Category Archives: parents accused

Jury Finds Adrian Thomas Not Guilty

adrianThomasThe retrial of convicted father Adrian Thomas produced a not guilty verdict today, a decision reached by jurors who did not learn about the 9-hour interrogation examined in the award-winning 2012 film Scenes of a Crime or hear testimony from the detectives who conducted it. Thomas’s initial conviction in 2010 for the presumed shaking death of his 4-month-old son was overturned in February, when an appeals court determined that the interrogators’ heavy-handed tactics made the resulting confession inadmissible.

At both trials, defense experts argued that Matthew had died of sepsis, a full-body infection that leads to rapid collapse through tissue failure. The sepsis diagnosis was  confirmed by blood tests ordered by forensic pathologist Jan Leestma, hired by the defense team. The state pathologist had not mentioned the sepsis in his autopsy report, although he did not deny it after Leestma brought it to his attention.

AdrianThomasStandsMatthew had no bruising, no red marks, and no fractures. His first blood test when he was rushed the hospital had came back positive for streptococcus pneumoniae. He had also arrived at the hospital with a temperature of 97.2 F, which dropped 3 degrees over the next half hour. His mother had reported a fever of 100.4 F the previous day, a figure that was dismissed as “not high” by prosecution expert Dr. Carole Jenny, who insisted that the sepsis infection was secondary to inflicted head trauma.

Coverage by reporter Bob Gardner at the Times Union offered this quote from the prosecution after the verdict:

“After the Court of Appeals threw out the his statements of guilt, we did the best we could with what we had left,” said Assistant District Attorney Christa Book. “I’m sorry that I could not bring Matthew justice.”

For a summary of the interrogation and a review of the film, please see this blog posting.

For the opinion vacating Thomas’s initial conviction, follow this link.

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Filed under abusive head trauma, AHT, coerced confessions, Falsely accused, parents accused, SBS, shaken baby syndrome

Short Falls, Long Sentences

The innocent verdict in Yolo County last month has me reflecting on a few of the people I know who are in prison on the basis of medical opinion that (1) short pediatric falls are seldom if ever fatal and (2) the symptoms of a serious infant head injury will be immediately obvious.

Because the doctors are so sure, police and social services move ahead with confidence, and juries tend to convict. Tragically and exasperatingly, the legal outcomes then seem to support the common knowledge, which remains a matter of opinion, not proven fact.

Rico Green

Rico Green

Rico Green

Rico Green in Oklahoma, for example, is serving a life sentence following the 2010 death of his girl friend’s toddler, 13-month-old Gericho. “Anybody that knows Rico knows that’s not him,” says Antoine Hubbard, a family friend who has pulled together the case records, hoping to file an appeal. “Rico’s a gentle guy. He’d never do something like that.”

gericho

Gericho 2010

Gericho’s mother had just started a new job and Rico was watching Gericho, as he often did. He called 911 mid-day, with a report that the boy was unconscious after falling down a few steps—but at the hospital, doctors said a short fall couldn’t account for the injuries.

During extensive police interviews, Rico reported an incident earlier that morning when he had “snatched up” Gericho and scolded him, when the boy had grabbed the toilet plunger after his bath and pretended he was going to bite it, a game he’d learned was provocative. In the videotaped portion of the interrogation, the final half hour, the detectives do most of the talking, insisting that Rico, enraged, shook the boy at that time.

Rico shows a remarkably even temper on camera, seemingly more puzzled than angry as the detectives refuse to accept the story he repeats again and again: What he feels bad about is yelling at Gericho and making him cry.  “I know he’s a one-year-old,” Rico explains, “He probably doesn’t understand.” The detectives keep at it, though, until Rico finally seems to accept their theory that he was so angry during the plunger incident he didn’t realize how hard he had shaken the boy when he grabbed him. What sounded like a confession to them looked to me like acquiescence, and not the behavior of a man prone to violent outbursts.

Rico’s trial lasted three days and featured 13 prosecution witnesses. The public defender called no witnesses on his behalf, and the jury convicted Rico of murder in the first degree. Antoine Hubbard is now looking for pro bono legal help.

Jeff and Gracelynn Baker, 2010

Jeff and Gracelynn Baker, 2010

Jeff Baker

In Idaho, mature father Jeff Baker is serving a life sentence for the death of his daughter Gracelynn, not quite three months old the afternoon in 2010 when her father found her struggling to breathe shortly after he’d fed her. The babysitter who had been caring for the girl earlier in the day later told police she had accidentally dropped the baby into a sink while bathing her, but Baker was convicted of murder, in what doctors testified was both a shaking and a slamming assault.

Pediatric neuroradiologist Dr. Patrick Barnes, called in by the defense, noted that Gracelynn’s breathing tube was misplaced in two of the scans he reviewed. Baker, who has written his own appeal from prison, sent me excerpts from the medical records showing the catastrophic drop in his daughter’s blood-oxygen levels that night, and the “reintubation” procedure the following morning. The state has appointed an attorney to represent Baker at the upcoming hearing on his appeal.

Tiffani Calise

Tiffani Calise

Tiffani Calise

Tiffani Calise was only 19 years old the night she called 911 for help with a toddler who she said had slipped and fallen in the bathtub. She was arrested two weeks later, in August of 2010, and she hasn’t been out of custody since. She is now missing her own daughter’s childhood while serving a sentence of 15 years to life for the presumed murder of her friend’s child. Her first appeal was turned down, but supporters are working on another.

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

Leo Ackley with Baylee — His Facebook profile shot not long before the accusations

Leo Ackley

Last year’s successful appeal on behalf of Leo Ackley turned to disappointment this spring, when the Michigan Court of Appeals  reversed that decision, calling it “clear error.”

At issue was whether trial counsel Kenneth Marks provided ineffective assistance in 2012 by failing to look for a different expert witness after the first pathologist he approached, Dr. Brian Hunter, told him he believed 3-year-old Baylee’s injuries were caused by abuse, not the fall from a bed that Ackley had reported. In hearings last summer, Hunter testified that he told Marks the issue was controversial, and he suggested other pathologists who believed a short fall could be fatal. He did not charge for the initial consultation.

Marks concedes that he did not contact either of the experts Hunter had suggested, but chose to spend the $1,500 he’d been granted to hire Hunter, not as an expert witness but as a trial consultant, preparing him to cross examine the state’s pathologist. All parties seem to agree that Marks successfully forced Dr. Joyce deJong to admit on the stand that doctors did not know what level of force was necessary to cause the brain injury that killed Baylee. Still, Ackley was convicted of murder and sentenced to life in prison.

kaylee

Baylee

Appeal attorney Andrew Rodenhouse argued that because the case hinged on expert medical opinion, a reasonable defense required a physician on the stand to support Ackley’s claim of innocence. Marks should have contacted one of the suggested experts, Rodenhouse said, petitioning the court for more funds if necessary, or he could have at least subpoenaed the little girl’s pediatrician, who had noted at a check-up that Baylee was doing better with the mother’s new boyfriend in her life. In the fall of 2013, Chief Circuit Judge James C. Kingsley agreed and set aside Ackley’s conviction.

In an opinion released in April, though, a new panel of judges concluded:

“[Marks’] decision not to consult a second expert constituted trial strategy. Defense counsel is not required to continue seeking experts until he finds one who will offer favorable testimony.”

Rodenhouse says he is entirely committed to both Ackley’s case and the larger fight against misguided accusations of infant shaking. He points to the re-opening of the Adrian Thomas conviction in New York and last week’s remarkable reversal by a Minnesota trial judge of a jury decision and declares, “There is a momentum. We’ve got to keep it going.”

Sean O’Geary

Sean O'Geary

Sean O’Geary

The Innocence Project of Iowa, meanwhile, has confirmed that it’s examining the case of Sean O’Geary, in prison since 1998 in the death of his girl friend’s 2-year-old daughter Mercedes.

The girl’s grandmother had dropped her off on Friday afternoon with a report that she’d had the flu for a couple of days. Both Sean and his girl friend said Mercedes fell onto the coffee table the next day, while jumping on the couch, and both of them reported hearing a loud thump later that night, after everyone was in bed. It was Sean who went to check on her, though, and so it was Sean who was accused of shaking and slamming her to death. He said he found her climbing back into her crib, and she seemed fine at the time, but on Sunday evening she was rushed to the hospital with convulsions.

giovo

Michael Giovo Jr. with Skyler

Michael Giovo Jr.

Without realizing it,  Michael Giovo Jr. offered investigators one of the leading stories that child abuse professionals are trained to doubt:  A fall from a couch.

Michael said he had stayed up watching television on Thanksgiving night in 2008, after his girl friend had gone to bed. When he heard 4-month-old Skyler crying, he picked him up from his crib and settled him on the couch while heating a bottle. Michael did not witness the fall, he said, but heard a cry and returned to find Skyler on the floor. The boy seemed to recover and spent the night in bed with him, Michael reported, but he and his girl friend rushed the boy to the hospital the next day, when he started twitching. Giovo is now serving life in prison.

Reporter Jonathan Able at the Tampa Bay Times said that Michael had no idea during hours of police questioning that he was accused of assaulting his son:

He said he went along with the interview voluntarily because police said he was not a suspect. “If I knew they were going to make me a suspect I would have asked for a lawyer right then.”

Atlanta, Georgia, September 2010

Atlanta, Georgia, September 2010, at the NCSBS conference

The 2010 conference sponsored by the National Center on Shaken Baby Syndrome featured a mock trial in which a babysitter reported an unwitnessed fall from a bed, a distance of 36 inches, possibly with an impact against a wooden stool. The imaginary infant had both new and old fractures, as well as acute subdural hematoma, retinal hemorrhages, and brain swelling. On the mock stand, the prosecution doctors all agreed that a short fall would not account for the injuries, and that the child had been violently assaulted after she was dropped off at the babysitter’s, the last point at which she was observed to be alert, eating, and playing.

Hundreds of doctors attended that conference and returned to their hospitals with a clear message: Short falls don’t kill. The problem is that it’s a question of faith, not a question of scientific fact. Despite the common knowledge, biomechanical research has shown that short falls can produce large forces. In a report submitted on behalf of death-row inmate Jeffrey Havard in the fall of 2013, for example, biomechanical engineer Prof. Chris Van Ee wrote, “it is clear that low level falls of even 2-3 feet can result in injurious level head impacts resulting in skull fracture and intracranial hemorrhage.”

I wish the doctors who rely so readily on the common knowledge, and the police and social workers who leap into action at the word of the doctors, would slow down and listen to the defendants more carefully. I think there is still a lot to learn.

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

For more stories of caregivers and parents convicted in short-fall cases, please see http://www.marshamills.org/thestory.aspx,  http://brianpeixoto.com/,http://www.freeamandabrumfield.com/, and http://www.theamandatruthproject.com/heartofthematter.htm, and these are only the ones with web sites.

copyright 2014, Sue Luttner

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

A Yolo County Jury Believes the Father

SamStone

Sam Stone, 2012

A jury in Yolo County, California, has found 40-year-old Quentin Stone not guilty of child endangerment and abuse, in a case that highlights the limitations of the common knowledge about both the potential danger of short falls and the timing of symptoms following infant head injury.

The story begins in early September of 2012, when Stone brought his son Sam, then two months old, to the Kaiser clinic with a report that the boy had fallen from a bed onto a hardwood floor. Sam showed no symptoms at the time, and doctors found nothing alarming during their examination. The boy was brought in again the next day with a report of projectile vomiting, and again he was examined and sent home. A series of emails and another in-person visit document his parents’ ongoing concern with Sam’s continued vomiting and episodes of “breath holding” over the following days and weeks.

Sam Stone had both a twin and an older brother.

Sam Stone had both a twin and an older brother.

Then on October 3, Sam collapsed and his father rushed the unconscious boy to the hospital, where scans revealed both fresh and chronic subdural hematomas.  Doctors diagnosed Sam as the victim of abusive head trauma. According to trial coverage by Sarah Dowling at the Democrat News, prosecutor Steven Mount dismissed Stone’s claim that his son had fallen off a bed in September:

Mount said except for Stone’s testimony, there is no evidence that a fall even happened. Instead, Stone could have gotten angry with the child or simply wanted to stop him from crying. Regardless of the motivation, Mount said that Stone could have shaken the child, coming up with the “fall story” to cover it up.

Stone had said he wasn’t in the room when the boy fell. He had left Sam in the middle of a king-sized bed and gone briefly out to the garage. When he returned, Sam was on the floor. Sam’s twin brother Henry was asleep in a swing, but Stone thought their other son Jack, two-and-a-half at the time, might have pulled the boy off the bed.

Public defender Monica Brushia said she was sure from the beginning that her client was innocent. “Just reading the police report, I knew the doctors had misdiagnosed Sam, which led to his death… This was a very difficult and emotional case.” Both she and co-counsel Martha Sequeira cried real tears while preparing for trial, Brushia reports, and again when the verdict was read.

Brushia shared a Facebook posting from one of the jurors, whose account of the trial included this paragraph:

Today, an innocent man was set free of blame and accusation of the death of his son. Mr Stone didn’t abuse his child, he did everything he could do to save him. The sad fact is Dr’s make mistakes, sometimes they miss things, sometimes they are wrong. The death of this child really was at the hands of 2 Kaiser Dr’s, who went against what another Kaiser specialist had warned.

OnTheCouchMr. Stone is now trying to regain custody of his surviving sons, with whom he is allowed only weekly supervised visits.

The prosecution relied on expert testimony from Dr. Kevin Coulter, pediatrics division chief at the University of California, Davis, Medical Center, and forensic pathologist Dr. Bennet Omalu, also on the UCD Medical Center faculty and chief medical examiner of San Joaquin County. The defense called forensic pathologist Dr. John Plunkett, pediatric neuroradiologist Dr. Pat Barnes, and ER physician Dr. Steven Gabaeff.

Dr. Plunkett’s report included a few paragraphs that might be educational for anyone working on one of these cases. On the subject of chronic subdural hematoma, for example, Plunkett wrote:

Sam had a large chronic SDH and a small acute left-sided SDH when Woodland and Davis’ personnel evaluated him. A chronic SDH, sometimes referred to as an hygroma, must begin either as an acute SDH or as an intradural effusion. A predominance of blood or blood products typifies a hematoma. A high protein-content fluid with medical imaging signal features similar to cerebral spinal fluid (CSF) characterizes an effusion. It is often not possible (clinically or radiographically) to determine whether a chronic SDH began as intradural bleeding or as an effusion. If the chronic SDH started as acute bleeding, the acute SDH may be large and require surgical evacuation, may resolve and heal with no apparent signs and symptoms, or may become “chronic”. If the acute hematoma does not resolve, it develops a membrane that is extremely fragile and has many new, immature blood vessels. These blood vessels may rupture, causing “new” bleeding and an increase in the size of the initial SDH. There have been a number of studies to determine why some acute hematomas become chronic. The best explanation appears to be that the unique characteristics of the clotting system in the hematoma itself allow the bleeding to persist rather than to heal. The Medical Imaging literature has documented this phenomenon in studies following hospitalized SDH patients with serial CT and MR scans, which show new bleeding in established hematomas in the absence of trauma. “New” trauma is not required for this progression.

And regarding the origin of subdural bleeds, which can be caused by impact but also by a number of non-traumatic circumstances:

Impact may cause dural compartment bleeding in an infant. The infant skull is not rigid, and may deform significantly during an impact, even without fracture. This deformation, or inbending, distorts the underlying brain, and may stretch the bridging veins, may physically alter the dural venous plexuses, and/or may activate the trigeminal (“V”) cranial nerve. If these changes exceed the tensile failure threshold for the veins or the plexuses, they rupture and bleed into the dural border cell layer (“the subdural space”). If the rupture involves relatively large vessels, the bleeding may be significant and lead to rapid compromise of brain function and death, even with timely and appropriate surgical intervention. Alternatively, the bleeding may be relatively slow and even asymptomatic for a considerable time, and only lead to clinical signs if there is an increase in head circumference or an increase in intracranial pressure, the latter triggering vomiting, seizures, and/or compromise of respiratory function. The impact may be apparently innocuous and extremely low velocity. Scientific studies using adult human volunteers (scaled to the infant), cadavers, non-human primates, and other experimental animals; accident reconstruction; computer modeling; and finite element analysis have established and validated infant human brain injury g and Head Injury Criterion (HIC) thresholds. The current federal head-injury standard for a 6-month-old infant represented by the CRABI-6 dummy is a Head Injury Criterion threshold of 390 and a peak g threshold of 50 (50 times the acceleration due to gravity). The researchers have not established thresholds for a 3-month-old infant. However, they are lower than for a 6-month-old infant. A simple headfirst impact to a non- yielding surface from as little as a two-foot fall will usually exceed these thresholds. Fatal impact head injury in an infant does not require a motor vehicle accident or a fall from a two- story building.

These thresholds imply an “all” (risk of severe injury or death) or “none” (no risk of severe injury or death) event. However, biological systems including human beings are seldom “all” or “none”. Further, underlying conditions such as an abnormality of the blood coagulation system, individual cerebral vascular anatomy, cerebral atrophy or increased extra-axial fluid, and an individual’s unique metabolic pathways may alter the threshold and outcome for impact trauma.

Sam had a history of a significant impact event, but I will discuss briefly non-impact causes of dural bleeding for completeness. I do not think that any of these conditions caused or contributed to Sam’s initial acute bleeding with the possible exception of birth or an increase in extra-axial subarachnoid space (so-called “benign” expansion of the subarachnoid space, or BESS).

A number of “natural diseases” and metabolic abnormalities predispose to, or are associated with, SDH. However, anatomical research suggests that damage to the dural venous plexuses rather than traumatic stretching of the bridging veins causes the SDH in these cases. Examples include but are not limited to:

  • The birth process itself, including C-section delivery;
  • Lumbar puncture resulting in intracranial hypotension;
  • A variety of infections caused by bacteria and viruses;
  • Breakthrough bleeding associated with cortical venous thrombosis (CVT), or sagittal sinus thrombosis (SST) or other large-sinus thrombosis;
  • Inborn errors of metabolism such as glutaric aciduria and Menkes Disease;
  • Inherited or acquired coagulation abnormalities, such as hypofibrinogenemia, Vitamin K deficiency, or thrombocytosis;
  • Structural abnormities such as an arachnoid cyst, increased extra-axial fluid, or subdural hygromas;
  • V ascular malformations such as, but not limited to, A V malformations;
  • Poorly understood inflammatory processes such as hemophagocytic lymphohistiocytosis and post-vaccination reactions; and
  • Spontaneous, in which the bleeding develops with no recognizable cause.
Finally, hypoxia or anoxia may cause subdural hemorrhage either as a primary or as a secondary event. For example, hypoxic damage to the dural venous plexuses rather than mechanical trauma is the most likely cause for intradural hemorrhage that may lead to subdural hemorrhage when hypoxia is associated with an increase in intracranial pressure.

 

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Filed under abusive head trauma, AHT, Dr. John Plunkett, Falsely accused, parents accused, SBS, shaken baby syndrome

Journey With “Justice”: A Rough Road

journey

Dan Schrock, the author of Journey With “Justice”: Our Family’s Experience With “Shaken Baby” Allegations, is a gentler spirit in person than he is on the printed page. He has even found a message of hope in his daughter’s conviction for an infant shaking he is sure never happened.

“The temptation is to say ‘the police did this’ and ‘the prosecutor did that,'” he concedes, “But behind all this is a society that loves children and is willing to do anything to protect them.” Even the investigators who amplified his family’s pain by lying to potential witnesses, he argues, were only trying to hold someone accountable for his granddaughter’s catastrophic collapse.

Natalia Benson was three months old in July, 2005, the morning she wakened her mother, Barb Schrock, at 3 am with a high-pitched scream, followed by breathing problems and a call to 911. Within two days, Natalia had become a ward of the state, diagnosed as a shaken baby, and Barb was the only suspect.

Barbara Schrock, 2011

Barbara Schrock in prison, 2011

Like so many infants in these circumstances, Natalia came into the world in fragile health. She weighed 3 pounds 11 ounces at birth, after a labor induced at 34 weeks due to her mother’s soaring blood pressure. She spent her first three weeks of life in the Neonatal Intensive Care Unit, and she still weighed only 6 pounds when 3 months old. Barb had called the doctor’s office the previous day, concerned that the baby seemed not herself, and had made an appointment for that morning, a few hours after the girl’s collapse. A month earlier, she had taken Natalia to an after-hours clinic because her breathing didn’t seem right:  At that time the infant was diagnosed with a sinus infection and put on antibiotics.

Despite Natalia’s complex medical history and lack of bruising or abrasions, the pattern of bleeding and swelling found inside her skull convinced the doctors that the girl had been shaken. Oddly enough, the doctors also agreed that she had suffered a more serious brain injury weeks earlier, although that didn’t seem to interfere with the assumption that she had been violently assaulted immediately before her collapse.

DSC02771Dan Schrock’s main achievement in Journey is his careful tracking of the evolving case against his daughter:  Early in the story, he transcribes the initial police interviews with family members, and he carries his thorough knowledge of these transcripts through the narration. His book illustrates clearly how misinformation, propagated early on by police trying to corner their suspect, confused the facts and tainted both the investigation and the trials. He also compares the medical testimony from different doctors, revealing how the physicians could  reach different conclusions from the same scans and records, but still return to their unanimous confidence that the last caretaker with the child before her collapse was guilty of assault.

Journey With “Justice” is not a light read:  It is Dan Schrock’s from-the-heart protest against the murky thinking and questionable tactics that condemned his daughter to lose both her family and her liberty. He and his wife have also been denied any visitation with their surviving granddaughter, at the instigation of the girl’s father and his family. “They believe her mother killed her sister,” Schrock sighs, “And they don’t want our side of the family in her life.”

He told me he wrote Journey so that his granddaughter would some day have a record of what really happened, and as a testament to the support his family received from their church community. In that he has succeeded. Especially when he talks about the case in retrospect, now that he has the leisure of hindsight, he is a living testament to the value of faith. His indignation comes through, and his love for his daughter, but I found no bitterness in his message.

Barb Schrock should be getting out of prison in the next few months. It is comforting to know that she will have an accepting family and community to help her move forward when this phase of her ordeal is over.

Update: Barbara Schrock was released from prison in early summer, 2014.

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

copyright 2014, Sue Luttner

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

“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

“Scenes of a Crime” Hits Home, Hard

Dr. ScenesOfACrime copyAfter watching “Scenes of a Crime” over the weekend, I now know why this potent documentary has garnered so much praise.  Filmmakers Grover Babcock and Blue Hadaegh have interspersed actual footage from the lengthy police interrogation of an accused father in Troy, New York, with excerpts from Reid Technique training films and commentary by key players in the case. The result is a clean, careful, and gripping illustration of how a man can be manipulated into confessing to a crime he didn’t commit. The film is especially relevant in the child abuse arena, as it also documents a hasty and inaccurate diagnosis of inflicted infant head trauma that triggers a legal nightmare. As explained in a film review by astute critic Kenneth Turan at the Los Angeles Times:

What is perhaps most remarkable about this case is the way it began. When police went to the hospital to look into the death of [Adrian] Thomas’ son, they were met by Dr. Walter Edge, who not only told them that the infant had died of a fractured skull but added, in no uncertain terms, “somebody murdered this child.” Roused to action by this declaration, detectives looked around for likely suspects, saw one in the infant’s very large father, and turned the situation into a self-fulfilling prophecy. Armed with the zeal of the righteous, they believed nothing would do unless Thomas could be made to confess in exactly the way they thought he should. Which is what eventually happened.

At the risk of ruining the suspense, Thomas’s son Matthew did not in fact have a fractured skull—nor did he show any bruising, grip marks, or other external signs of either shaking or impact—and laboratory tests later revealed a serious systemic infection, missed by not only the treating doctors but also the pathologist who performed the autopsy. adrianThomasThe most chilling aspect of “Scenes” is the unshakeable confidence of the police and prosecutors, who never look back even as the medical evidence unravels. In the course of a 9-hour interrogation over two days, detectives Adam Mason and Ronald Fountain lie to their suspect—repeatedly and cruelly—threaten to target his wife, argue with him, pretend to befriend him, pray with him, hug him, and flatly reject his repeated denials. “You want to save your son’s life, man?” Mason asks at one point, “Why are you holding out on me?” scalesThe detectives start their investigation with two suspects, Thomas and his wife, the only adults in the apartment when Matthew’s breathing problems started. They eventually tell Thomas, falsely, that his wife is blaming him, and if he doesn’t confess they will go after her. “My wife is a good wife,” he tells them. “I don’t believe my wife did that, but if it comes down to it, I’ll take the blame for it.” Detectives explain that he can’t just say he wants to take the blame, he has to tell them exactly how it happened, convince them that he did it. Viewers of the film have an advantage over members of the jury when watching the interrogation footage, a commentary by sociologist Richard Ofshe, emeritus professor at the University of California at Berkeley, who has spent decades studying why innocent people make false confessions. Thomas’s attorneys planned to call Ofshe to the stand, but Judge Andrew Ceresia approved a prosecution motion to exclude his testimony. After watching “Scenes,” I found myself more annoyed than usual by news coverage that treats the prosecution version of an infant head injury as truth, like the case summary provided in the report filed by Bob Gardinier at the Times Union in 2012, when an appeals court rejected Thomas’s petition:

Three times, Thomas threw his son on a bed in September 2008, inflicting brain injuries that resulted in the infant’s death. The defense maintained the baby died from sepsis, an aggressive bacterial blood infection.

I don’t know how the wildly different opinions about cause of death were presented in court, but Rensselaer County assistant district attorney Arthur Glass explains on camera that prosecution pathologist Dr. Michael Sikirica did not deny that the child had a systemic infection—although he did not mention it in his autopsy report—but the doctor believed that “the sepsis was secondary to the head trauma.”

Melissa Calusinski

Melissa Calusinski

This resistance to new input was echoed this past summer in a prosecutor’s response in Lake County, Illinois, after a new coroner, Dr. Thomas Rudd, reopened the 2011 murder conviction of day care worker Melissa Calusinski. Unconvinced by the original reports and slides, Rudd prepared a set of iron stains, which confirmed the presence of an older brain injury the day the boy quit breathing in Calusinki’s care, in January of 2009. Although even the original pathologist, Dr. Eupil Choi, agrees with the new findings, the state is fighting a new trial for Calusinki, according to this report by Ruth Fuller in the Chicago Sun Times:

Lake County’s top prosecutor said that even if the new findings of Choi are correct, Calusinski should still be held accountable for Benjamin’s death if her actions, at the now closed Minee Subee in the Park day care center, exacerbated his injury. Lake County State’s Attorney Mike Nerheim, elected to the job in 2012, has worked to restore the reputation of an office beset with several wrongful convictions, a record that has drawn national attention. But in Calusinski’s case, Nerheim said he reviewed the new findings and believe they simply rehash the defense’s arguments at trial. Nerheim said he has found nothing to give him pause about the guilty verdict.

Like Thomas’s attorneys, Calusinski’s defense team had consulted forensic neuropathologist Dr. Jan Leestma. In Thomas’s case, Leestma requested additional tests that confirmed an infection that was caught in the initial blood work but never followed up. In Calusinski’s case, Leestma concluded from the original reports, photographs, and slides that the toddler had an older brain bleed the day he died, as confirmed later by Rudd’s further analysis. From the 2011 trial coverage by Tony Gordon at the Daily Herald:

Leestma said it was possible Benjamin had severely aggravated the existing injury by throwing himself backward and striking his head on the floor, as the defense has claimed throughout the case. He also dismissed the notion of the force that killed the toddler being equal to a one- to two-story fall, saying the injuries an infant would suffer from such an event would be dramatically more severe than what killed Benjamin.

Like Thomas, Calusinski had broken down after hours of interrogation and given the police the story they were after, the “confession” that sealed her conviction.

January 2015 update:  48 Hours has prepared a riveting documentary about Melissa Calusinki, “Blaming Melissa.”

I am grateful to the people who made “Scenes of a Crime,” which I think will help educate the public about the reality of coerced confessions. I wish only that the film had also been able to address the unanswered question:  Why the doctors were so sure Matthew Thomas had been murdered. (If you don’t know the almost certain answer, please see the home page of this site.) You can rent “Scenes of a Crime” through a number of on-line sources, as described on the home video page of the film’s web site.

February 2014 update:  An appeals court has vacated Mr. Thomas’s conviction, reported here. You can read the decision here. June 2014 update:  Adrian Thomas was found innocent in a second trial, reported here.

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Shaken Baby Doubts Keep Surfacing

As the improbable accusations, heart-wrenching convictions, and dogged appeals accumulate, the press is running more stories about disputed diagnoses of shaken baby syndrome.

Prof. Adele Bernhard

Law professor Adele Bernhard

In upstate New York, for example, the Democrat and Chronicle has run a two-part series of what it calls “Watchdog Reports,” with independent text and video treatments.

Part I, “Shaken baby science doubt grows,” features a complex and thoughtful text piece about child-care provider René Bailey, whose 2002 conviction is now being appealed by Professor Adele Bernhard and her students at Pace Law School’s Post Conviction Project. The story includes an intriguing tale told by a new witness, the woman who later cared for a 2-year-old boy who was also at Bailey’s house that day. She says that he seemed to be re-enacting the fatal incident during spontaneous play, again and again with stuffed animals, as a leap from a chair.

Michael Tantillo Ontario County District Attorney

District Attorney Michael Tantillo
Ontario County, New York

The video offers statements from both sides: Ontario County District Attorney Michael Tantillo says the “vast majority” of experts are comfortable with the diagnosis once known as SBS, now called abusive head trauma. Defense attorney William Eastman expresses his skepticism without explaining that he was part of the team that represented Barbara Hershey, 67 years old when she was convicted in 2007 for the presumed shaking death of her 4-month-old grandson. Hershey was released in 2011, after her sentence was reduced in a proceeding that did not address the validity of the diagnosis. Like so many women in her position, Hershey has had the support of her family from the beginning.

Part II of the series, “Shaken-baby triad still rules in New York courts,” devotes both the text and video segments to Hershey’s case—the treatments are different, though, and the commercial before the video is only 15 seconds, so I recommend both reading and watching.

Decision Returns Quashed Conviction to the Headlines

ECHRA European human rights court, meanwhile, has declined to order compensation for accused mother Lorraine Allen, whose 2000 conviction for presumably shaking her son to death was reversed in 2005. Ms. Allen says she was not surprised at the decision, but is bitterly disappointed that she still has no visitation rights with her surviving son, born after the charges were brought and adopted out against her will.

Allen’s case is one of the last in which Dr. Waney Squier testified to the mainstream model of shaken baby syndrome, repeating on the stand what she’d learned from her medical mentors and colleagues: that the boy’s combination of subdural hematoma, retinal hemorrhages, and encephalopathy represented a shaking injury.

Dr. Waney Squier, at the 2009 Evidence-Based Medicine Symposium Denver, CO

Dr. Waney Squier,
at the 2009 Evidence-Based Medicine Symposium,
Denver, CO

Dr. Squier realized the model was wrong over the next couple of years, she has said, based on her experiences with cases like Allen’s and the work of Dr. Jennian Geddes. “By then it was far too late for my family,” notes Allen, although Dr. Squier did help overturn her conviction—after Allen had already served her time in prison and lost both her sons and her marriage to the accusations. At the time of his death in 1998, four-month-old Patrick had no bruises, grip marks, neck injury, or other signs of violence, only the pattern of intracranial bleeding and swelling that at the time was considered proof of abusive shaking.

The current coverage focuses on whether the vacation of Allen’s conviction was an actual exoneration, as explained in this report from The Guardian:Lorraine Allen denied compensation after being wrongfully jailed for killing son.”

The diagnosis in this case was made in the face of this extraordinary history:  On December 4, 1998, 4-month-old Patrick received his third round of immunizations. At 1 am the next morning, Allen called her doctor with a report that the boy was having trouble breathing. Dr. Barber made a house call and found the child a little “snuffly” and with a slightly elevated temperature, but otherwise fine. He left the home at about 1:30. An hour later, Allen called for emergency help with an unresponsive child. Patrick was resuscitated and placed on life support, but he never regained consciousness and died two days later. Prosecutors concluded that Allen had violently shaken her son after the doctor’s visit and before the emergency call.

For a solid account of the case, written last year for The Justice Gap by a consultant to Allen’s defense team, please see “Shaken Baby Syndrome—And the Fight for Justice.

Articulate Voices Speak Out

Back in the States, the Medill Justice Project has put together its best shaken baby video yet, including a rare interview with law professor Deborah Tuerkheimer, who has caused major waves the past few years with her journal articles and New York Times op ed piece.

Series Examines the Role of Social Services

And moving north again, the Weekend Telegram in Nova Scotia has run a thoughtful three-part series featuring a familiar tale:  An infant with previous health issues removed by social workers who believed the little girl had been shaken—in this case, even though doctors deemed the evidence against the mother too murky for criminal charges.

Part 1 “Guilty until proven innocent

Part 2 “Justice at a heavy price

Part 3 “Victims of tunnel vision,” which introduces the case of Audrey Edmunds.

Judge Listens to Parents

A High Court judge in Britain has declined to remove three children from the care of their parents, despite findings of subdural hematoma in each of their offspring. The judge seems to have been swayed by the family’s complex medical history, as explained in the coverage on the web site This Is Cornwall:Parents win battle to keep their children out of care.”

Misdiagnosis Prompts Bill

Finally, a family in the southern U.S. has enlisted the help of their legislator after social services restricted access to their older children because of an abuse report triggered by retinal hemorrhages in their infant’s eyes. A follow-up evaluation found no evidence of abuse and attributed the infant’s death to a bad reaction to medication, but the family was disrupted for 5-1/2 months while the paperwork caught up to them.

As the child’s mother noted, “We were kind of guilty until proven innocent.”

Television station KATC in Layfayette, Louisiana, offers both video and text coverage on their web site, at “Iota family fighting for new legislation after misdiagnosis forces call to child services.”

Business Goes On as Usual

Despite all of these developments, the accusations continue—and the interrogations and the prosecutions. Just in the last couple of days, for example, young men who initially denied any abuse have become confession statistics:

Father Accepts Plea Deal in Shaken Baby Investigation

Police:  Ogden Man Admitted To Shaking Baby in His Care

And a couple has been cast by the police and the press in the worst possible light after they sought medical help for their son, who was found to have symptoms “consistent with” shaken baby syndrome:

Couple arrested after baby found unresponsive

I suppose some or all of these people might be guilty, but myself, I see lots of room for innocence in all three cases.

-Sue Luttner

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

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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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Fathers Caught in the Jaws of Injustice

The crush of the stories is getting to me, both the number of them and the cruelty.

Justice Richard L. Buchter in New York drove the point home last week during the sentencing of Hang Bin Li, the immigrant father convicted last month of manslaughter in the death of his infant daughter Annie. According to the New York Times coverage, Buchter called Li’s treatment of his daughter “shocking, sickening, sadistic” before imposing a sentence of 5 to 15 years.

The New York Post reported that Li tried to tell the judge he was innocent, saying, “I didn’t know how or why this happened. I wrote what my statements were to the police, three times of what happened.”

But the judge cut him off. “These are the same lies the jury rejected,” he said.

No one is listening.

Jason Curtis with his son Jackson -photo courtesy the Curtis family

Jason Curtis with his son Jackson
-photo courtesy the Curtis family

And the tragedies keep coming. Jason Curtis in Iowa, for example, was convicted last month of first-degree murder in the death of his son Jackson, 5 months old when he quit breathing during a nap.

Curtis’s story was simple:  He was at home with the baby while the child’s mother was at work. He thought Jackson was asleep, but when he checked on him mid-morning, he found the boy unresponsive. He immediately dialed 911.

Doctors found no bruises, abrasions, red marks, or fractures, but bleeding and swelling inside the boy’s skull convinced them he had been assaulted—more than once.

Like many children diagnosed with shaking injuries, Jackson had a complex medical history. He had been prescribed a series of anti-biotics and anti-fungal medications, and he had been hospitalized at the age of three months for failure to thrive.  On the day he quit breathing, he was being treated for a respiratory infection. Autopsy revealed a large chronic subdural hematoma and multiple small rebleeds.

“Every time they gave him a new medication, he got sicker,” says Roni Hays, Curtis’s aunt, who also points out that during ten doctor visits over Jackson’s five months of life, not a single medical record noted evidence of abuse.

threesleepEven one of the prosecution experts testified that nothing in the child’s brain could “unequivocally” be considered evidence of trauma. Daily trial coverage in the local newspaper, no longer on line, included the testimony of defense experts Dr. Waney Squier and Dr. Peter Stephens, who disputed the abuse diagnosis.

Prosecutor Matt Wilber told reporters after the verdict that his office had targeted Curtis from the beginning, because of a “prior child abuse conviction.” Patty Parham, another of Curtis’s aunts, told me that a couple of years ago both Curtis and the children’s mother had taken plea bargains on the advice of their public defenders, when their four-month-old daughter was found to have a fractured arm and clavicle. Curtis pled guilty to child endangerment and the girl was returned to her parents. (If you assume all plea bargains equal confessions, please see this posting.)

Jackson Curtis

Jackson Curtis

“Jason would never hurt a child,” Parham insists. “If you ever saw Jason with his kids you’d know it. His children are everything to him.” Friends and relatives commenting on his petition site concur. A former supervisor of Curtis’s at an adult care facility wrote that Jason “always gave dignity and respect to our residents.”

In Ohio, meanwhile, another father has been convicted of shaking his  son to death, in a murky case full of pre-judgment and miscommunication. Brandon Wilson reported that some weeks before his son quit breathing, the 10-month-old had fallen down several stairs, and then later had fallen from a shopping cart at a local store. The parents had taken him to an urgent care facility because of continued vomiting, but that was still weeks before his medical crisis. In a taped police interview after the child’s death, detectives insisted that something must have happened just before the boy collapsed, and that’s when Wilson “acknowledged that he had shaken the baby.”

The police heard a confession to shaking, but his words as reported sound to me more like an attempt to revive a non-responsive infant. The Portsmouth Daily Times coverage reported this impression from the tape:

Earlier in the interview when Wilson began to acknowledge that he had shaken the baby somewhat, Wilson said – “But I was not shaking that baby to hurt the baby or anything like that. I was just concerned about—you know what I mean? It was just—he was limp. It seemed like he was dead already when he was laying there.”

Later in the interview, he reiterated – “Well, I don’t really know how—I was not shaking him, like, really forcefully, but I was just trying to get him to wake up.”

Experts for the prosecution testified that children do not die from short falls like those Wilson had reported.

Annie Li, courtesy the Li family

Annie Li, courtesy the Li family

But I can’t help protesting:  What makes the doctors so sure these parents are lying? Their families seem to believe them.

Hangbin Li’s wife, the mother of his deceased daughter, asked the judge for leniency, calling Hangbin a good father and saying, “I was there that day, I saw everything. He didn’t intentionally hurt Annie.”

I had gotten to know Jason Curtis a little bit, through email, while he was realizing the state was really going to prosecute him for the death of his son. He was polite, thoughtful, and not a bit pushy. I was relieved when I heard that Dr. Squier was taking on his case—and I was shocked when I heard he’d been convicted of first-degree murder.  When his family members described him to me as patient and gentle, it only confirmed my impression.

I wish the child-abuse experts would stop and listen to the parents and caregivers, and to the people who know them.  I am not saying that children are never abused, or that shaking a baby is not dangerous. Indeed, I’m sure shaking a baby can be fatal.

Jackson Curtis

Jackson Curtis

But I’ve logged my time in the medical library, and in the courthouse, and I know that the pattern of cranial bleeding and swelling that now defines Abusive Head Injury does not prove abuse, even though a number of respected professionals seem to sincerely believe that it does. (See, for example, this article by intensivist Dr. Steven Gabaeff, which comes with a downloadable collection of original sources.) How many more cases like that of Tammy Fourman or Patti Kwan do we need before doctors slow down and listen to the evidence that a number of physiological processes can result in this cluster, not only violent assault?

I’ve seen two important changes in the arena over the past 15 years.

First, physicians and attorneys from outside the child-protection community have been drawn in, as they’ve encountered troubling accusations and convictions in their own practices. The result is a new wave of published research that questions the model of infant head injury that’s been winning for 30 years in the courtroom.

Second, the affected families are finding each other over the internet. Just now they are staggering under the weight of their individual burdens, but together they could become a voice loud enough to be heard.

copyright 2013, Sue Luttner

If you are not familiar with the debate surrounding shaken baby syndrome and abusive head trauma in general, please see the home page of this web site.

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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. (2021 update:  The Medill Justice Project has reorganized its web site; the shaken baby material is no longer available.)

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 in October of 2012, 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