Well Said: Law Reviews Address SBS

Keith Findley, co-director of the Wisconsin Innocence Project, at an SBS meeting in February 2012

With manuscripts from seasoned veterans, young idealists, and players in between, law journals are starting to cover the legal tangle surrounding shaken baby syndrome.

Law professor Keith Findley at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project, has collaborated with an all-star team to produce a thorough, careful, and readable response to an article that appeared in the April issue of the Houston Journal of Health Law and Policy, from the University of Houston Law Center.

In the original paper (“A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome,” Volume 11, issue 3), attorney and child-abuse pediatrician Dr. Sandeep Narang rejected the mounting criticism of classic SBS theory and argued that, in the absence of a clear alternative diagnosis, the courts should rely on child-abuse experts to tell them whether the presence of the triad represents abuse.

Findley’s response—written with pediatric radiologist Dr. Patrick Barnes, pediatric neuropathologist Dr. Waney Squier, and law professor David Moran from the Michigan Innocence Clinic—is a must-read for anyone facing or defending an SBS accusation. You can download the unpublished draft of “Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right” at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2048374.

Winter 2013 update:  Dr. Narang’s paper is now available at http://www.law.uh.edu/hjhlp/volumes/Vol_11_3/Narang.pdf, and the response from Findley et al. is now available in situ at http://www.law.uh.edu/hjhlp/volumes/Vol_12_2/Findley.pdf

Past Convictions

The University of Wisconsin Journal of Law Reform, meanwhile, has published a careful analysis that calls for a review of all past convictions in shaking cases. Senior law student Rachel Burg opens her article with the story of Julie Baumer, who was featured in Emily Bazelon’s New York Times Piece in 2010. Baumer served four years in prison before a pro bono attorney brought in new experts, who unanimously and independently diagnosed venous sinus thrombosis. Burg writes, accurately, I’d say:

The truly heartbreaking stories, however, are those that are not told—the innocent people currently in prison, convicted of seriously injuring a child that they loved, based on a medical diagnosis that has become scientifically questionable.

You can download a .pdf of Burg’s article from the journal’s web site, http://www.mjlr.org/2012/05/volume-45-issue-3-spring-2012/

SBS as Established Mistake

In 2011 the Brigham Young University Law Review published a reasoned article calling for bone-density testing before fractures are considered pathognomonic for abuse. Author Matthew B. Seeley, a recent law school graduate, cited shaken baby syndrome as an example of past judicial mistakes. He reviewed the history of the syndrome, including recent rethinking about both the specificity and the timing of the symptoms, and wrote:

There are many lessons to be learned from the history of shaken-baby syndrome, not all of them within the scope of this Comment. One lesson, though, is clear: a misappraisal of whether a certain injury or combination of injuries is pathognomonic can lead to the conviction and imprisonment of innocent caretakers.

Although I’d expect that article to be heading to the archives soon, it is currently available through the Current Issue tab on the journal’s web site, at http://lawreview.byu.edu/issue.php

Shaking as First-Degree Murder

Practicing attorney Derick Vollrath in North Carolina has published an intriguing analysis in the Campbell Law Review, arguing that the prevalence of anti-shaking campaigns is inconsistent with his state’s policy of prosecuting shaking deaths as first-degree murder. Vollrath writes:

These campaigns share a common assumption: a significant number of Shaken Baby Syndrome deaths are not the intended result of a caregiver’s premeditated design.

Caregivers just lose it. They snap. They don’t know any better.  At the same time, North Carolina’s criminal law allows the state’s district attorneys to prosecute these caregivers for first-degree murder,  the most serious criminal charge available.

Although I regret that Mr. Vollrath seems to accept the specificity of the triad, I do appreciate his careful analysis and thoughtful position.  The article is in the current issue of the Campbell Law Review, available at  http://law.campbell.edu/lawreview/

Professor Deborah Tuerkheimer, De Paul University College of Law

The Classic

My files contain a handful of older papers, but the first highly publicized law journal article critical of infant shaking convictions was Professor Deborah Tuerkheimer’s 2009 critique in the Washington University Law Review.

She has since published a follow-up article in the Alabama Law Review addressing the lag in courtroom policy despite the evolving science.

Both Professor Tuerkheimer and Audrey Edmunds—the Wisconsin babysitter whose vacated conviction in 2007 marked the beginning of the Innocence Network’s success with shaking cases—will have books on the shelves soon.  The tide is turning.

©2012, Sue Luttner