Category Archives: AHT

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.

swaddle

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.

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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.

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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, http://www.bbc.com/news/world-europe-24569976

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: http://bostonherald.com/news_opinion/local_coverage/2014/08/shaken_baby_defendant_offers_to_share_evidence_with_nanny

copyright 2014 Sue Luttner

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

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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.”

NancyPetro

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 https://www.youtube.com/watch?v=ZH0k-NthgTY

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

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My Visit to the Ivory Tower

a&cRuinsThe on-line journal Argument & Critique has published my review of the shaken baby syndrome literature, after an editorial exchange that has increased my appreciation for both the role of academia in the SBS/AHT debate and the value of The National Registry of Exonerations.

The journal’s managing editor, Dr. Lynne Wrennall at Liverpool John Moores University, approached me some months ago, after reviewing this web site and blog, to see if I wanted to submit a paper on shaken baby syndrome. After 17 years of tracking the evolving research, I was eager for the chance to pull the key papers and cases into the historical narrative. My own education came in the footnotes.

aspelin

Charges were eventually dropped against Kristian Aspelin, who said the family dog had knocked him over while he was holding his infant son.

My citations to the medical literature were fine, but it turns out that the golden links for a blogger—the in-depth articles on individual cases from news outlets that post their archives on line—are forbidden to the academic researcher. I was allowed to cite the opinion of a New York Times reporter about British sentiment toward Louise Woodward but not, for example, the Philadelphia Inquirer’s treatment of the Baby Lucas case, in which doctors misdiagnosed a vitamin K deficiency as shaking injury. I thought my essay would be more potent if I could name some of the conditions that have been misdiagnosed as abuse, but my examples were all excised because the citations were deemed unreliable—which is a sound policy, when I think about how inaccurate the popular press can be.

nationalRegistryNow I realize I could have saved us all a lot of trouble if I had just gone first to The National Registry of Exonerations, a joint effort of the innocence projects at the Michigan and Northwestern University law schools, a reputable source that offers a sobering list of overturned shaking convictions, with case histories. The registry documents a number of conditions that have been misdiagnosed as abusive head trauma:

Some cases were overturned because they rested on timing:

The registry now contains 1,388 exonerations, a number that’s likely to change soon, as the last entry seems to have been added yesterday, July 2, which I know because their case browser offers a handy sorting tool that also helped me find the cases above.

Richard Britts and his daughters -courtesy of Richard Britts

Richard Britts and his daughters
-courtesy of Richard Britts

What this database doesn’t include are the dropped charges, as in the cases of Tammy Fourman and Kristian Aspelin; the not guilty verdicts, as in the cases of Richard Britts and Russell Van Vleck; or the many innocent people who either remain in prison or have served their terms. Still, it’s a valuable resource and a solid record of shaken baby syndrome in the courtroom, a record that’s respected in academia.

The journal that published my paper takes a libertarian perspective and “aims to stimulate debate and critical thinking around controversial topics.” I was encouraged to know that its editor, a U.K. social science professor, researcher, and government policy advisor, is not only aware of the SBS debate but eager to push it forward. I got a hint of why she is also a popular media figure when she offered this perspective on the criticism she hopes for in response to the shaken baby paper:

As you know the history of SBS, you know that it can get pretty stormy, but I make it a point of honour not to give in. I go by the edicts, ‘let the light in’, and make sure that you are never the only person to know something.

In that spirit, thank you for reading my blog.        -Sue

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.

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Jury Finds Adrian Thomas Not Guilty

adrianThomasThe retrial of convicted father Adrian Thomas produced a not guilty verdict today, a decision reached by jurors who did not learn about the 9-hour interrogation examined in the award-winning 2012 film Scenes of a Crime or hear testimony from the detectives who conducted it. Thomas’s initial conviction in 2010 for the presumed shaking death of his 4-month-old son was overturned in February, when an appeals court determined that the interrogators’ heavy-handed tactics made the resulting confession inadmissible.

At both trials, defense experts argued that Matthew had died of sepsis, a full-body infection that leads to rapid collapse through tissue failure. The sepsis diagnosis was  confirmed by blood tests ordered by forensic pathologist Jan Leestma, hired by the defense team. The state pathologist had not mentioned the sepsis in his autopsy report, although he did not deny it after Leestma brought it to his attention.

AdrianThomasStandsMatthew had no bruising, no red marks, and no fractures. His first blood test when he was rushed the hospital had came back positive for streptococcus pneumoniae. He had also arrived at the hospital with a temperature of 97.2 F, which dropped 3 degrees over the next half hour. His mother had reported a fever of 100.4 F the previous day, a figure that was dismissed as “not high” by prosecution expert Dr. Carole Jenny, who insisted that the sepsis infection was secondary to inflicted head trauma.

Coverage by reporter Bob Gardner at the Times Union offered this quote from the prosecution after the verdict:

“After the Court of Appeals threw out the his statements of guilt, we did the best we could with what we had left,” said Assistant District Attorney Christa Book. “I’m sorry that I could not bring Matthew justice.”

For a summary of the interrogation and a review of the film, please see this blog posting.

For the opinion vacating Thomas’s initial conviction, follow this link.

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

Short Falls, Long Sentences

The innocent verdict in Yolo County last month has me reflecting on a few of the people I know who are in prison on the basis of medical opinion that (1) short pediatric falls are seldom if ever fatal and (2) the symptoms of a serious infant head injury will be immediately obvious.

Because the doctors are so sure, police and social services move ahead with confidence, and juries tend to convict. Tragically and exasperatingly, the legal outcomes then seem to support the common knowledge, which remains a matter of opinion, not proven fact.

Rico Green

Rico Green


Rico Green

Rico Green in Oklahoma, for example, is serving a life sentence following the 2010 death of his girl friend’s toddler, 13-month-old Gericho. “Anybody that knows Rico knows that’s not him,” says Antoine Hubbard, a family friend who has pulled together the case records, hoping to file an appeal. “Rico’s a gentle guy. He’d never do something like that.”

gericho

Gericho 2010

Gericho’s mother had just started a new job and Rico was watching Gericho, as he often did. He called 911 mid-day, with a report that the boy was unconscious after falling down a few steps—but at the hospital, doctors said a short fall couldn’t account for the injuries.

During extensive police interviews, Rico reported an incident earlier that morning when he had “snatched up” Gericho and scolded him, when the boy had grabbed the toilet plunger after his bath and pretended he was going to bite it, a game he’d learned was provocative. In the videotaped portion of the interrogation, the final half hour, the detectives do most of the talking, insisting that Rico, enraged, shook the boy at that time.

Rico shows a remarkably even temper on camera, seemingly more puzzled than angry as the detectives refuse to accept the story he repeats again and again: What he feels bad about is yelling at Gericho and making him cry.  “I know he’s a one-year-old,” Rico explains, “He probably doesn’t understand.” The detectives keep at it, though, until Rico finally seems to accept their theory that he was so angry during the plunger incident he didn’t realize how hard he had shaken the boy when he grabbed him. What sounded like a confession to them looked to me like acquiescence, and not the behavior of a man prone to violent outbursts.

Rico’s trial lasted three days and featured 13 prosecution witnesses. The public defender called no witnesses on his behalf, and the jury convicted Rico of murder in the first degree. Antoine Hubbard is now looking for pro bono legal help.

Jeff and Gracelynn Baker, 2010

Jeff and Gracelynn Baker, 2010


Jeff Baker

In Idaho, mature father Jeff Baker is serving a life sentence for the death of his daughter Gracelynn, not quite three months old the afternoon in 2010 when her father found her struggling to breathe shortly after he’d fed her. The babysitter who had been caring for the girl earlier in the day later told police she had accidentally dropped the baby into a sink while bathing her, but Baker was convicted of murder, in what doctors testified was both a shaking and a slamming assault.

Pediatric neuroradiologist Dr. Patrick Barnes, called in by the defense, noted that Gracelynn’s breathing tube was misplaced in two of the scans he reviewed. Baker, who has written his own appeal from prison, sent me excerpts from the medical records showing the catastrophic drop in his daughter’s blood-oxygen levels that night, and the “reintubation” procedure the following morning. The state has appointed an attorney to represent Baker at the upcoming hearing on his appeal.

Tiffani Calise

Tiffani Calise


Tiffani Calise

Tiffani Calise was only 19 years old the night she called 911 for help with a toddler who she said had slipped and fallen in the bathtub. She was arrested two weeks later, in August of 2010, and she hasn’t been out of custody since. She is now missing her own daughter’s childhood while serving a sentence of 15 years to life for the presumed murder of her friend’s child. Her first appeal was turned down, but supporters are working on another.

Leo Ackley's Facebook profile shot not long before the accusations

Leo Ackley with Baylee — His Facebook profile shot not long before the accusations


Leo Ackley

Last year’s successful appeal on behalf of Leo Ackley turned to disappointment this spring, when the Michigan Court of Appeals  reversed that decision, calling it “clear error.”

At issue was whether trial counsel Kenneth Marks provided ineffective assistance in 2012 by failing to look for a different expert witness after the first pathologist he approached, Dr. Brian Hunter, told him he believed 3-year-old Baylee’s injuries were caused by abuse, not the fall from a bed that Ackley had reported. In hearings last summer, Hunter testified that he told Marks the issue was controversial, and he suggested other pathologists who believed a short fall could be fatal. He did not charge for the initial consultation.

Marks concedes that he did not contact either of the experts Hunter had suggested, but chose to spend the $1,500 he’d been granted to hire Hunter, not as an expert witness but as a trial consultant, preparing him to cross examine the state’s pathologist. All parties seem to agree that Marks successfully forced Dr. Joyce deJong to admit on the stand that doctors did not know what level of force was necessary to cause the brain injury that killed Baylee. Still, Ackley was convicted of murder and sentenced to life in prison.

kaylee

Baylee

Appeal attorney Andrew Rodenhouse argued that because the case hinged on expert medical opinion, a reasonable defense required a physician on the stand to support Ackley’s claim of innocence. Marks should have contacted one of the suggested experts, Rodenhouse said, petitioning the court for more funds if necessary, or he could have at least subpoenaed the little girl’s pediatrician, who had noted at a check-up that Baylee was doing better with the mother’s new boyfriend in her life. In the fall of 2013, Chief Circuit Judge James C. Kingsley agreed and set aside Ackley’s conviction.

In an opinion released in April, though, a new panel of judges concluded:

“[Marks’] decision not to consult a second expert constituted trial strategy. Defense counsel is not required to continue seeking experts until he finds one who will offer favorable testimony.”

Rodenhouse says he is entirely committed to both Ackley’s case and the larger fight against misguided accusations of infant shaking. He points to the re-opening of the Adrian Thomas conviction in New York and last week’s remarkable reversal by a Minnesota trial judge of a jury decision and declares, “There is a momentum. We’ve got to keep it going.”

Sean O’Geary

Sean O'Geary

Sean O’Geary

The Innocence Project of Iowa, meanwhile, has confirmed that it’s examining the case of Sean O’Geary, in prison since 1998 in the death of his girl friend’s 2-year-old daughter Mercedes.

The girl’s grandmother had dropped her off on Friday afternoon with a report that she’d had the flu for a couple of days. Both Sean and his girl friend said Mercedes fell onto the coffee table the next day, while jumping on the couch, and both of them reported hearing a loud thump later that night, after everyone was in bed. It was Sean who went to check on her, though, and so it was Sean who was accused of shaking and slamming her to death. He said he found her climbing back into her crib, and she seemed fine at the time, but on Sunday evening she was rushed to the hospital with convulsions.

giovo

Michael Giovo Jr. with Skyler


Michael Giovo Jr.

Without realizing it,  Michael Giovo Jr. offered investigators one of the leading stories that child abuse professionals are trained to doubt:  A fall from a couch.

Michael said he had stayed up watching television on Thanksgiving night in 2008, after his girl friend had gone to bed. When he heard 4-month-old Skyler crying, he picked him up from his crib and settled him on the couch while heating a bottle. Michael did not witness the fall, he said, but heard a cry and returned to find Skyler on the floor. The boy seemed to recover and spent the night in bed with him, Michael reported, but he and his girl friend rushed the boy to the hospital the next day, when he started twitching. Giovo is now serving life in prison.

Reporter Jonathan Able at the Tampa Bay Times said that Michael had no idea during hours of police questioning that he was accused of assaulting his son:

He said he went along with the interview voluntarily because police said he was not a suspect. “If I knew they were going to make me a suspect I would have asked for a lawyer right then.”

Atlanta, Georgia, September 2010

Atlanta, Georgia, September 2010, at the NCSBS conference

The 2010 conference sponsored by the National Center on Shaken Baby Syndrome featured a mock trial in which a babysitter reported an unwitnessed fall from a bed, a distance of 36 inches, possibly with an impact against a wooden stool. The imaginary infant had both new and old fractures, as well as acute subdural hematoma, retinal hemorrhages, and brain swelling. On the mock stand, the prosecution doctors all agreed that a short fall would not account for the injuries, and that the child had been violently assaulted after she was dropped off at the babysitter’s, the last point at which she was observed to be alert, eating, and playing.

Hundreds of doctors attended that conference and returned to their hospitals with a clear message: Short falls don’t kill. The problem is that it’s a question of faith, not a question of scientific fact. Despite the common knowledge, biomechanical research has shown that short falls can produce large forces. In a report submitted on behalf of death-row inmate Jeffrey Havard in the fall of 2013, for example, biomechanical engineer Prof. Chris Van Ee wrote, “it is clear that low level falls of even 2-3 feet can result in injurious level head impacts resulting in skull fracture and intracranial hemorrhage.”

I wish the doctors who rely so readily on the common knowledge, and the police and social workers who leap into action at the word of the doctors, would slow down and listen to the defendants more carefully. I think there is still a lot to learn.

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

For more stories of caregivers and parents convicted in short-fall cases, please see http://www.marshamills.org/thestory.aspx,  http://brianpeixoto.com/,http://www.freeamandabrumfield.com/, and http://www.theamandatruthproject.com/heartofthematter.htm, and these are only the ones with web sites.

copyright 2014, Sue Luttner

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