Light Breaks in New Mexico

danielConsaulAlthough the case doesn’t involve shaken baby syndrome, a  decision last week by the New Mexico Supreme Court addresses a fundamental issue in shaking cases, the reliability of expert medical opinion in child abuse prosecutions.

The decision freed Daniel Consaul, convicted in 2008 of “intentional and negligent child abuse resulting in great bodily harm to an infant,” for what the local child abuse team had concluded was the intentional suffocation of his 10-week old nephew Jack. The court vacated Consaul’s conviction “with prejudice”—meaning he cannot be re-tried—citing insufficient evidence. The opinion notes in the introduction:

Child abuse prosecutions are unusual in that sometimes medical-opinion testimony provides the only evidence that a wrongful act occurred or that the accused committed a wrongful act…

Our review here focuses on whether this expert testimony alone—testimony in this case based solely on a deduction from an absence of other causes that a certain event likely occurred—is sufficient to support a criminal conviction

Consaul lived with his sister and her baby, and had been caring regularly for the boy since his birth. He told detectives he had checked on his nephew at 1:30 in the morning after hearing the child cry out and found that Jack had vomited and seemed stiff. He called his sister at work, and with a neighbor they took the baby to the hospital in Las Cruces, where the boy arrived shivering and lethargic but breathing and “appropriately responsive.” Unsure of the underlying problem, doctors administered fluids and performed lab tests. A few hours later, Jack was airlifted to the University of New Mexico Hospital, where he began seizing. CT scans then revealed brain swelling apparently triggered by insufficient oxygen.


From the Mayo Clinic swaddling instructions

In his first police interview, Consaul said he had swaddled Jack and placed him in his crib that night at about 11:30 pm. He did not specify the position, and the police did not ask. In a more pointed interview the following day, he said he had swaddled the boy more tightly than usual and laid him face-down in his crib. He conceded he was frustrated with Jack’s crying. The subsequent indictment charged that Consaul had endangered his nephew ‘s life and health “by swaddling Jack …tightly and leaving him unattended for an extended period of time.” At trial, the prosecution also argued that Consaul had intentionally suffocated the boy.

Refreshingly, the judges made a careful examination of the Child Abuse Response Team (CART) report that informed that conclusion, writing:

While proof beyond a reasonable doubt is not required for admissibility of an opinion, it is essential to support a jury’s finding of guilt. As a reviewing court, we must decide whether a reasonable jury could “reason” from the available evidence to the point of finding guilt beyond a reasonable doubt.

In this case, there was no substantial evidence pointing to Daniel’s guilt other than whatever could be said of the medical testimony, and when that evidence is analyzed, it falls short of establishing proof beyond a reasonable doubt.

Critical care specialist Dr. Mary Johnson had testified, for example, that one of her reasons for concluding that Jack had been intentionally suffocated was that his uncle had made a “calculated” change in his story. She said that Consaul had first reported putting Jack down on his back, but then claimed he’d placed the child on his stomach, after learning that doctors suspected suffocation. Dr. Johnson was apparently relying on the CART report, which did not include an interview with Consaul but quoted Jack’s mother Heidi as saying that the boy was usually put down on his back and that Consaul had told her he found Jack on his back after his cry in the night. Like the initial police report,the CART report contained no statement from Consaul about how he placed the boy in his crib that night. The court notes:

The assertion of a “change of story” was based on what Heidi recalled Daniel telling her, which she then repeated to Dr. Coleman, which was then transmitted via the CART report as tertiary hearsay to Dr. Johnson. It is difficult to know how to interpret this so-called contradiction or assess its reliability. Even if Heidi accurately recounted what Daniel had told her, it was that “Daniel found Jack on his back [and] had vomited,” not that he had put Jack to bed in that position. (Emphasis added.)

Although not a perfect analogy, this slurring of details echoes a sequence I’ve seen routinely in hospital records: An initial assessment raises the suspicion of inflicted head injury. During interrogation, a caregiver admits to some kind of shaking, usually mild, often in the course of attempted resuscitation. The detectives report back, and subsequent doctors’ notes include a phrase something like, “consistent with admitted shaking by caregiver.”

In another parallel with shaking diagnoses, Dr. Johnson testified that she had reached her conclusions partly because Jack’s body showed no signs of trauma:

After prompting by the district court, the State asked Dr. Johnson what physical manifestation from her examination led her to believe that Jack had been smothered. Dr. Johnson responded that Jack’s seizures were an indicator, as was the lack of any other physical manifestations. “There is often nothing that can be seen, nothing on the face, no bruises, no bleeding. No petechiae. Greater than 50 percent of the time, there is absolutely nothing on the skin or on the baby that would indicate a problem.”(3)

This observation inspired the best line in the decision, footnote 3:

  1. We leave for another day an examination of how the lack of any physical evidence of child abuse can somehow become probative of the crime of child abuse.

In addition to criticizing the evidence, the opinion condemns the trial court’s decision to issue one set of jury instructions for the separate charges of negligent child abuse and intentional child abuse:

Defendant was entitled to separate jury instructions for negligent and intentional child abuse resulting in great bodily harm given that the State’s theories of how that harm occurred were different and inconsistent; for negligent child abuse, the state told the jury that defendant put the baby to bed carelessly, tightly swaddled and placed face down on a pillow, and argued that this act of negligence caused baby’s injuries, and for intentional child abuse the state hypothesized that defendant did not just put baby to bed carelessly, but that defendant actually used a pillow or his hand to suffocate baby so he could not breathe, and jury was never asked to specify which criminal act defendant committed.

The judges quote from the prosecution’s final argument that a juror might think Consaul “did it on purpose” or might think “he’s just an idiot” who put the baby down negligently, “but everybody knows, and we know he knew better than to do that.” The court’s response:

The prosecutor invited the jury to convict Daniel of child abuse whether or not the jury agreed on what criminal act Daniel actually committed. Jurors should not be left free, let alone encouraged by the prosecutor, each to go his or her own way when it comes to determining what criminal conduct —if more than one act is alleged—caused the child’s harm. The jury needs to agree unanimously on what conduct caused harm to the child.

While addressing the many issues raised by the case, the opinion criticizes the state legislature for its ambiguous definition of “negligence” in its child abuse guidelines. Noting that the law recognizes a distinction between civil versus criminal negligence, the opinion observes:

We note, however, that in Section 30–6–1(A)(3) the Legislature appeared to capture two standards of mens rea in one sentence when it defined “negligently” as meaning “that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.” § 30–6–1(A)(3) (emphasis added). The Legislature joined these two distinct states of mind with the conjunctive “and.” Taken literally, the text of the statute refers to both ordinary negligence and criminal recklessness all in a single legislative breath. The Legislature cannot rationally have intended such self- contradiction.

The opinion also contains an educational discussion of the difference between the medical concept of the differential diagnosis—“the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings”—and the legal concept of the differential etiology—”a process that identifies a list of external agents… that potentially caused the disease.” Quoting another case opinion, the justices note:

“[P]hysicians receive more formal training in differential diagnosis than in differential etiology…. [P]racticing physicians have more experience working with the differential diagnosis technique, since in many cases the cause of an illness is irrelevant to the patient’s treatment.”

The child abuse team’s conclusions about intentional suffocation would seem to fall into the area of “etiology,” since there are countless ways for oxygen flow to be interrupted.

This case is cleaner than a shaking prosecution, because there were no subdural hematomas and no retinal hemorrhages, and therefore no presumption of violent assault, but I believe the same underlying issues apply. I hope to see more judges taking such a careful look at how the child protection teams reach their conclusions and recognizing the difference between sincere medical opinion and proof beyond a reasonable doubt.

copyright 2014, Sue Luttner

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


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

2 responses to “Light Breaks in New Mexico

  1. Pingback: Successful Appeals Keep the Conversation Going | On SBS


    Swaddling is an interesting issue. In Hungarian there is a pólya which is a formal swaddling sack with semi firm backing and a front tied from side to side and with a head extension to support the head of the baby. Swaddling clothes means loose clothes which are then wrapped not tied and there is no firm support at all behind the back or the head. Amongst North American native tribes such as the Algonquin and Ojibway and Cree there is a tikanagan which is the best, especially in a wandering or nomad culture, which has a firm backing of birchbark with a sack like cover and head rest but also a cradle arch attached to the head of the cradle board so when the tikanagan falls over the head is protected and only the birch bark or ash sash or strip touches the ground. Ironically it is almost the same in rigidity and support as the modern plastic car seat basins for babies. If anything the loose Anglo-Saxon clothes may be considered abuse as they don’t control and support the head. AJ

    Date: Fri, 29 Aug 2014 16:01:46 +0000 To:

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