Shaking debate back in the courts and in the news

uphill-gunnThe landscape in the shaken baby debate is shifting again, with a series of developments that have locked in gains, slowed losses, and even claimed new ground in the struggle against unproven science in the courtroom.

In New York state last week, an appeals court affirmed the 2014 reversal of the murder conviction of care provider René Bailey, who said she was out of the room when a little girl jumped or fell from a chair. Prosecution experts had testified, however, that only shaking could explain the brain findings, and that children don’t die from short falls. In his decision reversing the conviction, Judge James Piampiano accepted the argument by Bailey’s appeal attorneys that changes in medical thinking since her 2001 trial constituted new evidence.

Last week’s ruling rejected an appeal by the state, noting that “advancements in science and/or medicine may constitute newly discovered evidence” and explicitly mentioning the evolving SBS research. Coverage in the Democrat and Chronicle led with the optimistic proclamation:

“For the first time, a New York appellate court has ruled that evidence once used to convict people in shaken-baby cases may no longer be scientifically valid.”

That same evidence failed earlier this month to convince a South Dakota jury, which found Aaron Bruns innocent of murdering his 3-month-old son Levi in what appears to be a pure shaking case. Coverage in The Daily Republic offers this summary of the father’s report:

During the trial, Bruns said he thought Levi was choking, so he quickly picked him up and tipped him upside down to clear his airway. Five minutes later, according to Bruns, Levi turned pale, and his eyes rolled to the back of his head, leading Bruns to run him to a nearby hospital.

fox9Other individual victories seem to have triggered a resurgence of press coverage highlighting the controversy. In Minnesota, for example, reporter Tom Lyden at Fox 9 pulled together a provocative treatment with the title “Critics, parents, question diagnosis of shaken baby syndrome,” featuring a local father acquitted at trial; a family whose own experts convinced the county to drop charges; and a mother now fighting the loss of her son. The treatment closes with a statement from the American Academy of Pediatrics (AAP), which persists in shifting the question from whether the brain findings prove abuse (No, they do not) to whether shaking is even dangerous (Yes, of course it is):

“There is no legitimate medical debate among the majority of practicing physicians as to the existence or validity of AHT/SBS…  Claims that shaking is not dangerous to infants or children are not factual and are not supported by AAP policy, despite being proffered by a few expert witnesses in the courtroom.”

presidentialsealThe assertions of the AAP notwithstanding, the real uncertainties about shaken baby theory were acknowledged this fall, briefly but officially, in a presidential report on forensic sciences in the courtroom, undertaken in the wake of the 2009 study that found “serious deficiencies” and called for “major reforms” of the nation’s forensic science system. The follow-up report, published this fall by the President’s Council of Advisors on Science and Technology (PCAST), notes that DNA evidence has disproved past forensic techniques like bite-mark matching and visual hair analysis, and it recommends strategies for bringing courtroom testimony in line with scientific knowledge. Footnote 15 cites an “urgent” need to examine shaken baby theory, which has not been addressed in past studies:

“PCAST notes that there are issues related to the scientific validity of other types of forensic evidence that are beyond the scope of this report but require urgent attention—including notably arson science and abusive head trauma commonly referred to as ‘Shaken Baby Syndrome.'”

For my posting on arson science, please see “Bad Science Goes Up in Smoke.”

SquierProfileNoCaptionAll these developments come in the same season as the decision to reinstate Dr. Waney Squier’s right to practice medicine, and the release of a literature review by a panel of Swedish scientists who concluded that shaken baby theory has not been proven, both of which have generated international news coverage. New Scientist, for example, published a news report about the Swedish study, with a sidebar on Dr. Squier’s case and a promo that nailed the character of the debate, calling it “toxic and polarised.”

The ripples are still spreading in the wake of Dr. Squier’s reinstatement. Even non-subscribers can give a thumbs-up to the letters to the BMJ in support of her, submitted by Michael Birnbaum, QC, and, further down the page, Dr. Jennian Geddes. I’m told our clicks will help the editors understand the scope of the problem. (If you haven’t done so yet, you can also go give a thumbs-up to the earlier letters from a group of more than 250 professionals and from pediatric radiologist David Ayoub.)

The Sunday Times last week published a more detailed treatment of Dr. Squier’s story than appeared in the early news reports—you have to register with the Times to see the article, but the process is free and reasonably painless.

Leo Ackley's Facebook profile shot not long before the accusations

Leo Ackley

The past few weeks have also brought a number of disappointments—in Michigan, a second trial resulted in another guilty verdict against Leo Ackley, whose first conviction had been vacated on appeal, and an appeals court affirmed the conviction of Joshua Burns, who has served his jail time and reunited with his family, although he remains on probation. Both appeals had been pressed by the Michigan Innocence Clinic, which has been focusing on shaking cases.

Leo Ackley’s family insists they will keep fighting for him, and last month the Michigan Innocence Clinic won a grant to help defend clients who may have been wrongfully convicted in shaking cases. Despite two disappointments this season, the clinic will surely keep up the pressure against a flawed theory that’s been winning in court way too long.

I hope the press, the public, and professionals in the arena stay tuned as the debate unfolds.

copyright 2016, Sue Luttner

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

 

8 Comments

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

8 responses to “Shaking debate back in the courts and in the news

  1. Michelle

    This is indeed some good news, although we have a long way to go before we’ll see a complete end to this madness. Sue, as always thank you so much for your hard work and the solid info you put out there. As a parent facing the nightmare of false allegations of SBS myself, I can’t tell you what a blessing it is to have a lifeline of sanity and reason to hold on to. God bless.

  2. Jon Yerger

    These events are heartening to say the least. I just don’t know where to start to get my son’s family back together after 4 heart-wrenching years of forced separation. I’m open to suggestions.

  3. Thank you for the update. Lots of good information.

  4. The tide is changing, what we need now is a groundswell or a tsunami. I am forever hopeful that things will change when I hear good news like these stories but in the long term nothing really changes.

    When I met Dr Squier one thing she said was that; “Science must be defended”. And never forget that “Laymen” are just as capable of defending science. Judges and Juries are largely comprised of laymen so in the end, all Experts just express an opinion but Laymen make the determinations.

    My tactic has been to show that Medicine has degenerated into a Religion based on Faith and Belief, if 90% of Physicians believe the Triad is possible by shaking, it shows how far Medicine has deteriorated.

    We must continue writing about this and defending the science. At every opportunity we must educate the laymen. Walking into a Church and declaring to the Congregation that there is no Devil or no God is having no impact, we must educate people who know nothing about the topic. When you reply to a story in a newspaper it will be read by laymen, they may fight you but then you will win, because Science is on your side.

  5. I also responded to the BMJ and they said they would publish my comment, not published yet.

    It was a given that Dr Squier would be re-instated in the High Court, her contributions to Humanity and Medical Science are not in question by anyone. But there is a far bigger issue that stems from the defaming and prosecution of Dr Squier, and many others, that urgently needs to be addressed.

    The question that this case raises is;
    – Why has Medicine degenerated into a Religion based on Faith and Belief?

    With regard to Science and Shaken Baby Syndrome, a recent survey found that most doctors believe that if an infant is shaken, that it will produce what is known as the Triad of signs and symptoms within the brain (1). And yet, what Science tells us is that an athletic male cannot generate sufficient forces to disrupt the Bridging Veins of the Dura Mater, but short falls can (2).

    I have struggled for years with the concept where two doctors could examine a patient and have completely opposing views. If we all adhered to the “Belief” that shaking a baby produces the Triad, it would leave no room for Scientists (such as Dr Squier), to raise questions. When they stray out of the “widely held beliefs”, they are branded Heretics, Deniers and Non Believers and their reputations are burned at the proverbial Stake. This is what Medicine has become.

    Science relies on questions and constant dialogue. With “Peer Review” a theory is either bolstered or ruined by constant attack. Anyone falling afoul of the Herd Thinking is to be reported to the GMC as a Denier and attacked personally rather than challenging their theories. Isn’t that called “Witch
    Hunting”?

    But we have to remember that the Witch Hunters of Salem, Mass. were good, God-fearing people even though they brutally killed their own citizens. Their faith in the Devil was equal to their faith in God. I have long been a proponent of Evidenced Based Medicine and a Forensic Diagnosis being
    reached before allegations being made.

    My position is SBS could not exist, not my opinion but scientific fact. In fact I would go further and suggest that any Physician who “Believes” it it possible to cause the Triad by shaking alone is dangerous to patients and shouldn’t be allowed to practice. SBS has never been more than an unproven hypothesis and the original theorist Dr Norman Gutkelch has never stood by.

    This theory, SBS, is dangerous because the dogma says that shaking an infant produces the Triad, but short falls from a couch or bed are not harmful, scientific experiments prove the complete opposite is true (3). Biomechanical studies prove beyond all doubt that even the most violent shaking can only produce 1/12th of the Acceleration as a short fall. There are documented cases now of physicians dismissing babies who have fallen from beds or couches and dismissed because the dogma. Indeed, even the factually incorrect information on the Crown Prosecution website (4) claims that short falls are not harmful. A theory, as yet unstudied, is that the Subdural bleeding builds up over days, increases Intra-cranial Pressure and causes Retinal Haemorrhage (Triad), will never be studied as long as 90% of physicians believe that short falls are not harmful. Even if you are not familiar with the mathematics involved in the Biomechanical studies by Lloyd et al, this short video should be sufficient to see that the current dogma “believed” by the 90% is incompatible with Science (5, or a longer version, 6). Science shows that falls produce 12 times more force than the most vigorous shaking. The Brain does not “float” within the skull, the “free space” is taken up with CSF which maintains a constant pressure. The brain cannot “bounce off” the skull and if it did would more likely produce Epidural rather than Subdural bleeding. Take an egg and shake it as hard as you like for as long as you like. When you break open the shell, the yolk will be intact. Now try dropping an egg from 3 feet (1M) onto concrete.

    Dogma must be replaced with Evidence Based Medicine. What we can also learn from Biomechanics is is that Helmets protect the head, but do not protect the brain. We have seen athletes such as boxers dying for years in the ring and wrongly believing that the punch and not the fall was the cause of death. As a physician, if you treat a baby who has fallen from a couch or a bed, don’t be guided in your diagnosis by dogma alone. Dr Gutkelch original theory on shaking was out of concern for babies dying for inexplicable reasons. We are no further ahead today in the study of
    Sudden Infant Death Syndrome, other than placing babies on their back, than we were 35 years ago suggested we look at shaking as a possible cause. Hundreds of caregivers have been caught on video violently shaking babies, and none of those babies suffered the Triad. In the hundreds of prosecutions for SBS, nobody has ever witnessed a baby being shaken where the baby was diagnosed with the Triad. They have even re-branded SBS into Abusive Head Trauma, the implication being that the Triad is caused by abusive trauma, thereby eliminating the possibility of the 21 other known causes of the Triad (7).

    My hope is that doctors will stop killing babies with junk science. While many are sceptical on SBS, sticking their head above the parapet leads to a Witch Hunt. Sweden has decided recently that SBS is unproven (8). Again, this is all reminiscent of a Moral Panic that occurred hundreds of years ago in Salem. 90% of people have an unshakable faith in a Devil, a Devil that Science has proven cannot exist.

    It is unbelievable that in 2016 that we are even having this conversation.

    Joe Burns
    Dublin, Ireland.

    1 http://psychcentral.com/news/2016/07/24/diagnosis-of-shaken-baby-syndrome-accepted-bymajority-of-physicians/107572.html
    2https://www.researchgate.net/publication/236530600_Biomechanical_Evaluation_of_Head_Kinematics_During_Infant_Shaking_Versus_Pediatric_Activities_of_Daily_Living
    3 https://www.youtube.com/watch?v=N7_gxIpiI08
    4 http://www.cps.gov.uk/legal/l_to_o/non_accidental_head_injury_cases/
    5 https://www.youtube.com/watch?v=N7_gxIpiI08
    6 https://www.youtube.com/watch?v=8xxR0MtCZj8
    7 https://onsbs.com/home/triad-only-defined/
    8 https://onsbs.com/2016/10/28/swedish-reviewdeclares-shaken-baby-theory-unproven

  6. Pingback: Successful Appeals Keep the Conversation Going | On Shaken Baby

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