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Successful Appeals Keep the Conversation Going

Two court decisions in different parts of the country have brought shaken baby syndrome theory into the news this week, one focusing on the science of infant head injury and the other on legal process.

Judge James J. Piampiano

Judge James J. Piampiano

In a move that USA Today called a possible state precedent, Judge James J. Piampiano in Monroe County, New York, vacated the murder conviction of child care provider Rene Bailey, citing what he called “a compelling and consequential shift in mainstream medical opinion” about the kind of injuries suffered by two-and-a-half-year-old Brittney Sheets at Bailey’s home day care in 2001.

At the time, Bailey reported that Brittney had fallen off a chair, but prosecution doctors testified that a fall from only 18 inches could not kill a child. The decision, available on line through the Democrat & Chronicle news coverage, quotes pediatrician Jack Finnell on the stand at Bailey’s trial in December of 2001:

I hark back to someone, one of the attendings when I was in medical school as well as reading it in different textbooks and different journals that it is rare and, in fact, never has been seen to have a child fall from less than 10 feet or approximately a second story window result in a serious brain injury.

Dr. Finnell and several other prosecution doctors testified that Brittney had been shaken to death. From Dr. Finnell’s testimony:

My opinion is based on the fact that there [were] no external signs of trauma; based on what I know of the Medical Examiner’s report that these injuries could not have been suffered any other way than a Shaken Child Syndrome.

Prof. Adele Bernhard

Prof. Adele Bernhard, director of the New York Law School Post-Conviction Innocence Clinic

The New York Law School Post-Conviction Innocence Clinic and the Wisconsin Innocence Project together appealed Bailey’s conviction, arguing that medical research since her trial has undermined the reliability of the medical testimony. The appeal also cited a report from another day care provider, a woman who later watched a little boy who had been in Bailey’s home at the time of the incident. She said the boy repeatedly re-enacted a scene consistent with Bailey’s report, in which he encouraged an imaginary friend named Brittney to jump, urging her to “do it” and then comforting her after the fall.

In April of 2014, Judge Piampiano heard three weeks of testimony on the limited question of whether the proposed arguments reached the standard of “new evidence,” as required to reopen the case. Like the judges in the Daniel Consaul case in New Mexico and the Jennifer Del Prete case in Illinois, Judge Piampiano clearly listened carefully to the medical testimony.

Dr. John Plunkett, at the 2012 EBMSI conference

Dr. John Plunkett, at the 2013 EBMSI conference

Not long before Bailey’s trial, forensic pathologist John Plunkett had published his 2001 pediatric short-fall paper, featuring 18 cases of fatal head injuries among children who fell 10 feet or less. Dr. Plunkett testified at this year’s hearings that Brittney did have evidence of impact and that her injuries were consistent with the fall Bailey reported.

Attorney and child-abuse pediatrician Sandeep Narang testified for the prosecution that biomechanical understanding of short falls has improved since 2001 and that short falls are now defined as 5 feet or less. He said doctors know that death from a short fall is possible, but rare, the opinion reports, and conceded that in 1997 child abuse experts were reporting that “the triad” (retinal hemorrhages, subdural hematoma, and cerebral edema) “were virtually unique to Shaken Baby Syndrome.” Experts have since stepped away from that position.

Dr. Daniel Lindberg, from the University of Colorado School of Medicine web site

Dr. Daniel Lindberg, from the University of Colorado School of Medicine web site

Dr. Daniel Lindberg, an ER physician testifying for the prosecution, “stated his belief that the phrase, ‘shaken child syndrome’ was an unfortunate shorthand which could encompass impact,” according to the opinion.

Pediatric neurosurgeon John Waldman, also testifying for the prosecution, agreed with defense experts that there was no evidence that Brittney had a torn bridging vein, the presumed source of subdural bleeding in shaking cases. The opinion noted, “Dr. Waldman explained, however, that a child who dies as a result of a short fall will suffer different injuries than those suffered by Brittney.”

Kieran Lloyd, who at 7 months eagerly provided data on repetitive bouncing motions by playing in a commercial jumping toy.

Kieran Lloyd, who provided data on repetitive bouncing motions by playing in a commercial jumping toy for a 2011 biomechanics study  -photo by John Lloyd, PhD CPE

High-profile forensic pathologist Michael Baden, once the Chief Medical Examiner of New York City, testified that Brittney’s brain showed the classic “coup/countrecoup” bruising that reveals the head was in motion before it came into contact with a hard surface. (The “coup” injury occurs on the side of the brain that is impacted, and the “contrecoup” occurs on the opposite side. A single coup injury is typical when a moving object strikes the head. A contrecoup injury implies rebound of the head after impact, which is typical in a fall.)

Doctors on both sides addressed retinal hemorrhages. Dr. John Galaznik, a pediatrician testifying for the defense, traced the evolution of the American Academy of Pediatrics position statements on both shaken baby syndrome and retinal hemorrhages, resulting in this summary in the written opinion:

The Court credits Dr. Galaznik’s testimony that said statement represented a significant change from the AAP’s 2001 position. That is, in 2001, retinal hemorrhages were presumed to indicate rotational head injury. By 2010, it was recognized that retinal hemorrhages could have multiple causes and be present in many situations. Therefore, retinal hemorrhages are non-specific.

Pediatric neuroradiologist Patrick Barnes offered his opinion that medical thinking about shaken baby syndrome has evolved, illustrating his point with examples from the literature, and explained the circular reasoning that plagues much child abuse research.

Also at the April hearings, biomechanical researcher Kenneth Monson, PhD, described contemporary research employing computer simulations and reviewed past laboratory studies. Judge Piampiano wrote:

None of the modeling attempts since 2001 were able to establish that the violent shaking of an infant or a toddler could cause the kind of subdural hematomas, retinal hemorrhages, brain injury, and death that were associated with this case. Rather, every biomedical investigation that has been performed continues to suggest that the accelerations associated with shaking are lower than what would be expected as necessary to cause those injuries. Significantly, nothing before 2001 would contradict that finding.

The judge summarized:

 As more fully set forth in the Findings of Fact, the Court credited the testimony of the Defense experts that case studies have demonstrated that children have died from short falls, that biomechanical research has explained the force produced in falls, and that advances in imaging have undercut the theory that shaking causes fatal injury through the tearing of bridging veins.

The opinion specified that the medical testimony alone constituted “new evidence” for purposes of vacating the conviction, and that the judge did not consider the report from the child care provider about the young witness’s subsequent play behavior. “The Court finds that such testimony was credible, and compelling,” Judge Piampiano wrote, “but this court is not considering that testimony upon reaching its decision.”

According to the news report in the Democrat & Chronicle, Monroe County District Attorney Sandra Doorley said she still believes science supports Bailey’s conviction and the state will either appeal the decision or retry Bailey,

The right to an expert

LeeVester Brown

LeeVester Brown

Meanwhile, the Mississippi Supreme Court reversed a lower court’s decision and ordered a new trial for LeeVester Brown, convicted in 2002 of shaking his son to death.

Brown said that 6-month-old Le’Anthony had choked on a bottle and then had trouble breathing. At the emergency room, doctors found “no bruises, abrasions, scars, or anything else abnormal,” but an autopsy by controversial medical examiner Dr. Steven Hayne concluded that the boy had been shaken to death.

Brown’s appeal hinged on the trial court’s refusal to grant him the funds to hire a defense expert, but it also addressed the court’s moves to limit the cross-examination of the state’s experts during trial. You can read the full published decision here.

Press treatments last week by two reporters who have been following the shaken baby story—Jerry Mitchell at The Clarion-Ledger and Radley Balko at The Washington Post—presented the Brown decision in the context of other disputed shaking cases, including Jeffrey Havard, now on death row in Mississippi.

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

copyright 2014, Sue Luttner

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Boston Cases Refocus the Spotlight

Justina Pelletier thrilled to be returning home

Justina Pelletier, now reunited with her family

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

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

Aisling Brady McCarthy, from the BBC coverage, http://www.bbc.com/news/world-europe-24569976

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

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

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

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

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

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

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

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

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

Justina with her mother and two of her three sisters

Justina with her mother and two of her three sisters

“Medical Child Abuse”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 15 update: Geoffrey Wilson’s family, in the other local shaking case, has offered to open their medical records to McCarthy’s defense: team: http://bostonherald.com/news_opinion/local_coverage/2014/08/shaken_baby_defendant_offers_to_share_evidence_with_nanny

copyright 2014 Sue Luttner

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

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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

Gabe and Dave Wilkes, 2008, courtesy the Wilkes family. “He was a proud father” -Tony Wilkes

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 Robert James “Dave” 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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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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Medill Database Opens With a Geography Lesson

medililMapA year and a half after calling for cases to build a database of shaken baby syndrome accusations, the Medill Justice Project has published a thin slice of its data, in conjunction with its analysis of how cases are distributed across the country. The view into the database is very narrow, but the county-by-county searches can be fascinating.

As Lauryn Schroeder writes on Medill’s SBS site, the rates of reported baby-shaking vary widely across the country. She offers a map of SBS hot spots and examines the situations in the states and counties with the highest concentrations, which seem to this reader to correlate with regional child-protection strategies that encourage police and hospitals to work together. The county that prosecuted immigrant father Hang Bin Li last year, for example, makes Schroeder’s list:

Queens County, N.Y., which lies southeast of Manhattan, has the 10th largest population by county in the United States and ranks third in the nation for total number of shaken-baby syndrome cases. After adjusting for population, it ranks 36th in cases by county per 100,000 people. Experts said the Queens County District Attorney’s Office is nationally known for aggressively prosecuting shaken-baby syndrome cases. The office also co-sponsors an annual conference with the county medical examiner’s office on abusive head trauma that invites medical and legal professionals nationwide to learn about the diagnosis, investigation and prosecution of these cases.

“A poor investigation doesn’t help anyone,” said Queens County Senior Assistant District Attorney Leigh Bishop. “I wouldn’t have a job if there was just a formula to prosecuting these cases. They’re all different.”

Two of the four counties with the nation’s highest rates of reported shakings lie adjacent to each other in Nebraska, where state law mandates multidisciplinary teams that include police, social services, and medical professionals for investigating child abuse. Schroeder quotes a prosecutor in Sarpy County, just south of Omaha, who explained that the different agencies on the team “review the cases together and if they need help they assist each other… [The law] added continuity and consistency in the area instead of having multiple agencies try and tackle a problem independently.”

medillBars

For a readable image, see the Medill web site: http://www.medilljusticeproject.org/2013/12/10/hot-spots/

Medill has posted only the barest data about each case:  the sex of the presumed perpetrator, the state, and the county. I tried searching my own county, which is reported to have had a population of 1.84 million in 2012. The Medill database, available directly at http://www.medilljusticeproject.org/visualization/, lists four cases.

Tipped off by Schroeder, I then searched on Queens County, with a reported population of 2.27 million in 2012. Medill lists 28 cases in Queens, literally seven times as many as in my county, for a population not quite twice the size.

When I searched for Middlesex County, Massachusetts, where Louise Woodward was prosecuted in 1997, with a 2012 population of 1.54 million, just a little smaller than my 4-case county, Medill reported 18 cases—and Middlesex didn’t even make the cut for the story.

It’s hard to know, of course, how accurately the Medill numbers reflect the true incidence of SBS reports, given the lack of any national mechanism for tracking them, but the students seem to be doing a reasonable job, as reported in this posting last February.

The introduction to the database invites us in:

The Medill Justice Project hopes the public will use this database to better understand this largely opaque issue, which affects families throughout the nation. The information may be used for independent research and reporting as long as The Medill Justice Project’s database is credited.

The data now available reflect the information the project has reported on  so far: A posting in August revealed that men are much more likely to be accused of shaking infants than women:  http://www.medilljusticeproject.org/2013/08/27/the-gender-gap/  I’m hoping the students will make additional fields visible as they complete future analyses.

The Medill Justice Project is still soliciting cases:  If you have a case that is unlikely to be in their database, you can contact them at medilljusticeproject@northwestern.edu.

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Another Father Goes Down in the Far West

Juneau, Alaska

Juneau, Alaska

After four weeks of testimony and two days of deliberations, a jury in Juneau, Alaska, on Monday declared 24-year-old David J. Paul guilty of manslaughter but innocent of second-degree murder in the 2010 death of his girlfriend’s 4-month-old daughter.

Like so many children in these cases, the infant Rian Jambi Orr had a complex medical history, including a skull malformation discovered at autopsy. The prosecution’s case rested heavily on a confession that didn’t match the medical facts, and the trial featured testimony about comments the teenage mother made during the child’s birth.

David J. Paul was not Rian’s biological father, but he was her mother’s boyfriend when the girl was born:  He is listed as the father on her birth certificate and was described as a caring and gentle parent. He and Rian’s mother both say he was the one who got up with Rian early in the morning on August 9, 2010, and fed her a bottle—a few hours before her mother found her seizing and the couple rushed her to the hospital.

Mendenhall Glacier Juneau, Alaska

Mendenhall Glacier
Juneau, Alaska

Rian had no signs of an impact injury:  no bruises, no red marks, no skin swelling—and incidentally, no retinal hemorrhages—but she arrived at the hospital with subdural hematomas and progressive brain swelling. Radiology showed healing thigh and rib fractures. Paul was quickly barred from his daughter’s bedside.

Reporter Emily Russo Miller at the Juneau Empire has captured the tale in a series of compelling courtroom dispatches. In testimony on May 30, the detective in charge of the case said she had zeroed in on Paul as the perpetrator 20 minutes into their first conversation. On June 1, child-protection specialist Dr. Naomi Sugar explained that the healing fractures and bruises on Rian’s chest, even disregarding the recent brain injury, were enough to convince her the girl had been abused.

Paul insisted for a week that he had done nothing to hurt Rian. Three days after the girl’s death, however, police questioned him more closely, and he ultimately said he had accidentally dropped her on the bathroom floor the morning of her meltdown. According to the June 12 trial coverage, he added the statement a year later that he’d then made “one jerking motion” after picking her up.

The prosecutor, Assistant District Attorney Angie Kemp, acknowledged during closing arguments that Paul’s statements didn’t explain the injuries, but argued that his changing story hinted at a much darker truth. From the Empire coverage:

Paul’s statements to police do not “make perfect sense” in and of themselves, Kemp readily conceded. She said if the baby had truly been dropped from three feet on her head on the linoleum bathroom floor during her morning feeding on Aug. 9, there would have been external evidence of that, such as a bump, knot or fracture on the head, and, as the defense points out, none of the expert witnesses at trial asserted that the ‘one shake’ Paul admitted to could have caused the kind of fatal brain injuries Rian died from.

“There is more to what happened,” Kemp said. “And Rian’s not speaking for herself.”

Assistant Public Defender Eric Hedland argued that Rian suffered from a chronic brain injury that merely became symptomatic that morning. Pediatric neuroradiologist Dr. Patrick Barnes testified that the abnormalities on Rian’s x-rays looked like a Vitamin D deficiency, commonly known as rickets, not child abuse:

One by one, Barnes went through images of Orr’s CT scans and skeletal X-rays pointing out characteristic signs of rickets for the jury: the thinning or softening of her skull, beading of the growth centers around her ribs called “rachitic rosary,” curved leg bones that aren’t straight as they should be and fuzzy growth centers in her arm and leg bones instead of a thin white line.

The full-bore defense line-up also included forensic pathologist Dr. Jan Leestma, who said that shaken baby syndrome “probably does not exist”; bioengineer Toby Hayes, PhD, who said Rian’s neck would have broken at shaking forces lower than those required to cause the bleeding inside her head; and psychologist Deborah Davis, who explained how the Reid Technique for police interrogation can elicit false confessions.

Remarkably, even the prosecution pathologist acknowledged that he had found an extra bone in Rian’s head at autopsy. The prosecution’s questioning did not raise the issue, according to the Empire coverage, but Hedland brought it out on cross-examination:

When [prosecutor] Kemp asked Harruff if he observed evidence of chronic hematoma or anything that would suggest a coagulation problem, Harruff said no. Under cross-examination, Harruff told Hedland that he observed a bone in the baby’s brain, which is not normal, but that he could not identify it microscopically. He agreed that bones form in the brain when they are trying to fix something, and would probably take weeks to form.

The defense also researched the child’s birth and pre-natal records. Although I’m uncomfortable with the implications of blaming the mother for a crime that never happened, Hedland was only doing his job, putting on a thorough defense, when he called in a midwife and doulah who testified that Jaki Orr had ignored their nutritional advice during pregnancy and had been “risked out” of their program for non-compliance. Doulah Shayna Rohwer was apparently present for the birth in a more mainstream medical facility:

… Jaki’s doula who was present during the baby’s birth testified that Jaki made statements during labor, such as, “This isn’t what I wanted.”

“She repeatedly said, ‘This isn’t what I wanted,’ ‘This isn’t good,’ ‘This isn’t right,’ and I knew (it was) about her baby, presumably not about the birth itself, which is sad,” Rohwer said.

juneauMeadowMyself, I consider those reasonably mild statements from a woman in the midst of labor, but I was still shocked that the testimony was allowed in the courtroom.  Then I realized that the trial time devoted to Paul’s confession made this testimony appropriate:  We should give about as much credence to statements made during unmedicated childbirth as we give to statements made after three hours of the Reid Technique.

The trial also featured a judicial wrinkle:  After the prosecution rested, Juneau Superior Court Judge Philip Pallenberg dismissed one of two second-degree murder charges against Paul, in response to a defense motion for acquittal. The Empire reported the judge’s reasoning:

“Murder two requires knowing that the conduct was substantially certain to cause death or serious physical injury, and as I said earlier, I don’t think anyone in this courtroom knows that shaking a baby is substantially certain to cause death or serious physical injury,” Pallenberg said. “I think we all know that it creates a risk of that. This requires much more than knowing there was a substantial risk. This requires knowing that it’s substantially certain.”

Although a finding of innocence on the murder charge, even with a manslaughter conviction, can seem like a victory, Hedland said he is disappointed and will appeal immediately. “I could have sat on my hands, and he shouldn’t have been convicted of murder,” he said. “My client is innocent.”

While the jury was deliberating, the Empire posted an interview with Paul’s mother, who is convinced of her son’s innocence. Some other articles from the series contain more details about the case, but because this blog is dedicated to the many victims of these tragic diagnoses, I am closing with this link to that story.

-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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Witnessed Shaking: Reports and Reflections

Police in Concord, New Hampshire, reported last week that a woman had brought them a 3-month-old baby whom she had seen being shaken. According to  WMUR, Channel 9, police took the child to the hospital, where doctors found bruising on the child’s ribs but apparently no brain injuries. The Union Leader coverage adds that the witness is not the child’s mother.

This case prompted a colleague of mine to pull out her notes from a talk given in 1996 at the First National Conference on Shaken Baby Syndrome, in Salt Lake City, Utah, by a team from from the Children’s Hospitals and Clinics of Minnesota.

With pediatrician Dr. Carolyn Levitt, case director Julie Pape had collected 12 cases in which children under the age of two were brought to the child-protection team for evaluation after witnesses reported seeing them shaken. These children were examined not because of physical signs or symptoms, Pape emphasized, but because of the witnessed assault. “Those people who were observing the events felt as though that episode of shaking had to be significant enough or violent enough to cause injury in the child.”

All of the children had complete skeletal x-rays, and six of them had both CT scans and retinal exams:  No subdural hematomas, brain swelling, or retinal hemorrhages were found in any of the children, although bruises and fractures were found in some.

The cases:

  • A 19-year-old uncle left alone with a 7-week-old told the child’s mother that he had shaken the baby. He reported shaking the infant four or five times, after which “he became scared, because he thought that he may have injured the baby.” The only physical finding was a bruise on the child’s ankle, which the uncle acknowledged he may have caused when he picked up the baby.
  • A suicidal teen-aged mother reported shaking her 5-month-old son. Examination revealed old soft-tissue injuries, some bruising, and a burn.
  • An employee at a juvenile residential home reported seeing a young mother shake her 6-week-old daughter. A bone scan revealed three leg fractures but the CT scan and retinal exam were negative.
  • A bank teller reported seeing a mother shake her 12-month-old daughter in a stroller. Doctors found no broken bones or soft-tissue damage.
  • A mother brought her 17-month-old daughter to the clinic with a report that she had seen the biological father shake and spank the girl. The skeletal survey was negative, and old bruises were inconclusive for abuse.
  • A single mother called her own father and told him she had shaken her 8-month-old daugher, in her walker. The grandfather called the child’s pediatrician, who reported the case to CPS. A skeletal exam, a CT scan, and a retinal exam produced no physical findings.
  • A mother reported she had seen the father of her 4-month-old son shake the infant. The father’s hands were around the child’s rib cage, she said, and the boy’s head was “bobbing back and forth.” The skeletal, CT, and retinal exams were all negative.
  • During a hospital visit for a burn injury, the mother of an 11-month-old patient reported that she had seen the boy’s father shake him 10 months earlier, when the infant was one month old. The skeletal survey, CT scan, and retinal exam were negative, but the boy had some soft tissue injury.
  • A mother brought in her 17-month-old daughter after a visitation with the girl’s father, because of bruises. The grandparents reported that they had seen the father shaking the girl on previous occasions. A skeletal survey revealed healing  arm and leg fractures.
  • The paternal grandparents of a 17-month-old boy and a 5-month-old girl called CPS to say they’d seen the children’s mother shaking them and throwing them onto the couch while the three were visiting. The children were removed from the mother at the AMTRAK station. Skeletal surveys showed no fractures, and doctors found no bruising.
  • A mother reported seeing the father of her 9-month-old daughter shake the little girl during an argument that also involved a gun to the mother’s head. The child protection team did a skeletal survey, head CT, and retinal exam, “and as is consistent with many of the other kids in this study, we did not find any physical findings,” Pape reported.

None of the 12 children was admitted to the hospital, although one returned for a follow-up bone scan.

Noting that “children who have a history of being shaken do not always sustain physical injury,” Pape advocated a “consistent medical approach” to these cases, as further examination did uncover evidence of past abuse in some cases.

“We also need to listen to these histories and not ignore them,” Pape said. “If a parent is saying, or if anyone is saying, that they have witnessed an act that is violent enough that they think this child could be injured, we need to pay attention to that. And that’s not necessarily because we think these might be shaken babies, because obviously we are learning that this is not how children who are diagnosed with SBS present. However, these children might be children who are battered and at risk.”

Also, if these really are shaken babies, Pape clarified, “We don’t want these children to go on and then have physical findings because someone may have shaken this child and then decided that if I shook the child this hard and it didn’t have physical findings then it should be OK.”

This study doesn’t seem to have been published, and I haven’t seen anything like it in the literature. As far as I know, there have been no witnessed shakings that were followed by findings of brain swelling and brain bleeding. If anyone knows of one, please leave a comment.

I’ve seen nanny-cam footage of violent treatment that seems to include shaking (this YouTube video, for example, and this footage from India), and news reports of the resulting prosecutions (like this one).  Has any of these cases ever resulted in the triad?

Curiouser and curiouser.

Spring 2014 update: Facebook users can access this astonishing video, apparently of a medical professional handling a very small baby in alarming ways: https://www.facebook.com/photo.php?v=311358612334238&set=vb.100003803059974&type=2&theater

This report from Tomo News is murkier:  Although I’m not comfortable with how the nurse is handling the baby, it doesn’t look as violent to me as the narrator and commenters describe:  https://www.youtube.com/watch?v=hJo0hQpA_Jc

copyright 2012, Sue Luttner

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

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