Category Archives: AHT

A Yolo County Jury Believes the Father

SamStone

Sam Stone, 2012

A jury in Yolo County, California, has found 40-year-old Quentin Stone not guilty of child endangerment and abuse, in a case that highlights the limitations of the common knowledge about both the potential danger of short falls and the timing of symptoms following infant head injury.

The story begins in early September of 2012, when Stone brought his son Sam, then two months old, to the Kaiser clinic with a report that the boy had fallen from a bed onto a hardwood floor. Sam showed no symptoms at the time, and doctors found nothing alarming during their examination. The boy was brought in again the next day with a report of projectile vomiting, and again he was examined and sent home. A series of emails and another in-person visit document his parents’ ongoing concern with Sam’s continued vomiting and episodes of “breath holding” over the following days and weeks.

Sam Stone had both a twin and an older brother.

Sam Stone had both a twin and an older brother.

Then on October 3, Sam collapsed and his father rushed the unconscious boy to the hospital, where scans revealed both fresh and chronic subdural hematomas.  Doctors diagnosed Sam as the victim of abusive head trauma. According to trial coverage by Sarah Dowling at the Democrat News, prosecutor Steven Mount dismissed Stone’s claim that his son had fallen off a bed in September:

Mount said except for Stone’s testimony, there is no evidence that a fall even happened. Instead, Stone could have gotten angry with the child or simply wanted to stop him from crying. Regardless of the motivation, Mount said that Stone could have shaken the child, coming up with the “fall story” to cover it up.

Stone had said he wasn’t in the room when the boy fell. He had left Sam in the middle of a king-sized bed and gone briefly out to the garage. When he returned, Sam was on the floor. Sam’s twin brother Henry was asleep in a swing, but Stone thought their other son Jack, two-and-a-half at the time, might have pulled the boy off the bed.

Public defender Monica Brushia said she was sure from the beginning that her client was innocent. “Just reading the police report, I knew the doctors had misdiagnosed Sam, which led to his death… This was a very difficult and emotional case.” Both she and co-counsel Martha Sequeira cried real tears while preparing for trial, Brushia reports, and again when the verdict was read.

Brushia shared a Facebook posting from one of the jurors, whose account of the trial included this paragraph:

Today, an innocent man was set free of blame and accusation of the death of his son. Mr Stone didn’t abuse his child, he did everything he could do to save him. The sad fact is Dr’s make mistakes, sometimes they miss things, sometimes they are wrong. The death of this child really was at the hands of 2 Kaiser Dr’s, who went against what another Kaiser specialist had warned.

OnTheCouchMr. Stone is now trying to regain custody of his surviving sons, with whom he is allowed only weekly supervised visits.

The prosecution relied on expert testimony from Dr. Kevin Coulter, pediatrics division chief at the University of California, Davis, Medical Center, and forensic pathologist Dr. Bennet Omalu, also on the UCD Medical Center faculty and chief medical examiner of San Joaquin County. The defense called forensic pathologist Dr. John Plunkett, pediatric neuroradiologist Dr. Pat Barnes, and ER physician Dr. Steven Gabaeff.

Dr. Plunkett’s report included a few paragraphs that might be educational for anyone working on one of these cases. On the subject of chronic subdural hematoma, for example, Plunkett wrote:

Sam had a large chronic SDH and a small acute left-sided SDH when Woodland and Davis’ personnel evaluated him. A chronic SDH, sometimes referred to as an hygroma, must begin either as an acute SDH or as an intradural effusion. A predominance of blood or blood products typifies a hematoma. A high protein-content fluid with medical imaging signal features similar to cerebral spinal fluid (CSF) characterizes an effusion. It is often not possible (clinically or radiographically) to determine whether a chronic SDH began as intradural bleeding or as an effusion. If the chronic SDH started as acute bleeding, the acute SDH may be large and require surgical evacuation, may resolve and heal with no apparent signs and symptoms, or may become “chronic”. If the acute hematoma does not resolve, it develops a membrane that is extremely fragile and has many new, immature blood vessels. These blood vessels may rupture, causing “new” bleeding and an increase in the size of the initial SDH. There have been a number of studies to determine why some acute hematomas become chronic. The best explanation appears to be that the unique characteristics of the clotting system in the hematoma itself allow the bleeding to persist rather than to heal. The Medical Imaging literature has documented this phenomenon in studies following hospitalized SDH patients with serial CT and MR scans, which show new bleeding in established hematomas in the absence of trauma. “New” trauma is not required for this progression.

And regarding the origin of subdural bleeds, which can be caused by impact but also by a number of non-traumatic circumstances:

Impact may cause dural compartment bleeding in an infant. The infant skull is not rigid, and may deform significantly during an impact, even without fracture. This deformation, or inbending, distorts the underlying brain, and may stretch the bridging veins, may physically alter the dural venous plexuses, and/or may activate the trigeminal (“V”) cranial nerve. If these changes exceed the tensile failure threshold for the veins or the plexuses, they rupture and bleed into the dural border cell layer (“the subdural space”). If the rupture involves relatively large vessels, the bleeding may be significant and lead to rapid compromise of brain function and death, even with timely and appropriate surgical intervention. Alternatively, the bleeding may be relatively slow and even asymptomatic for a considerable time, and only lead to clinical signs if there is an increase in head circumference or an increase in intracranial pressure, the latter triggering vomiting, seizures, and/or compromise of respiratory function. The impact may be apparently innocuous and extremely low velocity. Scientific studies using adult human volunteers (scaled to the infant), cadavers, non-human primates, and other experimental animals; accident reconstruction; computer modeling; and finite element analysis have established and validated infant human brain injury g and Head Injury Criterion (HIC) thresholds. The current federal head-injury standard for a 6-month-old infant represented by the CRABI-6 dummy is a Head Injury Criterion threshold of 390 and a peak g threshold of 50 (50 times the acceleration due to gravity). The researchers have not established thresholds for a 3-month-old infant. However, they are lower than for a 6-month-old infant. A simple headfirst impact to a non- yielding surface from as little as a two-foot fall will usually exceed these thresholds. Fatal impact head injury in an infant does not require a motor vehicle accident or a fall from a two- story building.

These thresholds imply an “all” (risk of severe injury or death) or “none” (no risk of severe injury or death) event. However, biological systems including human beings are seldom “all” or “none”. Further, underlying conditions such as an abnormality of the blood coagulation system, individual cerebral vascular anatomy, cerebral atrophy or increased extra-axial fluid, and an individual’s unique metabolic pathways may alter the threshold and outcome for impact trauma.

Sam had a history of a significant impact event, but I will discuss briefly non-impact causes of dural bleeding for completeness. I do not think that any of these conditions caused or contributed to Sam’s initial acute bleeding with the possible exception of birth or an increase in extra-axial subarachnoid space (so-called “benign” expansion of the subarachnoid space, or BESS).

A number of “natural diseases” and metabolic abnormalities predispose to, or are associated with, SDH. However, anatomical research suggests that damage to the dural venous plexuses rather than traumatic stretching of the bridging veins causes the SDH in these cases. Examples include but are not limited to:

  • The birth process itself, including C-section delivery;
  • Lumbar puncture resulting in intracranial hypotension;
  • A variety of infections caused by bacteria and viruses;
  • Breakthrough bleeding associated with cortical venous thrombosis (CVT), or sagittal sinus thrombosis (SST) or other large-sinus thrombosis;
  • Inborn errors of metabolism such as glutaric aciduria and Menkes Disease;
  • Inherited or acquired coagulation abnormalities, such as hypofibrinogenemia, Vitamin K deficiency, or thrombocytosis;
  • Structural abnormities such as an arachnoid cyst, increased extra-axial fluid, or subdural hygromas;
  • V ascular malformations such as, but not limited to, A V malformations;
  • Poorly understood inflammatory processes such as hemophagocytic lymphohistiocytosis and post-vaccination reactions; and
  • Spontaneous, in which the bleeding develops with no recognizable cause.
Finally, hypoxia or anoxia may cause subdural hemorrhage either as a primary or as a secondary event. For example, hypoxic damage to the dural venous plexuses rather than mechanical trauma is the most likely cause for intradural hemorrhage that may lead to subdural hemorrhage when hypoxia is associated with an increase in intracranial pressure.

 

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Appeals All Over the Map, as Usual

While the appeals on behalf of care providers Jennifer Del Prete and René Bailey work their ways through the courts, a number of other painful cases have been passing milestones without news coverage.

Hopes Dimmed in the West

Robert and Gabriel Wilkes, 2008

 Gabriel and James Wilkes, 2008

In the “exasperating” category is an April 2 decision in Montana, where a district judge has rejected an Innocence Project petition to reopen the case of  single father James Wilkes, convicted in 2009. As described in past news coverage of the case, Wilkes had spent the day moving into a new apartment, and then stopped by the unit of a friend and neighbor who had been caring for 3-month-old Gabriel. He stayed and chatted while feeding the boy a bottle. Wilkes says that a few minutes after the two returned to their own apartment, Gabriel made a “gurgling” noise and quit breathing. At the hospital, though, doctors said the presence of the triad proved the child had been shaken.

The appeal argued that Wilkes had ineffective assistance of counsel, because his trial attorney had called  only one witness, Wilkes himself, who told the jury his version of what happened that evening. But the jury also heard from nine prosecution experts, who agreed that little Gabriel couldn’t have drunk a bottle after the presumed assault. Remarkably, the district court overlooked this imbalance, noting that the attorney had tried to find a defense expert, and in fact had contacted forensic pathologist Dr. Thomas Bennett, a “recognized expert in child abuse”—who had agreed with the state’s doctors.

EdgesOfTruthOne fundamental problem here is that if the defense attorney had done his research, he never would have contacted Dr. Bennett with a shaking case: Dr. Bennett’s over-diagnosis of shaking injuries triggered one of the first high-profile articles questioning shaken baby syndrome in the courtroom, the 1998 piece by Mark Hanson in the ABA Journal, “Why Are Iowa’s Babies Dying?” As also reported in the Los Angeles Times, Dr. Bennett ultimately resigned his post as state medical examiner after a series of unsupportable shaking diagnoses. The eventual exoneration of babysitter Mary Weaver was part of his unraveling.

Still, Judge Ed McLean of the Montana Fourth Judicial District agreed in his written opinion (Wilkes 2014-04-02) with a lower court that the trial strategy had been reasonable and that “any assertion that the mere presence of an expert for the defense would have made a difference… is mere speculation.” Judge McLean’s decision also dismissed new opinions offered in the petition from an array of medical experts for the defense, although attorney Brendan McQuillan from the Montana Innocence Project insists his team “found and presented new evidence never discovered before or after trial that the child had neonatal-hemochromitosis, a rare liver disorder which is most often fatal.”

Clearer Thinking in Maryland

Illustrating the unpredictable nature of these appeals, a Maryland circuit court reached the opposite decision just a few days later in a similar case, overturning the 2010 conviction of Gail Pinder Dobson, a child care provider with both a long history and a sterling reputation in her community before she was accused of shaking a 9-month-old baby to death. Dobson had in fact taken care of the infant’s mother when she was a baby decades earlier.

dobson

Gail Dobson, 2009

Like Wilkes in Montana, Dobson reported that a few minutes after she fed the boy a bottle, he made a “gurgling” sound and stopped breathing. She attempted first aid and dialed 911, but the boy died later that day. Soon after Dobson’s indictment in November of 2009, her attorney contacted a single expert witness, who supplied his report at the end of July for an August trial:  He agreed with the state’s physicians that the infant had suffered an inflicted injury just before the 911 call. Although Dobson’s trial featured a number of character witnesses, her attorney did not call any medical experts, with the explanation that “Petitioner denied any type of abuse and her credibility should have been sufficient.”

In Dobson’s case, though, the court concluded that the attorney “did not use reasonable diligence” by not getting the doctor’s opinion in time to find an alternative expert. The state argued that Dobson’s attorney was employing a legitimate trial tactic, but the judge wrote, “[The attorney's] assertion that he did not need expert testimony is both illogical and untenable. Such testimony would have both corroborated Petitioner’s version of the facts and refuted the testimony of the State’s experts.” You can read the decision, by Kent County Circuit Court Judge Paul M. Bowman, at Dobson -Kent County, 2014-04-07.

A Long, Lonely Road in Tennessee

russellMaze

Russell and Alex Maze, 1999

I was especially sad to hear that the U.S. Sixth Circuit Court of Appeals has denied the habeas petition of convicted father Russell Maze, now serving a life sentence for the death of his son Alex, only five weeks old and still days short of his due date the afternoon in 1999 that Russell claims he found the boy gasping for breath in his crib. Alex had been born in respiratory distress, with the umbilical cord wrapped tightly around his neck, and he spent his first two weeks of life in the intensive care nursery. A few days before his collapse, his parents had taken him to the after-hours clinic, where they were told they were being over-anxious first-time parents.

Maze’s case history is complex. His prosecutor at two trials was Brian Holmgren, an advisory board member of the National Center on Shaken Baby Sydnrome and the co-author of a passionate essay last year in the Utah Law Review decrying the minority opinion in the Shirley Ree Smith case.

Dropped Before Trial

Finally, in Washington state, a welcome outcome that short-circuits the need for an appeal later: Charges have been dropped against a young father after a prosecution motion that said staffing shortages had precluded their dealing with the case in a timely manner. Charges were dropped without prejudice, so the state could refile, but defense attorney Chuck Henry said he doubts they will revisit, as both the evidence and the handling of the case were inadequate. “This case was truly more about prosecutorial case mismanagement than it was about SBS, which never existed in the first place,” he summarized.

copyright 2014 Sue Luttner

If you are not familiar with the debate surrounding Shaken Baby Syndrome, please see the home page of this web site.

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Journey With “Justice”: A Rough Road

journey

Dan Schrock, the author of Journey With “Justice”: Our Family’s Experience With “Shaken Baby” Allegations, is a gentler spirit in person than he is on the printed page. He has even found a message of hope in his daughter’s conviction for an infant shaking he is sure never happened.

“The temptation is to say ‘the police did this’ and ‘the prosecutor did that,'” he concedes, “But behind all this is a society that loves children and is willing to do anything to protect them.” Even the investigators who amplified his family’s pain by lying to potential witnesses, he argues, were only trying to hold someone accountable for his granddaughter’s catastrophic collapse.

Natalia Benson was three months old in July, 2005, the morning she wakened her mother, Barb Schrock, at 3 am with a high-pitched scream, followed by breathing problems and a call to 911. Within two days, Natalia had become a ward of the state, diagnosed as a shaken baby, and Barb was the only suspect.

Barbara Schrock, 2011

Barbara Schrock in prison, 2011

Like so many infants in these circumstances, Natalia came into the world in fragile health. She weighed 3 pounds 11 ounces at birth, after a labor induced at 34 weeks due to her mother’s soaring blood pressure. She spent her first three weeks of life in the Neonatal Intensive Care Unit, and she still weighed only 6 pounds when 3 months old. Barb had called the doctor’s office the previous day, concerned that the baby seemed not herself, and had made an appointment for that morning, a few hours after the girl’s collapse. A month earlier, she had taken Natalia to an after-hours clinic because her breathing didn’t seem right:  At that time the infant was diagnosed with a sinus infection and put on antibiotics.

Despite Natalia’s complex medical history and lack of bruising or abrasions, the pattern of bleeding and swelling found inside her skull convinced the doctors that the girl had been shaken. Oddly enough, the doctors also agreed that she had suffered a more serious brain injury weeks earlier, although that didn’t seem to interfere with the assumption that she had been violently assaulted immediately before her collapse.

DSC02771Dan Schrock’s main achievement in Journey is his careful tracking of the evolving case against his daughter:  Early in the story, he transcribes the initial police interviews with family members, and he carries his thorough knowledge of these transcripts through the narration. His book illustrates clearly how misinformation, propagated early on by police trying to corner their suspect, confused the facts and tainted both the investigation and the trials. He also compares the medical testimony from different doctors, revealing how the physicians could  reach different conclusions from the same scans and records, but still return to their unanimous confidence that the last caretaker with the child before her collapse was guilty of assault.

Journey With “Justice” is not a light read:  It is Dan Schrock’s from-the-heart protest against the murky thinking and questionable tactics that condemned his daughter to lose both her family and her liberty. He and his wife have also been denied any visitation with their surviving granddaughter, at the instigation of the girl’s father and his family. “They believe her mother killed her sister,” Schrock sighs, “And they don’t want our side of the family in her life.”

He told me he wrote Journey so that his granddaughter would some day have a record of what really happened, and as a testament to the support his family received from their church community. In that he has succeeded. Especially when he talks about the case in retrospect, now that he has the leisure of hindsight, he is a living testament to the value of faith. His indignation comes through, and his love for his daughter, but I found no bitterness in his message.

Barb Schrock should be getting out of prison in the next few months. It is comforting to know that she will have an accepting family and community to help her move forward when this phase of her ordeal is over.

Update: Barbara Schrock was released from prison in early summer, 2014.

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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Flawed Convictions: Breaking Academic Ground

Flawed ConvictionsThe next phase of the shaken baby debate is coming right up:  Next month professor Deborah Tuerkheimer at the DePaul University College of Law is publishing a book through Oxford University Press, USA, that will reject decades of courtroom outcomes in these cases. Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice promises not only to explain how a flawed theory has become entrenched in the courtroom but also to propose a way out of the morass we are in now.

Prof. Tuerkheimer, once a New York child abuse prosecutor, was already aware of the triad and its role in the courtroom in 2008 when she heard about the successful appeal of the Audrey Edmunds conviction. She studied both the legal arguments and the medical references, and concluded that the Edmunds court was correct: Medical consensus regarding shaken baby syndrome had dissipated since the 1997 trial. As Tuerkheimer explains in the book’s introduction, now available on line:

“The criminal justice implications were staggering. The mainstream medical rethinking recognized by the court could not undermine this one conviction without undermining the convictions of others whose cases also depended on the triad.”

Her first expectation, she writes, was that the Edmunds decision would trigger “a massive institutional effort to correct error.” What she encountered, however, was a system not only poorly equipped to vet medical testimony but also averse to changing course:

“Throughout the process—from prosecutorial decisions, to evidentiary rulings, to judicial review—we see a drive to push forward rather than revisit. A diagnosis of SBS sets in motion systemic confirmation, first in the clinical realm, and then the legal. The course of injustice is almost immovable.”

Prof. Deborah Tuerkheimer

Prof. Deborah Tuerkheimer

Still, Tuerkheimer insists that the course can be changed, and the last chapter of the book will offer her prescription for achieving that goal. I’m hoping she suggests a systematic review of past shaking convictions, as an alternative to the current practice of appealing them one by one.

My favorite line in the promotional blurbs is in the Amazon description, which explains that doctors are no longer sure that the triad can be caused only by abuse, or that the last adult with the child is necessarily guilty, but notes that the legal system has failed to adapt to the change:

As a result, innocent parents and caregivers remain incarcerated and, perhaps more perplexingly, triad-only prosecutions continue even to this day.

You can read a quick summary of Tuerkheimer’s conclusions in her 2010 New York Times op ed piece. She has published two law journal articles on the subject, one explaining her position and calling for change, and a second a few years later, expressing her impatience with the lack of progress.

Her observation on the current situation:

Today, an acceptance of triad-based prosecutions that once was complete has dissolved—alas, to be supplanted by a distibution of justice that is halting and unequal, with disadvantage breaking along familiar lines.

Surely its distinguished author and pedigreed publisher will give Flawed Convictions credibility. I look forward to reading Tuerkheimer’s prescription for change, and I hope her book reaches readers on both sides of the debate.

If you click on the image of the book on the Amazon page, you can read quite a bit of the book itself.

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

copyright 2014, Sue Luttner

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

New Cases Keep Coming, And So Do the Appeals

brianPeixotoThe action in the shaken baby arena seems to be ramping up, maybe because a few successful appeals have breathed new hope into old cases. This site is receiving not only the usual traffic from newly accused families looking for answers but also messages from supporters on the outside renewing their commitment to prisoners convicted years ago—like Brian Peixoto, who has been such an exemplary inmate during 18 years of incarceration that he was chosen to train service dogs at one facility, although he’s since been transferred.

Brian’s most recent appeal was turned down this past fallbut his case has been taken on by both the innocence arm of his state’s public defense committee and the New England Innocence Project, and his supporters have just this winter put up an ambitious web site.

Closer to the public eye, judges have granted new hearings in two old cases, reopening the convictions of child care providers Jennifer Del Prete in Illinois, whose case I looked at in a posting last month, and René Bailey in New York, featured briefly in a posting last summer. In Bailey’s case, the appeal brief offered a new report from a child care provider who said she had seen a 2-year-old boy who was at Bailey’s home on the crucial day re-enacting with stuffed animals a sequence that matched Bailey’s description of an accidental injury to a little girl. Both that boy and another child had confirmed Bailey’s report at the time, but were deemed too young to be reliable witnesses.

ReneeBaileyThe decision in Bailey’s case, issued by Monroe County Court Judge James J. Piampiano, limits the new hearing to the question of whether the defense has really produced “new evidence” with its proffered testimony from experts about a change in medical thinking regarding shaken baby syndrome and from the boy’s care provider about her observations.  Reporter Steve Orr wrote in the Democrat Chronicle:

At the time of her conviction, nearly all physicians and other experts believed that symptoms such as those displayed by [the toddler] could be caused by violent shaking, and conversely that nothing other than shaking or throwing a child could cause them.

But some experts now argue that those conclusions were based on shaky science. They say new research shows falls or illnesses can cause some of the symptoms traditionally ascribed to shaking.

The Criminal Justice Center Blog at Pace Law School posted this commentary on the case.

jhavardIn Mississippi, meanwhile, where Jeffrey Havard waits on death row, his supporters have created a thorough new web site that includes the text of his most recent appeal, filed in November of 2013. The appeal is based on both a new set of expert opinions and the 2009 recanting by the state’s star witness, Dr. Steven Hayne, of the sexual abuse diagnosis that made Havard eligible for the death penalty. Arguing that testimony about shaken baby syndrome at Havard’s 2002 trial has also not withstood the test of time, attorney Graham P. Carner quotes, among others, the affidavit of biomechanical engineer Chris Van Ee, PhD:

It would be biomechanically incorrect to dismiss the history of fall as a causal factor resulting in the findings described at autopsy. Shaking is a less likely explanation for these findings…
The rotational forces attained in manual shaking cannot be equated to those occurring as a result of a multistory fall or a high speed motor vehicle accident. To suggest otherwise is without scientific foundation.

amandaRallyFeb2014And in Florida, friends and family are regrouping in support of Amanda Brumfield, convicted in the 2008 death of her best friend’s one-year-old daughter. Brumfield reported that the baby had fallen and hit her head while climbing out of a portable playpen. Supporters are launching their new campaign with a rally next Friday at the church Amanda attended before her incarceration.

Supporters of child care provider Marsha Mills in Ohio have had their site up since 2007, within months of Mills’ conviction in another toddler-fall case. The site shows fundraisers for her defense as recently as November of 2013. They are now awaiting the results of the most recent appeal.

Finally, in Canada, Onatario Court of Appeal Judge Marc Rosenberg has authorized appeals by two shaken baby defendants who have already served their time but want to clear their records. The decision cites the lessons of the Goudge hearings in 2012.

All of this appeal activity would feel like progress, except that the other kind of story keeps coming as well. Just in the past two days I’ve seen news reports of shaking allegations against a father in Wisconsin, a young mother in Pennsylvania, and the boyfriend of the child’s mother in Ohio.

Note:  A number of support sites have remained in place for years but are not mentioned in this posting because they are holding steady, not surging. Still, it feels incomplete not to mention here the The Amanda Truth Project, which contains many family vignettes. For a  list of individual support sites, petitions, and Facebook pages, please see the lower portion of the Cases page on this blog.

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

copyright 2014, Sue Luttner

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Filed under abusive head trauma, AHT, Brian Peixoto, Falsely accused, Jeffrey Havard, Jennifer Del Prete, Renee Bailey, SBS, shaken baby syndrome

Jennifer Del Prete: A Thrilling, If Dainty, Step

JenniferDelPMugIn a carefully worded opinion that notes evidence of “abundant doubt, not merely reasonable doubt,” U.S. District Court Judge Matthew F. Kennelly of Northern Illinois has agreed to hear the arguments raised in a habeas corpus petition by convicted mother and former child care provider Jennifer Del Prete. This development does not change any previous decisions, but it opens the door for a possible hearing on her petition, overlooking procedural gaps in deference to a possible “miscarriage of justice.”

What I didn’t realize until I read the decision itself, at DelPrete2014Jan, is what a classic of the genre this case is:  Ms. Del Prete was a long-time child care worker whose character witnesses included not only other parents at her children’s school but also a pastor who hired her to provide care at his church and people who worked with her at the children’s room in the public library. And the 3-month old who collapsed in her care showed no external signs of abuse but had a number of past health problems and a chronic subdural hematoma already weeks old on December 27, 2002, the day Del Prete called 911 for help with an unresponsive infant.

Her 2005 conviction seems to have relied heavily on the testimony of Dr. Emalee Flaherty, a pediatrician at Children’s Memorial Hospital who testified that the only possible cause of the infant’s brain injuries was a violent assault, and that the perpetrator had to be the adult who was with her when she became symptomatic. Judge Kennelly summarizes from the original trial:

Specifically, Flaherty testified that because Del Prete reported that I.Z. awoke and was “smiling and crabby” at 1 p.m., I.Z. had not yet suffered severe brain injury at that point.

A series of appeals was turned down by the Will County Circuit Court, the Illinois Appellate Court, and finally the Illinois Supreme Court in 2009.

quiltIn a pair of hearings covered by the Medill Innocence Project in 2012 and 2013, however, Judge Kennelly heard  testimony from new experts for both sides, including prominent figures like pediatric neuropathologist Dr. Lucy Rorke-Adams; child-abuse pediatrician Carole Jenny, the author of a leading textbook on child abuse; neuroradiologist Dr. Gary Hedlund, from Primary Children’s Medical Center in Salt Lake City; forensic neuropathologist Dr. Jan Leestma, who took new tissue samples of the preserved brain; and biomechanical engineer Michael Prange, PhD, the author of an influential 2003 biomechanical study concluding that impact is far more likely to cause serious injury than shaking.

Experts from both sides testified that doctors  no longer believe symptoms of a serious head injury must be immediately obvious, although Dr. Jenny was reportedly reluctant to concede the point. With the exception of Dr. Rorke-Adams, both sides also agreed that the subdural hematomas in this case were at least weeks old, inspiring Judge Kennelly to write:

As the Court will discuss this, too, points away from Del Prete as having caused I.Z.’s death. Beyond this, Dr. Jenny, in what is unquestionably new evidence, testified that this chronic hemorrhage was caused by an earlier episode of abusive trauma (as did Dr. Hedlund). In addition to establishing the validity of the “lucid interval” hypothesis, the proposition that I.Z. had earlier abusive trauma again tends to point away from Del Prete as a perpetrator of abuse or at least suggest other potential perpetrators

Del Prete was not running a daycare herself but working at a daycare owned by Gleanne Kehr, who testified she had hired Del Prete because she had observed her at their children’s school to be “honest, trustworthy, caring, and good with children.” As Judge Kennelly notes:

Among other things, there was no evidence that Del Prete had been alone with I.Z. prior to December 27, a date on which daycare center owner Gleanne Kehr was out of town. Thus the testimony of Jenny and Hedlund directly undercuts Dr. Flaherty’s statement at the criminal trial that Del Prete was the perpetrator.

On the subject of retinal hemorrhages, forensic pathologist Dr. Pat Lantz testified about his recent research, which has provided examples of retinal hemorrhages’ resulting from a number of natural disease processes, without trauma. Dr. Brian Forbes, a pediatric ophthalmologist at the Children’s Hospital of Philadelphia, testified that  “abusive head trauma was the most likely cause of I.Z.’s retinal hemorrhages,” but the Kennelly decision notes Dr. Lantz’s testimony and quotes one of the appellate judges: 

The court also noted that the injuries documented were serious and that “[h]er injuries to her eyes, the testimony before me was that only resulted from severe shaken baby cases.”

The opinion is quite thorough:  The doctors disagreed about the significance of I.Z.’s elevated platelet counts in the months before the crisis; the importance of the cephalohematoma (a collection of blood underneath a newborn’s scalp), occipital caput (a bulge on the occipital bone at the back of a newborn’s head), and oxygen supplementtion at birth; and the meaning of the radiology. There was apparently  no brain swelling evident in the scans for the first two days after the child was hospitalized, although she died 10 months later without ever really recovering from the initial neurological insult. Radiologists disagreed about whether bright areas on the films and scans represented free-floating hemorrhage or clots that were confined to veins.

Judge Kennelly was apparently impressed with the testimony of forensic pathologist Dr. Shaku Teas, who observed Dr. Leestma’s re-examination of the brain. The opinion says:

Teas testified that in evaluating a child like I.Z. who had a chronic subdural hemorrhage, it is important to do a thorough history to attempt to assess how it occurred. She stated that based on I.Z.’s medical records, her birth was somewhat traumatic and that the evidence indicated she suffered some oxygen deprivation. She also had an occipital caput and cephalohematoma when she was born. These findings may not have been viewed as significant at the time, Teas said, but in retrospect, given the chronic subdural hemorrhage and I.Z.’s later collapse, she believed they were relevant. Teas stated that I.Z.’s chronic subdural hemorrhage may have been the result of birth trauma.

I haven’t seen the filings on the two sides, but apparently the state argued that Dr. Teas is a biased witness, a conclusion the opinion rejects:

Teas’s disagreement with the “shaken baby syndrome” hypothesis is hardly a sign of bias. One of respondent’s own experts, Dr. Jenny, conceded that a chapter in her child abuse text (which she characterized as one of the best in a text that she considers the authoritative text in the field) makes it clear that the evidence base for the hypothesis that shaking alone can cause injury of the sort that I.Z. suffered consists exclusively of perpetrator admissions, the circumstances of which Jenny conceded she was unaware. A reasonable person—including a reasonable medical professional like Dr. Teas—could find this to be unscientific and thus unsupportable.

I welcome this enlightened decision.

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

copyright 2014, Sue Luttner

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Filed under abusive head trauma, AHT, Jennifer Del Prete, Medill Justice Project, SBS, shaken baby syndrome

“Dissent Into Confusion:” The Supreme Court, Denialism, and Shaken Baby

Atlanta, Georgia, September 2010

Atlanta, Georgia
Site of the 11th International Conference on Shaken Baby Syndrome/Abusive Head Trauma
September 2010

bold article in the Utah Law Review by Prof. Joëlle Anne Moreno at the Florida International University College of Law and prosecutor Brian Holmgren in Tennessee not only dismisses the debate about shaken baby syndrome as a “false controversy” but also labels SBS defense experts as “mercenaries” and roasts Supreme Court Justice Ruth Bader Ginsburg for her dissenting opinion when the court reinstated the vacated conviction of grandmother Shirley Ree Smith in 2011.

Dissent Into Confusion:  The Supreme Court, Denialism, and the False ‘Scientific’ Controversy Over Shaken Baby Syndrome” explores a couple of topics I’ve heard Holmgren address in the past, and it reminds me of his rollicking presentation in Atlanta in 2010, which I will get to later in this posting.

The Dissent paper correctly identifies the 1997 trial of British au pair Louise Woodward as a  milestone in the arena, achieving far more than just bringing the syndrome into the headlines:

“The hotly contested trial also brought national attention to the use of highly paid defense medical witnesses to challenge the accuracy of a child abuse diagnosis and to advance outlier and highly controversial ‘alternative theories’ of causation… Woodward marks the origin of the false AHT/SBS controversy—at least in part because the defendant, who was convicted of second-degree murder by a jury, was later freed by the judge.  This fact alone could explain the resulting public uncertainty regarding the weight of the prosecution’s medical evidence. Irresponsible journalists, however, including Mike Wallace of 60 Minutes, exacerbated the confusion.”

scalesI agree that the Woodward trial brought a new kind of medical evidence to the courtroom. The au pair agency that had placed the nanny paid for first-rate attorneys, who brought in experts with impeccable credentials. In his decision to set Woodward’s sentence at time served, Judge Hiller Zobel cited the nanny’s confusion, inexperience, and immaturity. I have to wonder if he wasn’t also influenced by the testimony of witnesses like biomechanics pioneer Lawrence Thibault, ScD, who had designed the experimental mannequins for the Duhaime research that raised the first scientific questions about shaking theory in the 1980s. The televised trial featured a better organized and articulated defense than the 1997 trial that drew me into this arena, or any  of the others I’ve researched from that era, including Shirley Ree Smith’s.

As in Woodward, the prosecution prevailed in Smith, only to see the defendant released after all, amid media coverage that seemed to imply innocence. Smith was convicted in 1997 but released in 2006, after the Ninth Circuit  Court of Appeals vacated the jury’s decision. The Supreme Court reinstated her conviction in 2011, but the following spring California Gov. Jerry Brown issued a pardon, so Smith was not required to return to prison and finish her sentence.

Moreno and Holmgren promise to set the record straight by dispelling what they see as two fundamental errors in the dissenting opinion to the Supreme Court decision:  that Smith’s grandson Etzel Glass showed “few signs of SBS” and that “doubt has increased within the medical community regarding SBS.”

“Few signs of SBS”

-photo by Julia Catron

-photo by Julia Catron

I found nothing in the Dissent paper to contradict Etzel’s autopsy report, which documented fresh and old subdural blood and fresh subarachnoid blood, but no brain swelling and no retinal hemorrhages. Doctors also found blood in the optic nerve sheaths, most of it “recent in origin” but with “occasional hemosiderin pigment deposits” that implied decomposed blood.

Only one of these signs—subdural hematoma—is technically on the short list of defining SBS symptoms, although the optic-nerve-sheath and subarachnoid bleeding are certainly signs of something.

Forensic pathologist Dr. Stephanie Ehrich; her supervisor Dr. Eugene Carpenter; and child-abuse pediatrician Dr. David Chadwick, namesake of the Chadwick Center for Children and Families at Rady Children’s Hospital of San Diego, all testified that Etzel had died of a shaking assault that tore his brainstem, causing death so immediate that there was no time for the usual signs of SBS to develop.

Autopsy revealed no evidence of any tears, which apparently Erlich believed to be within the brainstem. Moreno and Holmgren write:

“Dr. Erlich noted that she did not submit sections of Etzel’s brainstem for microscopic examination because injury would not be evident on microscopic examination if the child died quickly, and this would not have assisted in her diagnosis because the examiners ‘wouldn’t have found anything anyway.'”

The authors note that the “medical construct” of AHT “can include subdural hemorrhage, retinal hemorrhage, encephalopathy, and often evidence of previous trauma or other bodily injury.” Granted that Etzel had two items on this list, subdural hematoma and evidence of previous trauma, the overall picture is still short two out of three defining features for SBS. The authors do convince me that they and the prosecution experts all sincerely believe Etzel was shaken to death, but I can identify only one leg of the triad and no reason to conclude that Shirley Smith was responsible for her grandson’s collapse. Did Etzel really cry long and hard enough that his grandmother snapped and shook him to death while his mother, asleep in the next room, never heard a thing?

“Doubt Has Increased”

The Dissent paper also blasts the Edmunds decision, which triggered the 2009 critique of shaken baby in the courtroom by law professor Deborah Tuerkheimer and appears in articles like the 2012 paper by Keith Findley et al. The authors explain:

“Justice Ginsburg notably did not cite any of these law review articles. However, because her opinion closely mirrors these works, she grants an unwarranted imprimatur of legitimacy to legal academic arguments that SBS ‘quite possibly does not exist,’ may be ‘junk science,’ that ‘SBS science in its current conflicted state . . . does not support criminal convictions,’ and that the medical community has ‘deliberately discarded a diagnosis defined by shaking.'”

Moreno and Holmgren attribute the imaginary debate about shaken baby syndrome to a small cadre of “self-interested and highly-paid defense witnesses” who “fundamentally misconstrue and misstate the basic science involved in the medical diagnosis of child abuse” and whose views are then parroted by academics:

“The academics cite the same handful of defense medical witnesses, the media cites both, the defense medical witnesses benefit from the publicity and are hired in more cases, and the cycle begins anew.”

Holmgren elaborated on this theme at the 2010 NCSBS conference, in a multimedia presentation that illustrated how effective he must be in front of a jury. He projected a series of quotes from defense expert testimony while Pinnochio’s nose grew on a larger screen behind him. He charged the witnesses with giving conflicting opinions at different times, misrepresenting their qualifications, misquoting the literature, publishing case studies without revealing their roles as defense witnesses, publishing cases of alleged mimics without revealing that abuse was confirmed by a conviction, and “making blatantly false statements.”

scarecrowThe session ended with a sing-along, led by guitar-playing child-abuse pediatrician Dr. John Stirling from Santa Clara County. The song was “If I Only Get Ten Grand” sung to the tune of “If I Only Had a Brain,” with the message that defense experts are in it only for the money.

I can speak only from my own experience, but the professionals I know who defend against shaking allegations could  be earning more money and taking a lot less flack by applying their skills in a less hostile arena. And most defendants are having trouble paying the rent in the face of lost income and unexpected legal costs, let alone coughing up money for expensive experts.

Holmgren also foreshadowed parts of the Disssent paper in his presentation on the Smith case at the 2012 NCSBS conference, “SBS and the Supreme Court,” in conjunction with child-abuse pediatrician Dr. Randell Alexander.

Holmgren opened his segment with a review of the appeals:  Smith was convicted in 1997, and her first appeal was rejected in 2000. Her 2006 habeas petition was denied by a district court, but the Ninth Circuit Court of Appeals reversed that decision. “This always bothers me,” Holmgren said about multiple appeals, “as if the jurors are too stupid to get it right, as if the district attorney is too stupid to get it right.” The Supreme Court reversed the Ninth Circuit twice, in 2007 and 2010, but the Ninth Circuit stuck by its decision. “The Supreme Court keeps slapping them down like an unruly child,” Holmgren noted.

Finally, in 2011, the Supreme Court definitively reversed the Ninth Court’s 2006 ruling, and Smith’s conviction was reinstated, but with the problematic minority opinion. Holmgren stepped through the literature cited in the footnotes—Donohoe 2001, Bandak 2005, Leestma 2006, and so on—dismissing each in turn, and indignant that a justice of the supreme court would be getting her information from defense experts.

His conclusion with Moreno in the Dissent paper confirms that Holmgren is holding strong to that position:

“The Smith dissenters’ myopic view of the evidence muddies their analysis of the legal and scientific questions and raises real concerns about the message sent to future courts, the media, and the public.”

I’m guessing that the critics of shaken baby syndrome will write a rebuttal, as happened with the 2012  Daubert Analysis  by physician and attorney Dr. Sandeep Narang and the response from attorney Keith Findley et al.

I don’t see how the Dissent paper is gong to enhance either understanding or justice in these cases, as I think we need to be learning more about infant head injury, not setting up barricades against further discussion.

©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, Falsely accused, Innocence Network, keith findley, National Center on Shaken Baby Syndrome, parents accused, russell maze, SBS, shaken baby syndrome