Category Archives: AHT

A Family Appeals Court Gets It Right

Decision questions validity of “constellation of injuries,” need for parents to admit guilt

An Illinois family fighting for custody of their children has received a refreshing decision from a state appeals court, which reviewed testimony from both the child-protection team and the family’s experts and concluded:

As vexing as this case appears, after a thorough, painstaking examination of the entire record, and in particular a detailed analysis of the expert testimony, we conclude that the trial judge’s finding of abuse and neglect cannot stand, and K. S. and Teresa G. have been thrust into a nightmare by well-intentioned, but misguided doctors and child protection specialists.

quilt

Like so many of these cases, this story started with a difficult birth:  The infant Y. entered the world precipitously, with the umbilical cord wrapped around his neck, on May 1, 2011. He was immediately whisked off for six hours of stabilization before being returned to his parents’ care.

Y.’s father took the month off work to be home with the family after Y’s birth. Both parents noticed that their son’s behavior was much different from that of his older sister two years earlier: He occasionally gave out “yelps” that lasted for several seconds, and he exhibited unusual facial expressions. From the court opinion:

On May 9, [the father's] sister came to stay with the family for a week. She too observed Y.’s unusual expressions, where he would look dazed with his eyes rolling up and side-to-side, which the family referred to as “drunk old man expression” or “dazed and confused.”

The parents reported their concerns at Y.’s well-baby appointment three weeks after his birth, and were advised to give him gripe water to fight indigestion.

When the child began vomiting during feedings at the age of four-and-half weeks, his mother called their doctor’s office, and at the advice of the on-call physician, she made an appointment for the following morning. The parents kept a close eye on him that afternoon, and they noticed slight twitching of his left hand and leg during a nap.

ToyOnBlanketThe twitching recurred the next day in the doctor’s office, where it was identified as seizure activity. The doctor sent the child and his parents by ambulance to the local children’s hospital, where his admission examinations reported no bruising, contusions, or other external injuries. All of his extremities showed a full range of motion, with no apparent pain.

A CT scan and MRI of the boy’s brain, however, revealed subdural hematoma and possible subarachnoid bleeding, as well as evidence of “restricted diffusion,” possibly reflecting a shortage of oxygen to the brain. A skeletal exam noted an abnormality on his left femur, near the knee, that might represent a healing fracture, for which the parents had no explanation.

During 9 days of hospitalization, Y. had a number of retinal examinations, with conflicting reports. For example:

On June 14, CMH resident Dr. Grace Wu examined Y. and found his retina to be attached and flat, with scattered retinal hemorrhages bilaterally and one small preretinal hemorrhage to his right eye. Dr. Wu also noted that the hemorrhages were greater in Y.’s right eye than his left. Supervising attending physician Dr. Yoon examined Y. immediately after Dr. Wu and noted bilateral, multilayer, retinal hemorrhages. Dr. Yoon noted the hemorrhages were too many to count and greater in the left eye than the right.

None of the ophthalmologists recorded either diagrams or photographs of Y.’s retinas, ordinarily a standard practice, making reconciliation of the different reports especially difficult.

Based on Y.’s “constellation of injuries,” the hospital contacted child protective services, who placed restrictions on the parents’ access to both children. Convinced that their son had an underlying medical condition, the parents arranged blood tests in July that measured the mother’s Vitamin D levels as “insufficient” (25 on a reference range of 30 to 100) and Y.’s levels as “deficient” (13 on a reference range of 30 to 100). Not only is Vitamin D essential for the formation of healthy bones, but lack of Vitamin D can also lead to clotting disorders:  The deficiency could explain both the bone abnormality and the subdural hematoma. These findings had no impact on the custody situation, however, or on the opinions of the doctors from the children’s hospital.

blanketEdgyThe parents brought in Stanford University neuroradiologist Dr. Patrick Barnes, who concluded from Y.’s imaging that his skeleton showed signs of rickets, the weakening of bones most often caused by a lack of Vitamin D. He also noted that Y. had more space than usual between his brain and his skull, a condition known as “benign external hydrocephalus” (BEH), which is commonly believed to make subdural bleeding more likely.

A second outside expert, neurosurgeon Dr. David M. Frim from the University of Chicago, concluded that both the subdural bleeding and the retinal hemorrhages could have resulted from the BEH:

After reviewing Y.’s brain images and medical records, Dr. Frim opined that Y. was born with BEH, that he likely sustained a hemorrhage during birth that caused him to be even more susceptible to additional hemorrhages and that these hemorrhages caused the seizures he exhibited when he was admitted to [the children's hospital] on June 6, 2011. Dr. Frim explained that blood from the subarachnoid space surrounding the brain can travel to the retinas causing retinal hemorrhaging.

Based on the opinion of the child protection team, however, the state pursued its efforts to strip the parents of custody. The Public Guardian’s office, appointed to represent the children, asked for a judicial declaration of abuse and neglect of both Y. and his older sister.

At the evidentiary hearing, Dr. Kristine Fortin, one of the first pediatricians in the country to pass the new child protection specialty exam, rejected the rickets diagnosis and said that low Vitamin D levels do not necessarily lead to rickets. She accepted the BEH diagnosis but not its relevance:

Dr. Fortin acknowledged that Dr. Frim diagnosed Y. with BEH, but opined that even though some of the medical community believes BEH predisposes children to subdural hemorrhages, BEH could not account for all of Y.’s injuries.

The “proponents” in the case (the state’s attorney and the Public Guardians) called a total of seven medical witnesses, including a pediatric neurologist, a pediatric radiologist, a pediatric neuroradiologist, a pediatric ophthalmologist, a hematologist, and a pediatric orthopedist, all of whom attributed Y’s injuries to abuse. While conceding that no one at the hospital had considered the BEH diagnosis, one doctor said he had never diagnosed a case in his career, and another disputed Frim’s definition of the condition. One of the two doctors who rejected the rickets diagnosis had seen only the initial set of x-rays, which were of poor quality.

scalesDr. Barnes and Dr. Frim testified for the parents, repeating their earlier diagnoses of BEH and rickets. Pediatric orthopedic surgeon Dr. Christopher Sullivan also testified, saying that the abnormality on Y.’s left leg was “a classic finding for irregular calcification of normal bone growth, or rickets,” and adding that an actual fracture would have caused the child pain, which should have been noticeable to the treating physicians.

The parents also called a number of lay witnesses who testified that the two of them had been responsible, loving parents to both children.

The trial judge in 2012 reached a hybrid conclusion, declaring the parents to be “fit, willing, and able to care for their children” but also finding that abuse had occurred. The court held that “to conclude that all three of these infrequent to rare conditions came together at the same time to explain the minor’s condition was not reasonable.”

Despite the abuse finding, the court returned the children to their parents, but the Public Guardian’s office appealed the decision. Then the parents cross appealed, which resulted in last week’s ruling.

The appellate court’s decision includes two promising points:  A challenge to the “constellation of injuries” theory, and an objection to the requirement by social services that the parents admit to abuse before the family could be reunited.

Regarding the constellation of injuries, the court wrote:

¶ 146 The expert witnesses called by the proponents testified that each of Y.’s injuries could occur from trauma. Instead of evaluating and weighing the evidence and expert testimony as to each alleged injury, the trial court allowed the proponents to elude their burden of proof by claiming that the “constellation” of Y.’s injuries created a preponderance of evidence that he was abused. This “constellation” of injuries theory allowed the trial court to conclude that Y. had been abused even though not one of his individual injuries within the constellation had been proven to be by abuse and where highly experienced and credentialed, nationally recognized doctors provided well-reasoned medical explanations, albeit rare ones, to explain each of his injuries.

¶ 147 The proponents offered no evidence that an injury is more likely to be caused by abuse merely because a second injury is alleged to exist, particularly where there are reasonable nonabuse explanations offered for each of the individual conditions. Not only did the proponents fail to provide authority supporting their “constellation” of injuries theory, but they failed to identify any specific facts showing it should apply to Y. The “constellation” theory invited the proponents’ experts to improperly rely on assumptions about injuries outside their respective specialties to rule out nonabuse explanations for the injury under their direct evaluation. In contrast, the parents offered nonabuse medical explanations supported by expert testimony from nationally recognized, highly qualified doctors in specific fields of expertise to explain the individual conditions suffered by Y. Accordingly, the trial court erred in disregarding the parents’ medical experts’ diagnoses because a single, uniform medical condition could not explain every medical finding Y. presented.

And on the subject of admitting to the abuse:

¶ 153 The proponents fail to present any persuasive evidence supporting their conclusion that “meaningful therapy” cannot and did not occur in light of the parents’ unwavering claims of innocence of the abuse allegations. The proponents offer no support for their suggestion that an acknowledgment of abuse is a per se requirement for therapy to be considered meaningful. To require that the parents must “acknowledge” the truth of a trial court’s nonfinal findings of fact to be deemed to have had “meaningful therapy” has no precedent. Instead, we find the support offered for the proponents’ position to be a misreading of case law in which parents failed to make actual progress in therapy and, thus, were deemed unable to care for their children as a result of having not participated in meaningful therapy, a significantly different factual scenario from the one presented here. We completely reject any notion that parents should be declared unable to care for their children merely because they persist in their own belief of innocence of wrongdoing, particularly here where their insistence is supported by the evidence.

FDCThe family in this case had the resources to bring in their own experts and hire a private attorney for the initial trial. The appeal was handled by the Family Defense Center (FDC), a non-profit organization based in Chicago that advocates for families in the child welfare system. FDC Executive Director Diane Redleaf credited both trial attorney Ellen Domph and lead appellate attorney Melissa Staas with “outstanding lawyering” in this case, noting, “While we are delighted by the results in this case and hope it will serve as a strong precedent for other families, we realize that many wrongly accused parents do not have the same access to the resources necessary to demonstrate their innocence.”

For the full appellate court opinion: In re Yohan K. & Marika K., 2013 IL App (1st) 123472 (June 19, 2013)

-Sue Luttner

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

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Good Medicine: Connect at a Conference

Biomechanic John Lloyd, PhD, reviewing medical imaging with a parent at the 2012 EBMSI conference.

Biomechanic John Lloyd, PhD, reviewing tissue properties and the laws of physics with Tonya Sadowsky at the 2012 EBMSI conference.

Winter 2014 update: The 2014 conference will be held August 22–23.  See the EBMSI site.

Two exciting conferences are coming up this summer and fall, one for people who want to understand more about the troubling diagnosis of infant abusive head trauma, and another for professionals eager to witness the evolving debate.

The Evidence Based Medicine and Social Investigtion group (EBMSI), which is hosting the August conference, is a remarkable organization to begin with, a coalition of families who have weathered abuse allegations and are now offering help to the newly accused. With an expanding circle of volunteers and supporters, founders Zabeth and Paul Bayne are holding their third conference this summer, August 2–4 in Surrey, British Columbia.

Zabeth and Bethany Bayne, August 2012

Zabeth and Bethany Bayne, August 2012. Zabeth and her husband were accused of shaking Bethany when she was just a few weeks old. The parents reported one of her older brothers had fallen on her.

The conference is intended both for accused families and for professionals and paraprofessionals who work with child abuse cases. The 2013 faculty includes published experts and front-line practitioners in the arena. The setting is intimate, and the schedule provides time for consultation with the speakers.

Last year I posted summaries of the talks by forensic pathologist Dr. John Plunkett and attorney Zachary Bravos at EBMSI. Other speakers this year include pediatric neuroradiologist Dr. Pat Barnes—who testified for the prosecution in the Louise Woodward case but has since revised his opinion—and pediatric bone expert Dr. Charles Hyman.

For information about the conference, please go to http://www.sbstriad.com/

For information about the conference, please go to http://www.sbstriad.com/

A group of forensic pathologists, meanwhile, is attempting to move the debate forward with a “World Congress on Infant Head Trauma,” November 15–17, at the Center for American and International Law in Plano, Texas.

The conference, sponsored by the publishing arm of the National Association of Medical Examiners, is intended to “find common ground and debate controversial topics in pediatric forensic pathology.”

The conference features a series of presentations and responses by each of two teams, whose specific positions are not articulated in the conference publicity.  One team is headed by forensic pathologist Dr. Greg Schmunk, the other by forensic pathologist Dr. John Plunkett.

Speakers will submit both written and oral arguments, and an editorial board will publish a summary of the dialog in 2014. Dr. Chris Milroy will act as conference director and editor-in-chief of the published proceedings.

The content is limited to head trauma, not the larger question of infant abuse, with a specific focus on shaken baby syndrome. From the web publicity:

During their presentations and submissions to the Editorial Board, contributors are asked to consider and answer (using an appropriate scientific basis) the question “is it possible that shaking an infant results in the classical triad?”

Exciting times in the arena.

-Sue Luttner

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

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Filed under abusive head trauma, AHT, Dr. John Plunkett, EBMSI conference, Falsely accused, SBS, shaken baby syndrome, Zachary Bravos

Forward, Into the Book Stores

audreyCover

Audrey Edmunds’s book was released in late 2012.

Just three years ago, the only books I could find about shaken baby syndrome told the prosecution’s story: Medical texts offered confident advice about  symptoms and  timing [1]. One  guide for practitioners, The Shaken Baby Syndrome: A Multi-Disciplinary Approach, specifically recommended the kind of seamless co-operation among hospitals, social services, and the police that has been winning convictions in these cases for thirty years and counting [2]. And a number of personal books told the stories of families ravaged by the loss of a precious child to presumed shaking [3,4].

Now the other storyline is hitting the shelves: Two women have already published books about their experiences as exonerated baby-shakers, and more are on the horizon.

It Happened to Audrey

It Happened to Audrey is the memoir of Audrey Edmunds, a wife, mother, and child care provider who spent a decade in prison before her conviction was overturned in 2008 after an appeal by the Wisconsin Innocence Project.

AudreyQuoteWritten with her friend Jill Wellington, a journalist, the book traces Audrey’s harrowing journey, from her horror and feelings of guilt the day a 6-month-old girl fell unconscious in her care, through the unimaginable accusations, trial, and years in prison for an assault that she knew had never happened. The experience not only shattered Audrey’s world but gave everyone around her a new perspective. In this excerpt, for example, a seasoned reporter sees a new side to the crime beat:

Meanwhile, my journalist friend, Jill Wellington, was working at a television station in Michigan the day after the verdict came in. Her hands trembled as she punched in the phone number for the Dane County Courthouse. “Hello, I’m a news reporter in Michigan and I’d like to get the verdict in the Audrey Edmunds case.”

“Well, of course, she’s guilty,” the woman who answered the phone replied tersely.

Jill was stunned at this abrupt, ill-considered comment. One of Jill’s coworkers knew a producer at Dateline, NBC. Jill called him and asked if he would investigate my case. A week later, she called the producer again and was shocked at his reply.

“I talked to some of the newspaper reporters who covered Audrey’s case,” the producer said. “They all say she’s guilty.”

Anyone who has been falsely accused of injuring a child will resonate with this book.  I hope it’s also read by social workers, investigators, and people who assume that an innocent person cannot be convicted in our justice system.

When Truth No Longer Matters

heather'sCroppedMeanwhile in Britain, accused parent Heather Toomey has written a remarkable account of her historic battle with social services, When Truth No Longer Matters.

Through unwavering focus and the support of extended family, Heather managed to keep herself, her husband, and their two young sons together while she and her husband fought accusations of shaking the younger boy. Seven years later, the child was diagnosed with a bleeding disorder that explained the subdural hematoma behind the original shaking diagnosis.

At the time, however, the Toomey family was branded as child abusers, under constant pressure to “tell the truth” so as to “clear up” what had happened to their baby. They abandon their home and move in with relatives, so as to satisfy the supervision requirements. They struggle to stay ahead of the financial burdens and attend unending court-imposed appointments. They tolerate frequent, intrusive visits; evaluations; interrogations; and bureaucratic hurdles, all while trying to maintain the kind of positive attitude the social workers demand.

“The authorities have taken a capable mother and turned her into a paranoid mess,” Heather writes, convincingly.

Finally, she and her husband give in to the pressure and sign a “threshold agreement,” in which they admit to failing their young son in return for having their case closed. She writes:

We still firmly believe that the cause is medical, but we have no doctor prepared to back up our belief . . .  whichever way we look at it, it is less of a leap to admit to failing him than it is to admit to abusing him.

With the parents subdued, their children’s names are removed from the “at risk” register, and the constant interference comes to an end. They are allowed to return to their own home. “The case conference concludes that there were never any concerns raised about us as parents or about the children’s welfare during the entire time of their involvement,” Heather recounts. “Our children have never been at risk from us, only from those who failed to  investigate anything other than suppositions and accusations.”

heatherToomehyTheir son’s bleeding disorder was diagnosed years later, after they’d been badgered into capitulation—but at least they’d kept their family intact.

Like Audrey’s story, Heather’s from-the-heart narrative will validate the experiences of accused parents and caregivers. Again, I hope the book also finds an audience among social workers, investigators, and prosecutors, who need to listen to the child-abuse experts, but not without keeping an open mind to the bigger picture.

You can read more about Heather’s story on her web site, at http://www.searchfortruth.co.uk/index.html

Edges of Truth: The Mary Weaver Story

Exonerated babysitter Mary Weaver has collaborated with ministerial writer Deb Brammer on a book about Mary’s ordeal, Edges of Truth: The Mary Weaver Storyscheduled for release in the fall of 2013. Weaver was one of the first babysitters convicted of shaking an infant in her care, in the early 1990s, and one of the first exonerations.

The tag line for the book is:

“When a baby is brutally murdered, an innocent babysitter is accused and uncertainty forces experts to define the edges of truth.”

Fall 2013 Update: Edges of Truth: The Mary Weaver Story is now available. I’ve posted this blog entry about it.

Vaccine-Induced Encephalitis

And a couple of years ago a physician and a journalist together published a book questioning one aspect of shaken baby syndrome, Shaken Baby Syndrome and Vaccine-Induced Encephalitis: Are Parents Being Falsely Accused? By Harold Buttram, MD, and journalist Christina England (AuthorHouse, 2011).

copyright 2013, Sue Luttner

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

Footnotes:

[1] Shaking and Other Non-Accidental Head Injuries in Children, by Drs. Robert A. Minns and J. Keith Brown, Mac Keith Press, 2006

[2] The Shaken Baby Syndrome: A Multidisciplinary Approach, edited by Drs. Stephen Lazoritz and Vincent J. Palusci, The Haworth Maltreatment & Trauma Press, 2001

[3] Grandma’s Baby: A True Story of One Family’s Struggle with “Shaken Baby Syndrome” and what they call “Shaken Family Syndrome,” by Karen Wise, R.N., Trafford Publishing, 2006

[4] What Happened to Christopher? by Ann-Janine Morey, Southern Illinois University Press, 1998

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

Old Cases, New Cases, Sad Cases, True Cases

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

Mary Weaver, 41 years old in 1993, when accused of shaking an infant in her care

Mary Weaver, 41 years old in 1993, when accused of shaking an infant in her care

Mary Weaver, Exonerated

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

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

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

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

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

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

Kelly Kline, Not Guilty

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

Akron Children's Hospital

Akron Children’s Hospital

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

Dr. John Plunkett, at the 2012 EBMSI conference

Dr. John Plunkett, at the 2012 EBMSI conference

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

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

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

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

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

Ashley Howe, from the police interrogation tape

Ashley Howes, from the police interrogation tape

Ashley Howes, Compensated

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

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

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

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

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

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

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

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

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

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

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

IMG_4464Ashley Howes was not convicted, but at the age of 13 she endured hours of hostile interrogations by a series of police officers who insisted she had murdered a little girl. She spent nearly a year under house arrest with an ankle monitor, not even allowed onto her own back lawn, and when she finally returned to school, any hopes of a normal adolescence were put to rest by taunts and jeers at the presumed baby-killer.

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

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

Toni Blake and Suzanne JohnsonChristmas, 2001

Toni Blake and Suzanne Johnson
Christmas, 2001

Suzanne Johnson, Supported

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

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

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

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

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

Marina England, Convicted

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

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

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

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

copyright 2013, Sue Luttner

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

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Filed under abusive head trauma, AHT, California Innocence Project, Falsely accused, SBS, shaken baby syndrome

Fathers Caught in the Jaws of Injustice

The crush of the stories is getting to me, both the number of them and the cruelty.

Justice Richard L. Buchter in New York drove the point home last week during the sentencing of Hang Bin Li, the immigrant father convicted last month of manslaughter in the death of his infant daughter Annie. According to the New York Times coverage, Buchter called Li’s treatment of his daughter “shocking, sickening, sadistic” before imposing a sentence of 5 to 15 years.

The New York Post reported that Li tried to tell the judge he was innocent, saying, “I didn’t know how or why this happened. I wrote what my statements were to the police, three times of what happened.”

But the judge cut him off. “These are the same lies the jury rejected,” he said.

No one is listening.

Jason Curtis with his son Jackson -photo courtesy the Curtis family

Jason Curtis with his son Jackson
-photo courtesy the Curtis family

And the tragedies keep coming. Jason Curtis in Iowa, for example, was convicted last month of first-degree murder in the death of his son Jackson, 5 months old when he quit breathing during a nap.

Curtis’s story was simple:  He was at home with the baby while the child’s mother was at work. He thought Jackson was asleep, but when he checked on him mid-morning, he found the boy unresponsive. He immediately dialed 911.

Doctors found no bruises, abrasions, red marks, or fractures, but bleeding and swelling inside the boy’s skull convinced them he had been assaulted—more than once.

Like many children diagnosed with shaking injuries, Jackson had a complex medical history. He had been prescribed a series of anti-biotics and anti-fungal medications, and he had been hospitalized at the age of three months for failure to thrive.  On the day he quit breathing, he was being treated for a respiratory infection. Autopsy revealed a large chronic subdural hematoma and multiple small rebleeds.

“Every time they gave him a new medication, he got sicker,” says Roni Hays, Curtis’s aunt, who also points out that during ten doctor visits over Jackson’s five months of life, not a single medical record noted evidence of abuse.

threesleepEven one of the prosecution experts testified that nothing in the child’s brain could “unequivocally” be considered evidence of trauma. Daily trial coverage in the local newspaper, no longer on line, included the testimony of defense experts Dr. Waney Squier and Dr. Peter Stephens, who disputed the abuse diagnosis.

Prosecutor Matt Wilber told reporters after the verdict that his office had targeted Curtis from the beginning, because of a “prior child abuse conviction.” Patty Parham, another of Curtis’s aunts, told me that a couple of years ago both Curtis and the children’s mother had taken plea bargains on the advice of their public defenders, when their four-month-old daughter was found to have a fractured arm and clavicle. Curtis pled guilty to child endangerment and the girl was returned to her parents. (If you assume all plea bargains equal confessions, please see this posting.)

Jackson Curtis

Jackson Curtis

“Jason would never hurt a child,” Parham insists. “If you ever saw Jason with his kids you’d know it. His children are everything to him.” Friends and relatives commenting on his petition site concur. A former supervisor of Curtis’s at an adult care facility wrote that Jason “always gave dignity and respect to our residents.”

In Ohio, meanwhile, another father has been convicted of shaking his  son to death, in a murky case full of pre-judgment and miscommunication. Brandon Wilson reported that some weeks before his son quit breathing, the 10-month-old had fallen down several stairs, and then later had fallen from a shopping cart at a local store. The parents had taken him to an urgent care facility because of continued vomiting, but that was still weeks before his medical crisis. In a taped police interview after the child’s death, detectives insisted that something must have happened just before the boy collapsed, and that’s when Wilson “acknowledged that he had shaken the baby.”

The police heard a confession to shaking, but his words as reported sound to me more like an attempt to revive a non-responsive infant. The Portsmouth Daily Times coverage reported this impression from the tape:

Earlier in the interview when Wilson began to acknowledge that he had shaken the baby somewhat, Wilson said – “But I was not shaking that baby to hurt the baby or anything like that. I was just concerned about—you know what I mean? It was just—he was limp. It seemed like he was dead already when he was laying there.”

Later in the interview, he reiterated – “Well, I don’t really know how—I was not shaking him, like, really forcefully, but I was just trying to get him to wake up.”

Experts for the prosecution testified that children do not die from short falls like those Wilson had reported.

Annie Li, courtesy the Li family

Annie Li, courtesy the Li family

But I can’t help protesting:  What makes the doctors so sure these parents are lying? Their families seem to believe them.

Hangbin Li’s wife, the mother of his deceased daughter, asked the judge for leniency, calling Hangbin a good father and saying, “I was there that day, I saw everything. He didn’t intentionally hurt Annie.”

I had gotten to know Jason Curtis a little bit, through email, while he was realizing the state was really going to prosecute him for the death of his son. He was polite, thoughtful, and not a bit pushy. I was relieved when I heard that Dr. Squier was taking on his case—and I was shocked when I heard he’d been convicted of first-degree murder.  When his family members described him to me as patient and gentle, it only confirmed my impression.

I wish the child-abuse experts would stop and listen to the parents and caregivers, and to the people who know them.  I am not saying that children are never abused, or that shaking a baby is not dangerous. Indeed, I’m sure shaking a baby can be fatal.

Jackson Curtis

Jackson Curtis

But I’ve logged my time in the medical library, and in the courthouse, and I know that the pattern of cranial bleeding and swelling that now defines Abusive Head Injury does not prove abuse, even though a number of respected professionals seem to sincerely believe that it does. (See, for example, this article by intensivist Dr. Steven Gabaeff, which comes with a downloadable collection of original sources.) How many more cases like that of Tammy Fourman or Patti Kwan do we need before doctors slow down and listen to the evidence that a number of physiological processes can result in this cluster, not only violent assault?

I’ve seen two important changes in the arena over the past 15 years.

First, physicians and attorneys from outside the child-protection community have been drawn in, as they’ve encountered troubling accusations and convictions in their own practices. The result is a new wave of published research that questions the model of infant head injury that’s been winning for 30 years in the courtroom.

Second, the affected families are finding each other over the internet. Just now they are staggering under the weight of their individual burdens, but together they could become a voice loud enough to be heard.

copyright 2013, Sue Luttner

If you are not familiar with the debate surrounding shaken baby syndrome and abusive head trauma in general, please see the home page of this web site.

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Dr. Norman Guthkelch, Still on the Medical Frontier

Dr Norman Guthkelch, Oct. 2012

Dr. Norman Guthkelch at Medill 
Photo by Sue Luttner

At 97, retired pediatric neurosurgeon Dr. Norman Guthkelch has ridden more than one wave of change in the practice of medicine.

He remembers that his mentor Sir Geoffrey Jefferson, Britain’s first professor of neurosurgery, cautioned his students against relying too heavily on x-rays. Jefferson would warn, “The eye has rested upon the evidence of fracture, and the mind has traveled no further.”

“X-rays created a meaningless distinction between ‘fractured skull’ and ‘no fracture,’” Guthkelch explains, “whereas the important thing is the degree of damage to the underlying brain.”

Guthkelch’s medical training was interrupted by World War II:  He went straight from his 1944 residency in Manchester into the army, and found himself neurosurgeon-in-charge of a small team attached to a general hospital. During the Battle of the Bulge, he was in surgery for 36 hours, breaking for food but not for sleep.

“That time gave me an advantage over surgeons with no battle experience,” he reflects. “I’d seen enough blood. Operating for its own sake was not an attraction.”

twinsAfter the war, Guthkelch returned to a fellowship under Jefferson, who had honed his own understanding of head injury during World War I. Relieved to be treating a general population, Guthkelch found himself especially charmed by his youngest patients, a delight noted by his mentor. “Jeff told me when I came back to finish off my training that my future lay in developing pediatric neurosurgery,” Guthkelch recalls. “He was quite right.” As Jefferson had held Britain’s first professorship in neurosurgery, Guthkelch in his turn received the nation’s first pediatric neurosurgery appointment, at the Royal Manchester Children’s Hospital. “It was only by a few weeks,” he chuckles, “but I was the first.”

One of his observations was that children in neurological distress were sometimes suffering the effects of subdural hematoma—that is, blood underneath the dura mater, the tough but flexible membrane that lines the interior of the skull. A subdural hematoma does not invade the brain, but it can exert dangerous pressure on the tissues below. And while a pool of subdural blood may dissolve on its own, it may also expand, causing further problems.

Guthkelch published his first paper on pediatric subdural hematoma in 1953, when he wrote in the British Medical Journal:

“It should be emphasized that infantile subdural effusion is not a rare condition. Study of the records of the Royal Manchester Children’s Hospital for the four years covered by this series shows that, of all surgical conditions of the central nervous system occurring in the first two years of life, only spina bifida and hydrocephalus were seen more often than subdural haematoma… Similarly, Smith and her co-workers (1951) have reported finding subdural effusions in almost a half of their cases of bacterial meningitis in infancy, and Everley Jones’s (1952) figures are similar.”

At that time, before CAT scans or MRIs, doctors inferred the presence of subdurals in living patients from the symptoms: convulsions, vomiting, and headaches in adults or fussiness in babies. The only way to confirm a subdural hematoma was to penetrate the subdural space. With an infant, the surgeon could pass a needle between the unfused plates of the immature skull. A problematic pool could then be drained, slowly, over several days to avoid a sudden change in pressure. In his 1953 paper Guthkelch described the procedure developed by pioneering pediatric neurosurgeon Franc Ingreham at the Children’s Hospital Boston, and reported on his own findings while treating 24 cases.

guthkelchQuote.The paper that brought Guthkelch into the shaken baby arena is the advice he offered in the  May 22, 1971, issue of the British Medical Journal under the title, “Infantile Subdural Haematoma and Its Relationship to Whiplash Injury.” At that time in Britain, Guthkelch says, shaking a child in the course of discipline, “or not even discipline, correction, shall we say,” was considered acceptable. He recommended that health workers discourage the habit, as it was causing damage to developing brains. He cited cases in which parents had told him of shaking their child, and he referenced a paper by U.S. radiologist John Caffey, who had noted the combination of subdural hematoma and long-bone fractures in a few very young children. Guthkelch’s paper on shaking aroused not much interest in England, he recalls. He mailed a copy to Dr. Caffey at his hospital in Pennsylvania and began his own local education campaign. “My great allies in this were the case workers, who were a tremendous resource,” he says. “They were usually trained nurses, whom the health system would pay to make rounds in economically depressed areas.”

Although he likes many aspects of the British health-care system, Guthkelch has a major quibble with one provision:  Mandatory retirement for surgeons at age 65, a milestone that began looming for him in the 1970s. “I wasn’t ready to retire,” he objects.

normanCloseBut he had an obvious back-up plan:  The States. His mother had a close friend in Philadelphia, and he’d been brought up on Ernest Hemingway and Gertrude Stein. He accepted an invitation to the Pittsburgh Children’s Hospital, where he reports feeling immediately at home. “You Americans are very lovable people,” he grins.

He was surprised, however, to realize that his colleagues were diagnosing a condition known as “Caffey’s syndrome,” believed to result from violent shaking of an infant. Caffey’s paper on infant shaking, published in the U.S. a year after Guthkelch’s in Britain, had enjoyed far greater circulation, and few had noticed the footnote citing Guthkelch’s original paper. “No one was asking me about it, and I didn’t really have anything further to say about it,” Guthkelch shrugs.

He stayed in the field until 1992, as improvements in medical imaging  and surgical technique transformed the way doctors diagnose and treat problems of the brain. Neurosurgeons were collaborating with radiologists as they honed their abilities to decipher the lights and shadows of CT scans and MRIs. “I loved every minute of it,” he beams.

He’d intended to retire in the 1980s, when he left Pittsburg Children’s and moved with his wife to Tucson, Arizona. The local university hospital, however, asked him to take on a temporary position at the neurosurgery unit, where he remained for another eight years. Then he finally found time to work on his translation of the New Testament from the Greek, to organize a lifetime of bird photographs, and to spend more time with his wife as her health began to fail.

Drayton Witt and his wife.Courtesy Arizona Justice Project

Drayton Witt and his wife
Courtesy Arizona Justice Project

Then he was approached by law professor Carrie Sperling with the Arizona Justice Project. She and her students were working for the release of Drayton Witt, a young father convicted of second-degree murder ten years earlier for the presumed shaking death of his son.

Sperling says she was electrified to learn that the grandfather of shaken baby theory lived two hours south of her. She and her students were convinced that Witt was innocent: His son Steven had suffered a short lifetime of serious health problems, including hospitalization for seizures that were never explained, not even fully controlled with medication. Sperling was unsure of the reception she would receive from Dr. Guthkelch, “but he turned out to be an amazing man,” she says, “an amazing, gracious man.”

Guthkelch read Steven Witt’s medical records with growing dismay. He later told National Public Radio reporter Joseph Shapiro, in an interview now available on podcast, “I think I used the expression in my report, ‘I wouldn’t hang a cat on the evidence of shaking’” in that case. Sperling’s team successfully petitioned to vacate Witt’s conviction, and later the charges were dropped.

Carrie Sperling, at an Innocence Network meeting

Carrie Sperling, at an Innocence Network meeting

“It was Carrie who opened my eyes to how much of this is going on,” Guthkelch sighs.

He says he never intended that the presence of subdural hematoma and retinal hemorrhages, with or without encephalopathy, should prove that a child had been shaken, only that shaking was one possible cause of the bleeding. “I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent parents.”

Sperling suggested he read law professor Deborah Tuerkheimer’s 2009 law-journal article on how shaken baby syndrome is handled in the courtroom. “She certainly nailed it,” he says of Tuerkheimer’s work. Some months later he saw some “harsh, unprofessionally harsh” criticism of that paper. When he tried to talk about it with people he knew from the child-protection community, he realized how wide the schism was. “There are cases where people on both sides, both of whom I admire equally, are barely able to speak to one another,” he told NPR.

He contacted Tuerkheimer, and the two of them hit it off. They speak regularly on the phone, he reports, and “we find we are of one mind on this subject.”

Dr. Guthkelch meets with students from the Medill School of Journalism.Photo by Alison Flowers, courtesy of the Medill Justice Project

Meeting with students from the Medill School of Journalism
Photo by Alison Flowers, courtesy of the Medill Justice Project

After his wife’s death, Guthkelch moved to a suburb outside of Chicago, where he’s continued trying to be an ambassador between the two sides. When he learned that journalism students at the nearby Medill Justice Project had taken on a shaken baby case, he reached out to them. One result is a first-rate podcast  that includes interviews with both him and Dr. Robert Block, president of the American Academy of Pediatrics.

When Dr. Sandeep Narang, pediatrician and attorney, published an argument that courtroom testimony about child abuse is best left to trained child-protection physicians, not paid experts, Guthkelch wrote the introduction to a rebuttal by a team of advocates for the innocent accused. (For a quick summary of Narang’s article and Guthkelch’s response, see this page.)

Dr. Ron Uscinski and Dr. Norman Guthkelch,October 2012

Dr. Ron Uscinski and Dr. Norman Guthkelch
October 2012

Guthkelch also spends what time he can reviewing cases. “Let me be quite frank,” he says, “For a 97-year-old I’m fairly well preserved, but my memory is not what it once was.” Producing a medical report takes careful concentration and more double-checking, as does following and responding to  the literature.

But he perseveres. “I want to do what I can to straighten this out before I die,” he says, “even though I don’t suppose I’ll live to see the end of it.”

Which reminds me of something Carrie Sperling said about him when I spoke with her at the Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma in the fall of 2012.  “I felt a little bit bad about getting Norman Guthkelch involved, because I knew he would become controversial” she said in a video dispatch posted on the Medill site. “I did warn him, but I don’t think there’s any way to warn people of how the wrath can come down on you when you get involved in this sort of thing. But in the end, everyone I’ve talked to who’s talked to Dr. Guthkelch…  It’s amazing the effect he’s had on the experts I know, on the people I know.  I’m hoping that he lives a long, long time so that he can  meet with as many people as want to meet with him and talk to as many people as want to talk with him.”

copyright 2013, Sue Luttner

If you are unfamiliar with the debate about shaken baby syndrome, please see the home page of this blog.

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Quick Hang Bin Li Verdict Devastates

Annie Li, courtesy the Li family

Annie Li at one month, courtesy the Li family

While attorneys on both sides claim partial victories, supporters of Hang Bin Li say they are “devastated” by the mixed verdict delivered last Friday, when a New York jury found Li innocent of murder but guilty of manslaughter in the 2007 death of his infant daughter Annie. The news was especially shocking because no one had expected a verdict so soon.

During nine days of testimony over three weeks, the jurors heard from nine medical experts for the prosecution, including the local medical examiner, a child-protection pediatrician, a pediatric ophthalmologist, a pediatric radiologist, two pediatric critical-care physicians, and a specialist in osteogenesis imperfecta (OI), a disease of the bones. All agreed that Annie had died from abusive head trauma. Many said shaking was involved.

Defense attorney Cedric Ashley opened his case last week by calling Dr. Zhongxue Hua, a respected medical examiner from a neighboring jurisdiction. I can’t find coverage of Dr. Hua’s testimony in the English-language press, but I’m told he said that Annie had signs of mild OI and unusual heart findings.

Ashley also called the Lis’ landlady Mrs. Zhou, wrapping up his case in a day and a half. Both sides made closing arguments on Thursday afternoon, and the jury returned its verdict the next day. An outspoken supporter of Hang Bin Li at the time—who has since removed her material from the web—wrote in an email:

Put yourself in the Jury’s shoes. If 9 Medical witnesses for the Prosecution kept denying something, but only 1 Defense Medical witness saying something else. Your mind is unsure, but common sense tells you, “How could all 9 people be wrong, and only 1 person is sober and correct?”

In a telephone interview after the trial, Ashley said his decision to call only one expert witness was not based on limited resources but on his opinion that, among the witnesses in this case, “only two persons had the expertise to determine the manner of death, and those were the forensic experts, the medical examiners.”

Ashley cautioned against drawing any lessons or conclusions from this “nuanced” case, which he said was not about shaken baby syndrome. “The prosecution threw shaken baby syndrome at this couple,” he said, “Our case  was about accidental, non-intentional head trauma exacerbated by OI.”

The Li case has received daily coverage in three Chinese-language newspapers in New York, and periodic coverage in the English-language press. The New York Times quoted prosecutor Leigh Bishop’s saying after the trial that the verdict was “perfectly reasonable,” because “we didn’t have enough information about his mind-set at the time he inflicted the injuries” to prove murder.

Reporters Corey Kilgannon and Jeffrey E. Singer wrote about their conversations with the jurors:

Several jurors said that they felt an obligation to see Mr. Li punished for Annie’s death, but that they could not arrive at a guilty verdict on the murder charge because they lacked the evidence to decide that her injuries resulted from a depraved mental state on Mr. Li’s part, a finding required for guilt on that charge.

“We spoke up for the baby and said, ‘You can’t do this,’ ” one juror, Luisito Castro, said.

Annie Li in 2007, courtesy the Li family

Annie Li in 2007, courtesy the Li family

Ashley characterized the outcome as a partial victory. “He’s not facing 25 years to life,” Ashley told reporters. The manslaughter charge carries a maximum sentence of 5 to 15 years in prison, and a minimum of 1 to 3 years. Li has already spent nearly 5 years in custody—4 years and 10 months—while waiting for trial.

The Lis have both denied that either of them did anything to harm Annie—and their community agrees. Their defense was paid for by donations from supporters, many of them other Chinese immigrants.

Hang Bin and Ying Li, and their community, were drawn unexpectedly into this arena, but the attorneys and medical experts at Hang Bin’s trial were seasoned veterans. Prosecution witness Dr. Carole Jenny, for example, is one of the major forces behind the relatively new medical-board speciality of child-protection pediatrics.  A former prosecutor, Cedric Ashley is on top of the medical arguments, making him a rare defense attorney in this complex arena. Prosecutor Leigh Bishop—whose actress friend Katie Holmes made headlines in early January by stopping in at the courthouse to hear opening statements—was on the faculty at last fall’s Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma. In 2007 Bishop successfully prosecuted Yoon Zapana, whose son Victor Zapana published an essay about his mother’s conviction in the November 27, 2012, issue of The New Yorker.

In the Zapana trial, as in the Li trial, the defense called a single medical expert while Bishop called a spectrum of medical specialists. I’m reminded of an email I received about a year ago, the reflections of a defense expert who found himself outgunned at a similar trial.

While I have heard of cases won with only one or even zero defense experts, I think it’s rare.  I don’t know of any data on the subject, but my observation is that a defense team that includes the full range of specialists is a better bet, as illustrated by a series of exonerations earlier this winter and the Russ Van Vleck trial in 2011.

The Lis’ story might not be over with the trial. Michael Chu, the neighborhood travel agent who hosts the Hang Bin and Ying Li Rescue Committee in his business office, is now educating himself about the appeals process. “One thing is very clear,” he says, “We won’t give up easily.”

If you are unfamiliar with the debate surrounding shaken baby syndrome in the courtroom, please see the home page of this site.

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The Slow Wheels of Justice—Or Is It a Treadmill?

The trial of accused father Hang Bin Li opened in New York yesterday, and Ernie Lopez  in Texas has accepted a plea bargain, both developments reflecting the determination and strength of the professionals who retain their faith in the classic model of shaken baby syndrome. But first:

VSTVenous Sinus Thrombosis in the News

The health problems of Secretary of State Hilary Clinton have brought venous sinus thrombosis (VST) into the headlines. Clinton was hospitalized earlier this month for anti-coagulation therapy, following the diagnosis of a clot with the potential to block blood flow from her brain. In an article in Residency Notes, Dr. Patrick Fitzsimmons speculates that the clot could be related to her fall in early December.

He writes that VST is associated with a number of “procoaguable states,” including trauma and inner ear infections, “but in at least 15% and perhaps as many as 30 or 40% of cases no underlying risk factor or etiology is identified.” He notes that the resulting back-up of cerebral spinal fluid can lead to raised intracranial pressure and cerebral edema, possibly leading to strokes, which “can even be hemorrhagic.” This analysis is consistent with news reports that Clinton’s blood clot could have been life-threatening.

Clot specialist Dr. Samuel Goldhaber reports in a video inspired by the news that clots like Clinton’s are “very rare,” estimating that his practice sees maybe six new cases a year.

Clinton’s prognosis is reportedly excellent—assuming the blood clot dissolves—largely because the clot was found during a follow-up MRI:  She never showed any neurological symptoms. Reporter Susan Donaldson James at ABC news quotes Dr. Brian D. Greenwald, medical director at JFK Johnson Rehabilitation Center for Head Injuries, “She is lucky being Hilary Clinton — lucky that her team thought to do it.”

One of the reasons I find all this so fascinating is that one of the speakers at the Boston conference this past fall characterized VST as the new “courtroom diagnosis” for SBS.

from KatieHolmes.com

from KatieHolmes.com

Hang Bin Li Trial Opens

Today’s New York  Post coverage of Hang Bin Li’s murder trial focused on a surprise appearance in the gallery by actress Katie Holmes, whose publicist told the press she was there to support her friend Leigh Bishop, the prosecutor. Holmes reportedly arrived wearing no makeup and in the company of an unnamed companion, and stayed through Bishop’s opening arguments.

New York Times reporters Corey Kilgannon and  Jeffrey E. Singer, who have been following the Lis’ case for at least a year, filed their usual high-quality report covering the opening statements of both sides and the testimony of the first witness, a long-time friend of the Lis. They write:

Li Dongyong, who is now a sushi chef in Toronto, testified in Chinese through an interpreter. He said that he knew both Mr. and Ms. Li, stretching back to elementary school in Fujian Province in China. And he set the stage for the events, saying that on the day Annie fell ill, he rushed to the apartment in Flushing and saw that the baby was pale and feverish, but that he never saw Mr. Li strike or otherwise physically harm the child.

The parents decided to wait before calling 911, he said, but shortly after midnight, he heard them frantically trying to wake Annie, who had turned blue and unresponsive. He said he saw Mr. Li trying to rouse the baby.

The Lis say 2-month-old Annie deteriorated for unknowns reasons. The prosecution says Hang Bin Li shook and slammed his daughter to death.

The article in today’s Times Ledger (serving Queens since 1919) leads with the support Hang Bin  and Ying Li have received from their community, and it covers both the defense and prosecution positions regarding the dropping of charges last week against Ying Li.

This web site offers ongoing updates on the trial and links to the Chinese-language coverage.

Ernie Lopez: Guilty of Felonious Cleaning

In Texas last week, Ernie Lopez pled guilty to a lesser charge rather than face a new trial and possibly more time in prison. His 2003 conviction for aggravated sexual assault of a 6-month-old girl was overturned last year, after his case was featured in a series on changing child-death forensics that ran in NPRFrontline, and ProPublica. He was released last winter. This time, the prosecution was moving forward with a murder charge.

According to last week’s NPR report on the plea agreement, Lopez confessed to “injury to a child by causing serious bodily injury,” based on testimony from a polygraph expert that Lopez said he might have penetrated the girl while cleaning her up after a messy diaper. Lopez has denied making those statements in the past.

The plea agreement imposes restrictions on what Lopez may say about the case, so under the advice of his attorney he did not grant another interview with NPR. Joseph Shapiro’s coverage includes this observation, however:

Last year, Lopez explained that the first time he went to trial he believed innocent people don’t get convicted. Then he spent nine years in prison. This time, he would have had key medical experts and a more developed defense. Yet he still faced the risk of conviction.

Shapiro also quotes attorney Heather Kirkwood, who has been working on the Lopez case pro bono for years, “I don’t think any one of us believes he would be convicted. But in these cases, there’s no guarantee.”

The Amarillo Globe-News offers a more traditional slant on the story, with the headline, “Amarillo man admits shaking baby before she died.” While the commenters on the NPR web site have been reasonably sympathetic to Lopez, the Globe-News comment section brims with vitriol at a presumed abuser. One writer scorned the prosecutor for not pressing a case he wasn’t sure he could win.

Globe-News reporter Russell Anglin offered more details about the plea agreement:

As part of the plea agreement, Lopez was required to admit to the state’s allegations and agreed that the state could prosecute him again if he ever asserts that he did not commit the crime.

Lopez’s attorney, Bill McKinney, declined to answer questions about the case but did allow himself the comment, “The child died of a clotting disorder.”

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Charges Dropped Against Ying Li; Hang Bin Li Jury Selection Begins

Annie Li in 2007, courtesy the Li family

Annie Li in 2007, courtesy the Li family

The New York Post reports that manslaughter charges were dropped against Ying Li on Wednesday—the day before jury selection started in the trial of her husband Hang Bin Li, accused of shaking and slamming their infant daughter Annie to death in 2007. Ying Li was accused of not seeking help for the girl immediately after the presumed assault, which both Lis have maintained through four years of imprisonment never happened.

In the hearing to drop all charges, prosecutor Leigh Bishop said the doctors at Flushing Hospital had told her that Annie’s injuries were so severe that even immediate medical attention wouldn’t have saved the girl’s life. Reporter Christina Carrega quoted Bishop, “The people believe that they could sustain the endangering the welfare of a child charge, but since she spent four years in jail already, it would exceed the maximum sentence of one year if she was convicted.”

Supporters of the couple say that new medical evidence points to a genetic bone disorder as the cause of Annie’s meltdown. Hang Bin Li made headlines this past October, when he turned down a plea bargain that would have let him out of prison immediately.

“Ying’s dismissal is good news, but the battle is not over yet,” said supporter Michael Chu, who relayed this statement from Ying Li:

“They can lock us up for 50 years, but that’s not going to change the fact that Hang Bin and I are innocent… We’re powerless but we won’t shut up or give up. We’ll go all out seeking help to fight for our innocence!”

Jeffrey E. Singer and Corey Kilgannon at the New York Times published this excellent coverage last winter, and then provided more information in the spring, when Ying Li was released from prison after a bail reduction.

press release from 2008 detailing the charges against the Lis cited a witness who said the child was exhibiting symptoms five hours before the call to 911.

I don’t find coverage of the upcoming trial in an English-language Google search, but a blogger who supports the couple reports that three Chinese-language news sites covered the partial jury selection this week. The blog says the trial is scheduled to start next Wednesday, Jan. 9, when I hope it will be covered in the papers I can read.

January Update:  Hang Bin Li was convicted in early February, as described at this post.

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Fathers in the Cross-Hairs

courtesy the Aspelin family

Kristian Aspelin and the newborn Johan, 2010, courtesy the Aspelin family

Exonerated fathers are on a streak lately, after years of pain and struggle for the families involved.

Earlier this month NPR reported the dropping of felony assault charges against Kristian Aspelin, a San Francisco father of two who in 2011 said his 3-month-old son Johan had slipped out of his hands and onto the kitchen floor. The medical examiner rejected that explanation, concluding from the autopsy that the boy had been shaken and slammed to death.

Key to Aspelin’s legal victory, reporter Joseph Shapiro concludes, was having the resources to hire a quality defense team. By selling his house, cleaning out his savings, and borrowing from family and friends, Aspelin was able to present the prosecution with exonerating reports from six medical experts and a biomechanical engineer, plus a video re-enactment of the fall as he had originally reported it. Charges were dropped without a trial.

Of course, the Aspelin family’s ordeal is not over:  Social services still requires Kristian to live apart from his wife and surviving son, now 4. The web site Medical Misdisagnosis Research reposted this article about the case last year.

January 2014 Update:  San Franciscio station KPIX revisited the case, on the occasion of the Aspelin family’s welcoming triplets into the world.

diceSuing the County

In Las Vegas, meanwhile, a father found innocent at trial has filed suit against the county for continuing to keep him apart from his family after the verdict. In this touching story, Associated Press reporter Ken Ritter describes the faith and persistence of Nigerian immigrant Victor Fakoya, who enjoyed the support of his family and community through his two-year ordeal.

Fakoya had been home caring for his own two daughters and a 2-year-old boy, the son of a family who was living with them. He dialed 911 when the boy started vomiting.  The child died, with a skull fracture revealed at autopsy, and doctors concluded he had been assaulted immediately before his meltdown. According to the AP report:

The jury in [Fakoya's] first trial deliberated two days but failed to reach a verdict. A second jury acquitted Fakoya. Five days later, county officials pressed a Family Court case against Fakoya, alleging that he was unfit to return to his own family because a child died as a result his abuse.

Fakoya has filed a suit for $10 million, naming “Clark County, the district attorney and Child Protective Services officials.”

Few suits like this one have succeeded in the past, but Anglican minister Rev. Dorian Baxter in Canada announced his victory last month over the Children’s Aid Society, achieved after he had illicitly recorded a meeting in which social workers admitted he was innocent of molesting his daughters but threatened to prosecute him if he didn’t agree to their conditions. He told his tale in a bit of a sermon, at this link.

Not Guilty Verdict, Unreported

The Arizona press seems to have missed the “not guilty” verdict in the trial of Robert Gilcrist, a young father who said he had dropped his daughter while removing her from her car seat. She seemed fine for several hours, he reported, but the next morning her breathing was not right and she did not seem to recognize him. When paramedics arrived, the girl was breathing normally, and she was rated as fully conscious on the Glasgow Coma Scale, 15 out of 15.

RedCactusHer condition deteriorated, however, and diagnositic scans revealed brain swelling, which peaked about 24 hours into hospitalization. She was left with permanent brain damage, and doctors concluded that a short fall could not cause such a serious injury. Their reports included opinions that “retinal hemorrhages indicate that there was a rotational component to this, such as may be seen with shaking” and “[i]f the victim suffered these injuries on Saturday evening, she would not have survived until Sunday morning.”

At the time, Gilcrist was living with his daughter in a church outreach home, and the infant’s mother was living in a motel across the street while enrolled in a rehabilitation program.

The exciting thing about this case is that the rights of an indigent defendant were respected in Phoenix, Arizona, where defense attorney Rick Tosto pulled together a team of experts including Dr. Steven Gabaeff, emergency medicine; Dr. Pat Barnes, pediatric neuroradiology; Dr. Jan Ophoven, forensic pathology; Dr. Khaled Tawansy, ophthalmology; and Dr. John Lloyd, biomechanics.

A Family at Last, Five Years Later

Finally, the Daily Mail in England reports on a family finally united after the father was wrongfully accused in 2007 of shaking the older of his two daughters. The girl made a complete recovery, and further examination of the medical records revealed that the incident could have been related to her difficult birth or a cyst in her throat, whose presence was not revealed to the original jury.

The good news is that all these fathers were ultimately exonerated. The bad news is that these prosecutions continue, seemingly unabated.

-Sue Luttner

If you are not familiar with the debate about shaken baby syndrome, please see the home page of this blog, at http://onsbs.com/. Unfortunately, child protection professionals also teach that a short fall can’t cause serious injury to a baby, which is a  misconception.

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