Category Archives: keith findley

Queens Head Injury Conference Opens the Door a Little Wider

queensCountyDAThis fall’s NYC Abusive Head Trauma/Shaken Baby Syndrome Conference, sponsored jointly by the Queens County District Attorney’s Office and the New York City Office of the Chief Medical Examiner, will feature some of the most outspoken proponents of shaken baby theory but also a few of the skeptics.

The conference, which is aimed at legal and medical professionals, costs only $25 and runs a day and a half, on September 17 and 18. The program will open with a history of traumatic brain injury by science writer Sam Kean, whose new book The Tale of the Dueling Neurosurgeons promises “true stories of trauma, madness, and recovery.”

Past Queens conferences have featured roundtable discussions that included critics as well as proponents of shaken baby theory, but this year’s schedule lists two full presentations from skeptics, one by attorneys Keith Findley of the Wisconsin Innocence Project and Adele Bernhard of the Post-Conviction Innocence Clinic, and one by pathologist Patrick Lantz, who has criticized the child abuse literature for adopting guidelines about retinal findings without objective scientific evidence.

Prof. Adele Bernhard

Prof. Adele Bernhard

Attorneys Findley and Bernhard will be giving the Innocence Network perspective on appeals in infant head trauma cases—Findley spearheaded the appeal that freed child care provider Audrey Edmunds in 2008, and Bernhard argued last year at the successful hearing on behalf of care provider René Bailey. The prosecution perspective will come in a separate presentation by Deputy Executive Assistant District Attorney John Castellano and Senior Assistant District Attorney William Branigan, of the Queens County District Attorney Appeals Bureau. Both teams will address the topic “Enhancing Post-Litigation Accuracy.”

retinalhemorrhagesSmallDr. Lantz, a pathology professor at Wake Forest Baptist Health in North Carolina, is one of two speakers at the Queens conference scheduled to talk about retinal hemorrhages. The other is ophthalmology professor Brian J. Forbes at the University of Pennsylvania School of Medicine.

In 2004, Dr. Lantz published a case study and critical literature review in the BMJ that cautioned against relying on retinal findings when diagnosing abuse. He has since encouraged pathologists to gather more data by capturing retinal images in all child deaths, whether or not abuse is suspected.

Dr. Forbes is a co-author of a 2009 study that concluded:

Retinal hemorrhages are highly associated with abusive head trauma, particularly in children under age 6 months. Increasing retinal hemorrhage severity is correlated with increasing likelihood of abuse.(1)

The Queens speaker list also features law-school dean and professor Joëlle Moreno from the Florida International University College of Law, whose talk is titled “The Impact of Media Perspectives on Abusive Head Trauma Litigation.”  She also addressed that topic at the 2014 Denver conference sponsored by the National Center on Shaken Baby Syndrome, where she said:

[T]he public’s understanding of the science and law of abusive head trauma is coming principally from media coverage… of criminal trials… The problem is the trial and the appellate courts are confusing valid medical evidence with outlier opinions promulgated by a handful of interested defense witnesses who don’t treat children.

For more of Prof. Moreno’s thoughts on the controversy, see her 2013 law review article “Dissent Into Confusion: The Supreme Court, Denialism, and the False ‘Scientific’ Controversy Over Shaken Baby Syndrome,” co-authored with attorney Brian Holmgren.

12thHeadingOther Queens presenters include Dr. John M. Leventhal, who is on the faculty at the Yale University School of Medicine and on the advisory board of the National Center on Shaken Baby Syndrome, and Dr. Christopher Greeley, professor of pediatrics at the University of Texas Health Sciences Center at Houston. In a 2012 commentary in the journal Pediatrics, Dr. Greeley praised the meta-analyses that had recently been published by Piteau(2) and Maguire(3), in which the researchers pooled the findings of many individual child-abuse studies in an attempt to achieve statistically meaningful numbers. Greeley wrote at the time:

Both of these reports, using different search protocols and analyzing different data from the same body of literature, independently confirm the diagnostic precision of retinal hemorrhages, subdural hemorrhages, and rib fractures for abusive head trauma (AHT). By independently using different strategies on the same body of literature and demonstrating similar results, we see clear support for these clinical findings, which are often used in diagnosing AHT.(4)

(For a response from three physicians who question his conclusions, please see http://pediatrics.aappublications.org/content/130/2/347.full/reply#pediatrics_el_54511.)

In 2012, in a keynote address at the Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma, Dr. Greeley dismissed critics of shaken baby theory as child-abuse denialists who are manufacturing controversy where there is none.

I’m not sure how much common ground the various speakers are going to find at this fall’s conference, but I’m glad to see that the two sides are starting to appear on the same programs. For the conference agenda and registration form, follow this link.

(1) Binenbaum G, Mirza-George N, Christian CW, Forbes BJ. “Odds of abuse associated with retinal hemorrhages in children suspected of child abuse,” J AAPOS 2009 13(3):268–272. Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2712730/

(2) Piteau SJ, Ward MGK, Barrowman NJ, and Plint AC. “Clinical and radiographic characteristics associated with abusive and nonabusive head trauma: a systematic review,” Pediatrics 2012 130(2):315–323.  Available at http://pediatrics.aappublications.org/content/early/2012/07/03/peds.2011-1545.full.pdf

(3) Maguire SA, Kemp AM, Lumb, RC. “Estimating the probability of abusive head trauma: a pooled analysis,” Pediatrics 2011 128(3):e550–e564. Available at http://pediatrics.aappublications.org/content/128/3/e550.full

(4) Greeley CS. “The Evolution of the Child Maltreatment Literature,” Pediatrics 2012 130(2):347–348, available at http://pediatrics.aappublications.org/content/130/2/347.full#xref-ref-8-1

1 Comment

Filed under abusive head trauma, AHT, keith findley

“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.

8 Comments

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

Well Said: Law Reviews Address SBS

Keith Findley, co-director of the Wisconsin Innocence Project, at an SBS meeting in February 2012

With manuscripts from seasoned veterans, young idealists, and players in between, law journals are starting to cover the legal tangle surrounding shaken baby syndrome.

Law professor Keith Findley at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project, has collaborated with an all-star team to produce a thorough, careful, and readable response to an article that appeared in the April issue of the Houston Journal of Health Law and Policy, from the University of Houston Law Center.

In the original paper (“A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome,” Volume 11, issue 3), attorney and child-abuse pediatrician Dr. Sandeep Narang rejected the mounting criticism of classic SBS theory and argued that, in the absence of a clear alternative diagnosis, the courts should rely on child-abuse experts to tell them whether the presence of the triad represents abuse.

Findley’s response—written with pediatric radiologist Dr. Patrick Barnes, pediatric neuropathologist Dr. Waney Squier, and law professor David Moran from the Michigan Innocence Clinic—is a must-read for anyone facing or defending an SBS accusation. You can download the unpublished draft of “Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right” at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2048374.

Winter 2013 update:  Dr. Narang’s paper is now available at http://www.law.uh.edu/hjhlp/volumes/Vol_11_3/Narang.pdf, and the response from Findley et al. is now available in situ at http://www.law.uh.edu/hjhlp/volumes/Vol_12_2/Findley.pdf

Past Convictions

The University of Wisconson Journal of Law Reform, meanwhile, has published a careful analysis that calls for a review of all past convictions in shaking cases. Senior law student Rachel Burg opens her article with the story of Julie Baumer, who was featured in Emily Bazelon’s New York Times Piece in 2010. Baumer served four years in prison before a pro bono attorney brought in new experts, who unanimously and independently diagnosed venous sinus thrombosis. Burg writes, accurately, I’d say:

The truly heartbreaking stories, however, are those that are not told—the innocent people currently in prison, convicted of seriously injuring a child that they loved, based on a medical diagnosis that has become scientifically questionable.

You can download a .pdf of Burg’s article from the journal’s web site, http://www.mjlr.org/2012/05/volume-45-issue-3-spring-2012/

SBS as Established Mistake

In 2011 the Brigham Young University Law Review published a reasoned article calling for bone-density testing before fractures are considered pathognomonic for abuse. Author Matthew B. Seeley, a recent law school graduate, cited shaken baby syndrome as an example of past judicial mistakes. He reviewed the history of the syndrome, including recent rethinking about both the specificity and the timing of the symptoms, and wrote:

There are many lessons to be learned from the history of shaken-baby syndrome, not all of them within the scope of this Comment. One lesson, though, is clear: a misappraisal of whether a certain injury or combination of injuries is pathognomonic can lead to the conviction and imprisonment of innocent caretakers.

Although I’d expect that article to be heading to the archives soon, it is currently available through the Current Issue tab on the journal’s web site, at http://lawreview.byu.edu/issue.php

Shaking as First-Degree Murder

Practicing attorney Derick Vollrath in North Carolina has published an intriguing analysis in the Campbell Law Review, arguing that the prevalence of anti-shaking campaigns is inconsistent with his state’s policy of prosecuting shaking deaths as first-degree murder. Vollrath writes:

These campaigns share a common assumption: a significant number of Shaken Baby Syndrome deaths are not the intended result of a caregiver’s premeditated design.

Caregivers just lose it. They snap. They don’t know any better.  At the same time, North Carolina’s criminal law allows the state’s district attorneys to prosecute these caregivers for first-degree murder,  the most serious criminal charge available.

Although I regret that Mr. Vollrath seems to accept the specificity of the triad, I do appreciate his careful analysis and thoughtful position.  The article is in the current issue of the Campbell Law Review, available at  http://law.campbell.edu/lawreview/

Professor Deborah Tuerkheimer, De Paul University College of Law

The Classic

My files contain a handful of older papers, but the first highly publicized law journal article critical of infant shaking convictions was Professor Deborah Tuerkheimer’s 2009 critique in the Washington University Law Review.

She has since published a follow-up article in the Alabama Law Review addressing the lag in courtroom policy despite the evolving science.

Both Professor Tuerkheimer and Audrey Edmunds—the Wisconsin babysitter whose vacated conviction in 2007 marked the beginning of the Innocence Network’s success with shaking cases—will have books on the shelves soon.  The tide is turning.

©2012, Sue Luttner

4 Comments

Filed under abusive head trauma, AHT, keith findley, narang, SBS, shaken baby syndrome