Category Archives: National Center on Shaken Baby Syndrome

June 28, 2016 · 10:38 am

Shaken Baby Conference 2016: Defending a Crumbling Theory

As registration opened this spring for the Fifteenth International Conference on Shaken Baby Syndrome/Abusive Head Trauma, coming up in September in Montreal, the National Center on Shaken Baby Syndrome (NCSBS) also revamped its web site with a dynamic new design that features bold graphics, clickable factoids, and easy access to resources for both families and professionals. The published conference program shares the new look and embraces the organization’s commitment to fighting criticism of shaken baby theory through public relations.

In a keynote address on opening day, for example, the program promises advice from an executive at the global PR firm Weber Shandwick on “How to Craft a Message,” with this elaboration:

“The media’s reporting of abusive head trauma/shaken baby syndrome (AHT/SBS) over the last several years has focused on wrongful convictions and alleged ‘new science’ that challenges the existence of AHT/SBS. Despite the efforts of many individuals and organizations to re-frame the discussion and educate the media about the realities, the press increasingly covers the subject this way. Ranny Cooper, former Chief of Staff for Senator Ted Kennedy and an expert in strategic communications, will discuss why the media reports the way that they do and what we can all do to ensure that the messages we want get to the public.”

A later keynote will deliver the NCSBS’s preferred message regarding the 2008 exoneration of child care provider Audrey Edmunds, released after 11 years in prison based on an appeal by the Wisconsin Innocence Project arguing that medical thinking about shaken baby has evolved since her 1996 trial. Assistant District Attorney Tom Fallon, from the county that convicted Edmunds, will revisit the case from this perspective:

“Some media, some legal commentators, her lawyers and Ms. Edmunds herself claim exoneration… Is that what really happened? You decide whether this is fact or whether you are being misled.”

Storytelling is a recurring theme in the conference program—another keynote, titled “Power of the Narrative,” features this description:

“In this panel presentation, three child abuse pediatricians will talk about SBS/AHT cases that have resonated with them and the importance of talking about these cases with other professionals and with the media to inform everyone about the realities and devastating consequences.”

I welcome the new note of reconciliation offered in this blurb for a plenary session by two mothers with a unique, unthinkable bond:

“Tami Revering lost her patience and reacted by shaking her best friend’s, Angela Pengelly, baby. Now, Tami and Angela work together to share their personal experience of the impact this has had on each of them and how their experience has led them to educate others about how this can happen to anyone, and that forgiveness, while not easy, can help with the healing process.”

from the babble.com treatment

A treatment of the women’s story on babble.com listed a skull fracture among the baby’s injuries, which raises the question in my mind but not in the article of whether the incident the caretaker reported, shaking the boy and then throwing him on the bed, fully explains the findings. The Guiding Star Project, a holistic mothering web site, ran the care provider’s first-person account of her tale. I’m extrapolating that the NCSBS has hired a PR firm to help place these stories on the web.

The conference program also lists dozens of breakout sessions, including one that promises a case report from Australia of a fatal shaking with an independent witness. I look forward to learning more.

I am guessing that in the session “The Medium Is the Message: Journalists and Documentary Filmmakers Distort the Child Abuse Story,” law professor Joëlle Moreno will dismiss Debbie Cenziper’s 2015 exposé of shaken baby in The Washington Post as well as the documentary “The Syndrome,” which she scorned based on the trailer at the fourteenth shaken baby conference in 2014 in Denver, a few weeks before the film premiered. In her 2014 keynote, Prof. Moreno also discounted the work of law professor Deborah Tuerkheimer, who Moreno said is “confusing causation with culpability,” and pointed out that the documentary “Scenes of a Crime,” which ultimately led to a new trial and an innocent verdict for convicted father Adrian Thomas, is not about the shaken baby controversy but about the “lengthy interrogation” in that one case. “Part of our job,” Moreno said in 2014, “is to explain to the media that AHT is not newsworthy because it’s controversial. It’s newsworthy because it’s real and it’s deadly.” (For a link to Prof. Moreno’s condemnation of the minority opinion in the Shirley Ree Smith decision, please see “Dissent Into Confusion: The Supreme Court, Denialism, and Shaken Baby.”)

This fall, Maryland assistant state’s attorney Dermot Garrett is scheduled to run a session titled “Overcoming Defense Expert Testimony in Abusive Head Trauma Cases,” also the title of a document by him that’s available on the National District Attorneys Association web site. Garrett’s talk with the same title at the 2014 Denver conference focused on rebutting the jury’s innocent verdict in the 2006 trial of Miles Ferguson, an accused father who enjoyed massive support from his family and church community. Garrett argued that Ferguson’s likability had obscured the medical facts, and he criticized the “handful of defense experts” who testify in these cases for what he said are “financial incentives.”

I’ve attended nine conferences organized by the NCSBS over the past 18 years, and I have never heard a speaker revisit a lost or overturned case with the thought that the child abuse doctors might have been wrong. Instead, I’ve heard reviews of the prosecution’s case, presented with indignation at the loss. This mind-set offers no mechanism for the diagnosing doctors to even acknowledge let alone learn from past mistakes.

wheat At the upcoming conference, Dr. Christopher Greeley is scheduled to offer his review of the published shaking research in a session titled “Demystifying the Medical Literature: Separating the Wheat From the Chaff.” I’m guessing he will include his criticism of the 2003 p aper by Dr. Mark Donohoe, who reviewed the shaken baby literature through the lens of evidence-based medicine and concluded that shaken baby theory has no scientific foundation. In a keynote at the 2012 NCSBS conference, Dr. Greeley condemned the search criteria Dr. Donohoe used to identify the papers he examined, but did not offer a list of the additional papers that would have provided more scientific evidence. For a good example of Dr. Greeley’s approach to the literature, I suggest reading his analysis of Dr. Steven Gabaeff’s 2011 paper questioning the connection between the brain findings and a shaking diagnosis.

I found in the program two breakout sessions that promise to present the defense perspective. In “Cognitive Bias in SBS/AHT Diagnosis,” innocence project attorneys Barry Scheck, Keith Findley, and Katherine Judson will share the dais with Dr. Mark Graber, whose specialties include diagnostic error, and Prof. Stephen Feinberg, PhD, a statistician at Carnegie Mellon University. And the second segment of the two-part session “What Do We Do When the 911 Call Comes In?” could be lively, as it features both child-abuse prosecutor Leigh Bishop, who argued the case against Hang Bin Li in Queens, and independent attorney Heather Kirkwood, who has worked on a number of successful appeals, including those on behalf of Julie Baumer, Ernie Lopez, and Ostwelt Millien.

I also see a handful of sessions on prevention, and one on an effort to create a reliable instrument for diagnosing abusive head trauma based on evidence-based criteria. I do wish these researchers well, as I think we all share the goal of preventing abusive head trauma and improving our ability to identify it accurately.

If you are not familiar with the debate surrounding shaken baby theory, please see the home page of this blog. Sue Luttner does not believe that shaking a baby is safe, only that the brain findings do not prove abuse.

The Word Is Out

After 30 years of occasional, isolated coverage, both the national and the local media are starting to take a serious look at the debate about shaken baby theory—even as the accusations and convictions continue.

This past weekend Debbie Cenziper at The Washington Post published what I think qualifies as an exposé of shaking theory, the result of a full year of research that brought together the work of other Post staffers as well as students and teachers at half a dozen universities, including the Medill Justice Project at Northwestern University.

Dr. A. Norman Guthkelch

“Shaken Science: A Disputed Diagnosis Imprisons Parents” offers a thorough but engaging analysis of the issues, including helpful diagrams and the most accessible press treatment I’ve seen yet of the biomechanics. Cenziper opens, of course, with the story of one accused caregiver and interweaves more cases along the way, so that the piece is not only informative but also readable. She also reports the thoughts of several physicians, including Dr. A. Norman Guthkelch, the first person to propose in print, in the British Medical Journal in 1971, that shaking an infant could cause subdural bleeding.

The National Center on Shaken Baby Syndrome (NCSBS) has released a response to the Post piece, listing the professional organizations that have endorsed shaken baby theory and protesting:

The Washington Post article portrays a “dispute” in the medical community as to the existence of SBS/AHT. There is a very small minority of proponents for the position that shaking cannot harm an infant, but this position is not supported by the science.

Like the letters protesting the film The Syndrome, the NCSBS response to the Post says that critics of shaking theory think that shaking a baby is not dangerous, although I don’t see anyone in the article making that statement. I think the question is whether the presence of the brain injury proves that a child was violently assaulted.

Cenziper’s article has been picked up in a number of regional newspapers, including the Hamilton Spectator in Ontario, the Daily Herald in Illinois, and the Dallas Morning News in Texas.

Then on Monday of this week, PBS NewsHour ran a segment on the shaking debate, a report titled “A disputed diagnosis that sends parents to prison for abuse.” The piece includes a look at the case of Drayton Witt in Arizona, whose appeal drew Dr. Guthkelch back into the arena, as well as interviews with child abuse pediatrician Dr. Lori Frasier—the author of a book on abusive head trauma written “for clinicians, investigators, prosecutors, and social workers”—and Katherine Judson from the Innocence Network.

Josh Burns with his daughter

Even before these national treatments emerged, regional news outlets had started giving sympathetic coverage to local cases. Last week in Michigan, Heather Catallo of ABC affiliate WXYZ led off her video report about convicted father Joshua Burns with images of Burns’s supporters proclaiming their faith in his innocence at his sentencing hearing. The prosecutor argued for a harsh sentence, calling Burns a “danger” and objecting, “He’s not admitting that he did it. He’s still maintaining full innocence.” But the judge handed down the minimum sentence, a year in jail. Yesterday, WXYZ reported that prosecutors say they are not moving to terminate Joshua’s parental rights.

Also in early March, the Bennington Banner in Vermont ran a feature story by Keith Whitcomb Jr. about accused father Russell Van Vleck, found innocent by a jury in 2011 after a two-year nightmare for his entire family. Van Vleck’s son Colin, 5 weeks old the evening he quit breathing while lying on the couch next to his father, had been born with a skull malformation that had complicated his delivery.

And the film exposé The Syndrome, which premiered in the fall of 2014, is being accepted at film festivals across the country (coming up: the (In)justice for All Film Festival in Chicago, April 13, and the Arizona International Film Festival in Tucson, April 18), staying in the news and triggering more coverage of the topic.

Outside of the mainstream press, web sites targeted to attorneys are also addressing shaken baby syndrome. On Wednesday of this week, the American Bar Association published an article in its Children’s Rights Litigation section by Katherine Judson at the Innocence Network, titled “What Child Welfare Attorneys Need to Know About Shaken Baby Litigation.” In February, the site LLRX.com, which describes itself as a web journal offering resources for legal professionals, published a valuable review of the debate, “Shaken Baby Syndrome: A Differential Diagnosis of Justice,” featuring live links to court decisions, journal articles, and other resources, by attorney, librarian, and writer Ken Struton, and the National Association of Public Defenders published an essay by public defender Jill Paperno, “Another Step Away From Bad Science – a Review of the History and Science of Shaken Baby Syndrome in People v. Rene Bailey (December 16, 2014, Monroe County, NY).”

Still, the community of child abuse experts and the justice system remain committed to shaken baby theory. Yesterday in South Carolina, an 18-year police veteran was in court, accused of shaking his 3-month-old son into permanent brain damage. According to the local news report, the prosecutor told the judge that the boy’s injuries “could only have been caused by a violent shaking or by a fall of 20 feet or more.”

In Oklahoma last week, a step-father was charged with abuse after reporting that the baby fell from a bed. According to the News 9 coverage:

Detectives said they knew [the stepfather] was not being honest about what happened after doctors said the baby’s injuries weren’t consistent with his story. “The baby had to be violently shaken for him to have these injuries,” [Det. David] Thompkins said.

And this week in New York, detectives revisiting an old case charged a mother’s ex-boyfriend with manslaughter for the 2010 death of a 13-month-old boy who suffered injuries “consistent with shaken baby syndrome.” According to the report in The Buffalo News, detectives had acquired a more definitive medical opinion and carried out an additional interview with the suspect:

“In questioning Gonzalez, detectives were able to confirm a few things, though he didn’t confess, but it helped our case,” [Homicide Capt. Joseph] Gramaglia said. “We also obtained a medical opinion that bolstered the case.”

I don’t know what it will take to stop the ongoing tragedy of shaken baby theory in the courtroom. I have taken one small step, though. I’ve signed the Protecting Innocent Families petition, which asks for an objective, scientific review of the evidence behind today’s guidelines for diagnosing child abuse.

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

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Filed under abusive head trauma, National Center on Shaken Baby Syndrome, SBS, shaken baby syndrome

Tagged as abusive head trauma, Debbie Cenziper, Jill Paperno, Joshua Burns, Ken Struton, LLRX.com, Russell Van Vleck, Shaken Baby Syndrome, The Syndrome

October 25, 2014 · 8:20 am

Finding a Voice, and a Community

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere of The Syndrome.

Beth and John Fankhauser in the lobby of the Glenwood Arts Theater, after the premiere showing of The Syndrome.

The premiere earlier this month of The Syndrome, a documentary that questions shaken baby theory, was even more thrilling than I’d expected: The film is riveting, and its first public showing, at the Kansas International Film Festival, drew a crowd so excited to meet each other that the lobby buzzed for an hour afterwards.

Beth Fankhauser was smiling, with tears in her eyes. “We thought we were the only ones,” she marveled. She and her husband John, who are now rearing their grandchildren while their daughter serves her prison time, met half a dozen other accused families that afternoon, reinforcing their decision to start speaking up after six years of waiting quietly and praying for justice.

“We allowed ourselves to be shamed… We thought we had to protect our family from the notoriety,” Beth explained, “But the system has betrayed us, and it’s time for the truth. I feel empowered to know that others are also walking this path.”

Denver, Colorado

A weekend like that was the antidote I needed to get past my disappointment at the 14th International Conference on Shaken Baby Syndrome, in September in Denver, where the emphasis seemed to be on discrediting all critics.

In a breakout session on the first morning, for example, pediatrician Robert Block named me personally as one of the child abuse denialists who have “fooled the media,” and some judges, into thinking there is a controversy in this arena. “I would ask the parents who are here whether they think SBS is a myth,” he admonished, pointing out that writing a blog requires no qualifications and no certification, just like writing a book or making a movie—like Flawed Convictions and The Syndrome. Block objected that all our works disregard the real victims—the injured babies—and focus instead on the perpetrators.

Prosecutor Shelley Akamatsu from Boise, Idaho, reported that prosecutors are pressing abusive head trauma cases harder than ever in the courtroom. She remembered the first shaken baby conference, in Salt Lake City, Utah, in 1996, when “convictions in AHT cases were not common,” she said, because only a few prosecutors, those who had taught themselves, knew how to handle the medical content. Eighteen years later, national training programs have prepared prosecutors “to meet untrue defenses, prove the severity of the forces inflicted, and effectively educate jurors,” she said, so that now “convictions in AHT cases are the norm rather than the exception.”

Akamatsu called for an organized response now to defending these cases on appeal. “True justice means expertly defending the convictions we’ve worked so hard to get,” she said. “There’s a place for Innocence Projects,” she acknowledged, but “not in this arena, because these cases are so factually driven.”

Law professor Joëlle Anne Moreno argued that the courts, the press, and the public are all misinformed about infant head trauma. She dismissed on legal grounds the adequacy of the “new evidence” that was behind the reopening of the Jennifer Del Prete and Quentin Louis cases, the reversal of the Audrey Edmunds conviction, and the minority opinion in the U.S. Supreme Court decision in the Shirley Ree Smith case. “We need to clear up these legal questions,” she said. “Don’t confuse causation with culpability. That’s what Professor Tuerkheimer is doing when she says this is a medical diagnosis of murder.”

Dr. Sandeep Narang, who is both a physician and an attorney, dismissed the idea of any real controversy about abusive head trauma as a fallacy manufactured by the defense and parroted by the media. He devoted the first hour of his talk to the medical literature, concluding that serious brain injury or death from a short fall is “very rare,” bleeding disorders are easy to identify, and both subdural hematoma and retinal hemorrhages are highly correlated with child abuse. The second hour he spent rebutting the “straw man” argument that shaken baby syndrome is “medically diagnosed murder.” He said he was puzzled by the claim that the child abuse literature exhibits circular reasoning:

There’s a lot of accident literature where we just looked at accidents. We didn’t look at abusive cohorts. We just looked at accidents. How is that circular?

Because Dr. Narang had the floor, no one answered his rhetorical question, but this is my blog, so please let me explain: These studies typically start with a series of patients seen at the authors’ hospitals over a period of time. Not infrequently, researchers studying acciden babySilhouette tal injury simply remove from the study any cases of presumed child abuse, with the stated goal of limiting the study to verifiable accidents. The filtering out of abuse cases is typically done by the local child abuse team, or sometimes by the authors. The problematic result is that, if a child comes in with a serious injury and a history of a household fall during the study period, the case is diagnosed as abuse and therefore never appears in the data. This self-fulfilling sorting algorithm also taints the studies that attempt to describe for physicians how to recognize child abuse—for an on-line example, please see http://archpedi.jamanetwork.com/article.aspx?articleid=348423.

Which brings me back to something that bothered me when I first read the trial transcripts of the 1996 case that brought this medico-legal tragedy to my attention: As long as the child abuse teams continue to treat every one of these cases as obvious abuse with immediate symptoms, there is almost no way to gather evidence to the contrary. Decades of convictions have been based entirely on sincere but unproven medical opinion, and at this point, the opinion is based on decades of convictions.

Kathy and Kevin Hyatt at the Glenwood Arts Theater, where The Syndrome premiered.

Last weekend I met not only Beth Fankhauser, who says her daughter Megan was watching a 15-month-old who fell off a bed, but also Kathy Hyatt, found innocent at trial in 2009 after a baby she was watching rolled off the couch, and the family of Amanda Brumfield, now in prison, who told emergency responders her goddaughter had fallen trying to climb out of a portable crib. I don’t understand what makes the doctors so sure that all these women, wives and mothers with good reputations in their communities, simply lost it and attacked babies they had been watching for months, babies they knew and loved.

November 2015 Update: You can now host a screening of The Syndrome, http://www.resetfilms.com/hostascreening/

If you are not familiar with the debate surrounding infant head injury, please see the home page of this blog site.

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Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, parents accused, SBS, shaken baby syndrome

Tagged as Beth Fankhauser, Flawed Convictions, Kathy Hyatt, Megan Griffith, Meryl Goldsmith, Susan Goldsmith, The Syndrome

October 10, 2014 · 6:17 pm

“The Syndrome” Trailer Makes Waves

Based on the trailer and publicity posted on the film’s web site, a group of child abuse professionals has written to the Kansas International Film Festival (KIFF) requesting that organizers cancel Sunday’s premiere screening of The Syndrome, a documentary about the debate surrounding shaken baby theory.

KIFF organizers received two letters earlier this week, one from the National Center on Shaken Baby Syndrome (NCSBS) that calls the film’s promotional materials “appalling, inaccurate, and potentially dangerous” and worries that viewers might get the impression that shaking a baby is not harmful, so that “numerous infants could be put in significant danger.”

A second letter signed by 29 child-abuse physicians protests:

“The prerelease materials… clearly state that the film provides a national platform for the tiny handful of well-known child abuse defense witnesses to publicize their fringe message—that shaking an infant cannot cause death or traumatic brain injury.” [italics in original]

The physician letter calls The Syndrome “a gross and deliberate mischaracterization of vital public health and child safety issues,” and the authors seem to be threatening a lawsuit:

“This is a public health matter and as organizers of this film festival we hope you share this concern. Under these circumstances, we also hope that you will reconsider featuring this film as part of your upcoming festival. In the event that you decide to continue with premiering this film, we may opt to pursue additional legal action.”

Filmmakers Meryl and Susan Goldsmith, who are cousins

The letter-writers had threatened litigation earlier, complaining that a news clip in the trailer presented the words of a child abuse pediatrician out of context. Director Meryl Goldsmith says her intention was not to deceive but to include quotes from both sides in the preview. Investigative reporter Susan Goldsmith explains why they edited the trailer: “Instead of hassling with them over a few seconds, we just cut it even though it was exactly how the news clip appeared. We made no changes to the film.”

You can see the letter to KIFF organizers from NCSBS executive director Ryan Steinbeigle by clicking here, NCSBS letter, and the letter from the medical professionals by clicking here, physician letter.

Director, editor, and producer Meryl Goldsmith will speak at the premiere showing of The Syndrome, on Sunday, October 12, in Overland Park, Kansas

The move to block The Syndrome isn’t surprising, after all the grief the film received from speakers at last month’s NCSBS conference. Political science professor Ross Cheit from Brown University, for example, in his talk “‘Exonerating’ the Guilty: Child Abuse and the Corruption of the False Conviction Movement,” characterized The Syndrome as “a love letter” to three defense experts. He said it was “a defense lawyer’s dream . . . you get to put on your testimony and there’s no cross-examination.” He objected to the term used in the trailer, “shaken baby syndrome industrial complex,” which he said shows “incredible arrogance and remarkable ignorance” on the part of the filmmakers because, “Child abuse is not where the money is. Child abuse defense is where the money is.”

Professor Cheit compared The Syndrome to Capturing the Friedmans, a 2003 documentary that raised questions about a 1980s child sex-abuse case in New York. Prof. Cheit portrayed that film as a whitewash on behalf of father-and-son felons Arnold and Jesse Friedman. Noting that Capturing the Friedmans was a finalist for an academy award the year it came out, Prof. Cheit said he worries about the “gullible acceptance many people have for a movie that’s labeled ‘documentary.'”

Presumably the KIFF organizers and judges made their choices carefully, both when they included The Syndrome in their program and when they nominated it for a jury award. I haven’t seen the film yet, but I hope it addresses some of the troubling questions that have raged around shaken baby syndrome for decades now—and I doubt the take-home message is really that shaking a baby is safe.

As for protecting the children: I am concerned about the infants who are denied the medical care they need when a hasty diagnosis of abuse stops the search for the medical conditions that underlie many cases of brain bleeding and swelling with no outward signs of trauma, as well as the siblings who are torn unnecessarily from loving homes. I am especially concerned about the cavalier opinion that household falls do not cause serious injury or death. I wish that parents were warned not only about shaking infants but also about dropping them. While most falls do not cause major injury, lives could be saved and injuries prevented if we started installing mats under changing tables and padding in play areas. Meanwhile, doctors simply do not know enough about infant neurobiology to support the definitive statements about infant shaking that have been winning in court for 30 years.

Spring 2016 Update:The Syndrome, in now available on demand in North America through Freestyle Digital Media, http://freestyledigitalmedia.tv/the-syndrome/

For my blog posting after the premiere showing of The Syndrome in October of 2014, go to Finding a Voice, and a Community.

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Filed under abusive head trauma, AHT, National Center on Shaken Baby Syndrome, SBS, shaken baby syndrome

Tagged as Kansas International Film Festival, Meryl Goldsmith, Susan Goldsmith, The Syndrome

January 22, 2014 · 11:26 am

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

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

A 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.”

I 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

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.”

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

Tagged as "I'll Say It for Ten Grand", Brian Holmgren, Dissent into Confusion, If I Only Get Ten Grand, Joëlle Anne Moreno, Shaken Baby Syndrome, Shirley Ree Smith, Supreme Court Justice Ruth Bader Ginsburg

October 18, 2012 · 2:13 pm

Separating the Sheep From the Wolves

Gray fox at a wildlife rescue center in Lafayette, CA

I have returned sobered from the Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma, Sept 29–Oct 1 in Boston.

Dr. Robert Block, President of the American Academy of Pediatrics (AAP), opened the conference with an address titled “While We Argue, Children Die: The Consequences of Misinformation,” arguing that the press has been getting it wrong by reporting that shaken baby syndrome is now in doubt.

If the number of shaking diagnoses is not decreasing, Block said, then “the assertion that there has been a significant shift in medical opinion and medical thinking is false and it is not supported in basis of fact.”

Block protested that an upcoming law-journal article misrepresents the intent of the 2009 AAP position statement recommending that doctors drop the term “Shaken Baby Syndrome” in favor of “Abusive Head Trauma.” The goal of the new name, Block said, was “not to detract from shaking as a mechanism of abusive head trauma as much as to broaden the terminology to account for the multitude of primary and secondary injuries that result from abusive head trauma.”

The article Block cited—“Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right”—was written by law professors Keith Findley and David Moran, with pediatric radiologist Patrick Barnes and pediatric neuropathologist Waney Squier, in response to an earlier article in the same journal —“A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome“—by pediatrician, attorney, and pediatrics professor Sandeep Narang. Dr. Narang had proposed in that piece, as he did again at the Boston conference, that the diagnosis of child abuse is best left to the experts who have devoted their careers to studying it.*

Like Dr. Narang, Block emphasized the importance of clinical experience. The experts have seen “thousands and thousands of children, of all ages, in all stages of health, from perfectly healthy to perfectly dead,” Block said, “Without that experience one cannot understand, get involved in, begin or end that science that we so desperately need.”

Arguing that child-protection doctors are forced to spend their time fighting baseless attacks, Block asked, “Can the media, and the folks who feed the media, be held responsible for injuries to, and deaths of, children?”

Block encouraged the building of multi-disciplinary bridges, where physicians from different specialties can share experiences and learn from each other. Conversation is difficult “with people who are emotionally invested,” he said, and he would welcome the entry of the Institute of Medicine and the National Academy of Sciences into the arena.

Monday morning’s keynote address—”A Wolf in Sheep’s Clothing: Denialism in Child Abuse Pediatrics” by Dr. Christopher Greeley, professor of pediatrics at the University of Texas Health Science Center—reaffirmed that there is no disagreement within the medical community about abusive head trauma.

“I believe this not to be a medical debate,” Dr. Greeley opened, but “a legal debate with a white coat on.”

Greeley proposed that critics of the known science behind shaken baby syndrome have fallen for the allure of their own personal narratives. “They think, ‘This is Galileo trying to prove his case to the people,'” he explained. “They think, ‘I have this knowledge and it’s being squashed by misguided authority.'”

Alluring at it is, that narrative is false, he said. “Are we the overbearing establishment? Is Dr. Block our pope?”

Dr. Greeley characterized those who question SBS theory as denialists, and he outlined their tactics:

Manufacture of doubt—emphasizing small areas of disagreement to give the impression of fundamental flaws
Identification of conspiracies
Creation of impossible expectations—demanding that the child abuse literature provide the same kind of evidence produced by drug trials, for example
Use of fake experts
Misrepresentation and logical fallacies—the “straw man,” for example
Selectivity of citation

Dr. Greeley’s slide show of media denialism included offerings from major news outlets (the 2008 Discover magazine piece by Mark Anderson, Prof. Deborah Tuerkheimer’s 2010 New York Times op ed, Emily Bazelon’s New York Times Magazine cover story, and the Frontline/ProPublica/NPR critique of child death investigations) as well as small internet voices (the Medill Innocence Project, MedicalMisdiagnosisResesarch, Medical Veritas [which seems to be an anti-vaccine organization], this blog, and the EBMSI conferences), plus a radio commentary by Phyllis Schlafly.

In the professional arena, Dr. Greeley lambasted the 2003 literature review by Dr. Mark Donohoe, “Evidence-Based Medicine and Shaken Baby Syndrome,” which had concluded that “the commonly held opinion that the finding of subdural hematoma and retinal hemorrhage in an infant was strong evidence of SBS was unsustainable, at least from the medical literature.”

Donohoe had searched the Biomednet Medline database using only the phrase “Shaken Baby Syndrome,” Greeley pointed out, four years before the phrase was officially adopted into the Medical Subject Headings maintained by the National Library of Medicine. Donohoe did not search for terms like “abusive head trauma,” “child abuse,” “subdural hematoma,” or any of the other phrases that might have captured additional relevant articles, Greeley charged, and then he didn’t even read all of the articles he found. Although Donohoe’s search was conducted in 1998, the article wasn’t published until 2003. Greeley said that his own search using Donohoe’s described strategy, even limiting the time range to 1966-1998, produced far more citations than the 54 Donohoe reported. (Greeley did not, however, offer any examples of papers that would have provided stronger scientific support for shaking theory than those Donohoe evaluated).

“Donohoe is a horrible paper and you should never cite it,” Greeley summarized. Noting that Supreme Court Justice Ruth Bader Ginsburg had in fact referenced Donohoe in her minority opinion in the Shirley Ree Smith decision, he speculated, “Surely Justice Ginsburg didn’t read this paper… or she wouldn’t have cited it.”

He also criticized medical-journal articles by Drs. Pat Barnes, Waney Squier, Jennian Geddes, and Steven Gabaeff and the “Getting It Right” law-journal article by Findley et al.

In other sessions I heard speakers explain that Vitamin D levels in a newborn are unrelated to bone fragility, hypoxia does not cause subdural hematoma, and physicians always do a complete work-up for other conditions that might cause the symptoms before diagnosing abuse. While I’m still puzzling over the medical possibilities, I know from personal experience that the third point is an unattained ideal.

I had hoped the conversation was opening up, but it’s hard to feel encouraged after being dismissed as a denialist. More to come.

* Dr. Narang’s article posits that there is no real medical debate about AHT and concludes:

“It is understandable that lawyers will look for opportunities to create doubt in the minds of jurors. However, the only way to appropriately improve the chances for justice in the courts with respect to AHT is to assure that an unbiased, financially-unmotivated, medical expert testifies to the current state of medical evidence.”

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Filed under abusive head trauma, AHT, American Academy of Pediatrics, National Center on Shaken Baby Syndrome, SBS, shaken baby syndrome