Category Archives: parents accused

Quick Hang Bin Li Verdict Devastates

Annie Li, courtesy the Li family

Annie Li at one month, courtesy the Li family

While attorneys on both sides claim partial victories, supporters of Hang Bin Li say they are “devastated” by the mixed verdict delivered last Friday, when a New York jury found Li innocent of murder but guilty of manslaughter in the 2007 death of his infant daughter Annie. The news was especially shocking because no one had expected a verdict so soon.

During nine days of testimony over three weeks, the jurors heard from nine medical experts for the prosecution, including the local medical examiner, a child-protection pediatrician, a pediatric ophthalmologist, a pediatric radiologist, two pediatric critical-care physicians, and a specialist in osteogenesis imperfecta (OI), a disease of the bones. All agreed that Annie had died from abusive head trauma. Many said shaking was involved.

Defense attorney Cedric Ashley opened his case last week by calling Dr. Zhongxue Hua, a respected medical examiner from a neighboring jurisdiction. I can’t find coverage of Dr. Hua’s testimony in the English-language press, but I’m told he said that Annie had signs of mild OI and unusual heart findings.

Ashley also called the Lis’ landlady Mrs. Zhou, wrapping up his case in a day and a half. Both sides made closing arguments on Thursday afternoon, and the jury returned its verdict the next day. An outspoken supporter of Hang Bin Li at the time—who has since removed her material from the web—wrote in an email:

Put yourself in the Jury’s shoes. If 9 Medical witnesses for the Prosecution kept denying something, but only 1 Defense Medical witness saying something else. Your mind is unsure, but common sense tells you, “How could all 9 people be wrong, and only 1 person is sober and correct?”

In a telephone interview after the trial, Ashley said his decision to call only one expert witness was not based on limited resources but on his opinion that, among the witnesses in this case, “only two persons had the expertise to determine the manner of death, and those were the forensic experts, the medical examiners.”

Ashley cautioned against drawing any lessons or conclusions from this “nuanced” case, which he said was not about shaken baby syndrome. “The prosecution threw shaken baby syndrome at this couple,” he said, “Our case  was about accidental, non-intentional head trauma exacerbated by OI.”

The Li case has received daily coverage in three Chinese-language newspapers in New York, and periodic coverage in the English-language press. The New York Times quoted prosecutor Leigh Bishop’s saying after the trial that the verdict was “perfectly reasonable,” because “we didn’t have enough information about his mind-set at the time he inflicted the injuries” to prove murder.

Reporters Corey Kilgannon and Jeffrey E. Singer wrote about their conversations with the jurors:

Several jurors said that they felt an obligation to see Mr. Li punished for Annie’s death, but that they could not arrive at a guilty verdict on the murder charge because they lacked the evidence to decide that her injuries resulted from a depraved mental state on Mr. Li’s part, a finding required for guilt on that charge.

“We spoke up for the baby and said, ‘You can’t do this,’ ” one juror, Luisito Castro, said.

Annie Li in 2007, courtesy the Li family

Annie Li in 2007, courtesy the Li family

Ashley characterized the outcome as a partial victory. “He’s not facing 25 years to life,” Ashley told reporters. The manslaughter charge carries a maximum sentence of 5 to 15 years in prison, and a minimum of 1 to 3 years. Li has already spent nearly 5 years in custody—4 years and 10 months—while waiting for trial.

The Lis have both denied that either of them did anything to harm Annie—and their community agrees. Their defense was paid for by donations from supporters, many of them other Chinese immigrants.

Hang Bin and Ying Li, and their community, were drawn unexpectedly into this arena, but the attorneys and medical experts at Hang Bin’s trial were seasoned veterans. Prosecution witness Dr. Carole Jenny, for example, is one of the major forces behind the relatively new medical-board speciality of child-protection pediatrics.  A former prosecutor, Cedric Ashley is on top of the medical arguments, making him a rare defense attorney in this complex arena. Prosecutor Leigh Bishop—whose actress friend Katie Holmes made headlines in early January by stopping in at the courthouse to hear opening statements—was on the faculty at last fall’s Twelfth International Conference on Shaken Baby Syndrome/Abusive Head Trauma. In 2007 Bishop successfully prosecuted Yoon Zapana, whose son Victor Zapana published an essay about his mother’s conviction in the November 27, 2012, issue of The New Yorker.

In the Zapana trial, as in the Li trial, the defense called a single medical expert while Bishop called a spectrum of medical specialists. I’m reminded of an email I received about a year ago, the reflections of a defense expert who found himself outgunned at a similar trial.

While I have heard of cases won with only one or even zero defense experts, I think it’s rare.  I don’t know of any data on the subject, but my observation is that a defense team that includes the full range of specialists is a better bet, as illustrated by a series of exonerations earlier this winter and the Russ Van Vleck trial in 2011.

The Lis’ story might not be over with the trial. Michael Chu, the neighborhood travel agent who hosts the Hang Bin and Ying Li Rescue Committee in his business office, is now educating himself about the appeals process. “One thing is very clear,” he says, “We won’t give up easily.”

If you are unfamiliar with the debate surrounding shaken baby syndrome in the courtroom, please see the home page of this site.

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

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

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

VSTVenous Sinus Thrombosis in the News

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

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

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

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

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

from KatieHolmes.com

from KatieHolmes.com

Hang Bin Li Trial Opens

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

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

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

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

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

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

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

Ernie Lopez: Guilty of Felonious Cleaning

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

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

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

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

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

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

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

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

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

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

Annie Li in 2007, courtesy the Li family

Annie Li in 2007, courtesy the Li family

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

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

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

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

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

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

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

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

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

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Fathers in the Cross-Hairs

courtesy the Aspelin family

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

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

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

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

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

diceSuing the County

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

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

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

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

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

Not Guilty Verdict, Unreported

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

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

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

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

A Family at Last, Five Years Later

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

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

-Sue Luttner

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

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

Cracks in the Stone Wall

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

It Happened to Audrey

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

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

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

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

katie

Katie Couric

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

Montana Innocence Project

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

Robert and Gabriel Wilkes, 2008

Dave Wilkes with Gabe, 2008, courtesy the Wilkes family

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

Cathy Lynn Henderson

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

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

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

Interrogation Tactics Under Fire

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

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

Truong: “I’m telling you everything.”

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

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

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

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

-Sue Luttner

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

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

A Word From the Hangbin and Ying Li Rescue Committee

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

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

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

Shaken Baby Syndrome Accusations:
A Modern Day Witch Hunt?

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

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

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

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

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

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

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

Hangbin & Ying Li Rescue Committee/Michael Chu

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

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Case Dismissed Against Drayton Witt

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

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

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

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

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

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

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Boxed in, Even Before Prison

As the rolls of exonerated prisoners grow, plea bargaining by innocent defendants has found its way into the news.

Accepting a plea bargain can be especially tempting in the child-abuse arena, where an innocent parent is offered not only the chance to avoid an expensive trial and the risk of a long sentence but also the added hope that “taking responsibility” for a child’s injuries will keep the children out of foster care and the other parent out of prison.

After her husband accepted a plea bargain in the 2007 death of their daughter, Tonya Marrhoubi Sadowsky gathered data about case resolutions at her local courthouse, first in 2010 and again in 2012. As she reported on her blog this summer, the vast majority of criminal cases in her jurisdiction are being settled with pleas, almost none with trials. As it turns out, Tonya had observed a national trend, described in fascinating detail in The Unexonerated: Factually Innocent Defendants Who Plead Guilty by law professor John Blume of Cornell and Rebecca K. Helm. (That link is to the downloadable article, well worth reading; thanks to the Wrongful Convictions Blog for this literature tip.)

The Cases

The May exoneration of football player Brian Banks kicked off this season’s coverage of innocent defendants who plea bargain.  In the early 2000s, faced with decades or life in prison if convicted of the rape and kidnapping of a childhood friend, Banks entered a plea agreement. He had served his time in prison but was still on parole when the alleged victim recanted. The California Innocence Project took up his case, and this fall Banks is back on the field, as reported last week on CBS in Los Angeles. ABC News posted this moving coverage of the exoneration proceedings in the spring.

The West Memphis Three in 1993

Then the “West Memphis Three” made another run through the headlines this summer with the release of a book by Damien Echols, one of three young men in Arkansas convicted of a grisly triple murder in 1993. After 18 years of protesting their innocence from prison, the three were exonerated by DNA tests in 2011. Instead of simply releasing the men, the state negotiated an Alford plea, which freed them immediately but only if they all pled guilty to a lesser charge. The New York Times coverage in August explores their legal conundrum and rocky first year out. A dispatch from the book tour on CAPITAL focuses on Echols, who spent his prison time isolated in a small cell on death row because prosecutors had perceived him as the ringleader in the supposed “cult” killings.

Myself, I’ve been frustrated because plea bargaining by innocent defendants has shut off access to the evidence in a number of cases, and left prosecutors with the impression that the defendants were in fact guilty. I echo the sentiment of defense attorney Zack Bravos, who says he can’t fault anyone who makes the rational decision to take a plea, but it adds to the perceived evidence in favor of classic shaken baby syndrome theory. If you haven’t yet read about my rubber-band case, for example, please see this story.

Drayton Witt and his wife
Courtesy Arizona Justice Project

Now the news coverage around the Drayton Witt reversal in Arizona has brought to light another plea bargain by an innocent parent, Armando Castillo, who met Witt in prison. In two insightful articles in the Arizona Republic, reporter Richard Ruelas first explores Witt’s conviction for the presumed shaking death of his son and then follows up with Castillo’s story (Listening to the medical testimony, Castillo told Ruelas, “I would have found myself guilty.”)

Back to Tonya, who alerted me earlier this summer to the prevalence of plea bargaining:  In a 2008 hearing she was not allowed to attend, her husband pled guilty to murder, felonious assault, and endangering a child. Although his reasons don’t appear in the court record, Tonya once told me that part of his inducement was the prosecution’s promise to “not go after Tonya” if he accepted the deal. Indeed, she wasn’t charged, but even through her relief she thought he’d made a mistake.

On the day of their daughter’s injury, Tonya’s husband called her at work to say he had dropped the baby and she should meet him at the hospital; he had already called 911. Her boss gave her a ride to the hospital, but her husband never made it:  He was taken to the police station instead. She hasn’t seen him out of custody since.

At the plea hearing, the judge was careful to make sure that Tonya’s husband Elwood Sadowsky was entering the plea without coercion. The opinion denying his appeal summarizes:

Upon questioning by the trial judge, Sadowsky confirmed that he had no questions about the plea. Sadowsky further stated that although he was taking several medications, he was able to think clearly and was of “sound mind and reason.”

Sadowsky told the judge, “I’m not high. I’m not drunk, sir. I’m just very grieved.”

This arena is tragic.

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Filed under parents accused, SBS, shaken baby syndrome

Communication, and Miscommunication, in the Courtroom

A courthouse in New Mexico.

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

A Grand Jury Listens in New Mexico

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

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

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

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

Montana Innocence Project Steps Up

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

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

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

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

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

Canadian Judge Blasts Reid Technique

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

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

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

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

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

Not Everybody Listens Carefully

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

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

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

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

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

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

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

Parents, Meet the Experts; Experts, Meet the Parents

Attorney Zachary Bravos of Illinois

“Over time, the truth prevails,” Illinois defense attorney Zachary Bravos promised his audience—parents falsely accused of abusing their children—at the second-ever Evidence-Based Medicine and Social Investigation conference this past weekend in Vancouver, British Columbia.

After 30 years of injustice rooted in a flawed model of shaken baby syndrome, Bravos said, “the legal system is getting to the point where at least it recognizes the legitimate dispute in the medical community.”

At the same time, he conceded, “These cases are still coming in by the boatload.”

Paul Bayne with sons Baden and Josiah

As his audience was well aware.  Conference organizer Zabeth Bayne and her husband Paul were accused of shaking their infant daughter, only six weeks old at the time, in the fall of 2007. While the Baynes fought the charges, their children spent four years in foster care—except for the youngest, conceived after the accusations, who was taken from his parents at birth and lived his first six months in foster placement.

All four children were finally returned a year ago, after outside experts looked at the medical records and concluded that the girl’s injuries could have been caused by the incident the parents reported at the time:  One of the older boys had fallen on the baby. The Bayne children were all present at the conference and noticeably well behaved, the older two helpful.

Zabeth and Bethany Bayne

Bravos said that the family’s experience is not unique, with forced foster placement after any accusation. Family court does not operate on the standard of “beyond a reasonable doubt,” but rather on “a preponderence of the evidence,” which takes very little for a finding of abuse. “Once that finding is made, that becomes the reality. If a spouse does not go along with the program, he or she is unlikely to get the children back.

“I can’t blame anybody in that situation who goes along with the program,” Bravos said, “I can’t blame anybody who accepts a plea bargain. But it then becomes another validation for the theory of shaken baby syndrome.”

He advised accused parents to get “every scrap of paper” relevant to their child’s case, from pre-natal records to ER and nurse’s notes. “Parents can often do this even if the attorneys can’t,” he pointed out.

Bravos also recommended filing a pretrial motion—a Daubert motion in some states, a Frye motion in others—asking to exclude testimony about shaken baby syndrome. “We file in every case, and we have lost on every one of those motions,” he reported, “but that’s not what is important.” Filing the motion preserves the right on appeal, he insisted, “These are flares in the night.”

Bravos is a veteran of the legal struggles over “recovered memories,” in which civil and criminal suits were based on presumably suppressed memories of childhood abuse that emerged during certain types of therapy, often including hypnosis. After researchers demonstrated that such memories could also be planted, those cases quit coming to court.

Attorneys Zachary Bravos and Heather Kirkwood

“We could sue for damages” in the recovered-memory cases, Bravos noted. “We could get money out of people’s pockets and, more importantly, out of their insurance companies’ pockets.” Soon insurance companies quit offering coverage to psychologists using those therapies, and the era faded, at least in court.

“We don’t have that leverage now,” he lamented, still maintaining that child-abuse professionals deserve amnesty for their honest opinions. “I don’t blame them, either,” he sighed, “It’s human nature.”

Bravos explained how the legal system let an unproven theory go so far:  Abuse cases are very difficult to begin with, he said, and the evidence can be murky and complex. “When we’re presented with complex problems, it’s really comforting to have a simple answer.” In the case of shaken baby syndrome, that answer is:  The last person alone with the baby is guilty.

Bravos also fought against the satanic ritual abuse cases in the 1980s, discussed on this blog at  “California’s Nightmare Nursery,” one of the on-line chapters of my book.

His talk wrapped up two inspiring and useful conference days that included presentations by expert witnesses from a variety of specialties as well as social service professionals. I will be reporting on more individual talks as I find the time.

My hat is off to Zabeth, her family, and the team of volunteers who made this conference so rewarding. I am dazzled by the resilience of the parents and foster parents I met there, and the people who support them.

-Sue Luttner

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Filed under abusive head trauma, AHT, bayne family, EBMSI conference, evidence-based medicine and social investigation, parents accused, SBS, shaken baby syndrome, zabeth bayne, Zachary Bravos