Category Archives: SBS

July 2, 2015 · 1:01 pm

Does the Brain Injury Prove Abuse, or Not?

Demonstration at the sentencing

The two shaking convictions in the news this season, ironically, are both based on brain findings alone, with no bruising, bone injuries, or other signs of assault—at least five years after the experts started saying that they never diagnose shaken baby based on the triad alone. In the widely reported case of Joshua Burns in Michigan, in fact, the diagnosis was based on only two of the three markers, retinal hemorrhages and subdural hematoma.

Demonstration at CS Mott Children’s Hospital

A commercial airline pilot active in his local church and community, Joshua Burns was convicted of child abuse in December of 2014. Supporters immediately launched a web site and media campaign protesting his innocence, and now the Michigan Innocence Clinic is appealing his conviction. Naomi Burns, now 18 months old, seems to have recovered fully. Her mother Brenda Burns has regained custody, but Joshua has been denied any contact with his daughter since April of 2014.

Michelle Heale sentencing reorted on Asbury Park Press

Michelle Heale sentencing, Asbury Park Press

In New Jersey, meanwhile, child care provider Michelle Heale has been sentenced to 15 years in prison, with the requirement that she serve at least 85% of her sentence. She was convicted of aggravated manslaughter and child endangerment in April.

Michelle said 14-month-old Mason Hess choked while eating a tube of applesauce, but doctors concluded from the brain findings that he had been shaken to death. The only visible evidence of trauma was a bruise on his forehead, suffered several days earlier in a fall in his home. He had been sick with coughing and copious mucous, and had just started taking medication the day before.

The coverage of the sentencing last week brings home how an abuse diagnosis amplifies the pain for everyone. The child’s mother asked the judge to impose the maximum sentence for “the monster who stole our son’s life,” and her husband addressed Michelle directly:

We truly believe that you should die for what you did to Mason, just not yet. But when you do, your true sentence will begin. We know that the devil himself has saved a special place in hell for you because only the most evil being would hurt an innocent child, an innocent child who cannot protect himself.

Judge Francis J. Vernoia imposed only half the maximum sentence of 30 years, but he chastised Heale for refusing to “take responsibility” for Mason’s death. Kathleen Hopkins at the Asbury Park Press wrote:

Vernoia noted, however, that Heale is at risk of committing another offense because she has refused to take responsibility for her actions. The judge said that despite overwhelming evidence of her guilt, Heale told a doctor during a mental examination that her conscience is clear.

The judge saw overwhelming evidence of her guilt, but I don’t.

The prosecuting attorney told the court that the child suffered “severe brain, spine and retinal damage,” but the injury to the spine was microscopic blood identified at autopsy, a finding consistent with the time the boy spent on a respirator. In fact, the prosecution was based on subdural hematoma, retinal hemorrhage, and brain swelling.

The historical context: In 1998, after Judge Hiller Zobel released convicted British au pair Louise Woodward with a sentence of time served, several dozen child abuse experts signed a letter to the journal Pediatrics protesting media coverage sympathetic to the defense. The letter made this statement about the diagnosis of infant shaking:

The shaken baby syndrome (with or without evidence of impact) is now a well-characterized clinical and pathological entity with diagnostic features in severe cases virtually unique to this type of injury—swelling of the brain (cerebral edema) secondary to severe brain injury, bleeding within the head (subdural hemorrhage), and bleeding in the interior linings of the eyes (retinal hemorrhages). 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.

Whether or not you accept that guideline—which I don’t—the prosecution of Michelle Heale is consistent with it.

In about 2010, however, after the Audrey Edmunds reversal, I started hearing a different message at child abuse conferences.

At the Eleventh International Conference on SBS/AHT, for example, Dr. Robert Block, then the incoming president of the American Academy of Pediatrics, rejected “the so-called triad,” with the comment:

Only people who are not active physicians working with children, naïve journalists, and professors with a biased agenda would propose that only three signs and symptoms support a diagnosis.

And in 2011, Dr. Carole Jenny presented at the New York Abusive Head Trauma/Shaken Baby Syndrome Training Conference, using a PowerPoint that featured this statement:

No trained pediatrician thinks that subdural hemorrhage, retinal hemorrhage and encephalopathy equals abuse. The “triad” is a myth!

But the conviction of Michelle Heale seems to be based on the presence of the triad, combined with faith that the effects of a serious shaking assault are always immediate. My best guess is that the diagnosis rested largely on the extensive bleeding in the child’s retinas, bleeding that the child abuse experts insist is caused only by abuse. During the trial, pediatric ophthalmologist Dr. Alex Levin was quoted in USA Today as saying, “This is a victim of abusive head trauma. I can’t think of another explanation.”

February 2022 Update: Law Professor Colin Miller in New Jersey has filed an application with the state Conviction Review Unit, requesting that they “correct an injustice and set Michelle Heale free.”

Josh Burns with his daughter Naomi

Retinal hemorrhages were also behind the diagnosis in the Joshua Burns case, where the eye exam did not take place until 11 days after the presumed shaking. The Torn Family web site, about the Burns case, offers both prosecution and defense expert opinions, making it possible to unravel some of Naomi’s complex medical history.

Her delivery was prolonged and difficult. Four times, the doctors attached the vacuum-extractor to Naomi’s head and pulled, and four times, the cap popped off. Finally, she was delivered by C-section.

She had difficulty latching onto the breast, and she was gaining weight slowly, so Brenda was pumping breast milk and feeding her daughter with a bottle, which was easier for Naomi to suck on. The girl’s head circumference was growing at a faster rate than the rest of her body.

Bruising on newborn Naomi from the vacuum-extraction cap

Bruising and abrasions at birth from the vacuum-extraction cap

Then one Saturday afternoon when Naomi was about 11 weeks old, Joshua was at home alone with her, holding her on his lap. Brenda had gone to the hair salon, where the computer asked for a PIN number to go with the credit card. She called her husband, who gave her the number and then, he says, while putting the phone down, almost dropped Naomi, catching her by the head and face before she hit the coffee table.

The scratch on Naomi's left temple, after her near fall

The red mark on the left side of Naomi’s forehead, after her near fall

When Brenda got home, Joshua told her what had happened and showed her the red mark on Naomi’s face. Brenda says she thought it looked like a fingernail scratch, something she’d seen many times in her years as a nurse. (She had quit her job at a local hospital just a few months earlier, in preparation for Naomi’s birth.)

Their daughter seemed fine that night, Joshua and Brenda say, but over the next several days they took her again and again to the doctor and hospital for vomiting, pallor, and uneven breathing, only to be reassured and sent home. On the third day, when she had a seizure during an examination, she was admitted to the hospital. The first reading of the intake MRI identified only “benign enlargement of the subarachnoid spaces” (BESS), which means there was a little more room than usual between the brain and the skull, a not-uncommon condition of infancy that usually resolves on its own. It does, however, predispose to subdural hematoma.

Naomi and Brenda Burns

Doctors attributed the infant’s seizures to an unidentified gastro-intestinal virus, and after a week in the hospital she was sent home, with anti-seizure medication. Her parents brought her back within hours, though, worried about more vomiting, fussiness, and pallor. At that point, while following up on a possible metabolic disorder, doctors performed a dilated eye exam and were surprised to find what the child abuse report identified as “bilateral multilayer retinal hemorrhages extending to the periphery,” the pattern considered by most child abuse experts to result exclusively from shaking.

“The retinal hemorrhages were an incidental finding,” Brenda says, “but they changed everything.”

Radiologists re-examined the initial MRI and reached a new conclusion: They still determined that Naomi had BESS, but they also saw old subdural bleeding, possibly dating back to her traumatic birth, and a small amount of fresh subdural blood. Naomi was diagnosed as a shaken baby, and prosecutors targeted Joshua as the abuser.

The defense brought in pediatric ophthalmologist Dr. Khaled A. Tawansy, a retina specialist, who wrote in his report:

The retinal hemorrhages that were seen by the ophthalmologist at University of Michigan and documented by Ret-Cam imaging were predominantly superficial (sub internal limiting membrane or nerve fiber layer or intra-retinal)… [These types of hemorrhages] occur regularly with abrupt elevations of intra-cranial pressure (as in acute subdural hematoma) when the pressure in the cerebrospinal fluid surrounding the optic nerve exceeds the pressure of venous return in the retina as it drains into the optic nerve.

The child abuse doctor in the Burns case asked for advice from the same pediatric ophthalmologist who testified against Michelle Heale, Dr. Alex Levin in Philadelphia. In an email exchange posted on the Torn Family web site, the child abuse doctor summarizes Naomi’s medical history, acknowledging but discounting the traumatic birth. She reports the eye findings in detail and notes that the child has “persistent thrombophilia,” a clotting disorder.

Dr. Levin’s response:

Impressive documentation. Very well done.

Not sure what the question is. I can’t think of another diagnosis other than abuse assuming no obvious coagulopathy or other event.

Apparently Dr. Levin missed the mention of thrombophilia in the original note, because later in the thread, when the pediatrician asks him about it, he writes:

Do you mean thrombocytosis?
Either way we have no idea what this might do re retinal bleeding and could be considered to throw the retinal findings into question. We just don’t know

I don’t know what was said about all of this in court, but it seems to me that retinal hemorrhages are starting to play a very large part in these diagnoses. In this case, the retinal hemorrhages themselves are suspect, and the only other evidence of abuse is subdural hematoma in a child with BESS.

Now the state is trying to terminate Joshua’s parental rights. Those hearings wrapped up in June, and the family is waiting for the judge’s decision.

I don’t understand why the child abuse doctors are so sure Naomi was abused, and I’m even less clear on why the state has decided that her father and not her mother must be guilty. The accident Joshua reported—presumed to be a lie invented to cover up abuse—happened 11 days before doctors ever considered the possibility of head trauma.

I am sorry that another family has been caught up in this tragedy, but I am heartened by the enthusiastic support that Joshua and Brenda Burns are receiving from their community. And I have high hopes that the ongoing coverage will bring more light to the debate about the reliability of a shaken baby diagnosis.

September 2015 update: The court has adopted a treatment plan that allows for reunification of the Burns familly, which is good news if you ignore the irony that the only thing between the Burns family and reunification is the court.

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

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

Tagged as Audrey Edmunds, Brenda Burns, Joshua Burns, Michelle Heale, Naomi Burns, Shaken Baby Syndrome

April 30, 2015 · 11:38 am

Shaking Theorists Repel Criticism

While ripples persist in the wake of last month’s news stories questioning shaken baby syndrome in the courtroom, innocent parents and babysitters are still going to prison and most press coverage still treats shaking theory as established fact. Now the news magazine of the American Academy of Pediatrics, AAP News, has published a commentary that dismisses the controversy as a “false debate” and criticizes The Washington Post coverage in March as “unbalanced, sowing doubt on scientific issues that actually are well-established.”

The commentary’s authors, Drs. Howard Dubowitz and Errol R. Alden, argue that both the Post article and the PBS NewsHour segment that ran the same week make too much fuss over the views of only a few doctors:

What are the facts? Similar to the so-called debate over climate change, it involves a tiny cadre of physicians. These few physicians testify regularly for the defense in criminal trials — even when the medical evidence indicating abuse is overwhelming. They deny what science in this field has well-established. They are well beyond the bounds where professionals may disagree reasonably. Instead, they concoct different and changing theories, ones not based on medical evidence and scientific principles. All they need to do in the courtroom is to obfuscate the science and sow doubt.

I’m not sure which side is supposed to be which in the climate change reference. In the fall of 2014, at the conference of the National Center on Shaken Baby Syndrome, law professor Joëlle Anne Moreno closed her talk with a clip from comedian John Oliver that I think was intended to equate the critics of shaken baby theory with the 4% of scientists who still deny that human activities affect climate change. But I remember the era, a few decades ago, when a handful of researchers was raising the alarm about climate change while mainstream scientists and public opinion dismissed them as fringe thinkers, and I just reviewed my notes from a pointed talk by forensic pathologist William R. Oliver at a 2013 pediatric head-injury conference organized by the publishing arm of the National Association of Medical Examiners, in which Dr. Oliver criticized the tactics and intellectual rigor of both sides in the climate debate, while drawing parallels with the struggle over shaken baby.

The AAP commentary joins the statement from the National Center on Shaken Baby Syndrome criticizing The Washington Post and PBS NewsHour coverage, as well as a posting to the National Association of Counsel for Children (NACC) listserve from law professor Frank Vandervort, who called the Post coverage “slanted and misleading” and criticized the American Bar Association for publishing a piece on its web site about shaken baby by Innocence Network attorney Katherine Judson. Attorneys Diane Redleaf and Melissa Staas at the Family Defense Center in Chicago have now published, on the NACC blog, their rebuttal to that posting.

A “Classic” Case

Debates aside, shaken baby theory is still winning in court. In mid-April, after a trial covered in the national press, a New Jersey jury found child care provider Michelle Heale innocent of murder but guilty of first-degree manslaughter in the presumed shaking death of a 14-month-old boy she was watching. Heale told emergency responders that the boy had seemed to choke on some applesauce. The Asbury Park Press web page offers complementary text and video treatments, including this moving anecdote from reporter Kathleen Hopkins:

Before Heale was led out of the courtroom in handcuffs, she turned to her husband, Michael, and asked him to take care of their children, a set of 5-year-old twins.

“Don’t let them forget me,” she said to him, sobbing.

According to coverage during the trial, pediatric ophthalmologist Alex Levin told the jury that the retinal hemorrhages found in the toddler’s eyes were a “classic” example of shaking injury—he said, in fact, that the image he was showing in court was scheduled to appear on the cover of a professional ophthalmology journal.

Dr. John Plunkett

Another day’s coverage, however, quoted pathologist John Plunkett, who testified that “shaking had nothing to do” with the boy’s collapse. He rejected the specificity of retinal hemorrhages and said that choking was a possible trigger for the child’s brain swelling and ultimate death.

Like so many other children diagnosed as shaken, the boy had been sick in the days before his crisis, in his case with coughing and congestion, to the point of “vomiting mucous.” He was diagnosed with an ear infection and started on amoxicillin the day before his collapse. His only visible injury was an old bruise on the right side of his forehead, suffered in a fall the week before in his own home.

Other Disturbing Cases

Cindy Rosenwinkel with her son

In Illinois, wife and mother Cindy Rosenwinkel was sentenced in April to six years in prison for the presumed shaking and slamming of an infant she was watching in 2011. According to press coverage, the judge imposed the minimum possible sentence. Ms. Rosenwinkel reported that she had slipped on the steps and fallen onto the conrete floor of the garage while carrying the infant in his car seat. The boy survived and is now described as “an active four-year-old.” Her supporters have created this web site protesting her innocence.

In a slightly encouraging update from Boston, the trial of Irish nanny Aisling Brady McCarthy has been postponed again, this time for a review of the case by the county medical examiner. Last week’s report was that a judge had denied a defense motion to drop the charges, so a delay for a review of the evidence is progress.

May 5 update: After two-and-a-half years in jail, Aisling Brady McCarthy has been released on $15,000 bail. http://www.bostonglobe.com/metro/2015/05/05/bail-hearing-murder-case-for-nanny/g6z1mGNt6XeJuCpHw91IgL/story.html

In the media, meanwhile, Dr. Phil ran a segment this week, “Was It Abuse, or Was It an Accident?,” sympathetic to Joshua and Brenda Burns in Michigan, where supporters have rallied behind the family even after Joshua’s child abuse conviction this winter. The page about the program on Dr. Phil’s web site offers a video clip in which Dr. Phil himself runs through the commonalities between the signs of shaken baby syndrome and the side effects of vacuum extraction—during the delivery of the Burns’s daughter, doctors had applied the vacuum device four times without success before eventually performing a C-section.

Joshua reported that when the girl was 11 weeks old, he had nearly dropped her while setting down his cell phone—he said he caught her by the face and head in one hand. She seemed fine that afternoon, but over the next several days, the couple took their daughter to the emergency room twice and to the walk-in clinic once because she was vomiting and appeared ill—on one visit they described her as “pale, cold, and clammy,” for example. Each time she was examined and released. Finally, when the girl developed breathing problems and the parents called 911, doctors looked more closely and found retinal hemorrhages and subdural hematomas, but no encephalopathy.

Dr. Phil’s show featured Dr. Robert Block, former president of the American Academy of Pediatrics, who had not reviewed the Burns case but said that critics of shaken baby “are absolutely wrong.” The program included no doctors who doubt the theory, but Dr. Phil was clear in his support of both Brenda and Joshua Burns. While Joshua serves his sentence, supporters maintain a web site at http://tornfamily.com/. The little girl seems to have recovered fully.

Fox news reported a different story this month, about doctors in Atlanta, Georgia, who accepted a father’s report that his 10-month-old son had fallen backwards while pulling himself up on a chair the day before his collapse. Surgeons removed a blot clot from his brain, and the boy has apparently recovered with no long-term effects and no child abuse accusations against the family. It’s hard to know from the news report what made the difference.

Meanwhile, the publicity for Child Abuse Prevention Month, April, has inspired news stories referencing children diagnosed as shaken in the past, such as this piece about a fund-raising race in South Dakota, this touching moment with a mother whose infant son was presumed shaken to death by his babysitter, and this feature about a loving family who adopted a child believed to be shaken by his maternal grandfather. With no details, it’s hard to know how accurate these stories are. I do believe that shaking a baby is dangerous and unacceptable, but I’ve seen so many dubious convictions that I find myself skeptical, of either the diagnosis or the correct identification of the perpetrator.

I feel like I’m back where I started in 1997, when a child care provider I knew was convicted of child abuse because a baby collapsed in her care, even though the child had been dropped off that morning with “a touch of the flu” and brain imaging showed old bleeding as well as new. In the Burns case, the prosecutors seemed to be arguing that Joshua abused his daughter the day he was alone with her and reported the near fall, but the breathing problems didn’t emerge until three days later. In a letter reproduced on the home page of my blog, a pathologist reported the case of a toddler hospitalized with vomiting for some 18 hours before the symptoms of an ultimately fatal head injury emerged. So why are the experts still saying that the symptoms are always immediate? In his appearance on Dr. Phil’s show, Dr. Block made the point, “In almost every one of these cases, the baby changes from being well to being in trouble when alone with a caregiver,” the same guideline that informed my 1997 case and that seems to be behind the accusations against another child care provider now on trial in Michigan. According to the press report of that case, the babysitter says the infant seemed to have a seizure, and she denies hurting the child in any way. Based on the brain injury, though, she is accused of “inflicting abusive head trauma, possibly by shaking the child.”

When is someone from the justice system going to stop and notice that the symptoms can evolve slowly over time? Or that there are other causes than abuse for subdural hematoma, retinal hemorrhages, and encephalopathy?

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

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Filed under abusive head trauma, AHT, American Academy of Pediatrics, parents accused, SBS, shaken baby syndrome

Tagged as Shaken Baby Syndrome

March 26, 2015 · 2:46 pm

The Word Is Out

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

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

Dr. A. Norman Guthkelch

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

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

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

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

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

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

Josh Burns with his daughter

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

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

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

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

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

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

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

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

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

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

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

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

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

March 5, 2015 · 10:38 am

Protecting Innocent Families: A Petition

February 2023 update: Protecting Innocent Families has been absorbed by the Family Justice Resource Center.

A coalition of accused families and the professionals who defend them is asking for an objective scientific evaluation of today’s medical guidelines for diagnosing child abuse, specifically but not exclusively shaken baby syndrome.

“Our child-protection system is in crisis, right now,” says Jennie Aspelin, whose husband Kristian stood accused for two years of shaking their baby to death. “If anything good can come out of our nightmare, it will be through our advocating for change.”

In November of 2010, Kristian Aspelin told emergency responders he had slipped in the kitchen while carrying 3-month-old Johan. But the child abuse expert at San Francisco General Hospital told police that children do not receive serious injuries from short falls and, further, that John’s brain injury proved he had been shaken to death.

The county charged Kristian with murder. For two years, while Kristian and his wife had lost their baby, and their 3-year-old needed stability, Kristian was forced to live apart from his family while fighting the charges. In time, experts hired by the defense found compounding factors in the medical records and conducted biomechanical tests that demonstrated the fall Kristian described could cause serious injury. The county dropped the charges, leaving the Aspelins deeply in debt but reunited.

So now Jennie Aspelin is helping to spread the word about the Protecting Innocent Families petition, a project that grew out of the 2013 conference for families falsely accused of child physical abuse sponsored by the Evidence Based Medicine and Social Investigation group.

The petition has just gone live, on March 4. Organizers say they hope to gather signatures from 1,000 people who believe they have seen dogmatic thinking about child abuse result in accusations against innocent parents and caretakers.

“We’ve been fighting these cases one at a time for 30 years,” says retired pediatrician Dr. Charles Hyman, a petition proponent who once headed the child protection team at Loma Linda University Children’s Hospital. “I’m happy to see somebody trying to address the root of the problem.”

Dr. Hyman explains that the early child-abuse physicians, in their sincere efforts to protect children from possible violence, established a number of guidelines that entered the courtroom without being tested scientifically. Sometimes, he says, a hasty diagnosis of abuse derails what should be a thorough search for a medical condition that might produce or predispose to the same findings. He has seen physicians diagnose abuse based the presence of multiple fractures, for example, without first testing the child’s vitamin D levels.

The diagnosis of shaken baby syndrome is a particular problem, the petition argues. Doctors have been taught for decades that a certain pattern of bleeding and swelling inside the infant skull proves the child was violently shaken. But now improved technology and accumulated experience have demonstrated that the same findings can also result from any of a long and growing list of legitimate medical conditions, so far including stroke, sickle cell disease, anemia, vitamin deficiencies, metabolic disorders, certain kinds of infection, and accidental injury. (For case examples, please see the Cases page on the Protecting Innocent Families web site).

The petition, which will be submitted to the U.S. Congress and to equivalent bodies in other countries, asks for an objective scientific review of the child abuse literature, to establish which opinions are based on statistically significant research and which opinions have become common knowledge without scientific review.

The petitioners suggest that the National Academies of Sciences take on the job, as a follow-up to their important and influential 2009 review of forensics in the courtroom. This petition comes from the affected families at the same time that forensics professionals are raising objections about other aspects of forensic science.

Even Dr. A. Norman Guthkelch, the pioneering pediatric neurosurgeon who first proposed infant shaking as a trigger for brain bleeding, has said he is horrified at the dogmatic thinking that now prevails. For an interview with Dr. Guthkelch by Joe Shapiro of National Public Radio, see “Rethinking Shaken Baby Syndrome.” For his academic statement on the subject, see “Problems of Infant Retino-Dural Hemorrhage With Minimal External Injury.”

Law professor Deborah Tuerkheimer at Northwestern University has published her criticism of shaken baby syndrome in a number of academic articles as well as an op ed piece in The New York Times, “Anatomy of a Misdiagnosis,” and recently a text book, Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice.

For the trailer to a provocative documentary about the debate over shaken baby syndrome, please see the web site for The Syndrome.

Both print and broadcast media have been raising questions about SBS diagnoses for years now, including the Wisconsin State Journal, The Washington Post, the ABA Journal, The New York Times Magazine, the Canadian Broadcasting Company, the LA Weekly, The Atlantic, The Atlanta Journal-Constitution, Seattle Met, FRONTLINE, Discover, The Chicago Tribune, and the Los Angeles Times.

Feb. 2023: The petition is now closed.

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

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Filed under parents accused, SBS, shaken baby syndrome

Tagged as falsely accused of child abuse, Family Defense Petition, parents accused, Protecting Innocent Families

February 9, 2015 · 12:38 pm

Shaking: “A False and Flawed Premise”

Kristian and Johan Aspelin

February opened with a pair of important and complementary postings, a bold academic statement signed by 34 physicians, attorneys, and child-protection professionals with “deep concerns” about shaken baby theory in the courtroom, and a beautifully written examination of the Johan Aspelin case that illustrates why the experts are so concerned.

Published in the British journal Argument & Critique, the Open Letter on Shaken Baby in the Courts: A False and Flawed Premise argues that a diagnosis of shaking “risks blurring the line between diagnosis and verdict,” and that “SBS has never been proved as anything more than an hypothesis.” Citing the dearth of scientific research underlying the theory, the authors write:

Noticeably, the requirement for scientifically based evidence is far more rigorous in medical negligence cases than in the family or criminal courts where believing something to be true appears to have achieved sufficient evidential value to sway the determinations of the court.

The letter also notes that the justice system has tended to suppress arguments about shaken baby syndrome:

One of the consequences has been the vilification of experts prepared to advance competing theories and the suppression of sensible debate.

Dr. Waney Squier

One example of such vilification is unfolding now in England, where pediatric neuropathologist Dr. Waney Squier is facing a challenge to her license triggered by complaints to the General Medical Council (GMC), reportedly from the Metropolitan Police, that her courtroom testimony exceeds her area of expertise and ignores the opinions of her peers. Dr. Squier has been testifying on behalf of accused parents for about the past decade, since her own research, clinical experience, and reading of the literature convinced her that the prevailing model of shaken baby syndrome is flawed.

My favorite report about Dr. Squier’s GMC hearings, which opened in the fall and continue intermittently, is a legal-training company’s blog posting that features praise from readers for her intellectual honesty in the face of peer pressure. A general practitioner offered this striking parallel with an historical report to the GMC:

Surely the Met investigating a Dr who happens not to agree with the consensus — and holds an expert view — is a little like the tobacco companies (circa 1960s) reporting Sir Richard Doll to GMC for his novel theory that tobacco caused lung cancer.

In the U.S., meanwhile, an in-depth treatment of the Johan Aspelin case published last week on Medium by reporter Elizabeth Weil also reveals striking new facts, like the botching of Johan’s initial intubation at San Francisco General, which caused the complete collapse of one lung and serious damage to the other. And that Johan received several times the recommended dosages of two different sedatives, which, Weil writes, “left him essentially paralyzed and unable to communicate distress as air was pumped into his compromised lungs.” The article notes:

Nowhere in the police investigation transcripts does it suggest that doctors considered Johan had a brain injury and retinal hemorrhaging due to low blood-oxygen levels and high carbon dioxide pressure, problems that may result from faulty intubation.

Johan’s mother Jennie Aspelin learned about the error and resulting crisis only because she’d contacted the organ-donation agency to find out why there had been no recipient reported for Johan’s lungs, as there had been for his other organs. Even then she received only the oblique message that it was “a matter of function,” enough to send her on a focused search for the full medical records.

Johan Aspelin

In November of 2010, Johan’s father Kristian Aspelin told emergency responders that he had fallen in the kitchen while holding 3-month-old Johan, but child-abuse expert Dr. Chris Stewart rejected that explanation and told police that the boy had been violently shaken to death.

In December of 2012, the county dropped murder charges against Kristian, after defense attorney Stuart Hanlon turned over a collection of exonerating reports from outside experts as well as a carefully assembled medical time line that included the hospital’s mistakes. By that time, the family had lived apart for two years, when they’d lost their baby and needed each other more than ever. They’d sold their house and taken on a staggering debt to cover legal bills, and they’re not slated for any compensation from the state.

Dr. Mark Feingold

But the people who train child abuse physicians continue to teach that children seldom if ever suffer serious injury in short falls, and that only abuse causes severe retinal hemorrhages. In a January, 2015 lecture titled “Is There a ‘Shaken Baby Syndrome’?,” for example, which earns the medical viewer one continuing education credit, child abuse pediatrician Dr. Mark Feingold reported that hypoxia does not cause “macroscopic subdurals” and that children do not suffer serious injury in short falls:

A lot of our opponents say, “Well, the child died. That’s too bad. But it was a short fall, just like Mom said. He fell from Mom’s arms.” The evidence shows that children who fall more than 20 feet can die, but children who fall less than 3 feet almost never die, and when they do, it’s a different kind of accident. It’s a playground accident. It’s an older child. They die of a large subdural that causes lots of pressure. And the RH if present are not the kind we see in abuse cases (emphasis added). But nonetheless, different versions of “I was carrying the baby and I tripped and fell” are often offered.

Slipping and falling with the baby is the explanation Kristian Aspelin offered, like countless parents and caretakers before him and countless more to come, while pediatricians are being trained to reject that story, and to dismiss the hypoxia that frequently accompanies head injury as a source of compounding symptoms.

The retinal hemorrhages in Johan’s eyes were widespread and multi-layered, the kind that child abuse pediatricians insist do not result from short falls or lack of oxygen to the brain. So were the hemorrhages in the eyes of the toddler in the care of René Bailey, who said the little girl had fallen off a chair—Bailey’s murder conviction was vacated in December. Doctors also pointed to extensive retinal hemorrhages when diagnosing shaking injuries in the cases of exonerated babysitters Jennifer Del Prete and Audrey Edmunds and exonerated father Drayton Witt, and in an exasperating case local to me in which paramedics pulled a rubber band from the child’s throat during resuscitation and the only physical evidence of abuse was the triad. It seems to me that the world now offers quite a few examples of extensive retinal hemorrhages from plausible, non-abusive accidents and medical conditions.

When I started researching shaken baby theory more than 15 years ago, I routinely read in trial transcripts that doctors considered the presence of retinal hemorrhages a sure sign of child abuse, but since then the situation has grown more complicated. When researchers started looking systematically, they rediscovered that retinal hemorrhages have a long list of non-traumatic causes, including diabetes, anemia, bleeding disorders, increased intracranial pressure, increased intrathoracic pressure, and certain types of infections. A startling one quarter of neonates born spontaneously arrive with retinal hemorrhages, more in deliveries that involve instruments. In light of this new understanding, child abuse experts now recognize other causes of retinal hemorrhages but insist that most of them result in only a few small hemorrhages near the optic nerve, not in widespread, multi-layer hemorrhages, which they continue to interpret as evidence of whiplash shaking.

I don’t know how we will move forward, but I welcome the growing chorus of voices in the journals, in the press, and in the courtroom, who demonstrate through their work and their testimony that the Open Letter on Shaken Baby is representing the situation correctly in its message to the courts:

In short, we would inform members of the judiciary and legal profession in those countries which utilise the SBS construct, that it does not have the undivided support of the relevant professional community, an essential consideration in the assessment of expert testimony.

The letter was edited by Argument & Critique’s managing editor Dr. Lynne Wrennall, whose doctorate is for work in child welfare, from a draft prepared by solicitor Bill Bache and veteran child social worker Charles Pragnell. The signers include 16 physicians, a handful of scientists, and a variety of social work professionals, from both academia and the field.

For the observations of Phil Locke at the Wrongful Convictions Blog, see his posting about the Open Letter.

The film company Mighty Myt is making a film about Johan Aspelin’s case, In a Moment: The Johan Aspelin Story.

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

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

Tagged as abusive head trauma, Argument & Critique, Argument and Critique, Elizabeth Weil, Johan Aspelin, Kristian Aspelin, retinal hemorrhages, Shaken Baby Syndrome, Waney Squier

November 20, 2014 · 2:07 pm

Decisions Address Timing, Coercion

Not from this case, merely an example of subdural bleeding

Two different judges in two separate cases have looked carefully at the facts in front of them and found the kind of fundamental problems that plague shaken baby prosecutions.

In October, District Court Judge John Telleen in Scott County, Iowa, addressed an issue I’ve been wanting someone in authority to notice for years now, the implications of a pre-existing subdural hematoma. Judge Telleen’s oral decision declaring an accused father not guilty included this observation:

All of the State’s evidence or the vast majority of it related to the 12 hours before admission on November 5. Frankly, I believe it’s clear that nothing happened on or about November 4 or November 5 that could possibly have caused a subacute subdural hematoma that had been in existence from anywhere from three days to ten days prior to that.

Like Judge Matthew Kennelly following the Del Prete hearings, Judge Telleen was left doubting both shaking theory and its application to the case at hand:

[I]t is my understanding from the testimony that I found credible that there are no scientific studies that support or document that shaking causes brain hematoma or brain bleeds…

[F]rankly I have some serious doubt whether a crime was even committed here much less that the defendant did it.

The judge noted that the infant, only three weeks old when clear neurological symptoms emerged, had been sick since birth, and he chided the child abuse pediatrician for making the “default diagnosis” of abuse without doing a full work-up to eliminate metabolic or bleeding disorders, or even a vitamin D deficiency, as the child had healing fractures that could possibly, but not definitively, be dated back to birth

The state’s ophthalmologist had apparently testified that he couldn’t be certain the child was abused, and conceded that a sharp rise in intracranial pressure (ICP) could account for the retinal hemorrhages. Judge Telleen said:

Dr. L was a credible witness. He was a straight shooter. He said he couldn’t place it beyond 51 percent, his opinion that he thought it was caused by non-accidental trauma. However, he freely acknowledged as an honest witness that increased intracranial pressure can cause retinal hemorrhage, he couldn’t rule that out.

There seems to have been no press coverage of the innocent verdict, so there was never any public correction to the initial news stories, which quoted an affidavit that the father had “engaged in three or more acts of child endangerment, including at least one act that resulted in serious injury.”

December update: The local paper has now covered the decision, at http://www.press-citizen.com/story/news/2014/12/24/uihc-shaken-baby/20858227/

Defense attorney Kent Simmons said his client turned down a plea agreement that would have avoided jail time, because he did not want to admit to doing something he didn’t do. “I told my client he was a very brave man,” Simmons said. “And Judge Telleen is an honest, bright, and fair jurist.”

And I’ve just learned about a decision this past spring in Oregon, where Appeals Court Judge Angel Lopez affirmed a trial court’s decision barring a confession from the courtroom, concluding that the father’s statement was made involuntarily. After hours of taped interrogation that focused on his daughter’s injuries, the detectives had turned off the recorder for 25 minutes and then turned it back on to capture the disputed confession. The published decision includes this touching quote from the trial judge:

Here was a man who had a baby in the hospital for shaken baby syndrome or some traumatic issue. Several times during the discussion with him he was asked to tell the truth because that would predicate what the treatment would be for the baby. Implicit in that is if he didn’t, the baby was going to end up worse off.
I see that as compelling. I see the going back and forth by saying—minimizing to the defendant what’s going to happen to him if he [comes] clean and he confesses. I believe that the statements, given these facts and circumstances, were involuntarily made, and that’s based on the totality of circumstances. There’s no one thing that jumps out at me but there are a lot of things that together tell me that his will was overborne by two detectives in that hospital room over two days.

With supporting quotes from the interrogation transcripts, Judge Lopez added his own analysis:

Having made clear that G had serious medical issues that could be ameliorated by a confession—an assertion that, as a matter of medical fact, is without any support in the record—the officers also appealed to defendant’s paternal responsibilities, his religion, stated that defendant was the only one who could help G, and stated, in effect, that the way to provide that help was to tell the officers that he had accidentally shaken her.

I am always glad when someone in a position of authority stops to consider what it must be like for an accused parent, frantic with worry for their child, to be harangued by detectives intent on extracting a confession.

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

Tagged as attorney Kent Simmons, coerced confessions, infant head injury, Judge John Telleen, timing of shaken baby

October 25, 2014 · 8:20 am

Finding a Voice, and a Community

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

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

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

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

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

Denver, Colorado

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 10, 2014 · 6:17 pm

“The Syndrome” Trailer Makes Waves

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

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

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

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

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

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

Filmmakers Meryl and Susan Goldsmith, who are cousins

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

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

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

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

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

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

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

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

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

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

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

September 10, 2014 · 11:15 am

“The Syndrome” Promises Fireworks

Susan Goldsmith

“Shaken baby syndrome is the most mind-blowing story I have encountered in 26 years as a journalist,” says Susan Goldsmith, whose film The Syndrome has been nominated for a Jury Award at its premiere next month at the Kansas International Film Festival. “The deeper and deeper you go, the worse it gets.”

Even over the phone, Goldsmith crackles with the same energy that makes the trailer so compelling and no doubt earned the film its nomination. “When I found out how the promoters of the theory are trying to silence their critics,” she flares, “I knew I had to make this movie.”

She promises an “explosive” exposé, consistent with her web site’s report that the film “unflinchingly identifies those who have built careers and profited from this theory along with revealing their shocking pasts.”

Dr. John Plunkett

The Syndrome profiles three of the most outspoken critics of shaking theory, forensic pathologist John Plunkett, pediatric neuroradiologist Pat Barnes, and neurosurgeon Ron Uscinski.

The film also features a few of the personal stories Goldsmith heard during years of research. “Those families, who have been ripped apart in so many ways, they keep me inspired,” Goldsmith insists. “If I was traumatized like that, I’d never want to talk about it, but you call them up, and all they want is to help get the word out.”

Dr. Charles Hyman, a critic of shaken baby theory, and Susan Goldsmith

Goldsmith expects criticism from what she calls “the shaken baby industrial complex.”

“I’m used to being attacked,” she shrugs. “My job as an investigative reporter is to piss people off.”

Goldsmith has handled controversial stories before, including an article sympathetic to a convicted child molester—which later won a first-place award for crime and justice reporting—and a profile defending Nigerian anthropologist John Ogbu at UC Berkeley, tarred as a “Clarence Thomas” for his study of black high school students at an affluent Cleveland suburb. She’s often had trouble pitching her ideas, she concedes, “but I have never encountered the insane resistance I’ve seen to this story.”

Meryl Goldsmith

Goldsmith says that people seem to go “fuzzy in the head” when the words child abuse are used, “and that’s a very dangerous place for us to be in.” The same human instinct that fostered the shaken baby nightmare also made it nearly impossible to explain her conclusions, she sighs. “Over and over, people would just say, ‘They must be shaking them.'” Recognizing the resistance to their topic within the film industry, she and her cousin Meryl Goldsmith found their own funding and made their own movie.

I’m excited: The Syndrome could be a watershed in the history of shaken baby syndrome. I confess I had the same thought about Lee Scheier’s 2005 Chicago Tribune treatment, Emily Bazelon’s 2011 New York Times Magazine piece, the 2011 NPR/ProPublica/Frontline series, and Deborah Tuerkheimer’s 2014 book, but every bit of exposure helps bring the truth to light, and this film promises to be a high-wattage experience.

I knew Goldsmith subscribed to this blog, but she says in fact she’s a “religious reader” and she has “learned a tremendous amount” from it. I am gratified and encouraged.

The Syndrome premieres on Sunday, October 12, 12:15 pm at the Glenwood Arts Theater in Overland Park, Kansas. It will also be shown at the Twin Cities Film Fest, on October 24 & 25, buy tickets here.

For a sampling of Goldsmith’s work and awards, click on her tab on the film’s web site.

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

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

20 Comments

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

Tagged as Meryl Goldsmith, shaken baby syndrome expose, Susan Goldsmith, The Syndrome

August 29, 2014 · 9:01 am

Light Breaks in New Mexico

Although the case doesn’t involve shaken baby syndrome, a decision last week by the New Mexico Supreme Court addresses a fundamental issue in shaking cases, the reliability of expert medical opinion in child abuse prosecutions.

The decision freed Daniel Consaul, convicted in 2008 of “intentional and negligent child abuse resulting in great bodily harm to an infant,” for what the local child abuse team had concluded was the intentional suffocation of his 10-week old nephew Jack. The court vacated Consaul’s conviction “with prejudice”—meaning he cannot be re-tried—citing insufficient evidence. The opinion notes in the introduction:

Child abuse prosecutions are unusual in that sometimes medical-opinion testimony provides the only evidence that a wrongful act occurred or that the accused committed a wrongful act…

Our review here focuses on whether this expert testimony alone—testimony in this case based solely on a deduction from an absence of other causes that a certain event likely occurred—is sufficient to support a criminal conviction

Consaul lived with his sister and her baby, and had been caring regularly for the boy since his birth. He told detectives he had checked on his nephew at 1:30 in the morning after hearing the child cry out and found that Jack had vomited and seemed stiff. He called his sister at work, and with a neighbor they took the baby to the hospital in Las Cruces, where the boy arrived shivering and lethargic but breathing and “appropriately responsive.” Unsure of the underlying problem, doctors administered fluids and performed lab tests. A few hours later, Jack was airlifted to the University of New Mexico Hospital, where he began seizing. CT scans then revealed brain swelling apparently triggered by insufficient oxygen.

From the Mayo Clinic swaddling instructions

In his first police interview, Consaul said he had swaddled Jack and placed him in his crib that night at about 11:30 pm. He did not specify the position, and the police did not ask. In a more pointed interview the following day, he said he had swaddled the boy more tightly than usual and laid him face-down in his crib. He conceded he was frustrated with Jack’s crying. The subsequent indictment charged that Consaul had endangered his nephew ‘s life and health “by swaddling Jack …tightly and leaving him unattended for an extended period of time.” At trial, the prosecution also argued that Consaul had intentionally suffocated the boy.

Refreshingly, the judges made a careful examination of the Child Abuse Response Team (CART) report that informed that conclusion, writing:

While proof beyond a reasonable doubt is not required for admissibility of an opinion, it is essential to support a jury’s finding of guilt. As a reviewing court, we must decide whether a reasonable jury could “reason” from the available evidence to the point of finding guilt beyond a reasonable doubt.

In this case, there was no substantial evidence pointing to Daniel’s guilt other than whatever could be said of the medical testimony, and when that evidence is analyzed, it falls short of establishing proof beyond a reasonable doubt.

Critical care specialist Dr. Mary Johnson had testified, for example, that one of her reasons for concluding that Jack had been intentionally suffocated was that his uncle had made a “calculated” change in his story. She said that Consaul had first reported putting Jack down on his back, but then claimed he’d placed the child on his stomach, after learning that doctors suspected suffocation. Dr. Johnson was apparently relying on the CART report, which did not include an interview with Consaul but quoted Jack’s mother Heidi as saying that the boy was usually put down on his back and that Consaul had told her he found Jack on his back after his cry in the night. Like the initial police report,the CART report contained no statement from Consaul about how he placed the boy in his crib that night. The court notes:

The assertion of a “change of story” was based on what Heidi recalled Daniel telling her, which she then repeated to Dr. Coleman, which was then transmitted via the CART report as tertiary hearsay to Dr. Johnson. It is difficult to know how to interpret this so-called contradiction or assess its reliability. Even if Heidi accurately recounted what Daniel had told her, it was that “Daniel found Jack on his back [and] had vomited,” not that he had put Jack to bed in that position. (Emphasis added.)

Although not a perfect analogy, this slurring of details echoes a sequence I’ve seen routinely in hospital records: An initial assessment raises the suspicion of inflicted head injury. During interrogation, a caregiver admits to some kind of shaking, usually mild, often in the course of attempted resuscitation. The detectives report back, and subsequent doctors’ notes include a phrase something like, “consistent with admitted shaking by caregiver.”

In another parallel with shaking diagnoses, Dr. Johnson testified that she had reached her conclusions partly because Jack’s body showed no signs of trauma:

After prompting by the district court, the State asked Dr. Johnson what physical manifestation from her examination led her to believe that Jack had been smothered. Dr. Johnson responded that Jack’s seizures were an indicator, as was the lack of any other physical manifestations. “There is often nothing that can be seen, nothing on the face, no bruises, no bleeding. No petechiae. Greater than 50 percent of the time, there is absolutely nothing on the skin or on the baby that would indicate a problem.”(3)

This observation inspired the best line in the decision, footnote 3:

We leave for another day an examination of how the lack of any physical evidence of child abuse can somehow become probative of the crime of child abuse.

In addition to criticizing the evidence, the opinion condemns the trial court’s decision to issue one set of jury instructions for the separate charges of negligent child abuse and intentional child abuse:

Defendant was entitled to separate jury instructions for negligent and intentional child abuse resulting in great bodily harm given that the State’s theories of how that harm occurred were different and inconsistent; for negligent child abuse, the state told the jury that defendant put the baby to bed carelessly, tightly swaddled and placed face down on a pillow, and argued that this act of negligence caused baby’s injuries, and for intentional child abuse the state hypothesized that defendant did not just put baby to bed carelessly, but that defendant actually used a pillow or his hand to suffocate baby so he could not breathe, and jury was never asked to specify which criminal act defendant committed.

The judges quote from the prosecution’s final argument that a juror might think Consaul “did it on purpose” or might think “he’s just an idiot” who put the baby down negligently, “but everybody knows, and we know he knew better than to do that.” The court’s response:

The prosecutor invited the jury to convict Daniel of child abuse whether or not the jury agreed on what criminal act Daniel actually committed. Jurors should not be left free, let alone encouraged by the prosecutor, each to go his or her own way when it comes to determining what criminal conduct —if more than one act is alleged—caused the child’s harm. The jury needs to agree unanimously on what conduct caused harm to the child.

While addressing the many issues raised by the case, the opinion criticizes the state legislature for its ambiguous definition of “negligence” in its child abuse guidelines. Noting that the law recognizes a distinction between civil versus criminal negligence, the opinion observes:

We note, however, that in Section 30–6–1(A)(3) the Legislature appeared to capture two standards of mens rea in one sentence when it defined “negligently” as meaning “that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.” § 30–6–1(A)(3) (emphasis added). The Legislature joined these two distinct states of mind with the conjunctive “and.” Taken literally, the text of the statute refers to both ordinary negligence and criminal recklessness all in a single legislative breath. The Legislature cannot rationally have intended such self- contradiction.

The opinion also contains an educational discussion of the difference between the medical concept of the differential diagnosis—“the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings”—and the legal concept of the differential etiology—”a process that identifies a list of external agents… that potentially caused the disease.” Quoting another case opinion, the justices note:

“[P]hysicians receive more formal training in differential diagnosis than in differential etiology…. [P]racticing physicians have more experience working with the differential diagnosis technique, since in many cases the cause of an illness is irrelevant to the patient’s treatment.”

The child abuse team’s conclusions about intentional suffocation would seem to fall into the area of “etiology,” since there are countless ways for oxygen flow to be interrupted.

This case is cleaner than a shaking prosecution, because there were no subdural hematomas and no retinal hemorrhages, and therefore no presumption of violent assault, but I believe the same underlying issues apply. I hope to see more judges taking such a careful look at how the child protection teams reach their conclusions and recognizing the difference between sincere medical opinion and proof beyond a reasonable doubt.