, SBS, shaken baby syndrome

“The Syndrome” Trailer Makes Waves


Based on the trailer and publicity posted on the film’s web site, a group of child abuse professionals has written to the Kansas International Film Festival (KIFF) requesting that organizers cancel Sunday’s premiere screening of The Syndrome, a documentary about the debate surrounding shaken baby theory.

KIFF organizers received two letters earlier this week, one from the National Center on Shaken Baby Syndrome (NCSBS) that calls the film’s promotional materials “appalling, inaccurate, and potentially dangerous” and worries that viewers might get the impression that shaking a baby is not harmful, so that “numerous infants could be put in significant danger.”

A second letter signed by 29 child-abuse physicians protests:

“The prerelease materials… clearly state that the film provides a national platform for the tiny  handful of well-known child abuse defense witnesses to publicize their fringe message—that shaking an infant cannot cause death or traumatic brain injury.” [italics in original]

The physician letter calls The Syndrome “a gross and deliberate mischaracterization of vital public health and child safety issues,” and the authors seem to be threatening a lawsuit:

“This is a public health matter and as organizers of this film festival we hope you share this concern. Under these circumstances, we also hope that you will reconsider featuring this film as part of your upcoming festival. In the event that you decide to continue with premiering this film, we may opt to pursue additional legal action.”


Filmmakers Meryl and Susan Goldsmith, who are cousins

The letter-writers had threatened litigation earlier, complaining that a news clip in the trailer presented the words of a child abuse pediatrician out of context. Director Meryl Goldsmith says her intention was not to deceive but to include quotes from both sides in the preview. Investigative reporter Susan Goldsmith explains why they edited the trailer: “Instead of hassling with them over a few seconds, we just cut it even though it was exactly how the news clip appeared. We made no changes to the film.”

You can see the letter to KIFF organizers from NCSBS executive director Ryan Steinbeigle by clicking here, NCSBS letter, and the letter from the medical professionals by clicking here, physician letter.

Co-producer Meryl Goldsmith

Director, editor, and producer  Meryl Goldsmith will speak at the premiere showing of The Syndrome, on Sunday, October 12, in Overland Park, Kansas

The move to block The Syndrome isn’t surprising, after all the grief the film received from speakers at last month’s NCSBS conference. Political science professor Ross Cheit from Brown University, for example, in his talk “‘Exonerating’ the Guilty: Child Abuse and the Corruption of the False Conviction Movement,” characterized The Syndrome as “a love letter” to three defense experts. He said it was “a defense lawyer’s dream . . .  you get to put on your testimony and there’s no cross-examination.” He objected to the term used in the trailer, “shaken baby syndrome industrial complex,” which he said shows “incredible arrogance and remarkable ignorance” on the part of the filmmakers because, “Child abuse is not where the money is. Child abuse defense is where the money is.”

Professor Cheit compared The Syndrome to Capturing the Friedmans, a 2003 documentary that raised questions about a 1980s child sex-abuse case in New York. Prof. Cheit portrayed that film as a whitewash on behalf of father-and-son felons Arnold and Jesse Friedman. Noting that Capturing the Friedmans was a finalist for an academy award the year it came out, Prof. Cheit said he worries about the “gullible acceptance many people have for a movie that’s labeled ‘documentary.'”

Presumably the KIFF organizers and judges made their choices carefully, both when they included The Syndrome in their program and when they nominated it for a jury award. I haven’t seen the film yet, but I hope it addresses some of the troubling questions that have raged around shaken baby syndrome for decades now—and I doubt the take-home message is really that shaking a baby is safe.

As for protecting the children:  I am concerned about the infants who are denied the medical care they need when a hasty diagnosis of abuse stops the search for the medical conditions that underlie many cases of brain bleeding and swelling with no outward signs of trauma, as well as the siblings who are torn unnecessarily from loving homes. I am especially concerned about the cavalier opinion that household falls do not cause serious injury or death. I wish that parents were warned not only about shaking infants but also about dropping them. While most falls do not cause major injury, lives could be saved and injuries prevented if we started installing mats under changing tables and padding in play areas. Meanwhile, doctors simply do not know enough about infant neurobiology to support the definitive statements about infant shaking that have been winning in court for 30 years.

For my blog posting after the premiere showing of The Syndrome in October of 2014, go to Finding a Voice, and a Community.


Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, SBS, shaken baby syndrome

“The Syndrome” Promises Fireworks

Susan Goldsmith

Susan Goldsmith

“Shaken baby syndrome is the most mind-blowing story I have encountered in 26 years as a journalist,” says Susan Goldsmith, whose film The Syndrome has been nominated for a Jury Award at its premiere next month at the Kansas International Film Festival. “The deeper and deeper you go, the worse it gets.”

Even over the phone, Goldsmith crackles with the same energy that makes the trailer so compelling and no doubt earned the film its nomination. “When I found out how the promoters of the theory are trying to silence their critics,” she flares, “I knew I had to make this movie.”

She promises an “explosive” exposé, consistent with her web site’s report that the film “unflinchingly identifies those who have built careers and profited from this theory along with revealing their shocking pasts.”

Dr. John Plunkett

Dr. John Plunkett

The Syndrome profiles three of the most outspoken critics of shaking theory, forensic pathologist John Plunkett, pediatric neuroradiologist Pat Barnes, and neurosurgeon Ron Uscinski.

The film also features a few of the personal stories Goldsmith heard during years of research. “Those families, who have been ripped apart in so many ways, they keep me inspired,” Goldsmith insists. “If I was traumatized like that, I’d never want to talk about it, but you call them up, and all they want is to help get the word out.”

Dr. Charles Hyman, a critic of shaken baby theory, and Susan Goldsmith

Dr. Charles Hyman, a critic of shaken baby theory, and Susan Goldsmith

Goldsmith expects criticism from what she calls “the shaken baby industrial complex.”

“I’m used to being attacked,” she shrugs. “My job as an investigative reporter is to piss people off.”

Goldsmith has handled controversial stories before, including an article sympathetic to a convicted child molester—which later won a first-place award for crime and justice reporting—and a profile defending Nigerian anthropologist John Ogbu at UC Berkeley, tarred as a “Clarence Thomas” for his study of black high school students at an affluent Cleveland suburb. She’s often had trouble pitching her ideas, she concedes, “but I have never encountered the insane resistance I’ve seen to this story.”

Co-producer Meryl Goldsmith, Susan's cousin

Meryl Goldsmith

Goldsmith says that people seem to go “fuzzy in the head” when the words child abuse are used, “and that’s a very dangerous place for us to be in.” The same human instinct that fostered the shaken baby nightmare also made it nearly impossible to explain her conclusions, she sighs. “Over and over, people would just say, ‘They must be shaking them.'” Recognizing the resistance to their topic within the film industry, she and her cousin Meryl Goldsmith found their own funding and made their own movie.

I’m excited: The Syndrome could be a watershed in the history of shaken baby syndrome. I confess I had the same thought about Lee Scheier’s 2005 Chicago Tribune treatment, Emily Bazelon’s 2011 New York Times Magazine piece, the 2011 NPR/ProPublica/Frontline series, and Deborah Tuerkheimer’s 2014 book, but every bit of exposure helps bring the truth to light, and this film promises to be a high-wattage experience.

I knew Goldsmith subscribed to this blog, but she says in fact she’s a “religious reader” and she has “learned a tremendous amount” from it. I am gratified and encouraged.

The Syndrome premieres on Sunday, October 12, 12:15 pm at the Glenwood Arts Theater in Overland Park, Kansas. It will also be shown at the Twin Cities Film Fest, on October 24 & 25, buy tickets here.

For a sampling of Goldsmith’s work and awards, click on her tab on the film’s web site.

Copyright 2014, Sue Luttner

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


Filed under abusive head trauma, AHT, parents accused, SBS, shaken baby syndrome

Light Breaks in New Mexico

danielConsaulAlthough the case doesn’t involve shaken baby syndrome, a  decision last week by the New Mexico Supreme Court addresses a fundamental issue in shaking cases, the reliability of expert medical opinion in child abuse prosecutions.

The decision freed Daniel Consaul, convicted in 2008 of “intentional and negligent child abuse resulting in great bodily harm to an infant,” for what the local child abuse team had concluded was the intentional suffocation of his 10-week old nephew Jack. The court vacated Consaul’s conviction “with prejudice”—meaning he cannot be re-tried—citing insufficient evidence. The opinion notes in the introduction:

Child abuse prosecutions are unusual in that sometimes medical-opinion testimony provides the only evidence that a wrongful act occurred or that the accused committed a wrongful act…

Our review here focuses on whether this expert testimony alone—testimony in this case based solely on a deduction from an absence of other causes that a certain event likely occurred—is sufficient to support a criminal conviction

Consaul lived with his sister and her baby, and had been caring regularly for the boy since his birth. He told detectives he had checked on his nephew at 1:30 in the morning after hearing the child cry out and found that Jack had vomited and seemed stiff. He called his sister at work, and with a neighbor they took the baby to the hospital in Las Cruces, where the boy arrived shivering and lethargic but breathing and “appropriately responsive.” Unsure of the underlying problem, doctors administered fluids and performed lab tests. A few hours later, Jack was airlifted to the University of New Mexico Hospital, where he began seizing. CT scans then revealed brain swelling apparently triggered by insufficient oxygen.


From the Mayo Clinic swaddling instructions

In his first police interview, Consaul said he had swaddled Jack and placed him in his crib that night at about 11:30 pm. He did not specify the position, and the police did not ask. In a more pointed interview the following day, he said he had swaddled the boy more tightly than usual and laid him face-down in his crib. He conceded he was frustrated with Jack’s crying. The subsequent indictment charged that Consaul had endangered his nephew ‘s life and health “by swaddling Jack …tightly and leaving him unattended for an extended period of time.” At trial, the prosecution also argued that Consaul had intentionally suffocated the boy.

Refreshingly, the judges made a careful examination of the Child Abuse Response Team (CART) report that informed that conclusion, writing:

While proof beyond a reasonable doubt is not required for admissibility of an opinion, it is essential to support a jury’s finding of guilt. As a reviewing court, we must decide whether a reasonable jury could “reason” from the available evidence to the point of finding guilt beyond a reasonable doubt.

In this case, there was no substantial evidence pointing to Daniel’s guilt other than whatever could be said of the medical testimony, and when that evidence is analyzed, it falls short of establishing proof beyond a reasonable doubt.

Critical care specialist Dr. Mary Johnson had testified, for example, that one of her reasons for concluding that Jack had been intentionally suffocated was that his uncle had made a “calculated” change in his story. She said that Consaul had first reported putting Jack down on his back, but then claimed he’d placed the child on his stomach, after learning that doctors suspected suffocation. Dr. Johnson was apparently relying on the CART report, which did not include an interview with Consaul but quoted Jack’s mother Heidi as saying that the boy was usually put down on his back and that Consaul had told her he found Jack on his back after his cry in the night. Like the initial police report,the CART report contained no statement from Consaul about how he placed the boy in his crib that night. The court notes:

The assertion of a “change of story” was based on what Heidi recalled Daniel telling her, which she then repeated to Dr. Coleman, which was then transmitted via the CART report as tertiary hearsay to Dr. Johnson. It is difficult to know how to interpret this so-called contradiction or assess its reliability. Even if Heidi accurately recounted what Daniel had told her, it was that “Daniel found Jack on his back [and] had vomited,” not that he had put Jack to bed in that position. (Emphasis added.)

Although not a perfect analogy, this slurring of details echoes a sequence I’ve seen routinely in hospital records: An initial assessment raises the suspicion of inflicted head injury. During interrogation, a caregiver admits to some kind of shaking, usually mild, often in the course of attempted resuscitation. The detectives report back, and subsequent doctors’ notes include a phrase something like, “consistent with admitted shaking by caregiver.”

In another parallel with shaking diagnoses, Dr. Johnson testified that she had reached her conclusions partly because Jack’s body showed no signs of trauma:

After prompting by the district court, the State asked Dr. Johnson what physical manifestation from her examination led her to believe that Jack had been smothered. Dr. Johnson responded that Jack’s seizures were an indicator, as was the lack of any other physical manifestations. “There is often nothing that can be seen, nothing on the face, no bruises, no bleeding. No petechiae. Greater than 50 percent of the time, there is absolutely nothing on the skin or on the baby that would indicate a problem.”(3)

This observation inspired the best line in the decision, footnote 3:

  1. We leave for another day an examination of how the lack of any physical evidence of child abuse can somehow become probative of the crime of child abuse.

In addition to criticizing the evidence, the opinion condemns the trial court’s decision to issue one set of jury instructions for the separate charges of negligent child abuse and intentional child abuse:

Defendant was entitled to separate jury instructions for negligent and intentional child abuse resulting in great bodily harm given that the State’s theories of how that harm occurred were different and inconsistent; for negligent child abuse, the state told the jury that defendant put the baby to bed carelessly, tightly swaddled and placed face down on a pillow, and argued that this act of negligence caused baby’s injuries, and for intentional child abuse the state hypothesized that defendant did not just put baby to bed carelessly, but that defendant actually used a pillow or his hand to suffocate baby so he could not breathe, and jury was never asked to specify which criminal act defendant committed.

The judges quote from the prosecution’s final argument that a juror might think Consaul “did it on purpose” or might think “he’s just an idiot” who put the baby down negligently, “but everybody knows, and we know he knew better than to do that.” The court’s response:

The prosecutor invited the jury to convict Daniel of child abuse whether or not the jury agreed on what criminal act Daniel actually committed. Jurors should not be left free, let alone encouraged by the prosecutor, each to go his or her own way when it comes to determining what criminal conduct —if more than one act is alleged—caused the child’s harm. The jury needs to agree unanimously on what conduct caused harm to the child.

While addressing the many issues raised by the case, the opinion criticizes the state legislature for its ambiguous definition of “negligence” in its child abuse guidelines. Noting that the law recognizes a distinction between civil versus criminal negligence, the opinion observes:

We note, however, that in Section 30–6–1(A)(3) the Legislature appeared to capture two standards of mens rea in one sentence when it defined “negligently” as meaning “that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.” § 30–6–1(A)(3) (emphasis added). The Legislature joined these two distinct states of mind with the conjunctive “and.” Taken literally, the text of the statute refers to both ordinary negligence and criminal recklessness all in a single legislative breath. The Legislature cannot rationally have intended such self- contradiction.

The opinion also contains an educational discussion of the difference between the medical concept of the differential diagnosis—“the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings”—and the legal concept of the differential etiology—”a process that identifies a list of external agents… that potentially caused the disease.” Quoting another case opinion, the justices note:

“[P]hysicians receive more formal training in differential diagnosis than in differential etiology…. [P]racticing physicians have more experience working with the differential diagnosis technique, since in many cases the cause of an illness is irrelevant to the patient’s treatment.”

The child abuse team’s conclusions about intentional suffocation would seem to fall into the area of “etiology,” since there are countless ways for oxygen flow to be interrupted.

This case is cleaner than a shaking prosecution, because there were no subdural hematomas and no retinal hemorrhages, and therefore no presumption of violent assault, but I believe the same underlying issues apply. I hope to see more judges taking such a careful look at how the child protection teams reach their conclusions and recognizing the difference between sincere medical opinion and proof beyond a reasonable doubt.

copyright 2014, Sue Luttner

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


Filed under abusive head trauma, AHT, SBS, shaken baby syndrome

Conversations With Dr. A. Norman Guthkelch

Dr. Norman Guthkelch, October 2012

Dr. Norman Guthkelch, October 2012

Retired pediatric neurosurgeon Dr. A. Norman Guthkelch was the first person to propose in print, in the British Medical Journal in 1971, that shaking an infant could cause subdural hematoma. He is now trying to straighten out what he considers a “horrifying” misinterpretation of his work in court.

Dr. Guthkelch was invited to address accused families at the 2013 conference sponsored by the Evidence Based Medicine and Social Investigation Group (EBMSI), a coalition of parents who have survived false accusations and now offer help to the newly accused. His health prevented him from traveling, so we conducted a series of conversations, which I edited into a 22-minute video to show at the conference.

For a profile of Dr. Guthkelch, please see this blog posting from the winter of 2012.

To view the videotape we made for the 2013 EBMSI conference, please click the image below:

copyright 2014, Sue Luttner

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


Filed under abusive head trauma, AHT, Norman Guthkelch, SBS, shaken baby syndrome

Boston Cases Refocus the Spotlight

Justina Pelletier thrilled to be returning home

Justina Pelletier, now reunited with her family

Nearly twenty years after the trial of British au pair Louise Woodward brought shaken baby syndrome into the headlines, the case of Irish nanny Aisling Brady McCarthy has raised the subject again in Boston, where reporters are still fresh from a different controversial diagnosis by the same child protection team.

Last week McCarthy’s attorneys filed a motion arguing not only that the science around shaken baby syndrome is falling apart but also that the physician who diagnosed the abuse has been wrong before about infant shaking. Then journalists made the connection with the high-profile case of teenager Justina Pelletier, who returned home to her parents in June after a long, bitter, and public struggle with Boston Children’s Hospital.

Aisling Brady McCarthy, from the BBC coverage,

Aisling Brady McCarthy, accused of shaking an infant, from the Middlesex District Attorney’s Office

McCarthy, who is in the U.S. illegally, has been in jail since she was arrested in January of 2013, a week after reporting that 1-year-old Rehma Sabir had simply fallen unconscious in her care. The girl died in the hospital two days later.

Although doctors found no bruising, grip marks, or other external signs of assault, Rehma was diagnosed as the victim of a violent shaking based on brain swelling and bleeding inside her head and behind her eyes, the same symptoms found in Matthew Eappen, the infant who quit breathing while in the care of Louise Woodward in 1997.

Last week’s Boston Globe coverage offered this perspective on the abuse diagnosis, from a physician not involved in the case:

“Bleeding in the back of the eye rarely happens absent abuse,” said Robert Sege, medical director of the Child Protection Team at Boston Medical Center.

Sege said abusive head trauma is a leading cause of death of infants, and its existence is a “settled scientific fact,” according to the American Academy of Pediatrics.

During a grand jury hearing in 2013, prosecutors argued that McCarthy had inflicted both the brain injury and a number of “compression fractures” found in Rehma’s spine, but a bone specialist for the state later concluded that the fractures were 3 to 4 weeks old, meaning they happened while the girl was out of the country with her family, not in McCarthy’s care. When the bone evidence emerged, defense attorneys filed an unsuccessful motion to have the charges dropped, and the case has been crawling through the courts since.

McCarthy’s defense attorney Melinda Thompson, a former prosecutor, says her work on this case has convinced her that shaken baby syndrome is not a reliable diagnosis. “I was a prosecutor in that office for seven years,” she wrote in an email, “I never prosecuted child abuse cases and never thought about SBS cases. I should have. I am appalled that this can happen. I won’t stop until Aisling is free.” bostonChildrens

In the petition filed last week, Thompson and co-counsel David Meier argued that Rehma had a complex medical history, including a bleeding disorder, which Dr. Alice Newton at Boston Children’s Hospital did not consider before making the abuse diagnosis. The petition also cited the case of Geoffrey Wilson, accused in 2010 of shaking his 6-month-old son to death. The state medical examiner has recently derailed that prosecution by amending the cause of death from homicide to undetermined. The shaking diagnoses in both Wilson’s and McCarthy’s cases were made by Dr. Newton.

Justina with her mother and two of her three sisters

Justina with her mother and two of her three sisters

“Medical Child Abuse”

Justina Pelletier’s parents brought their daughter to Boston Children’s Hospital on the advice of Dr. Mark S. Korson, a metabolic disease specialist at Tufts Medical Center who had been treating Justina for mitochondrial disease, a rare and little understood condition that includes muscle weakness and digestion problems. Her health was failing, and Dr. Korson wanted her to see her long-time gastroenterologist, who had moved from Tufts to Boston. But the child protection team at Boston Children’s, led at the time by Dr. Newton, concluded that the girl’s symptoms were psychosomatic, triggered in part by her family’s insistence on receiving what they considered “unnecessary medical treatment.” The courts accepted the doctors’ diagnosis of “medical child abuse” and removed Justina from her family. The hospital then placed Justina in a locked psychiatric unit and allowed her only one supervised visit and one supervised phone call each week with her family.

“No one was on my side there,” Justina told Mike Huckabee at Fox News in a televised interview after her release. “No one believed me there. They all thought I was faking.”

ERThe relationship between the Pelletiers and the hospital remained hostile, and in March of 2014 a judge granted permanent custody to the state of Massachusetts, in an opinion that criticized both the Pelletiers for their refusal to cooperate with Justina’s new treatment plan and the state of Connecticut, where the family lives, for its failure to get involved.

Justina’s health did not improve, though, and in May of 2014 she was transferred to a residential treatment program in Connecticut, closer to her family. The staff at the new facility found the Pelletiers “cooperative and engaged,” and in June the same judge authorized Justina’s return home. The order returning custody to the Pelletiers did not explicitly reject the diagnosis of “somatoform disorder,” or illness caused by psychological issues, instead noting that “circumstances have changed” since Justina became a ward of the court.

Since her release, Justina, her family, and their advocate Rev. Patrick Mahoney have made a number of public appearances, including a Congressional address and a televised press conference, and the case has been offered as an object lesson by both alternative health care activists and the mitochondrial disease community.

When attorneys for Aisling McCarthy filed their motion in the shaking case, Boston Herald columnist Peter Gelzinis apparently hit a nerve with an opinion piece noting that the Pelletier outcome had tarnished the credibility of the diagnosing physicians: His column triggered a cascade of public comments about false allegations of child abuse in Massachusetts.

Unlike the infants Matthew Eappen and Rehma Sabir, Justina Pelletier was 15 years old when she arrived at Boston Children’s Hospital, old enough to tell doctors that her parents were not abusing her. She already had a diagnosis of mitochondrial disease from a reputable institution, and she continued to insist that her symptoms were real, while her health continued to unravel. “They didn’t care,” she told Mike Huckabee, “They were saying that I was improving, which I was not.”

Some medical conditions, like cancer or tuberculosis, can be confirmed by testing. The tests might have a known error rate, the likelihood of a false positive or a false negative, but guidelines and data are available. There is no test, though, to confirm or reject either shaken baby syndrome or medical child abuse. Doctors are relying on what they’ve been taught about the conditions, supported by their clinical experience, which of course incorporates the opinions of their peers and courtroom outcomes.

According to press reports, there is also no definitive test for mitochondrial disease, which mired the Pelletier case in uncertainty from the beginning. Before the case resolution, Brian Palmer at Slate speculated in an essay emphasizing the ambiguities:

Linda and Lou Pelletier may be the innocent victims of an all-powerful hospital that followed a misdiagnosis to its painful and damaging end. Or perhaps they are sick people who have tortured their daughter with unnecessary medical procedures. They could even be both—the parents of children with mitochondrial disease often suffer from the same disorder, which can cause emotional and psychiatric problems.

In the Pelletier case, time offered a test of the doctors’ hypothesis: After sixteen months of psychiatric care and separation from her family, Justina’s legs are so weak she uses a wheel chair to get around, and her parents say she has regressed academically.

But time has few opportunities to prove or disprove a diagnosis of inflicted head trauma. Infants who survive presumed shaking assaults routinely suffer from seizures and other neurological complications:  The common knowledge is that these problems are a result of the assault, and not a clue to an alternative explanation for the initial collapse. Similarly, infants diagnosed as shaken often arrive at the hospital with both old and fresh bleeding in their brains. Child abuse physicians conclude that these children have been shaken in the past and then again just before they became symptomatic—although I’ve never understood why this explanation doesn’t interfere with the presumption of immediate symptoms.

In rare cases, the medical records ultimately reveal an underlying condition—like sickle cell disease in the case of babysitter Melonie Ware or Menkes syndrome in the case of Tammy Fourman—but no one knows how many other disorders might cause the brain bleeding and swelling that’s routinely ascribed to shaking, and as the McCarthy motion points out, doctors seldom test even for the known causes.

So the courts are left to arbitrate between the doctors who believe they can know from the brain findings that a child was shaken and the caretakers who claim innocence. I can only hope that further research and improved technology offer better answers soon, because I believe that innocent people are being accused and benign families torn apart by sincere physicians working with a theory that pushes well beyond the limits of what’s really known.

The McCarthy motion asks for a hearing to scrutinize the science behind shaken syndrome under the “Daubert-Lanigan” standards that govern expert testimony. If that hearing happens, I hope the Boston press will stay with the story.

August 15 update: Geoffrey Wilson’s family, in the other local shaking case, has offered to open their medical records to McCarthy’s defense: team:

copyright 2014 Sue Luttner

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


Filed under abusive head trauma, AHT, parents accused, SBS, shaken baby syndrome, Uncategorized

Bad Science Goes Up in Smoke

limestreetForensic scientist John Lentini says he was as surprised as anyone at the Lime Street burn, a videotaped inferno that ultimately forced arson experts to abandon a set of flawed guidelines they had relied on for decades.

“We all believed what we’d been taught,” Lentini says. “Lime Street proved us wrong.”

Lime Street was a test conducted on behalf of the prosecution in a 1990 Florida murder case. Lentini, an expert on arson, had been called in because the circumstantial evidence against defendant Gerald Lewis was weak, even though the forensic evidence seemed solid. Arson investigators had said, for example, that the living room would have required 15 to 20 minutes to reach “flashover”—the point when the room explodes from the heat—not the 3 to 5 minutes Lewis had reported. A sofa cushion limteStMattressshould smolder, not combust, the experts said, and the scorched trail down the hallway floor was the “classic” signature of liquid accelerant. Before taking the case to trial, the prosecutor wanted to know:  How reliable were those expert opinions?

Lentini and his team saw the perfect place to find out: the house next door, built on the same floor plan, probably at the same time, and slated for demolition. Investigators installed duplicate carpet and furnishings, and then, with firefighters on hand, turned on the video cameras and set a fire on the living room sofa, where Lewis claimed the flames had started. What happened next caught everyone by surprise. From Lentini’s published statement about the test burn:

The living room went to flashover in 4-1/2 minutes, only 60 – 90 seconds after we surmised it would have been necessary to evacuate the living room… There were firemen in the hallway outside the living room breathing fresh air only fifteen seconds before the fire flashed over and extended into the hallway.

The hallway floor was scorched, and the smoke travelled with the fire, “consistent with the low carbon monoxide levels found in the victims,” Lentini later wrote.

Arson investigator John Lentini

Arson investigator John Lentini

Gerald Lewis was cleared, and researchers started conducting controlled scientific tests to understand burn patterns and flashover conditions. The change took time, though. For the moving story of a man executed before the new understanding could derail his death sentence, see David Grann’s New Yorker piece about Cameron Todd Willingham.

After the test, Lantini says, he was surprised that a “substantial number” of other fire investigators, even after learning about the test burn and the exculpatory circumstantial evidence, looked at the physical scene evidence and concluded that the Lime Street defendant was guilty beyond a reasonable doubt. From his published statement:

This is the frame of mind which leads to wrongful convictions. Every one of us would agree that, in the American system of justice, a defendant is innocent until proven guilty. Agreement would be less widespread, however, to the proposition that every fire is accidental until proven incendiary. In fact, the presumption of innocence of an individual and the presumption of accidental origin of a fire are exactly equivalent. If this fire was set, the suspect set it. All the State needed to do was prove beyond a reasonable doubt that this was an intentionally set fire, and they would have proven beyond a reasonable doubt that the suspect was guilty.

Local coverage of the Lime Street burn offered this explanation for why fire investigators continued to trust the rules they’d been taught, even in the face of videotaped proof those rules were wrong:

Traditional theories about how fires burn had been developed over generations by firefighters who’d observed thousands of fire scenes. It wasn’t quantifiable theory, more a set of beliefs rooted in experience. But it carried the weight of fact. And as with any tradition in the close fraternity of firefighters, it was honored for the very fact that it represented the wisdom of veterans.

Replaflamesce the word “firefighters” in that paragraph with “child-abuse experts,” and I believe the observation still holds, which illustrates the flip side of something John Lentini said to me when I interviewed him last year. He had followed the Goudge hearings on faulty diagnoses of child abuse in Ontario, Canada, and he had noticed the parallels between old theories of fire investigation and the faith-based opinions of the child-abuse experts. “They’re in the same place,” he claims, “You can exactly replace ‘forensic pathology’ with ‘fire investigation’ in Goudge, and it describes what we had in the 1980s with fire investigation.”

He offers an example from the final Goudge report. The original:

The interpretive nature of forensic pathology—both in evaluating the findings made at the autopsy and determining what, if any, conclusions can be drawn from them—reinforces the limitations of the science. Even when the controversy does not divide the forensic pathology community, there are diagnostic challenges that limit what a forensic pathologist can reasonably say about an individual case, and the level of confidence or certainty with which he or she can say it.

Modified for fire investigation:

The interpretive nature of fire investigation—both in evaluating the findings made at the fire scene and determining what, if any, conclusions can be drawn from them—reinforces the limitations of the science. Even when the controversy does not divide the fire investigation community, there are diagnostic challenges that limit what a fire investigator can reasonably say about an individual case, and the level of confidence or certainty with which he or she can say it.

Most forensic investigation looks at the question of “Who did it?” Lentini points out, but fire investigators and child-abuse physicians are both trying to answer the question, “Was a crime even committed?” Unfortunately, he adds, the doctors are still relying on faith, not science.

curlAlthough his specialty is arson, Lentini was also trained in microscopic hair comparison while working at the Georgia Bureau of Investigation Crime Lab. “I was terrible at it,” he recalls, “The samples all looked the same to me.” He never incorporated that training into his work, which is probably a good thing, because the techniques he was being taught have failed the test of time.

Just this week, for example, a judge in Washington, D.C. acknowledged that DNA testing has exonerated 50-year-old Kevin Martin, who spent 26 years in prison for murder after an FBI visual analysis incorrectly matched him to a hair collected at the crime scene. Martin’s case is only the most recent refutation of hair evidence from that era:  The 2012 Innocence Network Journalism Award went to Washington Post reporter Spencer S. Hsu for his series about the unraveling of the subjective and statistically flawed techniques.

“It’s not a bad technique for elimination of matches,” says Lentini, “But it’s not reliable for positive identification.”


In a posting earlier this week about the FBI’s hair-matching cases, Nancy Petro at the Wrongful Convictions Blog observed that “these miscarriages were prompted by an unjustifiable trust in unreliable science presented by a highly credible source.” Again, I am struck by the parallels with the shaken baby arena:  The “highly credible source” for the microscopic hair analysis was the FBI. The “highly credible source” for the shaken baby testimony is the American Academy of Pediatrics. We want both of those institutions to always be right, but sometimes they’re wrong.

Fire investigators have now adopted scientifically established criteria, and DNA testing has replaced visual hair analysis in court, although the criminal justice system has not yet caught up with either development (see, for example, Martin Yant’s commentary on the Wrongful Convictions Blog). I do have faith that the truth will ultimately prevail in the shaken baby arena, but I am discouraged at how slow the change is in coming.

For a video demonstration of flashover, see

For a review of the dramatic changes in arson science in the past two decades, see Phil Locke’s treatment on the Wrongful Convictions Blog.

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

copyright 2014, Sue Luttner


Filed under abusive head trauma, AHT, SBS, shaken baby syndrome