Shaken Baby Debate: Steps Forward, Steps Backward

jasonschneider

Jason & his son

Part I of II

Amid a winter of murky news coverage and disappointing developments, an encouraging story comes out of Colorado, where the state dropped charges in January against father Jason Schneider after a mistrial due to a hung jury in December. Schneider, an EMT and former volunteer firefighter, has enjoyed the support of his family and community since the accusations last winter.

“There’s been so much rebuilding, and lots of celebration,” Jason reported, although his family is still reeling from a year of lurid press coverage, hardly balanced out by a couple of brief articles after the fact. “My wife and I know we are blessed,” he said, “but we are disillusioned with the justice system and the media,” and they worry about other accused families with fewer resources.

Jason had called 911 after his son seemed to choke on a bottle and quit breathing and Jason’s own efforts failed to revive him.

The state’s motion to drop the case—which was based on the triad with no other findings—referenced three letters written to the prosecutor after the trial from jurors, two urging the state to drop the charges. The jury had deadlocked 10-2, with the majority advocating for acquittal. In light of the juror input, the motion declared:

“…undersigned counsel simply does not believe there is a realistic likelihood of a jury composed of 12 different members of the community reaching a unanimous decision finding the defendant guilty.”

The Schneider family

The Schneider family

The judge placed one of the letters in the case file, from a panelist who wrote that many jurors thought the trial was a “poor prosecutorial decision” and the case should be dismissed. He attributed the hung jury to two jurors who approached deliberations “with a presumption of guilt instead of a presumption of innocence.”

The letter-writer, who said he had no preconceptions going into the trial, criticized some of the prosecution’s tactics, including the marginalizing of defense witnesses. He observed that the defense experts had years of experience and knew the research in their specialties, in contrast to the local experts called by the state:

“The inexperienced doctors at Children’s Hospital… believe the triad is gospel as far as Shaken Baby Syndrome/NAI [non-accidental trauma] is concerned. That is what they were taught… The specialists that the defense brought in are far from the only ones that share an alternate view. It was disgusting to hear you refer to them as ‘fringe.'”

Defense attorney Kathryn Stimson had brought in a pediatric ophthalmologist who specializes in retinas, a pediatric neurologist, a neuropathologist, a radiologist, and a biomechanical engineer. She said her team was devastated that the jury didn’t acquit after such a strong defense. “These cases are incredibly difficult,” she reflected. “Even with amazing expert and character witnesses, they are still so very hard.”

evaserenden

Eva Amurri Marino

Indeed, these cases are hard, even without devastating accusations of abuse, a point made by actress and blogger Eva Amurri Martino, daughter of Susan Sarandon and mother of two. Eva revealed in a January posting on her blog Happily Eva After that two months earlier, when her son Major was only a month old, the night nurse had fallen asleep while holding the baby, who had slipped off her lap and onto the hardwood floor.

At the hospital, doctors found a depressed skull fracture and “localized” brain bleeding. Eva and her husband hovered over their precious baby for “two harrowing days” of treatment and tests. “To say these were the most traumatic and anxious two days of my life is an understatement,” she wrote. But their son was then released with a glowing prognosis, and, indeed, he seems to be fine.

She didn’t write about the incident when it happened, Eva explained, because she wanted to wait until they knew Major was OK, and also:

“The second reason I chose not to share was fear of judgement… I know that this news might reach many, and of those many there will always be the people who say that this accident was my fault. That if it had been me in there holding him instead of a Night Nurse, that this never would have happened. That I deserve this for allowing my child to be in the care of somebody other than me. Well, let me tell you–the guilt I bore in the days and weeks after this accident was more intense and more damaging than anything I would wish upon my worst enemy. I had all those same thoughts and more. I wept in the hospital, telling anyone who would listen that it should have been me. That I was to blame. The truth is, even this woman who came so highly recommended, with a perfectly clean track record, could make a very human mistake. It “could happen to anyone”, and as they told me repeatedly in the hospital, it DOES happen to anyone. More often than you’d like to hear. Obviously, the (extremely upset and remorseful) nurse is no longer working for our family, though we forgive her. And even though I finally made peace with the fact that this freak accident could not have been avoided by me, it has continued to effect me to my core and in all aspects of my daily life.”

happilyevafamily

Major with his family

What dazzles me about this case is that the doctors seem to have accepted that a fall from a caretaker’s lap can produce a depressed skull fracture and, I’m extrapolating, subdural hematoma. In 2006 in San Mateo County, I watched a nanny convicted of child abuse based on those symptoms, also with no underlying brain damage. I have to wonder what made the difference—nothing in the posting implies there was ever any question of abuse.

Disappointment at Retrial

A jury in Maryland, meanwhile, has found child care provider Gail Dobson guilty in a second trial, nearly three years after her first conviction was reversed on a finding of ineffective assistance of counsel. Her attorney in 2010 had failed to call any medical experts to dispute the state’s theory, a strategy a 2014 appeals court labelled “deficient” after hearing testimony from two critics of shaking theory. News coverage of the second trial implies that the judge excluded defense expert testimony based on pretrial hearings, so jurors seem to have heard again from only one side in the debate.

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

Leo and Baylee

The Dobson conviction echoes the outcome this past fall in Michigan, where Leo Ackley was also found guilty at a second trial, after his first conviction was vacated on appeal in 2013. Both the appeal court and the second jury heard from defense experts brought in by the Michigan Innocence Clinic. Leo’s family insists he is innocent and says they are pushing for another appeal. I reached out to Leo, who wrote a long reply, including these thoughts:

“It’s really the hardest time of my life… I don’t know where to begin after being convicted for a second time, and knowing how long and hard it was to make it back the first time. Just preparing for another long appeal process and praying for a miracle.”

I am still hoping for a better outcome in the upcoming retrial of care provider René Bailey, whose conviction in a toddler’s death was vacated in 2014.  Jury selection begins September 5.

I have another thousand words queued up about this winter’s developments, but I think this first half is plenty for one blog posting. More soon.    -Sue

For Part II of this posting:  https://onsbs.com/2017/03/10/steps-forward-steps-backward-part-ii/

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

copyright 2017 Sue Luttner

15 Comments

Filed under abusive head trauma, AHT, parents accused

15 responses to “Shaken Baby Debate: Steps Forward, Steps Backward

  1. Mary Ranke

    I feel for these families,after going through this with my son. We were fortunate that our attorney brought in two very good doctors to prove my son was innocent, and the judge felt that there was not a crime committed. My grandson is fine now but what this did to our family was awful.

    • Thank you for posting, Mary. I am so glad your grandson recovered fully, and that your family was able to fight the charges successfully. Best wishes to you all.

  2. Jody Burns

    Thank you Sue for this update and your continuing efforts to bring wrongful SBS cases to the forefront. Your devoted work is invaluable and the support you give to the falsely accused and their families is priceless.

  3. Vicki Falsgraf

    Sue, thank you for your continued commitment to this cause. It is beyond my imagination what these families go through.

  4. Rae Ellen Rourke

    Sue…….appreciate all the current update, always praying for my innocent niece Michelle Heale and all others wrongly convicted with such a misdiagnosis.

    • Thank you so much for posting, Rae Ellen. I can’t think of Michelle’s case without flinching at the pain, the pointless and unnecessary pain, inflicted daily on her, her children, and her husband——but your note reminds me how large the circle of sadness really is, for each wrongfully convicted soul. I was shocked at the outcome of her trial (Does the Brain Injury Prove Abuse, or Not?). Please accept my best wishes for your family.

  5. Beth Fankhauser

    We so appreciate you Sue and your effort to keep the conversation going about the injustice and the insanity surrounding sbs, nat, aht (blah blah blah) and the devastation this myth continues to bring to the innocent and their families.

    • Thank you, Beth, for posting, and for speaking out on behalf of your daughter (Megan Griffith—whose case has now been taken on by the University of Kansas Law School Project for Innocence). I am so glad Megan’s children have you and John in their lives. (A note to other readers: I met Beth and John Fankhauser at the premiere showing of “The Syndrome,” in Kansas City in 2014.)

  6. It is so, so heartening to hear of a positive outcome. God bless his family and those enlightened souls with the courage to think outside the box.

    • I appreciate your staying in the conversation, Jon. You’re right, we must remember to appreciate the jurors who *didn’t* enter deliberations with the presumption of guilt instead of the presumption of innocence.

  7. Such a mixed bag of hope and disappointment! With medical evidence being similar in several cases, the challenge or difference in outcome appears as another mixed bag including environmental influences, socio-economics and so many other factors. The legal and medical communities need to stop this chicken and egg debate and get on the same page. That’s when real progress will be made. Thanks, Sue for these updates. May the success stories light the way and may we always rise from the downfalls.

  8. Pingback: Steps Forward, Steps Backward, Part II | On Shaken Baby

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