Category Archives: SBS

Good News, Bad News: the Tragedies Continue

Attorneys Khari Tillery & Paige Kenab, exonerated father Zavion Johnson  -photo courtesy Northern California Innocence Project

After maintaining his innocence for 17 years, a California father was freed this winter when Sacramento Superior Court Judge James Arguelles overturned his murder conviction, citing evolving medical thinking about infant head trauma.

Zavion Johnson said in 2001 that he had accidentally dropped his 4-month-old daughter Nadia in the bathtub, but he was convicted by medical testimony that the girl had been shaken to death. Then, in the years since his trial, two of the prosecution experts changed their positions. Prompted by Khari Tillery, a private attorney working pro bono, and Paige Kenab of the Northern California Innocence Project, both doctors provided affidavits saying they now believe a household fall could explain the child’s injuries.

The prosecution’s own filing in the case recognized that the original medical testimony, now recanted, had been key to Johnson’s conviction. In an excellent treatment of the exoneration, Sacramento Bee reporter Darrell Smith quoted a juror who said the panel had relied entirely on the medical evidence:

“All of the doctors said these injuries to Nadia could only have been caused by severe shaking of the baby… One doctor after another, they presented this united front that the medical evidence speaks… We agreed that it didn’t seem to fit him [Johnson]. He really loved his baby and took care of her. We felt he did do it, but that it was badly out of character.”

Zavion Johnson & Paige Kenab

Zavion Johnson was accused at the age of 18, released at 34. Because the jury believed the doctors over Johnson—and over 13 character witnesses, including the child’s mother—he has spent almost half his life, all of his adult life, behind bars. In an email after his release, celebrating the many people who had donated their time and expertise to the appeal, Kenab wrote, “Zavion took his first hot shower since he was 18 years old last night, laid down in a real bed with a real pillow, and from the moment he walked out, told us over and over again how different the air smelled. Thank you.”

The case was closed in January of 2018, when the state dismissed all charges, according to J0hnson’s entry in the National Registry of Exonerations.

Tiffani Calise reported a bathub fall

I’m eager to see this new thinking at work on behalf of other innocent parents and caretakers convicted by flawed testimony about short falls—like the six people I wrote about in my 2014 post Short Falls, Long Sentences, who all remain in prison.

I see progress, but it’s slow and halting. Child care provider René Bailey in New York was released from prison in 2014, when Judge James J. Piampiano vacated her murder conviction, citing what he called “a compelling and consequential shift in mainstream medical opinion” about pediatric short falls. Unlike Johnson’s prosecutor, however, Bailey’s refiled the charges.

Prof. Adele Bernhard

On the eve of a scheduled retrial last summer, Bailey agreed to a plea deal that avoided the risk of a second conviction and more jail time. Under what’s known as an “Alford plea,” Bailey stated in open court that she was pleading guilty to assault because she believed the state would be able to prove its case against her at trial. “She was not forced to say she did something she didn’t do,” pointed out her attorney, Prof. Adele Bernhard, director of the New York Law School Post-Conviction Innocence Clinic. “This is a compromise and not a very happy one,” Bernhard conceded, “but one that allows René to move on with her life and start to move forward.”

The court accepted Bailey’s plea and set a sentence of 12 and a half years, less than the 13 years she had already served, so she remains free but on probation.

In New Jersey, meanwhile, a panel of appeal judges has upheld the conviction of Michelle Heale, a mother and babysitter who said the toddler in her care had choked on a packet of applesauce. Her conviction was based on the triad, with no signs of impact.

In Kentucky, a young man has been sentenced to eight years in prison after accepting a plea deal—the newspaper report says he was accused of shaking but doesn’t specify the charges. He had reported an accidental fall.

Sarah Martin in happier times

And I’ve recently come across a 2016 murder conviction in Oregon, where mother and babysitter Sarah Martin is serving a life sentence for the death of a 7-month-old who quit breathing in her care. She said she thought the boy had choked on a whole grain snack.

On the bright side, a judge in North Carolina dropped murder charges against a Marine veteran who had been in jail for more than five months, after a local pathologist contacted the district attorney to say the man’s daughter had died of a rare heart condition. The video (click on the arrow in the opening image on the WFMY page) continues beyond the end of the text version, after this provocative statement from defense attorney Taylor Brown:

“It is extremely frightening to know that this could happen to anybody. And in fact if you spend 10 minutes on the Internet, you will find out that it is happening all over the country,” he said.

Reporter Erica Harper says she took that advice and found a number of disputed cases on line—the graphics show browser listings for a few of the classic critiques of shaking theory, like the NPR interview with Dr. Norman Guthkelch; the 2016 Washington Post exposé; and the Time magazine treatment of the Annie Li case in New York.

But none of these treatments seems to have had a noticable impact, any more than Lee Scheier’s 2005 treatment in the Chicago Tribune, Emily Bazelon’s 2011 treatment in the New York Times, or the 2011 collaboration among ProPublica, PBS “Frontline,” and NPR—all of which I’d hoped would help wake up the world to the ongoing injustice.

Because short falls are a theme of this posting, I end it with a video demonstration prepared by emeritus physics professor Richard Reimann, who used  an SBS demonstration doll to illustrate one difference between shaking without impact and a short fall. See also his analyses of various fall scenarios, with excellent illustrations.

copyright 2018, Sue Luttner

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

 

 

 

 

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Dr. John Plunkett, Champion of Justice, 1947–2018

Dr. John Plunkett

Dr. John Plunkett, the forensic pathologist who galvanized a network of physicians and attorneys fighting for justice in shaken baby cases, died peacefully early this month in Minnesota, surrounded by family and friends, two weeks short of his 71st birthday.

“John Plunkett was an American hero. He should be remembered as an iconic figure to anyone who cares deeply about injustice,” said attorney Randy Papetti, who worked with Dr. Plunkett on the landmark Drayton Witt exoneration—only one of 50 successful appeals Dr. Plunkett had a hand in over the years, according to the official obituary.

Dr. Waney Squier

“John was a great inspiration to me and to a whole generation of doctors and lawyers,” emailed Dr. Waney Squier, a British pediatric neuropathologist who received the Innocence Network (IN) Champion of Justice Award in 2016, the same year Dr. Plunkett received the IN Lifetime Achievement Award. “He showed us how to think critically,” she continued. “He showed us courage, compassion, and humility. He taught me to wear cowboy boots and chew tobacco.”

Dr. Jan Leestma

Dr. Plunkett’s influence ran deep. Dr. Jan Leestma, author of the classic text Forensic Neuropathology, recalled that meeting John Plunkett in the 1980s—from opposite sides of the courtroom—helped convince him to look more closely at shaking theory. Leestma reviewed “virtually all the literature at the time,” he said, and changed his position. He then became an early and influential voice calling for more scientific rigor in both the research and the testimony regarding shaken baby syndrome. Dr. Leestma’s testimony on behalf of British au pair Louise Woodward in 1997 helped expose the nation to the emerging debate.

With his wife Donna at the premiere of The Syndrome

Comments about Dr. Plunkett in private and public forums—such as the Facebook page for the documentary “The Syndrome,” which captured Dr. Plunkett’s passion and sincerity on screen—offer praise and thanks from attorneys he educated, families he helped, and physicians he inspired. The word “hero” shows up a lot.

“John mentored me through a rapid learning curve,” wrote assistant federal defender Doug Olson, who described Dr. Plunkett as “brilliant… He was patient with his explanations and kept me on track… He was a maverick who understood science and stood up for what he believed in, but he also had a big heart and cared about people.”

“John was a thorough, detail-oriented expert witness [in multiple cases],” public defender Alicia Cata in Arizona posted on a list serve, “often not collecting a dime for all his work.”

Katherine Judson, an IN attorney, added a personal note, “And so kind, so generous, and fun, and funny.” Law professor Keith Findley, who worked with Dr.Plunkett on the groundbreaking Audrey Edmunds appeal, echoed that sentiment, describing Dr. Plunkett as “a deeply thoughtful and caring, but also fun-loving and quite funny man.”

Dr. Pat Lantz

Pathologist Dr. Patrick Lantz, taking the Latin approach popular with physicians, wrote, “Primus inter pares,” which translates as “first among equals,” a phrase commonly applied to the unofficial leader in a group with no formal hierarchy.

The families he defended described Dr. Plunkett as “warm,” “caring,” and “dedicated.” One couple whose family was shattered by a shaking diagnosis wrote in the mortuary guest book, “He was a wonderful resource but also a wonderful friend… Fly high, Doctor, you will be missed.”

A Pioneer in the Field

Dr. Plunkett encountered his first shaken baby diagnosis in 1986, in a death he concluded could have been accidental—the mother reported that her daughter had fallen from the arm of a couch while reaching for a shelf above. But the child abuse experts testified that children do not die from household falls and they believed the little girl had been shaken to death. Unconvinced, Dr. Plunkett started reading the published research about infant shaking and found, he once told  me, “the least scientific literature I had ever seen.”

He lost that first case, but had become one of the few forensic pathologists in the nation to have studied the literature and recognized the problems with shaking theory. He found himself called into other cases, increasingly disturbed by the power of misinformed medical testimony in the courtroom.

“I was a practicing physician,” Dr. Plunkett told me last year, “I didn’t write articles. But I had to start. People need to know that families are being destroyed because doctors don’t understand injury mechanisms.”

After the Woodward conviction, child abuse experts published a letter to the journal Pediatrics complaining about both press coverage that treated the defense theory as credible and the experts who offered it. “Let those who would challenge the specificity of these diagnostic features first do so in the peer-reviewed literature, before speculating on other causes in court,” the doctors wrote. Characteristically, Dr. Plunkett rose to the challenge, with his first published article on the topic, “Shaken Baby Syndrome and the Death of Matthew Eappen: A Forensic Pathologist’s Response,” in which he questioned everything about the syndrome from the specificity of the findings to the timing of the injuries. He followed that paper in 1999 with a case study presenting a child whose death was caused by a brain aneurism.

Attorney Mark Freeman

“I admire John for having the courage to stand up and say the emperor has no clothes,” wrote attorney Mark Freeman in an email last week. Freeman described Dr. Plunkett as “gracious—and incredibly helpful” when he met him in 2009, while helping a friend who was accused of shaking his baby. Although Freeman’s specialty is not criminal law, he has stayed in the network to help orient other attorneys handling their first SBS cases or pursuing civil suits.

Dr. Plunkett’s willingness to speak out earned him both personal and professional criticism, including criminal charges of “false swearing” in 2005, after his testimony helped win an innocent verdict in Oregon. A judge eventually acquitted Dr. Plunkett, who was slowed down briefly but not stopped by the harassment.

Researcher, Catalyst

In 2001, Dr. Plunkett challenged the common knowledge that children don’t die in short falls by publishing a collection of 18 fatal pediatric fall reports, of distances from 2 to 10 feet, which he pulled from the records of the federal Consumer Product Safety Commission.

With Dr. John Galaznik at a 2012 conference

Shortly after that, he organized the Evidence Based Medicine Symposium (EBMS), an on-line forum that allowed physicians from different specialties to communicate with each other about shaken baby theory. “John’s web contributions cannot be emphasized enough,” posted Dr. Leestma. “This list serve brought people together… Godspeed, my friend.”

“His work made progress possible,” emailed intensivist Steven Gabaeff, who has published his own papers on SBS (here and here). “He was generous, good natured, brilliant, warm, hard working… and he did so much to raise awareness of our shared concerns. He was the catalyst for getting the attorneys involved.”

In 2005, Dr. Plunkett published an editorial in the BMJ, co-authored with British neuropathologist Dr. Gennian Geddes, with the self-explanatory title, “The evidence base for shaken baby syndrome: We need to re-evaluate the diagnostic criteria.” (The same issue contained a paper by Dr. Lantz about retinal folds.)

Dr. Plunkett also coauthored papers with automotive-research pioneer Dr. Werner Goldsmith and biomechanics expert Chris Van Ee. He organized two conferences of the EBMS, and he recruited presenters for the 2013 World Congress on Infant Head Trauma, a forum organized by the publishing arm of the National Association of Medical Examiners to foster direct debate between proponents and skeptics of shaken baby theory.

At an Innocence Network meeting

Forensic pathologist Dr. Carl Wigren attended the 2013 World Congress because he’d been hearing rumblings that the common knowledge about shaken baby might be wrong—and what he heard there convinced him that Dr. Plunkett and his team were right. He wrote that Dr. Plunkett “is the epitome of the person I strive to be. Understanding medicine is one responsibility of a physician, but applying and transmitting that knowledge to assist those in need is the gift that John possessed in spades.”

Julia Jonas at the Innocence Project of Minnesota remembered that when she was a young lawyer, Dr. Plunkett was the only medical examiner in the county willing to take cases for the defense. “He never made me feel ignorant and often made me feel empowered,” she wrote, and she credited him with changing attitudes: “He has trained several of our local medical examiners to be the truly independent experts that they should be, and not simply another voice for the prosecution. He will be greatly missed, but his legacy will live on.”

At a panel discussion at the University of Missouri-Kansas City School of Law

In a blog post marking Dr. Plunkett’s death and praising his work, Radley Balko at The Washington Post wrote, “Plunkett deserves credit for being among the first to sound the alarm about wrongful SBS convictions.”

Dr. Plunkett spent 39 years as a forensic pathologist, the official obituary reports. He directed the pathology lab at Regina Medical Center in Hastings, Minnesota, for 26 years and served as the coroner for Dakota County. The obituary does not mention that in his youth he played acoustic guitar in coffee houses, with a band called The Four.

He is survived by his wife of over 47 years Donna McFarren Plunkett, the love of his life, and sons Matt (Jen), and Ben; two grandchildren Fiona and Cailin; siblings Patrick (Anita), Marnie Olson (John), Tim (Lucy), Paul (Susan), Michael (Dawn), Ann, and Peggy; brothers-in-law Neil (Diane), and Russ (Tish); and many nieces and nephews.

A Personal Note

I had my first phone call with Dr. Plunkett in 2000, when he was about to publish his short fall paper. I had been researching shaken baby for two years at that point, after the niece of a friend was convicted of shaking a baby in her care. I’d been comparing the medical testimony in the trial transcripts with the scientific facts available in the medical journals, and puzzling over the gap. Could I, not a medical professional, but a technical writer and careful reader, possibly have identified fundamental problems with the evidence base for a well-accepted but unproven theory that was almost unbeatable in court?

Dr. Plunkett assured me that I had done just that. “You start to look at this with even the rudimentary elements of scientific thinking,” he confirmed, “And you say, ‘What is going on here?'”

He then gave me my first lesson in the physics of short falls, and I was hooked.

He became the medical advisor to my book, and for 15 years, my book proposal has promised he would write the introduction, an introduction neither one of us ever crafted. I guess I will be dedicating the book to him instead.

Copyright 2018, Sue Luttner

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

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The Forensic Unreliability of the Shaken Baby Syndrome: The Book

Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome, now shipping from Academic Forensic Pathology International.

Papetti is not a criminal attorney but a recognized leader in his primary field, commercial litigation. In 2013, he was selected by Best Lawyers and his local peers as the Lawyer of the Year for “Bet-the-Company Litigation.” In 2011, he was inducted into the invitation-only American College of Trial Lawyers. His shaken baby work has all been pro bono.

Randy Papetti

Papetti was only doing a favor for a friend, he told me in a telephone interview, when he agreed to help with his first alleged shaking case, an appeal of a murder conviction. The convicted father had reported a fall from a high chair, but the child abuse experts had insisted that shaking must have been involved. Papetti started researching the medical and legal arguments, he said, and found himself face to face with the difference between medical opinion and proven scientific fact.

Drayton Witt and his wife, courtesy Arizona Justice Project

Papetti won that appeal, and other attorneys started approaching him with their own shaking cases. He was a key player in the 2012 freeing of Drayton Witt, whose son died after a short lifetime of serious health problems, including a seizure disorder. It was the Witt case that brought pioneering pediatric neurosurgeon Dr. Norman Guthkelch back into the arena, four decades after he lay the groundwork for the diagnosis by proposing that shaking an infant could cause subdural bleeding. Like Papetti, Dr. Guthkelch rejected the medical thinking that had convicted Drayton Witt. Guthkelch then spent the final years of his life fighting what he considered a “tragic misinterpretation” of his work.

“Witt was a powerful case,” Papetti said. “It showed how easily a mistaken diagnosis based on the ‘triad‘ can convict.” By then law professor Deborah Tuerkheimer had published her first journal argument against shaking theory, and her New York Times op ed. Papetti thought the tide was turning. “The information was out there, people could see that shaking theory was unreliable.”

Instead of reconsidering their model, however, proponents of shaking theory “took a course I never imagined they would be able to take, claiming there never was a triad,” Papetti marveled in our interview. In his book, he noted that changing the name of the diagnosis from “shaken baby syndrome” to “abusive head trauma” did not address the fundamental problem that the entire theory was speculation. “It merely changed the diagnosis’ name for legal purposes.”

Papetti said he was “stunned” to see how child abuse professionals have lashed out personally at defense experts and attorneys: ridicule at conferences, perjury charges, letters to employers. “That’s not the way the game is played,” he said. Attorneys in civil practice fight hard in the courtroom, he claimed, but can still respect their opponents professionally and maintain personal friendships.

In his book, Papetti traces the evolution of shaking theory in both the medical literature and the courts. He illustrates how the two have co-evolved, distorting each other, and he examines the cooperative relationship among child abuse experts, the police, and social services. He writes:

These institutional realities, not science or clinical validation, best explain how SBS has persisted and why the medical profession is unlikely to correct it any time soon.

“Things tend to get worse before they get better,” he told me, “And I’m afraid that’s where we are now, still getting worse.” At this point, proponents of shaking theory staff the medical schools and the childrens’ hospitals, dominate the professional organizations, and conduct the bulk of the research. Critics tend to be independent thinkers who have researched the literature and reached their own conclusions.  “The imbalance of power has distorted everything completely,” Papetti said. “At the end of the day, are you really asking a judge to not allow the testimony of these luminaries because a few brave souls disagree?”

So he keeps chipping away at a calcified theory with the facts, hoping to explain it all clearly enough that judges will see how decades of unproven medical testimony have led to a criminal justice crisis of staggering proportions.

For postings about other books on shaken baby, please see “Flawed Convictions: Breaking Academic Ground,” “Forward, Into the Bookstores,” “An Important Story, Well Told,” and “‘Journey With Justice’: A Rough Road.

Copyright 2018, Sue Luttner

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

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From the heart, from the brain: A top-notch TEDx talk on shaken baby

Pediatric neuropathologist Dr. Waney Squier has hit one out of the park in her TEDx talk, “I believed in Shaken Baby Syndrome until science showed I was wrong,” published Friday on Progress Video TV.

While telling her own story with calm, compelling intensity, she also describes the pain inflicted on innocent families by misguided accusations of abuse and documents the refusal of the legal and medical communities to accept the unwelcome truth about their flawed theory.

“By ignoring the science and adopting an unproven hypothesis, doctors have done great harm,” she concludes, “and have led the courts astray.”

The talk opens with the story of Linda, a mother convicted of shaking her third child to death based on the presence of the triad: bleeding in the retinas, bleeding beneath the lining of the brain, and brain swelling. “At her trial, Linda was described as a woman of good character, a caring and careful mother,” Dr. Squier recounts, “But doctors—medical experts—said that those three findings meant that [the boy] must have been violently shaken” when alone with his mother.

Three years later, Linda’s conviction was overturned on appeal. “Her name was cleared, but her life was ruined,” Squier says. Her parents had died and her husband had left her. Her fourth child, a little girl born in prison, had been taken from her at birth and placed for adoption, and even after her exoneration, Linda was prohibited from attempting contact.

When Linda was first accused, the police had called in Dr. Squier, an expert on infant brain pathology. After examining the brain, she had endorsed the opinion of the other doctors, that it was a case of shaken baby syndrome. “They believed in it, and I believed in it,” she grimaces, “and so my report was part of the evidence that cost Linda so much.”

Dr. Squier says her own doubts about shaking theory started when another neuropathologist, Dr. Jennian Geddes, published research suggesting that the damage in presumed shaking cases resulted from lack of oxygen, not from direct violence. Dr. Squier recalls:

“Back in 2001, the Geddes research stopped me in my tracks. It wasn’t what I had expected. So I read everything I could about shaken baby syndrome, and as a scientist, I’m embarrassed to admit to you I hadn’t done so before. I’d been making this diagnosis on the basis of my uncritical acceptance of what was in the textbooks and what I’d been taught. I was startled to learn that there was no scientific foundation for the hypothesis.”

No one has ever witnessed a shaking assault that resulted in the triad, she reports. Laboratory research and biomechanical calculations have only cast doubt on the theory, and past experience with front-facing car seats tells us that whiplash forces cause fractures and dislocations in the neck, not intracranial bleeding and swelling.

After her realization that the theory was not only unproven but likely wrong, Dr. Squier started conducting her own research, and she started testifying for the defense. But her willingness to speak out against the common knowledge resulted in criticism from colleagues, scoldings from judges, and complaints to the authorities. In the spring of 2016, after hearings triggered by a police complaint to the General Medical Council, she temporarily lost the right to practice medicine, until a higher court reinstated her, declaring most of the first findings “unsustainable.” She is still prohibited from testifying in British courts for another year and a half.

The actions against her have successfully stifled the voices of dissent, Dr. Squier argues, leaving innocent families “defenseless” against their accusers. “Back in 2005, Linda had seven medical experts to support her. Today she would be likely to have none.”

Some other key points from Dr. Squier’s talk:

“So today, as I stand here, I am sure that shaking can harm babies, and we certainly shouldn’t shake babies. But nearly 50 years of research has failed to provide us with the justification to make the assumption that a baby who has the triad or any of its components must have been shaken.”

“If we do nothing, then ordinary people, people who have already suffered the tragedy of the death of a baby, will continue to have their families torn apart by incorrect and unscientific opinions…

“If we do nothing, this travesty will continue… this willful refusal of the courts and the doctors advising them to recognize the science that shows they are wrong.”

But you might have other favorite quotes. I suggest you watch the entire talk.

Copyright 2018, Sue Luttner

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

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Dr. Waney Squier Reinstated

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Dr. Waney Squier

A British High Court judge has reinstated Dr. Waney Squier’s right to practice medicine, in a decision that dismissed as “unsustainable” a number of findings by a tribunal appointed by the General Medical Council (GMC) in 2015 to investigate her testimony in a series of shaken baby cases. A well respected pediatric and perinatal neuropathologist, Dr. Squier has questioned shaken baby theory in the medical journals and has testified to her opinions in court. After the tribunal’s findings were issued last spring, the GMC removed her from the medical registry.

Justice Sir John Edward Mitting explicitly rebutted the tribunal’s conclusions that Dr. Squier had acted dishonestly, noting at one point that “her views were genuinely held.”

Despite his harsh criticism of the tribunal’s report, Justice Mitting upheld their finding that Dr. Squier had practiced outside her field of expertise. He has prohibited her from giving expert testimony in British courtrooms for three years.

The GMC’s actions against Dr. Squier were based on a complaint lodged in 2010 by the National Policing Improvement Agency (NPIA), a government body disbanded in 2013 only a few years after it was created “to support police by providing expertise in such areas as information technology, information sharing, and recruitment.” The agency seems to have acted on a broad interpretation of its charter, supporting the police by attempting to silence one of the few physicians in Great Britain willing to testify against the prosecution model of shaken baby theory.

waneyPlanoProfile

Justice Mittering, who heard a week of testimony on Dr. Squier’s appeal last month, had clearly studied the transcripts from a series of hearings held by the tribunal, because he identified a number of factual errors in their report—such as their finding that Dr. Squier had proposed choking in a case with no evidence to support that conclusion, even though a 7-year-old witness had told an investigator the baby “was trying to vomit and was choking” and the clinical notes included repeated references to “gastro-oesophageal reflux disorder,” a condition consistent with choking.

I was relieved to see that the judge had also read much of the medical literature, and so recognized some of the tribunal’s misunderstandings and mischaracterizations of her citations. The tribunal had found, for example, that Dr. Squier had “completely misinterpreted” the Duhaime 1987 paper and had misrepresented both it and the Cory 2003 follow-up study under oath. Comparing her testimony with the published papers, however, Justice Mitting noted the tribunal’s error:

This was a good example of her giving evidence outside her expertise, but, properly stated, both reports were not inconsistent with, and were to an extent supportive of, her hypothesis that a fall from a low height could cause fatal head injuries in small babies.

The institutional  insistence that Dr. Squier gave evidence outside her expertise continues to strike me as ironic. In a tortured qualification to his endorsement of that finding, Justice Mitting recognized that medical specialists evaluating the triad would necessarily be expressing opinions outside their own disciplines, but he still seemed to agree with the tribunal that Dr. Squier had crossed a line:

The qualification is that, when the triad fell to be considered, any specialist, with the possible exception of a forensic pathologist, who supported or doubted the triad as indicative of NAHI [non-accidental head injury], would be bound to be expressing an opinion outside his specialism. There can be no proper criticism of a neuropathologist, neuroradiologist or ophthalmologist/ophthalmic pathologist for explaining why he supports or doubts the majority view and in doing so, expresses a view about symptoms or pathological findings outside his own discipline. It is neither improper nor professional misconduct for an expert in one specialism to do so. The boundary line between a proper explanation of support or doubt and trespassing impermissibly outside the expertise of the witness is imprecise and difficult to identify in any particular case. It would have been better if the [tribunal] had acknowledged that difficulty; but, with that qualification, there is and can be no justified criticism of its conclusions about the limits of Dr. Squier’s expertise.

I don’t understand how either the tribunal or Justice Mitting can object to Dr. Squier’s expressing her opinions about short falls but still accept the opinions of physicians who diagnose shaking injury, a proposition that implies a level of biomechanical understanding not included in anyone’s medical education.

Stepping through the dozens of charges and sub-charges, Justice Mitting determined that Dr. Squier had correctly cited not only Duhaime and Cory but also Arbogast 2005, Rooks 2008Oehmichen 2008, and others, noting in one case that the tribunal had relied on the testimony of  neuropathologist Prof. Colin Smith, who himself had misrepresented the paper in question:

Professor Smith stated, in evidence accepted by the [tribunal], that the authors could discriminate between traumatic and ischaemic causes of axonal injury. In fact they only did so in 2 out of 18 cases. Unfortunately, this proposition was not put to Professor Smith in cross-examination. As a non-expert, I set out my understanding of the passage on which he relied with some diffidence, but it does, in the end, seem to me to be reasonably clear. It supports rather than undermines Dr. Squier’s opinion. The [tribunal] was wrong to find this sub-charge proved.

Still, Justice Mitting agreed with the tribunal that Dr. Squier had “cherry-picked” from her sources and had at various points misrepresented Arbogast and others, and he seems to have accepted some common misunderstandings about shaking injuries. The tribunal had found, for example, that Dr. Squier was untruthful and “evasive” in her testimony in front of them, citing four specific instances in which they found her statements unbelievable. In one of their examples, she gave inconsistent answers to the question of when she had suggested a child had experienced a “lucid interval”—in her written report or in her oral testimony at either the civil or the criminal trial. Evaluating that exchange, Justice Mitting wrote:

Her explanation for the difference was that she was confused. Her answers read like an attempt to justify an opinion about lucid intervals which she realised was difficult to support. The [tribunal]’s finding that her explanation of confusion was “incredible” was justified if, by it, they meant that she was struggling to justify an unsustainable opinion. To that extent, her answers were evasive.

Myself, I endorse Dr. Squier’s opinions about the lucid interval, which I think are well supported by the published literature—please see, for example, the letter to the American Journal of Forensic Medicine and Pathology from Dr. Robert W. Huntington III, on the home page of this blog.

After last week’s decision was released, including the restriction on Dr. Squier’s giving court testimony, intensivist and shaken baby critic Dr. Steven Gabaeff observed that even with the reinstatement, proponents of shaken baby theory have achieved their goal of “suppressing defense testimony.” If no one who doubts shaken baby theory is allowed to testify, then accused parents have no chance to argue their innocence at trial.

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Heather Kirkwood

Detective Inspector  Colin Welsh from New Scotland Yard articulated the suppression strategy in 2010 in Atlanta, Georgia, at the biannual conference sponsored by the National Center on Shaken Baby Syndrome, in a talk with the title “A National Co-ordinated Approach to Cases of Non-Accidental Head Trauma in the UK.” According to attorney Heather Kirkwood, who attended the session, Welsh reported that his team had been facing a “systemic failure” of shaken baby prosecutions and the primary cause was that “juries were being confused by defense witnesses.” He recommended intense scrutiny and criticism of experts for the defense, and he mentioned his partnership with NPIA, the agency that filed the the complaint against Dr. Squier. Kirkwood later made her notes public, along with a deposition that offered this summary of Welsh’s presentation:

“Shortly into the talk, I realized that the ‘national coordinated approach’ referenced in the title of the talk was essentially a description of the joint efforts of New Scotland Yard, prosecution counsel, and prosecution medical experts to prevent Dr. Squier and Dr. [Marta] Cohen from testifying.”

For more about professional harassment of Dr. Squier, please see my blog postings “Back Door Tactics Show Through” and “When Pie in the Sky Turns Out to Be Dawning Knowledge.”

On October 7 of this year, just before the appeal hearings opened, the BMJ published a letter of support for Dr. Squier from more than 250 physicians, attorneys, and others protesting that the GMC’s sanction was depriving patients of her skills and expertise—if you have not yet done so, you can go to the letter site and click the thumbs-up button to add your vote of support for Dr. Squier.

Last week’s decision reinstating Dr. Squier brought her story back into the headlines, including treatments by the BBC, the Daily Mail, and The Justice Gap, an on-line magazine about justice and the law aimed at the public.

The GMC’s decision last spring to remove Dr. Squier from the medical registry triggered immediate outrage from her defenders, followed by continuing coverage within the U.K. justice community, which recognized the chilling effect of the medical council’s actions on any physicians who dare to disagree with mainstream thinking.

Inside Justice, an investigative group that looks into alleged miscarriages of justice, published a series of insideJusticeHeaderdocuments and commentaries about Dr. Squier’s case, including a collection of careful and articulate rebuttals to the tribunal’s report written by Michael Birnbaum, QCDr. Michael Powers, QC; U.S. attorney Randy Papetti; and veterinarian Nicholas Binney, who is working on a graduate thesis on diagnostic practices. The rebuttals received coverage in the popular magazine Private Eye as well as in forums like The Justice Gap, where founder Jon Robins wrote in an essay titled “The Silencing of Dr. Waney Squier“:

In a forensic analysis of the judgment, Michael Birnbaum QC, who gave evidence on behalf of the doctor, pulls few punches accusing the tribunal’s reasoning of being ‘largely formulaic and frequently illogical’ as well as being littered with ‘howlers’. ‘In my 43 years of practice at the Bar I have rarely read a judgment of an English Court or Tribunal so deeply flawed and unfair as this,’ he begins.

‘Given this bizarre combination of the apparently one-sided and the obviously inept, I cannot make up my mind whether the tribunal was actually biased in the sense of being actively prejudiced against Dr Squier or whether it was just not up to its task,’ he writes. ‘Whatever view one takes on its impartiality, the tribunal’s presentation of the evidence is so inadequate and its conclusion so poorly reasoned that its determination lacks all credibility.’

I am gratified that Justice Witting also recognized some of the many objective errors in the tribunal’s report, and I am pleased that Dr. Squier is allowed to practice again. I wish that someone at the GMC would also read the report carefully and realize that the organization has imposed professional sanctions based on a series of misinterpretations and fundamentally flawed conclusions.

In fact, I wish someone at the GMC would also read the shaken baby literature carefully, because they would be forced the reach the same conclusions as Dr. Squier and the team of Swedish scientists and physicians who last month published their review of the shaken baby literature, that is, that shaken baby theory has never been proven. For my personal analysis of the medical literature, please see Shaken Baby Syndrome: Medico-Legal Miscommunication.

Like the tribunal’s report, the published literature in support of shaken baby theory does not hold up under careful scrutiny.

copyright 2016, Sue Luttner

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

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Swedish Review Declares Shaken Baby Theory Unproven

sbuheaderSwedish agency charged with assessing health technology and social services has published a review of the shaken baby literature declaring the scientific evidence for shaking theory “weak” and noting that a number of other medical conditions can cause the findings typically used to diagnose shaking injury.

The posted report from the SBU (Statens Feredning för Medicinsk Och Social Utvärdering) is in Swedish, so I am relying on a Google translation and private email exchanges with native Swedish speakers for this summary.

Feb. 2017 update: The report is now available in English

babySilhouetteThe SBU team looked only at cases of pure shaking, without evidence of impact, in children younger than 12 months, and they set standards regarding sample size, study design, and more.  Their literature search strategies yielded 3,773 abstracts, and they screened 1,065 of the articles in full text. Only 30 of the papers met their reliability guidelines. The authors ranked two of those papers as medium quality, designating 28 of them low quality and none of them high quality.

The report identifies the recurring problems with the published research, especially the circular reasoning introduced when shaken infants are identified by the criteria being studied. The two papers that passed the quality review are both from France, Vinchon 2010 and Adamsbaum 2010:

  • Vinchon M, de Foort­Dhellemmes S, Desurmont M, Delestret I. “Confessed abuse versus witnessed accidents in infants: comparison of clinical, radiological, and ophthalmological data in corroborated cases.” Childs Nerv Syst 2010;26:637­45
  • Adamsbaum C, Grabar S, Mejean N, Rey­Salmon C. “Abusive head trauma: judicial admissions highlight violent and repetitive shaking.” Pediatrics 2010;126:546­55

Both papers used confessions to identify abused children—the report noted that neither paper provided details of the circumstances in which the confessions were obtained.

The SBU report follows a Swedish Supreme Court decision last year that overturned the conviction of a father with the observation (from the English translation of the decision):

It can be concluded that, in general terms, the scientific evidence for the diagnosis of violent shaking has turned out to be uncertain.

This week’s report, which confirms the court’s conclusion, has made a splash in the Swedish press, with headlines like “Shaky support [skakig bevisning] för shaken-baby-syndrome.” Google translates the introductory paragraph of that piece as:

The diagnosis of “shaken baby syndrome” has previously been questioned both medically and legally. Now comes the SBU and Smers investigative report argues that the evidence of [shaking violence] not measure up.

Mats Hellberg, a board member of the Swedish group RFFR (Riksförbundet För Famijers Råttigheter, or National Association for the Rights of Families), reports that the Swedish child protection teams are objecting that the SBU’s conclusions will make it harder for them to protect children in the future. “Positions are extremely polarized and group thinking is strong,” he wrote.

In addition to criticizing the existing literature, the report suggests the kinds of research that would help resolve the ongoing debate about shaking theory. I hope the SBU analysis, which I’m told is now being translated into English, will trigger more reflection, more rigorous research, and more clear thinking about shaken baby theory.

Oct. 29 update:  With thanks to readers who alerted me:  The American Academy of Pediatrics (AAP), the Society for Pediatric Radiology, and a number of other professional organizations approached the SBU earlier this month, asking for input on the final report before it was published. These letters were published in the Swedish periodical Expressen, which presented them as an attempt to interfere with the independent Swedish review. There is a translation tool at the top of their on-line treatment, which includes close-ups on the letters in the photo collection. An excerpt from the AAP letter:

“Medical and biomechanical research, clinical and pathologic experience, and radiologic evidence have confirmed the understanding of the range of mechanism that contribute to brain injury from these forms of abuse.

“Because a report from the SBU could have global medical, public health, and legal ramifications, we respectfully request that you allow international peer review by AAP experts on child abuse, pediatric radiology, neurological surgery, and that you consider their feedback in the final report. In addition, we request that you promptly provide us with the draft report so that we can evaluate your  methods, sources, conclusions, and review processes and prepare a timely response if appropriate.”

I think it’s fair to assume the AAP is now working on a rebuttal.

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

copyright 2016, Sue Luttner

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Shaken Baby Conference 2016: Defending a Crumbling Theory

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

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

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

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

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

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

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

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

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

oneshake.org

from the babble.com treatment

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

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

TheSyndromePoster

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

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

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

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

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

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

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

copyright 2016, Sue Luttner

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