Category Archives: AHT

January 10, 2013 · 11:33 pm

The Slow Wheels of Justice—Or Is It a Treadmill?

The trial of accused father Hang Bin Li opened in New York yesterday, and Ernie Lopez  in Texas has accepted a plea bargain, both developments reflecting the determination and strength of the professionals who retain their faith in the classic model of shaken baby syndrome. But first:

VSTVenous Sinus Thrombosis in the News

The health problems of Secretary of State Hilary Clinton have brought venous sinus thrombosis (VST) into the headlines. Clinton was hospitalized earlier this month for anti-coagulation therapy, following the diagnosis of a clot with the potential to block blood flow from her brain. In an article in Residency Notes, Dr. Patrick Fitzsimmons speculates that the clot could be related to her fall in early December.

He writes that VST is associated with a number of “procoaguable states,” including trauma and inner ear infections, “but in at least 15% and perhaps as many as 30 or 40% of cases no underlying risk factor or etiology is identified.” He notes that the resulting back-up of cerebral spinal fluid can lead to raised intracranial pressure and cerebral edema, possibly leading to strokes, which “can even be hemorrhagic.” This analysis is consistent with news reports that Clinton’s blood clot could have been life-threatening.

Clot specialist Dr. Samuel Goldhaber reports in a video inspired by the news that clots like Clinton’s are “very rare,” estimating that his practice sees maybe six new cases a year.

Clinton’s prognosis is reportedly excellent—assuming the blood clot dissolves—largely because the clot was found during a follow-up MRI:  She never showed any neurological symptoms. Reporter Susan Donaldson James at ABC news quotes Dr. Brian D. Greenwald, medical director at JFK Johnson Rehabilitation Center for Head Injuries, “She is lucky being Hilary Clinton — lucky that her team thought to do it.”

One of the reasons I find all this so fascinating is that one of the speakers at the Boston conference this past fall characterized VST as the new “courtroom diagnosis” for SBS.

from KatieHolmes.com

from KatieHolmes.com

Hang Bin Li Trial Opens

Today’s New York  Post coverage of Hang Bin Li’s murder trial focused on a surprise appearance in the gallery by actress Katie Holmes, whose publicist told the press she was there to support her friend Leigh Bishop, the prosecutor. Holmes reportedly arrived wearing no makeup and in the company of an unnamed companion, and stayed through Bishop’s opening arguments.

New York Times reporters Corey Kilgannon and  Jeffrey E. Singer, who have been following the Lis’ case for at least a year, filed their usual high-quality report covering the opening statements of both sides and the testimony of the first witness, a long-time friend of the Lis. They write:

Li Dongyong, who is now a sushi chef in Toronto, testified in Chinese through an interpreter. He said that he knew both Mr. and Ms. Li, stretching back to elementary school in Fujian Province in China. And he set the stage for the events, saying that on the day Annie fell ill, he rushed to the apartment in Flushing and saw that the baby was pale and feverish, but that he never saw Mr. Li strike or otherwise physically harm the child.

The parents decided to wait before calling 911, he said, but shortly after midnight, he heard them frantically trying to wake Annie, who had turned blue and unresponsive. He said he saw Mr. Li trying to rouse the baby.

The Lis say 2-month-old Annie deteriorated for unknowns reasons. The prosecution says Hang Bin Li shook and slammed his daughter to death.

The article in today’s Times Ledger (serving Queens since 1919) leads with the support Hang Bin  and Ying Li have received from their community, and it covers both the defense and prosecution positions regarding the dropping of charges last week against Ying Li.

This web site offers ongoing updates on the trial and links to the Chinese-language coverage.

Ernie Lopez: Guilty of Felonious Cleaning

In Texas last week, Ernie Lopez pled guilty to a lesser charge rather than face a new trial and possibly more time in prison. His 2003 conviction for aggravated sexual assault of a 6-month-old girl was overturned last year, after his case was featured in a series on changing child-death forensics that ran in NPR, Frontline, and ProPublica. He was released last winter. This time, the prosecution was moving forward with a murder charge.

According to last week’s NPR report on the plea agreement, Lopez confessed to “injury to a child by causing serious bodily injury,” based on testimony from a polygraph expert that Lopez said he might have penetrated the girl while cleaning her up after a messy diaper. Lopez has denied making those statements in the past.

The plea agreement imposes restrictions on what Lopez may say about the case, so under the advice of his attorney he did not grant another interview with NPR. Joseph Shapiro’s coverage includes this observation, however:

Last year, Lopez explained that the first time he went to trial he believed innocent people don’t get convicted. Then he spent nine years in prison. This time, he would have had key medical experts and a more developed defense. Yet he still faced the risk of conviction.

Shapiro also quotes attorney Heather Kirkwood, who has been working on the Lopez case pro bono for years, “I don’t think any one of us believes he would be convicted. But in these cases, there’s no guarantee.”

The Amarillo Globe-News offers a more traditional slant on the story, with the headline, “Amarillo man admits shaking baby before she died.” While the commenters on the NPR web site have been reasonably sympathetic to Lopez, the Globe-News comment section brims with vitriol at a presumed abuser. One writer scorned the prosecutor for not pressing a case he wasn’t sure he could win.

Globe-News reporter Russell Anglin offered more details about the plea agreement:

As part of the plea agreement, Lopez was required to admit to the state’s allegations and agreed that the state could prosecute him again if he ever asserts that he did not commit the crime.

Lopez’s attorney, Bill McKinney, declined to answer questions about the case but did allow himself the comment, “The child died of a clotting disorder.”

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January 5, 2013 · 12:56 am

Charges Dropped Against Ying Li; Hang Bin Li Jury Selection Begins

Annie Li in 2007, courtesy the Li family

Annie Li in 2007, courtesy the Li family

The New York Post reports that manslaughter charges were dropped against Ying Li on Wednesday—the day before jury selection started in the trial of her husband Hang Bin Li, accused of shaking and slamming their infant daughter Annie to death in 2007. Ying Li was accused of not seeking help for the girl immediately after the presumed assault, which both Lis have maintained through four years of imprisonment never happened.

In the hearing to drop all charges, prosecutor Leigh Bishop said the doctors at Flushing Hospital had told her that Annie’s injuries were so severe that even immediate medical attention wouldn’t have saved the girl’s life. Reporter Christina Carrega quoted Bishop, “The people believe that they could sustain the endangering the welfare of a child charge, but since she spent four years in jail already, it would exceed the maximum sentence of one year if she was convicted.”

Supporters of the couple say that new medical evidence points to a genetic bone disorder as the cause of Annie’s meltdown. Hang Bin Li made headlines this past October, when he turned down a plea bargain that would have let him out of prison immediately.

“Ying’s dismissal is good news, but the battle is not over yet,” said supporter Michael Chu, who relayed this statement from Ying Li:

“They can lock us up for 50 years, but that’s not going to change the fact that Hang Bin and I are innocent… We’re powerless but we won’t shut up or give up. We’ll go all out seeking help to fight for our innocence!”

Jeffrey E. Singer and Corey Kilgannon at the New York Times published this excellent coverage last winter, and then provided more information in the spring, when Ying Li was released from prison after a bail reduction.

A press release from 2008 detailing the charges against the Lis cited a witness who said the child was exhibiting symptoms five hours before the call to 911.

I don’t find coverage of the upcoming trial in an English-language Google search, but a blogger who supports the couple reports that three Chinese-language news sites covered the partial jury selection this week. The blog says the trial is scheduled to start next Wednesday, Jan. 9, when I hope it will be covered in the papers I can read.

January Update:  Hang Bin Li was convicted in early February, as described at this post.

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December 29, 2012 · 11:50 pm

Fathers in the Cross-Hairs

courtesy the Aspelin family

Kristian Aspelin and the newborn Johan, 2010, courtesy the Aspelin family

Exonerated fathers are on a streak lately, after years of pain and struggle for the families involved.

Earlier this month NPR reported the dropping of felony assault charges against Kristian Aspelin, a San Francisco father of two who in 2011 said his 3-month-old son Johan had slipped out of his hands and onto the kitchen floor. The medical examiner rejected that explanation, concluding from the autopsy that the boy had been shaken and slammed to death.

Key to Aspelin’s legal victory, reporter Joseph Shapiro concludes, was having the resources to hire a quality defense team. By selling his house, cleaning out his savings, and borrowing from family and friends, Aspelin was able to present the prosecution with exonerating reports from six medical experts and a biomechanical engineer, plus a video re-enactment of the fall as he had originally reported it. Charges were dropped without a trial.

January 2014 Update:  San Franciscio station KPIX revisited the case, on the occasion of the Aspelin family’s welcoming triplets into the world.

diceSuing the County

In Las Vegas, meanwhile, a father found innocent at trial has filed suit against the county for continuing to keep him apart from his family after the verdict. In this touching story, Associated Press reporter Ken Ritter describes the faith and persistence of Nigerian immigrant Victor Fakoya, who enjoyed the support of his family and community through his two-year ordeal.

Fakoya had been home caring for his own two daughters and a 2-year-old boy, the son of a family who was living with them. He dialed 911 when the boy started vomiting.  The child died, with a skull fracture revealed at autopsy, and doctors concluded he had been assaulted immediately before his meltdown. According to the AP report:

The jury in [Fakoya’s] first trial deliberated two days but failed to reach a verdict. A second jury acquitted Fakoya. Five days later, county officials pressed a Family Court case against Fakoya, alleging that he was unfit to return to his own family because a child died as a result his abuse.

Fakoya has filed a suit for $10 million, naming “Clark County, the district attorney and Child Protective Services officials.”

Few suits like this one have succeeded in the past, but Anglican minister Rev. Dorian Baxter in Canada announced his victory last month over the Children’s Aid Society, achieved after he had illicitly recorded a meeting in which social workers admitted he was innocent of molesting his daughters but threatened to prosecute him if he didn’t agree to their conditions. He told his tale in a bit of a sermon, at this link.

Not Guilty Verdict, Unreported

The Arizona press seems to have missed the “not guilty” verdict in the trial of Robert Gilcrist, a young father who said he had dropped his daughter while removing her from her car seat. She seemed fine for several hours, he reported, but the next morning her breathing was not right and she did not seem to recognize him. When paramedics arrived, the girl was breathing normally, and she was rated as fully conscious on the Glasgow Coma Scale, 15 out of 15.

RedCactusHer condition deteriorated, however, and diagnositic scans revealed brain swelling, which peaked about 24 hours into hospitalization. She was left with permanent brain damage, and doctors concluded that a short fall could not cause such a serious injury. Their reports included opinions that “retinal hemorrhages indicate that there was a rotational component to this, such as may be seen with shaking” and “[i]f the victim suffered these injuries on Saturday evening, she would not have survived until Sunday morning.”

At the time, Gilcrist was living with his daughter in a church outreach home, and the infant’s mother was living in a motel across the street while enrolled in a rehabilitation program.

The exciting thing about this case is that the rights of an indigent defendant were respected in Phoenix, Arizona, where defense attorney Rick Tosto pulled together a team of experts including Dr. Steven Gabaeff, emergency medicine; Dr. Pat Barnes, pediatric neuroradiology; Dr. Jan Ophoven, forensic pathology; Dr. Khaled Tawansy, ophthalmology; and Dr. John Lloyd, biomechanics.

A Family at Last, Five Years Later

Finally, the Daily Mail in England reports on a family finally united after the father was wrongfully accused in 2007 of shaking the older of his two daughters. The girl made a complete recovery, and further examination of the medical records revealed that the incident could have been related to her difficult birth or a cyst in her throat, whose presence was not revealed to the original jury.

The good news is that all these fathers were ultimately exonerated. The bad news is that these prosecutions continue, seemingly unabated.

-Sue Luttner

If you are not familiar with the debate about shaken baby syndrome, please see the home page of this blog, at https://onsbs.com/. Unfortunately, child protection professionals also teach that a short fall can’t cause serious injury to a baby, which is a  misconception.

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December 9, 2012 · 3:40 am

Cracks in the Stone Wall

audreyCoverAs ill-considered and improbable shaken baby convictions accumulate, the stories of injustice find their way out.

It Happened to Audrey

Headlining this week’s good press, Audrey Edmunds’s book has hit the shelves. It Happend to Audrey, written with journalist Jill Wellington, is a from-the-heart dispatch from the front lines of the struggle.

Edmunds recounts her horror the morning a baby she was caring for seemed to choke on a bottle and quit breathing—and then her disbelief and terror as a diagnosis of shaken baby syndrome sent her to prison. Anyone who has been accused will recognize the warping of reality as investigators, social workers, and the courts accept the diagnosis, ignoring actual evidence that should have raised questions.

Four years after Edmunds’s conviction, the same medical examiner autopsied another little girl, who had been brought to the hospital with recurrent vomiting in the mid-morning. When the breathing problems and seizures started 17 hours later, medical imaging revealed a brain injury that had gone unnoticed all day by a series of medical professionals—a documented case of the “lucid interval.” Dr. Robert Huntington reported this case to a medical journal, and was forced to reconsider having testified to immediate symptoms at Edmunds’s trial. A state appeals court ultimately overturned her conviction in 2007, after years of work by law students under the direction of Keith Findley at the Wisconsin Innocence Project. Edmunds recalls her thoughts during a hearing along the way, as a series of child-abuse experts reiterated why they believed seven-month-old Natalie Beard had died from a violent assault at the hands of her last caregiver:

“No matter what their research, theories, formulas or experience said about Natalie Beard, there was only one truth:  I did not shake or inflict traumatic brain injury on that child. The state’s presentation was pure conjecture. I was always thoroughly beaten by the ongoing lies.”

katie

Katie Couric

Edmunds and Findley have taped a segment with Katie Couric, and are scheduled to appear on the Katie program tomorrow, Monday, December 10, at 3 pm, at least in my time zone.

Montana Innocence Project

Meanwhile in Montana, reporter Jessica Mayrer has published a well researched article in the Missoula Independent that considers the cases of three state inmates convicted of shaking infants.

Robert and Gabriel Wilkes, 2008

Dave Wilkes with Gabe, 2008, courtesy the Wilkes family

  • Robert James “Dave” Wilkes said his 3-month-old son Gabriel started making gurlging noises and then stopped breathing while lying on the floor of their new apartment. The prosecution convinced a jury that Wilkes had shaken his son to death. Now the Montana Innocence Project says their doctors have found evidence the boy suffered from a liver disease that could have caused his melt-down.
  • Michael Reim of Helena requested a trial by judge this year instead of by jury, because of the complex medical evidence against him. After listening to prosecution doctors who said Reim’s son had been shaken, and to defense doctors who said the boy suffered from a clotting disorder, the judge ruled that Reim was guilty of abusing his son.
  • Young mother and infant-care provider Nevada Ugalde of Billings said she left an 8-month-old in a crib while doing laundry on a June day in 2008, and returned to find him on the floor. At her trial, doctors testified that she must have assaulted the boy, as he couldn’t have suffered fatal injuries falling out of a crib 32 inches onto carpet.

Cathy Lynn Henderson

And in Texas the Court of Criminal Appeals has vacated Cathy Lynn Henderson’s 1995 conviction, also based on testimony that a short fall could not cause fatal injuries.  At her trial, Medical Examiner Dr. Roberto Bayardo had called Ms. Henderson’s account of dropping the baby onto a concrete floor “impossible” and “incredible” as an explanation for his injuries.

In 2007, however,  after reading Dr. John Plunkett’s paper on short pediatric falls and the evolving biomechanical literature, Dr Bayardo told the appeals court that he would no longer call the infant’s death a homicide but instead would list the cause of death as “undetermined.” Dr. Plunkett and a number of other experts also testified at the hearing. The court ruled in favor of Ms. Henderson, writing:

The court further found that Dr. Bayardo’s re-evaluation of his 1995 opinion is based on credible, new scientific evidence and constitutes a material exculpatory fact. The trial court concluded that applicant has proven by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of her new evidence.

Interrogation Tactics Under Fire

Finally, with thanks to The Amanda Truth Project for the story, a teenage mother in Massachusetts whose videotaped confession was thrown out last year is now suing the city of Worcester. Police sergeant Kevin Pageau and his partner had bullied and lied to Nga Truong during hours of interrogation the day after the death of her toddler son. Reporter David Boeri at WBUR in Boston, which had sued for the release of the interrogation tapes, quotes the tapes and comments on them in his report:

Pageau: “Somebody hurt that baby, and we need to know who it was, and we’re going to find out who it was — either the hard way or the easy way.”

Truong: “I’m telling you everything.”

Pageau: “No, you’re not. Stop. Don’t lie to me.”

The detectives had no evidence. And the autopsy stated no cause of death. But the two detectives knowingly and deliberately told the teenager otherwise:

Pageau: “‘Cause that medical examiner told me that that baby was smothered. Does that change your story? We have scientific evidence that that boy was smothered to death.”

Pageau was not telling the truth, as he later testified. Lying to witnesses is often part of the playbook for detectives. But Superior Court Judge Janet Kenton-Walker would later rule that the detectives went beyond making knowingly false statements. She found they engaged in a pattern of deception, trickery and implied promises targeting “a frightened, meek, emotionally compromised teenager who never understood the implications of her statements.”

-Sue Luttner

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

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December 3, 2012 · 9:32 am

A Critical Look at a Key Witness

Photo by Cheryl Havared Harrell

Photo by Cheryl Havard Harrell

The case of Jeffrey Havard in Mississippi could be the tip of a wrongful-conviction iceberg, according to an excellent in-depth report by Radley Balko at the Huffington Post.

Havard has been on death row since 2002, convicted of murdering the 6-month-old daughter of his girl friend. Havard said he was lifting the little girl from the tub after a bath when she slipped from his hands, hitting her head on the toilet as she fell. Private medical examiner Dr. Steven Hayne, however, concluded the girl had died of shaken baby syndrome. The Mississippi Innocence Project has been fighting the conviction.

The reporter calls SBS “a diagnosis that comes with the implication that the last person to be alone with the child was the one who killed her,” observing:

“Because the symptoms can only be produced by violent shaking, the diagnosis also comes with a built-in indictment of the suspect’s state of mind. It’s a diagnosis that does much of the prosecutor’s work for him.”

Balko has written about Hayne several times over the past decade, as the medical examiner has become more controversial. Hayne has apparently been the favorite pathologist of Mississippi prosecutors for years, reliably providing autopsy reports and testimony that work in the courtroom. New information about Hayne is now available—ironically, through the discovery phase of a defamation suit Hayne pressed against the Missippi Innocence Project after they started questioning his work. Balko writes:

“What they’ve found since implicates not only Hayne, but a host of police officials, prosecutors, even judges who knew Hayne was deficient and offering dubious testimony, but did nothing to stop it. ‘We’ve known for a while that there was a problem here,’ says Tucker Carrington, the director of the project. ‘But I really had no concept of the depth and breadth of the malfeasance. This isn’t just Hayne. It’s … well, it’s almost everybody. The state has known all along that it was pulling the wool over everyone’s eyes.'”

According to Balko, Hayne was already under a serious cloud at the time of Havard’s trial, yet the court refused Havard the money to pay for a second opinion. The story is astonishing, and I recommend reading it:  http://www.huffingtonpost.com/radley-balko/steven-hayne-jeffrey-havard_b_2213976.html

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November 29, 2012 · 3:08 pm

Another SBS Tragedy, Reflected and Amplified

I want to cry. I want to scream.

The November 26 issue of The New Yorker features a disturbing essay by a young man still reeling from the shock he faced in 2007, when his mother was convicted of shaking an infant she’d been babysitting. Victor Zapana would like to believe his mother is innocent, it seems, but he leans toward guilt.

According to the article, Zapana is the only child of a singular marriage: His father emigrated to the U.S. from Peru in the 1980s and joined the military as a route to citizenship. He met his wife, the author’s mother, while on a tour of duty in South Korea. His native language is Spanish, hers is Korean, and the couple communicates with each other in imperfect English—as their son describes it, “half thoughts, mangled clichés, fragments lacking prepositions.”

In March of 1999, when Victor Zapana was nine years old, his mother was caring for an eight-month-old baby in their home, a job she’d had for five months. She said the boy’s left hand started to shake, as if he was having a seizure, and she called the child’s mother to come pick him up and take him to the hospital. The boy was, indeed, seizing, and the incident left with him permanent and profound brain damage. Doctors diagnosed shaken baby syndrome.

Zapana was on a field trip with his fourth-grade class that afternoon. He claims no memory of sitting at the police station later that night, reportedly in tears, while police questioned his mother. The trial was delayed eight years for various reasons—including his father’s deployment to Iraq—and during the interval, Zapana’s parents didn’t tell him about the pending charges. He learned about the trial only after his mother had been found guilty and remanded to custody. He writes of those first conversations with his parents, in which his father tried to explain the unexplainable:

“Mom has lost a criminal case,” he said, “She’s going to jail.”

What criminal case?

“Mom didn’t want to make you worried,” Papá said. “She wanted to protect you. Everything is going to be all right.”

The verdict made no sense, Papá continued. She had told him she didn’t do it. He knew she didn’t do  it. Calling collect from Rikers a few days later, my mother told me, sobbing, that she was innocent. Feigning composure, I told her that I loved her and hoped to see her soon. I couldn’t bear to say that I didn’t believe her. The question of her guilt was bound up for me in a larger betrayal:  the very fact that the trial was taking place had been kept from me. Maybe she’d wanted to protect me, but it felt like an act of deception, a family conspiracy. How could I believe her?

After a few years, he writes, “I began to feel that I wasn’t being fair to my mother…. I hadn’t seen what happened. I’d read only the news stories and blog posts, and I hadn’t spent much time even with these:  looking at them made me physically sick.”

A college student at that point, he started reading the court documents and trial transcripts, and was disappointed to find nothing that he thought definitively proved his mother either guilty or innocent. The prosecution had called to the stand a series of medical experts who agreed that the child must have been shaken, immediately before the seizures started. After taking out a second mortgage to pay for legal fees, Zapana’s father could afford to hire one pediatric neurologist, who testified that the assault could have occurred before the child was in Ms. Zapana’s care. The expert had reached his conclusions based on a single CAT scan, however, and had reviewed neither the follow-up MRI nor the medical records, and the prosecution easily undermined his credibility on cross-examination.

Zapana also read about child-care provider Audrey Edmunds, freed in 2008 after the Wisconsin Innocence Project took up her case. The appeal was based on new evidence in support of the “lucid interval,” the same defense his mother’s attorney had used, unsuccessfully. Zapana learned that other Innocence Projects across the country were taking on shaken baby cases, but he remained unconvinced, writing,”Still, the new research only opens possibilities. It might establish reasonable doubt, but for a son craving certainty it proves neither guilt nor innocence.”

Zapana’s  mother is getting out early next year, and has instructed his father to sell their house:  She wants to start a new life.

“I wish I could move on as well,” Zapana writes, “but reading the testimony has forced me to recognize that I may  never know what happend on March 3, 1999…. Occasionally, I consider the possibility that [my mother] was wronged.”

My heart breaks for everyone in this story:  The author, who came of age under a looming cloud he must have felt but knew nothing about; his mother, who I’m guessing believed she would be found innocent, and who I hope doesn’t read her son’s essay; the author’s father, a military veteran who’s holding it together, not easily but apparently without complaint; the disabled child and his family, whose chances for normal lives have all been lost, and their hearts embittered by what could easily be a misdiagnosis.

The essay doesn’t offer many medical details, mentioning only bleeding and swelling of the brain and “massive” retinal hemorrhages. I conclude that this shaking diagnosis was based entirely on the brain injury, with  no bruising, fractures, grip marks, or other signs of assault—exactly the kind of troubling shaken baby conviction that Professor Deborah Tuerkheimer was writing about in her 2009 New York Times op ed piece, Anatomy of a Misdiagnosis.

I’m hoping the author keeps researching. It doesn’t sound like he’s read Tuerkheimer’s law-review articles on the subject, such as  The Next Innocence Project:  Shaken Baby Syndrome and the Criminal Courts. Maybe he will find the profile of Dr. John Plunkett in Minnesota Medicine and the analysis of shaken baby syndrome soon to be published in the Houston Journal of Health Law and Policy, now available at this link: Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence:  Getting It Right.

Mostly I  hope his family has the chance to heal from the shattering of faith they’ve suffered, at the hands of sincere physicians and prosecutors who have been trained with a widely accepted but inaccurate model of a complex physiological condition.

-Sue Luttner

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

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November 15, 2012 · 5:49 pm

Old Theories Die Hard

The Wrongful Convictions blog has pointed out a careful and well-researched article by Michael Barajas at the San Antonio Current, featuring four women found guilty in 1997 and 1998 of aggravated sexual assault on two sisters, 7 and 9 years old at the time. During a week-long visit with their aunt, prosecutors said, in between trips to the pool and to Walmart, the girls had been held down by the women and raped repeatedly with small objects: syringes, vials of white powder, a gun.

Two years ago the Innocence Project of Texas took up the cases of the “San Antonio Four,” a group of friends who have maintained their innocence throughout long prison terms. One of the presumed victims, now an adult, has recanted her tale, which she says was coerced by her father after the visit.

Dr. Nancy Kellogg, head of the child-abuse unit at the Univeristy of Texas Health Science Center, testified during the trials that the thickness of the sisters’ hymens was a sign of trauma, and that reddening of the younger girl’s hymen was evidence of assault and a white line on the older girl’s was a scar. While child-abuse experts once taught that such findings resulted from sexual encounters, by the late 1990s methodical clinical examinations had revealed that normal hymens come in all shapes and sizes, with features that include streaks, fringes, bumps, and even perforations. The findings listed in Kellogg’s reports  are now considered “normal,” as they were by most experts at the time of the trial.

Outside the jury’s hearing, Dr. Kellogg had also testified that the unusual situation of multiple female perpetrators made her think it was a case of Satanic ritual abuse. Like Dr. Kellogg’s opinions on pre-adolescent genitalia, belief in child sexual abuse by Satanic cults had also been discredited by 1997:  In 1991, FBI special agent Kenneth Lanning published a landmark statement in the journal Child Abuse and Neglect, in which he reflected on eight years of looking unsuccessfully for evidence of the bloody rituals commonly reported in cult-abuse cases. Lanning’s objection was that child sexual abuse is a real problem, and blaming it on elusive cults wastes resources and impedes the credibility of the child-protection movement.  For my own research into this arena, see chapter 3 of my upcoming book.

Dr. Kellog was and is an active and respected member of the child-protection community, as chronicled on her UT faculty web profile. She was the lead author on the 2007 clinical report from the American Academy of Pediatrics Committee on Child Abuse and Neglect, “Evaluation of Suspected Child Physical Abuse,” published in the journal Pediatrics and quoted regularly. I’m thinking it’s a safe bet that she had read Lanning’s work at the time of her 1997 testimony, and I conclude she had not yet abandoned her faith in the reality of Satanic ritual abuse.

Looking for the silver lining in all this, I propose that the same reluctance to change one’s mind is at work in the shaken baby syndrome debacle. In the 1980s, a wave of pre-school teachers and other caretakers went to jail based on bizarre and lurid tales of cult abuse, and uncounted pre-schools simply closed as the witch hunts spread. Now the Innocence Project of Texas is revisiting one of the last convictions based on medical and social beliefs that were accepted at the time but have since been abandoned. I fear that the misconceptions about shaken baby syndrome will be harder to overcome, both because the concept is more plausible than human sacrifices in secret underground tunnels and because the convictions have been going on for so long that the theory seems to its adherents to have been proven.

The good news since the 1980s is two-fold:  First, there is an Innocence Project of Texas willing to re-open these cases in San Antonio, which, like shaken baby prosecutions, hinged on sincere but unproven medical opinion. Second, the community of child-protection experts has changed course in the past, even after sending people to prison on the basis of accepted but flawed common knowledge.

It won’t be easy, but I’m hoping they can do it again.

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

-Sue Luttner

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November 6, 2012 · 4:49 pm

Witnessed Shaking: Reports and Reflections

Police in Concord, New Hampshire, reported last week that a woman had brought them a 3-month-old baby whom she had seen being shaken. According to  WMUR, Channel 9, police took the child to the hospital, where doctors found bruising on the child’s ribs but apparently no brain injuries. The Union Leader coverage adds that the witness is not the child’s mother.

This case prompted a colleague of mine to pull out her notes from a talk given in 1996 at the First National Conference on Shaken Baby Syndrome, in Salt Lake City, Utah, by a team from from the Children’s Hospitals and Clinics of Minnesota.

With pediatrician Dr. Carolyn Levitt, case director Julie Pape had collected 12 cases in which children under the age of two were brought to the child-protection team for evaluation after witnesses reported seeing them shaken. These children were examined not because of physical signs or symptoms, Pape emphasized, but because of the witnessed assault. “Those people who were observing the events felt as though that episode of shaking had to be significant enough or violent enough to cause injury in the child.”

All of the children had complete skeletal x-rays, and six of them had both CT scans and retinal exams:  No subdural hematomas, brain swelling, or retinal hemorrhages were found in any of the children, although bruises and fractures were found in some.

The cases:

  • A 19-year-old uncle left alone with a 7-week-old told the child’s mother that he had shaken the baby. He reported shaking the infant four or five times, after which “he became scared, because he thought that he may have injured the baby.” The only physical finding was a bruise on the child’s ankle, which the uncle acknowledged he may have caused when he picked up the baby.
  • A suicidal teen-aged mother reported shaking her 5-month-old son. Examination revealed old soft-tissue injuries, some bruising, and a burn.
  • An employee at a juvenile residential home reported seeing a young mother shake her 6-week-old daughter. A bone scan revealed three leg fractures but the CT scan and retinal exam were negative.
  • A bank teller reported seeing a mother shake her 12-month-old daughter in a stroller. Doctors found no broken bones or soft-tissue damage.
  • A mother brought her 17-month-old daughter to the clinic with a report that she had seen the biological father shake and spank the girl. The skeletal survey was negative, and old bruises were inconclusive for abuse.
  • A single mother called her own father and told him she had shaken her 8-month-old daugher, in her walker. The grandfather called the child’s pediatrician, who reported the case to CPS. A skeletal exam, a CT scan, and a retinal exam produced no physical findings.
  • A mother reported she had seen the father of her 4-month-old son shake the infant. The father’s hands were around the child’s rib cage, she said, and the boy’s head was “bobbing back and forth.” The skeletal, CT, and retinal exams were all negative.
  • During a hospital visit for a burn injury, the mother of an 11-month-old patient reported that she had seen the boy’s father shake him 10 months earlier, when the infant was one month old. The skeletal survey, CT scan, and retinal exam were negative, but the boy had some soft tissue injury.
  • A mother brought in her 17-month-old daughter after a visitation with the girl’s father, because of bruises. The grandparents reported that they had seen the father shaking the girl on previous occasions. A skeletal survey revealed healing  arm and leg fractures.
  • The paternal grandparents of a 17-month-old boy and a 5-month-old girl called CPS to say they’d seen the children’s mother shaking them and throwing them onto the couch while the three were visiting. The children were removed from the mother at the AMTRAK station. Skeletal surveys showed no fractures, and doctors found no bruising.
  • A mother reported seeing the father of her 9-month-old daughter shake the little girl during an argument that also involved a gun to the mother’s head. The child protection team did a skeletal survey, head CT, and retinal exam, “and as is consistent with many of the other kids in this study, we did not find any physical findings,” Pape reported.

None of the 12 children was admitted to the hospital, although one returned for a follow-up bone scan.

Noting that “children who have a history of being shaken do not always sustain physical injury,” Pape advocated a “consistent medical approach” to these cases, as further examination did uncover evidence of past abuse in some cases.

“We also need to listen to these histories and not ignore them,” Pape said. “If a parent is saying, or if anyone is saying, that they have witnessed an act that is violent enough that they think this child could be injured, we need to pay attention to that. And that’s not necessarily because we think these might be shaken babies, because obviously we are learning that this is not how children who are diagnosed with SBS present. However, these children might be children who are battered and at risk.”

Also, if these really are shaken babies, Pape clarified, “We don’t want these children to go on and then have physical findings because someone may have shaken this child and then decided that if I shook the child this hard and it didn’t have physical findings then it should be OK.”

This study doesn’t seem to have been published, and I haven’t seen anything like it in the literature. As far as I know, there have been no witnessed shakings that were followed by findings of brain swelling and brain bleeding. If anyone knows of one, please leave a comment.

I’ve seen nanny-cam footage of violent treatment that seems to include shaking (this YouTube video, for example [now deleted], and this footage from India [also deleted], and news reports of the resulting prosecutions (like this one).  Has any of these cases ever resulted in the triad?

Curiouser and curiouser.

Spring 2014 update:   Although I’m not comfortable with how the nurse is handling the baby in this murky report from Tomo News, it doesn’t look as violent to me as the narrator and commenters describe.

Fall 2015 update: An Alabama television station reports that a day care worker was fired after a parent saw her shaking a toddler via an on-line video feed. Doctors found no injuries.

Winter 2016-17:  Two more reported cases of witnessed shaking with no injury:

Winter 2018-19: Alas, I’ve had to delete quite a few links to surprising and unsettling videos no longer on line—all resulting in no injuries. But we have two new entries:

copyright 2012, Sue Luttner

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

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November 6, 2012 · 11:05 am

A Word From the Hangbin and Ying Li Rescue Committee

The second-degree murder trial of Hangbin Li, the immigrant father in the news last month for turning down a generous plea bargain,  has been postponed due to the storms in New York, but is now scheduled for later this week.

Mid-November update: The trial is now scheduled for January, 2013.

Hangbin Li and his common-law wife Ying Li were accused of shaking their daughter Annie to death in 2008. While the couple has spent years in jail, denying the charges and waiting for trial, their community has rallied around them. Now their friend Michael Chu has released a statement of support, which he hopes to distribute widely before trial, on behalf of the Hangbin and Ying Li Rescue Committee:

Shaken Baby Syndrome Accusations:
A Modern Day Witch Hunt?

Abuse of children is a real problem. People who commit the crime deserve the full fury of law. However, it is very important that evidence based science instead of the old SBS dogma be used in distinguishing cases where abuse actually occurs as opposed to trauma occurring for other reasons. In the Li’s case, 5 months after the passing away of their beloved daughter Annie, and still in deep bereavement over the loss of their beloved child, Hangbin and Ying were incarcerated, not knowing why.

Last month (October), which is almost 5 years after their initial incarceration, Hangbin was offered a plea bargain which was really tempting. This poor young man was offered the choice of immediate freedom at the price of his innocence. The mental torture he suffered was inhumane. “To be or not to be, that is the question.” He called family members, supporters and friends for advice. He asked me and my wife, “If I were your son, what would you tell me?” We cried. Oh God, what this man has suffered I would not wish my worst enemy to go through.

Finally, Hang Bin made a decision. While he almost ended up accepting the offer, a sudden idea struck him. As a victim of false SBS allegations, he felt that no one else should suffer as he did. From various literatures, he had learned that the number of people who have been wrongly accused of SBS is far more than he imagined. He started to ask himself these questions: Does this (false allegation/conviction) have to go on and on? Why do I have to admit to something I did not do? Do innocent people have to be accused and convicted of something they have not done and do nothing about it? On top of that, he has already lost Annie; he can’t afford to lose Ying and his second daughter Angela (he will be deported when the court releases him if he admits to any charge against him). They are the love of his life.

Baby Annie was born with mutated gene and had spent her first few days in the NICU. In a DNA test done on Annie’s tissue a couple of months back, defective gene relating to OI (Osteogenesis Imperfecta) had been detected. “ It would be important to understand other inherited conditions in Annie’s family that might have created a situation that looked like shaken baby syndrome but was in fact, attributed to something else,” said Dr. Sessions Cole, director of newborn medicine at St. Louis Children’s Hospital.

If one would just spend some time researching the SBS literature and talk to the wrongly accused in depth, he/she will be taken aback at the absurdity of the triad based SBS assumptions which the prosecutors resorted to in the conviction of many parents/caregivers. You can’t help but ask one question again and again: Given the wide array of solid scientific research that questions the validity of SBS theory, why does the judicial system still choose to turn a deaf ear to evidence based science? Even former supporters of the SBS theory such as the renowned Dr. Norman Guthkelch and Dr. Patrick Barnes, are now advising caution before choosing a SBS diagnosis. Dr. Guthkelch is credited with founding the syndrome in 1971.

How can the criminal justice system and law enforcement officers, hold high the banner of justice on one hand, but on the other, refuse to look at truth? How many ears must one law officer have before he can hear innocent people cry? How many wrongful imprisonments will it take till he knows that too many people have been falsely convicted? This is a very serious question that every concerned citizen should think about. The protection of children is a measure of society’s progress. There are people who abuse children. They should be given the gravest penalty that the law allows. But do we have the right to punish the innocent just because we know that there are heinous child abusers out there so that scarifying the innocent can be justified in the name of protecting children? A humanistic society should not allow that.

We need a rigid diagnostic protocol to be applied to SBS cases to prevent medical professionals from jumping to conclusions as soon as they see the 3 symptoms of shaken baby syndrome. Dr. Guthkelch says it’s time to get all interested parties together to get them to agree on what can be said with scientific certainty about shaken baby syndrome. How much longer do we have to wait until this is accomplished? The sword of Damocles could fall on anyone as long as the triad based diagnosis is allowed to reign supreme.

Hangbin & Ying Li Rescue Committee/Michael Chu

For more information on this case, see the New York Times coverage from last winter, at http://www.nytimes.com/2012/01/15/nyregion/what-happened-to-baby-annie.html?pagewanted=1&_r=2&sq=li%20hangbin&st=cse&scp=1

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Filed under abusive head trauma, AHT, Hangbin Li, parents accused, SBS, shaken baby syndrome, Ying Li

October 29, 2012 · 3:24 pm

Case Dismissed Against Drayton Witt

Drayton Witt and his wife, after his release in the spring

The Arizona Superior Court dismissed charges today against Drayton Witt, convicted in 2002 of second-degree murder in the death of his son Steven, the Arizona Justice Project has announced.

As reported in the Arizona Republic in September, Steven Witt suffered a short lifetime of health challenges, starting with breathing problems at birth and including unexplained seizures that had him hospitalized for a week when he was four months old. At five months, he suffered another seizure while in the care of his father and collapsed.

Despite Steven’s health history, doctors at the Phoenix Children’s Hospital insisted that bleeding and swelling found in the boy’s brain meant he’d been abused, and Drayton Witt was convicted of second-degree murder. The Arizona Justice Project took up his case in 2008, under the leadership of attorney Carrie Sperling.

In the spring of 2012, Witt’s legal team petitioned successfully to vacate his conviction. The state did not oppose that decision, but began moving to retry the case. Then last week the district attorney’s office filed a motion to dismiss the charges without prejudice. This morning the court approved that motion, but specified that the dismissal was “with prejudice,” meaning that the state is barred from pressing this case again.

I wrote a bit more about this case earlier in the year, in this post.

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Filed under abusive head trauma, AHT, Drayton Witt, parents accused, SBS, shaken baby syndrome