Category Archives: Innocence Network

“Dissent Into Confusion:” The Supreme Court, Denialism, and Shaken Baby

Atlanta, Georgia, September 2010

Atlanta, Georgia
Site of the 11th International Conference on Shaken Baby Syndrome/Abusive Head Trauma
September 2010

bold article in the Utah Law Review by Prof. Joëlle Anne Moreno at the Florida International University College of Law and prosecutor Brian Holmgren in Tennessee not only dismisses the debate about shaken baby syndrome as a “false controversy” but also labels SBS defense experts as “mercenaries” and roasts Supreme Court Justice Ruth Bader Ginsburg for her dissenting opinion when the court reinstated the vacated conviction of grandmother Shirley Ree Smith in 2011.

Dissent Into Confusion:  The Supreme Court, Denialism, and the False ‘Scientific’ Controversy Over Shaken Baby Syndrome” explores a couple of topics I’ve heard Holmgren address in the past, and it reminds me of his rollicking presentation in Atlanta in 2010, which I will get to later in this posting. The Dissent paper correctly identifies the 1997 trial of British au pair Louise Woodward as a  milestone in the arena, achieving far more than just bringing the syndrome into the headlines. Their analysis:

“The hotly contested trial also brought national attention to the use of highly paid defense medical witnesses to challenge the accuracy of a child abuse diagnosis and to advance outlier and highly controversial ‘alternative theories’ of causation… Woodward marks the origin of the false AHT/SBS controversy—at least in part because the defendant, who was convicted of second-degree murder by a jury, was later freed by the judge.  This fact alone could explain the resulting public uncertainty regarding the weight of the prosecution’s medical evidence. Irresponsible journalists, however, including Mike Wallace of 60 Minutes, exacerbated the confusion.”

scalesI agree that the Woodward trial brought a new kind of medical evidence to the courtroom, but I would call it a vital counterbalance to the common knowledge. The au pair agency that had placed the nanny, or possibly their insurance company, paid for first-rate attorneys who brought in experts with impeccable credentials. In his decision to set Woodward’s sentence at time served, Judge Hiller Zobel cited the nanny’s confusion, inexperience, and immaturity. I have to wonder if he wasn’t also influenced by the testimony of witnesses like biomechanics pioneer Lawrence Thibault, ScD, who had designed the experimental mannequins for the Duhaime research that raised the first scientific questions about shaking theory in the 1980s, and pioneering neurosurgeon Ayoub Ommaya, who had collaborated with Thibault long before the Duahime study. The televised trial certainly featured a more organized and  better articulated defense than the 1997 trial that drew me into this arena, or any of the others I’ve researched from that era, especially Shirley Ree Smith’s.

As in Woodward, the prosecution prevailed in Smith, only to see the defendant released after all, amid media coverage that seemed to imply innocence. Smith was convicted in 1997 but released in 2006, after the Ninth Circuit  Court of Appeals vacated the jury’s decision. The Supreme Court reinstated her conviction in 2011, but the following spring California Gov. Jerry Brown issued a pardon, so Smith was not required to return to prison and finish her sentence. Moreno and Holmgren promise to set the record straight by dispelling what they see as two fundamental errors in the dissenting opinion to the Supreme Court decision:  that Smith’s grandson Etzel Glass showed “few signs of SBS” and that “doubt has increased within the medical community regarding SBS.”

“Few signs of SBS”

-photo by Julia Catron

-photo by Julia Catron

As the Dissent paper concedes, the autopsy report says Etzel had subdural and subarachnoid bleeding but no brain swelling and no retinal hemorrhages. Doctors also found blood in the optic nerve sheaths, most of it “recent in origin” but with “occasional hemosiderin pigment deposits” that implied decomposed blood. Only one of these signs—subdural hematoma—is technically on the short list of defining SBS symptoms, although some sources include “subdural or subarachnoid” bleeding, as both are a common result of impact injury, except that subarachnoid bleeding has more known non-traumatic causes than subdural bleeding.

At Smith’s trial, forensic pathologist Dr. Stephanie Ehrich, her supervisor Dr. Eugene Carpenter, and child-abuse pediatrician Dr. David Chadwick all testified that Etzel had died of a shaking assault that tore his brainstem, causing death so immediate that there was no time for the usual signs of SBS to develop. But autopsy revealed no evidence of any tearing, which apparently Erlich believed to be within the brainstem, which she didn’t examine. Moreno and Holmgren write:

“Dr. Erlich noted that she did not submit sections of Etzel’s brainstem for microscopic examination because injury would not be evident on microscopic examination if the child died quickly, and this would not have assisted in her diagnosis because the examiners ‘wouldn’t have found anything anyway.'”

The authors note that the “medical construct” of AHT “can include subdural hemorrhage, retinal hemorrhage, encephalopathy, and often evidence of previous trauma or other bodily injury.” Granted that Etzel had two items on this list, subdural hematoma and evidence of previous trauma, the overall picture is still short two out of three defining features for SBS. The authors do convince me that they and the prosecution experts all sincerely believe Etzel was shaken to death, but I can identify only one leg of the triad and no reason to conclude that Shirley Smith was responsible for her grandson’s collapse. Did Etzel really cry long and hard enough that his grandmother snapped and shook him to death while his mother, asleep in the next room, never heard a thing?

“Doubt Has Increased”

The Dissent paper also blasts the Edmunds decision, which triggered the 2009 critique of shaken baby in the courtroom by law professor Deborah Tuerkheimer and appears in articles like the 2012 paper by Keith Findley et al. The authors explain:

“Justice Ginsburg notably did not cite any of these law review articles. However, because her opinion closely mirrors these works, she grants an unwarranted imprimatur of legitimacy to legal academic arguments that SBS ‘quite possibly does not exist,’ may be ‘junk science,’ that ‘SBS science in its current conflicted state . . . does not support criminal convictions,’ and that the medical community has ‘deliberately discarded a diagnosis defined by shaking.'”

Moreno and Holmgren attribute the imaginary debate about shaken baby syndrome to a small cadre of “self-interested and highly-paid defense witnesses” who “fundamentally misconstrue and misstate the basic science involved in the medical diagnosis of child abuse” and whose views are then parroted by academics:

“The academics cite the same handful of defense medical witnesses, the media cites both, the defense medical witnesses benefit from the publicity and are hired in more cases, and the cycle begins anew.”

Holmgren elaborated on this theme at the 2010 NCSBS conference, in a multimedia presentation that illustrated how effective he must be in front of a jury. He projected a series of quotes from defense expert testimony while Pinnochio’s nose grew on a larger screen behind him. He charged the witnesses with giving conflicting opinions at different times, misrepresenting their qualifications, misquoting the literature, publishing case studies without revealing their roles as defense witnesses, publishing cases of alleged mimics without revealing that abuse was confirmed by a conviction, and “making blatantly false statements.” scarecrow

The session ended with a sing-along, led by guitar-playing child-abuse pediatrician Dr. John Stirling from Santa Clara County. The song was “If I Only Get Ten Grand” (words here), sung to the tune of “If I Only Had a Brain,” with the message that defense experts are in it for the money. I can speak only from my own experience, but the professionals I know who defend against shaking allegations could be earning a lot more and enduring a lot less flak by staying away from the controversy. And most defendants are having trouble paying the rent in the face of lost income and unexpected legal costs, let alone finding the money for expensive experts.

Holmgren also foreshadowed parts of the Disssent paper in his presentation on the Smith case at the 2012 NCSBS conference, “SBS and the Supreme Court,” in conjunction with child-abuse pediatrician Dr. Randell Alexander. Holmgren opened his segment with a review of the appeals:  Smith was convicted in 1997, and her first appeal was rejected in 2000. Her 2006 habeas petition was denied by a district court, but the Ninth Circuit Court of Appeals reversed that decision. “This always bothers me,” Holmgren said about multiple appeals, “as if the jurors are too stupid to get it right, as if the district attorney is too stupid to get it right.” The Supreme Court reversed the Ninth Circuit twice, in 2007 and 2010, but the Ninth Circuit stuck by its decision. “The Supreme Court keeps slapping them down like an unruly child,” Holmgren noted.

Finally, in 2011, the Supreme Court definitively reversed the Ninth Court’s 2006 ruling, and Smith’s conviction was reinstated, but with the problematic minority opinion. Holmgren stepped through the literature cited in the footnotes—Donohoe 2001, Bandak 2005, Leestma 2006, and so on—dismissing each in turn, and indignant that a justice of the supreme court would be getting her information from defense experts. His conclusion with Moreno in the Dissent paper confirms that Holmgren is holding strong to that position:

“The Smith dissenters’ myopic view of the evidence muddies their analysis of the legal and scientific questions and raises real concerns about the message sent to future courts, the media, and the public.”

I don’t see how the Dissent paper is gong to enhance either understanding or justice in these cases, as I think we need to be learning more about infant head injury, not setting up barricades against further discussion. ©2014 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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Filed under abusive head trauma, AHT, Falsely accused, Innocence Network, keith findley, National Center on Shaken Baby Syndrome, parents accused, russell maze, SBS, shaken baby syndrome

Forward, Into the Book Stores

audreyCover

Audrey Edmunds’s book was released in late 2012.

Just three years ago, the only books I could find about shaken baby syndrome told the prosecution’s story: Medical texts offered confident advice about  symptoms and  timing [1]. One  guide for practitioners, The Shaken Baby Syndrome: A Multi-Disciplinary Approach, specifically recommended the kind of seamless co-operation among hospitals, social services, and the police that has been winning convictions in these cases for thirty years and counting [2]. And a number of personal books told the stories of families ravaged by the loss of a precious child to presumed shaking [3,4].

Now the other storyline is hitting the shelves: Two women have already published books about their experiences as exonerated baby-shakers, and more works are on the horizon.

It Happened to Audrey

It Happened to Audrey is the memoir of Audrey Edmunds, a wife, mother, and child care provider who spent a decade in prison before her conviction was overturned in 2008 after an appeal by the Wisconsin Innocence Project.

AudreyQuoteWritten with her friend Jill Wellington, a journalist, the book traces Audrey’s harrowing journey, from her horror and feelings of guilt the day a 6-month-old girl fell unconscious in her care, through the unimaginable accusations, trial, and years in prison for an assault that she knew had never happened. The experience not only shattered Audrey’s world but gave everyone around her a new perspective. In this excerpt, for example, a seasoned reporter sees a new side to the crime beat:

Meanwhile, my journalist friend, Jill Wellington, was working at a television station in Michigan the day after the verdict came in. Her hands trembled as she punched in the phone number for the Dane County Courthouse. “Hello, I’m a news reporter in Michigan and I’d like to get the verdict in the Audrey Edmunds case.”

“Well, of course, she’s guilty,” the woman who answered the phone replied tersely.

Jill was stunned at this abrupt, ill-considered comment. One of Jill’s coworkers knew a producer at Dateline, NBC. Jill called him and asked if he would investigate my case. A week later, she called the producer again and was shocked at his reply.

“I talked to some of the newspaper reporters who covered Audrey’s case,” the producer said. “They all say she’s guilty.”

Anyone who has been falsely accused of injuring a child will resonate with this book.  I hope it’s also read by social workers, investigators, and people who assume that an innocent person cannot be convicted in our justice system.

When Truth No Longer Matters

heather'sCroppedMeanwhile in Britain, accused parent Heather Toomey has written a remarkable account of her historic battle with social services, When Truth No Longer Matters.

Through unwavering focus and the support of extended family, Heather managed to keep herself, her husband, and their two young sons together while she and her husband fought accusations of shaking the younger boy. Seven years later, the child was diagnosed with a bleeding disorder that explained the subdural hematoma behind the original shaking diagnosis.

At the time, however, the Toomey family was branded as child abusers, under constant pressure to “tell the truth” so as to “clear up” what had happened to their baby. They abandon their home and move in with relatives, so as to satisfy the supervision requirements. They struggle to stay ahead of the financial burdens and attend unending court-imposed appointments. They tolerate frequent, intrusive visits; evaluations; interrogations; and bureaucratic hurdles, all while trying to maintain the kind of positive attitude the social workers demand.

“The authorities have taken a capable mother and turned her into a paranoid mess,” Heather writes, convincingly.

Finally, she and her husband give in to the pressure and sign a “threshold agreement,” in which they admit to failing their young son in return for having their case closed. She writes:

We still firmly believe that the cause is medical, but we have no doctor prepared to back up our belief . . .  whichever way we look at it, it is less of a leap to admit to failing him than it is to admit to abusing him.

With the parents subdued, their children’s names are removed from the “at risk” register, and the constant interference comes to an end. They are allowed to return to their own home. “The case conference concludes that there were never any concerns raised about us as parents or about the children’s welfare during the entire time of their involvement,” Heather recounts. “Our children have never been at risk from us, only from those who failed to  investigate anything other than suppositions and accusations.”

heatherToomehyTheir son’s bleeding disorder was diagnosed years later, after they’d been badgered into capitulation—but at least they’d kept their family intact.

Like Audrey’s story, Heather’s from-the-heart narrative will validate the experiences of accused parents and caregivers. Again, I hope the book also finds an audience among social workers, investigators, and prosecutors, who need to listen to the child-abuse experts, but not without keeping an open mind to the bigger picture.

You can read more about Heather’s story on her web site, at http://www.searchfortruth.co.uk/index.html

Edges of Truth: The Mary Weaver Story

Exonerated babysitter Mary Weaver has collaborated with ministerial writer Deb Brammer on a book about Mary’s ordeal, Edges of Truth: The Mary Weaver Storyscheduled for release in the fall of 2013. Weaver was one of the first babysitters convicted of shaking an infant in her care, in the early 1990s, and one of the first exonerations.

The tag line for the book is:

“When a baby is brutally murdered, an innocent babysitter is accused and uncertainty forces experts to define the edges of truth.”

Fall 2013 Update: Edges of Truth: The Mary Weaver Story is now available. I’ve posted this blog entry about it.

Vaccine-Induced Encephalitis

And a couple of years ago a physician and a journalist together published a book questioning one aspect of shaken baby syndrome, Shaken Baby Syndrome and Vaccine-Induced Encephalitis: Are Parents Being Falsely Accused? By Harold Buttram, MD, and journalist Christina England (AuthorHouse, 2011).

Spring 2014 update:  Law professor Deborah Tuerkheimer has now published her academic treatment of the subject, Flawed Convictions:  “Shaken Baby Syndrome” and the Inertia of Injustice.

copyright 2013, Sue Luttner

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

Footnotes:

[1] Shaking and Other Non-Accidental Head Injuries in Children, by Drs. Robert A. Minns and J. Keith Brown, Mac Keith Press, 2006

[2] The Shaken Baby Syndrome: A Multidisciplinary Approach, edited by Drs. Stephen Lazoritz and Vincent J. Palusci, The Haworth Maltreatment & Trauma Press, 2001

[3] Grandma’s Baby: A True Story of One Family’s Struggle with “Shaken Baby Syndrome” and what they call “Shaken Family Syndrome,” by Karen Wise, R.N., Trafford Publishing, 2006

[4] What Happened to Christopher? by Ann-Janine Morey, Southern Illinois University Press, 1998

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Filed under abusive head trauma, AHT, Falsely accused, Innocence Network, parents accused, SBS, shaken baby syndrome

Dr. Norman Guthkelch, Still on the Medical Frontier

Dr Norman Guthkelch, Oct. 2012

Dr. Norman Guthkelch at Medill 
Photo by Sue Luttner

At 97, retired pediatric neurosurgeon Dr. Norman Guthkelch has ridden more than one wave of change in the practice of medicine.

He remembers that his mentor Sir Geoffrey Jefferson, Britain’s first professor of neurosurgery, cautioned his students against relying too heavily on x-rays, for example. Jefferson would warn, “The eye has rested upon the evidence of fracture, and the mind has traveled no further.”

“X-rays created a meaningless distinction between ‘fractured skull’ and ‘no fracture,'” Guthkelch explains, “whereas the important thing is the degree of damage to the underlying brain.”

Guthkelch’s medical training was interrupted by World War II:  He went straight from his 1944 residency in Manchester into the army, and found himself neurosurgeon-in-charge of a small team attached to a general hospital. During the Battle of the Bulge, he was in surgery for 36 hours, breaking for food but not for sleep.

“That time gave me an advantage over surgeons with no battle experience,” he reflects. “I’d seen enough blood. Operating for its own sake was not an attraction.”

twinsAfter the war, Guthkelch returned to a fellowship under Jefferson, who had honed his own understanding of head injury during World War I. Relieved to be treating a general population, Guthkelch found himself especially charmed by his youngest patients, a delight noted by his mentor. “Jeff told me when I came back to finish off my training that my future lay in developing pediatric neurosurgery,” Guthkelch recalls. “He was quite right.” As Jefferson had held Britain’s first professorship in neurosurgery, Guthkelch in his turn received the nation’s first pediatric neurosurgery appointment, at the Royal Manchester Children’s Hospital. “It was only by a few weeks,” he chuckles, “but I was the first.”

One of his observations was that children in neurological distress were sometimes suffering the effects of subdural hematoma—that is, blood underneath the dura mater, the tough but flexible membrane that lines the interior of the skull. A subdural hematoma does not invade the brain, but it can exert dangerous pressure on the tissues below. And while a pool of subdural blood may dissolve on its own, it may also expand, causing further problems.

Guthkelch published his first paper on pediatric subdural hematoma in 1953, when he wrote in the British Medical Journal:

“It should be emphasized that infantile subdural effusion is not a rare condition. Study of the records of the Royal Manchester Children’s Hospital for the four years covered by this series shows that, of all surgical conditions of the central nervous system occurring in the first two years of life, only spina bifida and hydrocephalus were seen more often than subdural haematoma… Similarly, Smith and her co-workers (1951) have reported finding subdural effusions in almost a half of their cases of bacterial meningitis in infancy, and Everley Jones’s (1952) figures are similar.”

At that time, before CAT scans or MRIs, doctors inferred the presence of subdurals in living patients from the symptoms: convulsions, vomiting, and headaches in adults or fussiness in babies. The only way to confirm a subdural hematoma was to penetrate the subdural space. With an infant, the surgeon could pass a needle between the unfused plates of the immature skull. A problematic pool could then be drained, slowly, over several days to avoid a sudden change in pressure. In his 1953 paper Guthkelch described the procedure developed by pioneering pediatric neurosurgeon Franc Ingreham at the Children’s Hospital Boston, and reported on his own findings while treating 24 cases.

guthkelchQuote.The paper that brought Guthkelch into the child abuse arena is the advice he offered in the British Medical Journal in 1971, under the title, “Infantile Subdural Haematoma and Its Relationship to Whiplash Injury.” At that time in Britain, Guthkelch says, shaking a child in the course of discipline, “or not even discipline, correction, shall we say,” was considered acceptable. He recommended that health workers discourage the habit, as it was causing damage to developing brains. He cited cases in which parents had told him of shaking their child, and he referenced a paper by U.S. radiologist John Caffey, who had noted the combination of subdural hematoma and long-bone fractures in a few very young children. Guthkelch’s paper on shaking aroused not much interest in England, he recalls. He mailed a copy to Dr. Caffey at his hospital in Pennsylvania and began his own local education campaign. “My great allies in this were the case workers, who were a tremendous resource,” he says. “They were usually trained nurses, whom the health system would pay to make rounds in economically depressed areas.”

Although he likes many aspects of the British health-care system, Guthkelch has a major quibble with one provision:  Mandatory retirement for surgeons at age 65, a milestone that began looming for him in the 1970s. “I wasn’t ready to retire,” he objects.

normanCloseBut he had an obvious back-up plan:  The States. His mother had a close friend in Philadelphia, and he’d been brought up on Ernest Hemingway and Gertrude Stein. He accepted an invitation to the Pittsburgh Children’s Hospital, where he reports feeling immediately at home. “You Americans are very lovable people,” he grins.

He was surprised, however, to realize that his colleagues were diagnosing a condition known as “Caffey’s syndrome,” believed to result from violent shaking of an infant. Caffey’s paper on infant shaking, published in the U.S. a year after Guthkelch’s in Britain, had enjoyed far greater circulation, and few had noticed the footnote citing Guthkelch’s original paper. “No one was asking me about it, and I didn’t really have anything further to say about it,” Guthkelch shrugs.

He stayed in the field until 1992, as improvements in medical imaging  and surgical technique transformed the way doctors diagnose and treat problems of the brain. Neurosurgeons were collaborating with radiologists as they honed their abilities to decipher the lights and shadows of CT scans and MRIs. “I loved every minute of it,” he beams.

He’d intended to retire in the 1980s, when he left Pittsburg Children’s and moved with his wife to Tucson, Arizona. The local university hospital, however, asked him to take on a temporary position at the neurosurgery unit, where he remained for another eight years. Then he finally found time to work on his translation of the New Testament from the Greek, to organize a lifetime of bird photographs, and to spend more time with his wife as her health began to fail.

Drayton Witt and his wife.Courtesy Arizona Justice Project

Drayton Witt and his wife
Courtesy Arizona Justice Project

Then he was approached by law professor Carrie Sperling with the Arizona Justice Project. She and her students were working for the release of Drayton Witt, a young father convicted of second-degree murder ten years earlier for the presumed shaking death of his son.

Sperling says she was electrified to learn that the grandfather of shaken baby theory lived two hours south of her. She and her students were convinced that Witt was innocent: His son Steven had suffered a short lifetime of serious health problems, including hospitalization for seizures that were never explained, not even fully controlled with medication. Sperling was unsure of the reception she would receive from Dr. Guthkelch, “but he turned out to be an amazing man,” she says, “an amazing, gracious man.”

Guthkelch read Steven Witt’s medical records with growing dismay. He later told National Public Radio reporter Joseph Shapiro, in an interview now available on podcast, “I think I used the expression in my report, ‘I wouldn’t hang a cat on the evidence of shaking'” in that case. Sperling’s team successfully petitioned to vacate Witt’s conviction, and later the charges were dropped.

Carrie Sperling, at an Innocence Network meeting

Carrie Sperling, at an Innocence Network meeting

“It was Carrie who opened my eyes to how much of this is going on,” Guthkelch sighs.

He says he never intended that the presence of subdural hematoma and retinal hemorrhages, with or without encephalopathy, should prove that a child had been shaken, only that shaking was one possible cause of the bleeding. “I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent parents.”

Sperling suggested he read law professor Deborah Tuerkheimer’s 2009 law-journal article on how shaken baby syndrome is handled in the courtroom. “She certainly nailed it,” he says of Tuerkheimer’s work. Some months later he saw some “harsh, unprofessionally harsh” criticism of that paper. When he tried to talk about it with people he knew from the child-protection community, he realized how wide the schism was. “There are cases where people on both sides, both of whom I admire equally, are barely able to speak to one another,” he told NPR.

He contacted Tuerkheimer, and the two of them hit it off. They speak regularly on the phone, he reports, and “we find we are of one mind on this subject.”

Dr. Guthkelch meets with students from the Medill School of Journalism.Photo by Alison Flowers, courtesy of the Medill Justice Project

Meeting with students from the Medill School of Journalism
Photo by Alison Flowers, courtesy of the Medill Justice Project

After his wife’s death, Guthkelch moved to a suburb outside of Chicago, where he’s continued trying to be an ambassador between the two sides. When he learned that journalism students at the nearby Medill Justice Project had taken on a shaken baby case, he reached out to them. One result is a first-rate podcast  that includes interviews with both him and Dr. Robert Block, president of the American Academy of Pediatrics.

When Dr. Sandeep Narang, pediatrician and attorney, published an argument that courtroom testimony about child abuse is best left to trained child-protection physicians, not paid experts, Guthkelch wrote the introduction to a rebuttal by a team of advocates for the innocent accused. (For a quick summary of Narang’s article and Guthkelch’s response, see this page.)

Dr. Ron Uscinski and Dr. Norman Guthkelch,October 2012

Dr. Ron Uscinski and Dr. Norman Guthkelch
October 2012

Guthkelch also spends what time he can reviewing cases. “Let me be quite frank,” he says, “For a 97-year-old I’m fairly well preserved, but my memory is not what it once was.” Producing a medical report takes careful concentration and more double-checking, as does following and responding to  the literature.

But he perseveres. “I want to do what I can to straighten this out before I die,” he says, “even though I don’t suppose I’ll live to see the end of it.”

Which reminds me of something Carrie Sperling said about him when I spoke with her at the Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma in the fall of 2012.  “I felt a little bit bad about getting Norman Guthkelch involved, because I knew he would become controversial” she said in a video dispatch posted on the Medill site. “I did warn him, but I don’t think there’s any way to warn people of how the wrath can come down on you when you get involved in this sort of thing…  It’s amazing the effect he’s had on the experts I know, on the people I know.  I’m hoping that he lives a long, long time so that he can  meet with as many people as want to meet with him and talk to as many people as want to talk with him.”

copyright 2013, Sue Luttner

Dr. Guthkelch died quietly at home, surrounded by loved ones, in July 2016, weeks short of his 101st birthday. I posted this obituary.

For excerpts of my videotaped interviews with Dr. Guthkelch, conducted after this profile was written, please click on the image below:

If you are unfamiliar with the debate about shaken baby syndrome, please see the home page of this blog.

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Filed under abusive head trauma, AHT, Arizona Justice Project, Drayton Witt, Innocence Network, Innocence Project, Norman Guthkelch, parents accused, SBS, shaken baby syndrome

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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Filed under abusive head trauma, AHT, Innocence Network, Innocence Project, SBS, shaken baby syndrome, Victor Zapana, Yoon Zapana

Communication, and Miscommunication, in the Courtroom

A courthouse in New Mexico.

Three legal developments this week illustrate that the steady push against unfounded diagnoses of shaken baby syndrome is having its effect.

A Grand Jury Listens in New Mexico

A grand jury in Taos has declined to charge a young father with the shaking death of his son, after hearings that included testimony by emergency physician Dr. Steven Gabaeff, an outspoken critic of shaken baby syndrome theory.

Reporter Chandra Johnson’s first-rate article in The Taos News implies that this was a triad-only case with complicating factors. The child was only three weeks old, and the parents had taken him to the doctor not long before his melt-down because he was congested and was having trouble breathing. On the day of the incident, the father reported, he was again having breathing trouble, with “not much of an appetite.”

Ms. Johnson quotes defense attorney John Day in the fourth paragraph:

“In recent years, the whole shaken baby theory has come under fire as misguided and wrong,” Day said in a phone interview Tuesday (Sept. 4). “There are a combination of relatively normal illnesses that could have caused brain swelling that put pressure on the retinal tissue.”

Montana Innocence Project Steps Up

In Montana, meanwhile, the Innocence Project has filed an appeal on behalf of Robert J. Wilkes, convicted of killing his 3 1/2-month-old son in 2008. The case against Wilkes rested on two presumptions:

  • his son’s brain injury was the result of abuse, and
  • the abuse must have happend in the few minutes between Wilkes’ feeeding the boy a bottle while visiting with the babysitter, who was also a neighbor, and the child’s meltdown soon after the father and son arrived home.

According to Gwen Florio’s refreshingly thoughtful article in the Missoulian, the appeal argues both that Wilkes received ineffective assistance of counsel and that new evidence shows his son suffered from a rare and deadly liver disorder. The coverage quotes the Innocence Project’s appeal:

“Over the past decade, opposition to SBS (shaken baby syndrome) has grown from a trickle to a virtual avalanche.”

Readers of this blog are likely to endorse the author’s final paragraph, about her talk with Montana Innocence Project executive director Jessie McQuillan, who “said she’d like to see Wilkes’ case added to the national conversation on the issue.”

Canadian Judge Blasts Reid Technique

Provincial Court Judge Michael Dinkel in Alberta has issued an opinion that both dismissed aggravated assault charges against day-care operator Christa Lynn Chapel and blasted the Reid Technique, an interrogation protocol used routinely by police investigators.

Denkel’s decision discarded Chapel’s confession to inflicting head injury on a child, which was delivered after eight hours of interrogation by officers the judge described as “a desperate investigative team that was bent on extracting a confession at any cost.”

Reporter Douglas Quan’s well-researched piece in The Calgary Herald quotes the judge’s opinion at length, including this statement:

“I denounce the use of this technique in the strongest terms possible and find that its use can lead to overwhelmingly oppressive situations that can render false confessions and cause innocent people to be wrongfully imprisoned.”

If you missed the post last winter about the interrogation that led to a dubious confession by teenager Nga Truang, you can see it here.

Not Everybody Listens Carefully

The Columbia Missourian ran a poignant story last week about a young father taking a plea bargain. He originally reported that his daughter had fallen out of her crib, and that he had shaken her to see if he could rouse her.  The doctors insisted the shaking had been violent, and the police heard a confession.

While accepting the father’s guilty plea on an assault charge, the judge asked the young man if he knew what he had done wrong, and the father said something very much like, “I guess that would be the shaking part.”

Side note: The National Institutes of Health infant CPR advice sheet begins its list of first aid steps with, “1.  Check for alertness. Shake or tap the infant gently.”

This story was but is no longer on line at http://www.columbiamissourian.com/stories/2012/09/05/man-pleads-guilty-assault-shaking-baby/

Finally, a tragic young mother in Virginia pled to charges of child neglect, again after changing her initial story under further questioning. Astonishingly, she confessed to interrogators that she had shaken her son, but the autopsy showed no signs of shaken baby syndrome.

Reporter Amber Lester Kennedy, understandably, I admit, treated the abuse as a given in her article in the Williamburg Yorktown Daily.

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Filed under Damian Stow, Innocence Network, Innocence Project, parents accused, Reid Technique, Robert J. Wilkes, Sabrina A. Battad, Sabrina Battad

Innocence Network Scouting for Talent

This position has been filled. Katherine Judson started working this October, 2012.

Ms. Judson can provide sample filings and medical references to attorneys defending false accusations of abusive infant head injury. Contact her at katherine.judson@wisc.edu

In a solid piece of good news, the Innocence Network has found three years of funding for a staff attorney to coordinate defense efforts in shaken baby cases.

The job posting, available at http://globalwrong.files.wordpress.com/2012/07/sbs-fellow-07-02-12.pdf, identifies the position as “Shaken Baby Syndrome Litigation Fellow.” Duties will include following the medical and legal controversies that surround SBS and identifying a strategy for reducing the rate of wrongful convictions.

The Innocence Network is a coalition of individual Innocence Projects across the country and around the world. The original Innocence Project, founded in 1992 by Barry C. Scheck and Peter J. Neufeld, looked only at cases in which evolving DNA technology could be used to re-examine tissue samples from earlier trials. Their web site now reports 292 exonerations through DNA testing, 17 of prisoners on death row. Most Innocence Projects are associated with law or journalism schools, allowing them to bring pro bono student work into the appeals process.

Some Innocence Projects have now expanded their scopes beyond DNA, and the Innocence Network has recognized the alarming rate of wrongful convictions in cases of infant head injury. The job summary for the new SBS position notes:

A growing number of cases are now dealing with shaken baby syndrome, where an adult caregiver is convicted of a crime after the death of a child in his or her care, due to the presence of three internal symptoms that doctors once believed could result only from shaking the child.

Given the pace of new cases and new articles lately, the successful candidate will definitely need several of the specified “Key Competencies,” including “Remains organized amidst multiple, competing demands” and “Keeps a sense of humor throughout.”

September 6 update:  They’re interviewing the final candidates now. Look for an announcement soon.

-Sue Luttner

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