In 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 own 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.
In 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