Category Archives: shaken baby

With Their Own Nightmare Behind Them, Trying to Make a Difference

Edelyn & Peter Yhip

Edelyn Yhip, RN & Peter Yhip, MD

Last summer, Edelyn and Peter Yhip were preparing for the worst:  If they were both convicted, they asked each other, who would take their children, 13-year-old Mikaela and 9-year-old Jonathan? What would happen to their home, and everything in it, if they were both in prison?

But on August 23, after 6-1/2 years of accusations, the Yhips stood in court and heard the judge drop charges against them, because the state had conceded it had insufficient evidence of murder in the 2012 death of Jonathan’s twin brother Benjamin.

“We felt so blessed when the charges were dismissed,” Edelyn said when we got together in September, at a fencing tournament where Mikaela was competing. “Now we can grieve and mourn for Benjamin, and start to heal our family.”

In a video posted by the Northern California Innocence Project (NCIP), which helped with their defense, Edelyn reflected on the reality that set in after the “jubilation” the day the charges were dropped. Although it was “great to leave this behind us,” she said, “my son is gone, and our family is not the same. Our children are still in pain—they were alone and scared when they needed us the most.”

In a television interview in the fall, Mikaela remembered how police officers came to her school one afternoon and took her and Jonathan away from the family friend who’d come to pick them up—leaving them instead in the care of foster parents they’d never met before. “They told me that Benjamin died,” Mikaela recalled. “I was so confused and scared… I really missed my parents, especially at night.” She was 7 years old.

The Yhips were eventually able to transfer the foster placement to a family the children knew, but even then they were allowed only an hour and half a week of visitation, always supervised by social services—”It was like somebody was spying on us all the time,” is how Mikaela put it. Jonathan was not allowed to attend his brother’s funeral.

Edelyn said she now has two goals: restoring her children and changing how infant death investigations are handled. “I can’t just pick up and go back to normal,” she declared, “not after what my children went through, what Peter and I went through. This nightmare should not happen to another family.”

Peter Yhip told me the ordeal destroyed his own faith in the legal system—”You never imagine something like this could happen to a perfectly innocent family,” he said—but he has learned the power of community. When he and Edelyn realized they were accused of murdering their son, he remembered, “We were numb with disbelief. But so many people rallied around us, it gave us hope. I have more faith in humanity now.”

Yhip FamilyEdelyn is a nurse and Peter is a doctor. They paid off their student loans before starting a family, Edelyn explained in the NCIP video. When they found themselves infertile, Edelyn said, they adopted the infant Mikaela from China in 2005, and then their sons in 2010, when the boys were 18 months old. “Returning from Taiwan with the boys,” she beamed, “We felt like our family was complete.”

They quickly realized, though, that Benjamin had serious medical problems, with recurring infections and a diagnosis of failure to thrive that led to an implanted feeding tube. In the spring of 2012, Edelyn found him not breathing in his bedroom and called 911.

Local press coverage quoted the NCIP about what happened next:

“At the hospital, bone scans showed unchanged abnormalities suggesting a genetic condition, and the neurosurgeon opined Ben had suffered a stroke that caused his collapse,” according to the NCIP. “Ben was put on life support and eventually declared brain dead. Arrangements were made for organ donation.”

Despite Benjamin’s long and complex medical history—including a series of hospitalizations in Taiwan, before he was adopted—the state’s pathologist declared the death a homicide, citing the presence of subdural and retinal hemorrhages, which are two elements of the  “triad,” a pattern of bleeding and swelling inside the infant skull that is commonly attributed to “abusive head trauma,” previously known as “shaken baby syndrome.”

While their children remained in foster care, baffled and terrified, Edelyn Yhip was arrested at the family home, and Dr. Yhip was arrested at his clinic, handcuffed and led out the front door past patients in the waiting room.

The Yhips’ friends and family rallied behind them, setting up a web site and raising money to mount a defense. More than one family put their homes on the line, adding their properties to the bond, so Edelyn and Peter could be out of prison while waiting for trial. The family was reunited about a year after the accusations, when the dependency court found “substantial evidence” that Benjamin had died of medical complications, not criminal assault. Still, the county continued to press its criminal case for five more years, while the NCIP submitted a growing body of medical reports supporting the family’s innocence, as well as court decisions from other disputed shaking cases and the 2018 book, The Forensic Unreliability of the Shaken Baby Syndrome.

“We had a host of heroes in this case,” wrote NCIP attorney Paige Kaneb, who stuck with the case through all those years, in an email announcing the decision to drop the charges. “Great day, long overdue. The best part was after court when the Yhips told their 13-year-old daughter that this is finally over.”

The nightmare is over, but the Yhips are not leaving their experience behind. Both Edelyn and Peter say they hope their case might help move the debate about shaking theory forward, and help other families avoid a nightmare like theirs. “The triad has got to go,” Edelyn insists. “It’s not just the financial toll, it’s the emotional toll it takes on your whole family.”

This week, the Yhips are heading to Atlanta for the annual Innocence Network conference, April 12–13, where they are hoping to connect with other accused and exonerated families. You can contact them at fresh20fishing@gmail.com.

copyright 2019, Sue Luttner

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

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Ohio Decisions Seed Hope

Two decisions this fall in Ohio offer hope for the wrongfully accused, while underscoring both the ironies and the complexities of misguided accusations of child physical abuse. One of them even opens the door to possible legal accountability for the casual over-diagnosis of abuse.

First, the Supreme Court of Ohio has reversed the 2016 assault conviction of child care provider Chantal Thoss.

In December of 2014, Ms. Thoss called 911 for help with a baby who she said had fallen from a couch and was “not acting right.” Doctors at the hospital found no bruises, fractures, or other signs of assault, but did find retinal hemorrhages and both new and old bleeding inside the boy’s skull, evidence of both a recent and a preexisting brain injury.

Early in the investigation, Dr. Randall Schlievert at Mercy Health offered his opinion that the baby had been shaken by his last caretaker before the call for help. Detective Brian Weaver never questioned the presumed timing, and the case proceeded against Ms. Thoss.

According to the court’s summary, Dr. Schlievert explained on the stand “that once the brain is injured, symptoms manifest immediately,” with this concession:

“Schlievert remarked that it is debated in the field whether an older injury can make a child more fragile or more likely to suffer a serious injury from a mild fall later. He noted that many doctors believe that they may have seen such a case, but there is not a single published article that proves that that happens.”

After reading the trial testimony and listening to the 911 call and taped interviews with the babysitter, the three-judge panel declared that a guilty verdict was “against the manifest weight of the evidence.” Noting that they had listened to the same recordings the jury had, the judges offered a different interpretation:

“From those recordings, it is evident to us, acting in this instance as the thirteenth juror, that appellant wholeheartedly believed that she caused injury to E.A. not by shaking him, but by placing him on the couch while retrieving his diaper and by her instinctual response of picking him up off the floor after he had fallen. We could hear the raw emotion in appellant’s voice [emphasis added] as she reported the child’s condition to the 911 operator, the self-condemnation over the decision to briefly leave him unattended on the couch, the genuine surprise upon being informed by Weaver that E.A. had signs of previous injury, and her struggle to understand how this incident produced the injuries suffered by E.A.”

Ms. Thoss has been released from prison. The state has not yet announced whether it will refile charges against her.

A civil case

Meanwhile, Senior District Judge James G. Carr in western Ohio has allowed a civil case against Dr. Schlievert to move forward. Although far from any resolution, the decision is a rare crack in what is usually a solid wall of immunity for physicians who diagnose child abuse.

mopBucketIn September of 2014, day care worker Beth Gokor called her supervisor to report that a 3-year-old boy she was watching couldn’t walk or stand on his own after slipping and falling on a wet linoleum floor.

At the hospital, the boy told a physician’s assistant that he “slipped and fell,” and a co-worker later confirmed Gokor’s report that the floor was wet from a recent mopping. According to police notes, the child’s mother said he had told her he slipped while running.

childRunningCartoonWhen Dr. Randall Schlievert reviewed the records, however, he concluded that the spiral fracture to the boy’s leg must have been an inflicted injury, not an accident—and he recommended challenging the day care’s license because “[c]hildren do not appear to be currently safe there.” Schlievert offered his opinion that the day care was making “improbable statements” and asserted, as if refuting the caretaker’s report, “[JJ] would not have been able to stand.”

Ms. Gokor was fired immediately, and she was later charged with endangering children.

Her defense team hired pediatric radiologist Gregory Shoukimas, who, according to the court summary, not only concluded that the injury was accidental but also noted that Dr. Schlievert’s report was “riddled with errors.”

When prosecutors received the alternative medical report, the state dropped charges against Ms. Gokor, who then filed a civil suit against Dr. Schlievert. The decision this fall rejected a motion by Dr. Schlievert to block that suit, which will presumably now move forward.

A similar suit

Criminal defense attorney Lorin Zaner

Criminal defense attorney Lorin Zaner

Intriguingly, the same judge who gave the green light to the Gokor suit this year blocked a similar suit in 2017, also against Dr. Schlievert and also pressed by criminal defense attorney Lorin Zaner, a veteran of wrongful abuse cases.

The plaintiff in the earlier decision was Molly Blythe, the mother of twin daughters born prematurely, as many twins are. The second-born twin, referenced as “KB,” endured first manual repositioning and ultimately vacuum extraction, emerging with “significant bruising” on  her scalp. At early visits with the pediatrician, the mother expressed ongoing concerns over KB’s frequent vomiting and difficult sleep patterns.

At the age of two months, with her head growing unusually fast, KB was found to have bilateral subdural hematomas and large extra-axial fluid collections. Doctors performed surgery to relieve the brain pressure. The first eye examination, conducted after the surgery, revealed retinal hemorrhages,.

“In the absence of any other explanation, the doctors diagnosed KB with Shaken Baby Syndrome,” the judge’s opinion recounts, and the county hired Dr. Schlievert to perform a formal child abuse assessment. “After reviewing KB’s medical file,” the judge wrote, “Dr. Schlievert concurred in the initial child abuse diagnosis.”

zaner@NormansParty

Mr. Zaner speaking at Dr. Norman Guthkelch’s 100th birthday party, 2015

Mr. Zaner hired a full complement of experts—a neuroradiologist, a diagnostic radiologist, a pediatric opthalmologist with a specialty in retinas, a pediatrician with extensive child abuse experience, and a biomechanics professor. After receiving their reports, which enumerated other possible causes for the findings, the state dropped criminal charges. Rather than engage in further court proceedings, the mother consented to a family court order giving custody of the girls to their maternal grandmother. Then she filed suit against Dr. Schlievert and the county.

In his opinion blocking that suit, Judge Carr emphasized that Dr. Schlievert’s conclusions matched those of the treating physicians:

“The fact that Dr. Schlievert reached nearly identical conclusions supports a determination that his conduct did not ‘shock the conscience’ but rather was a sound medical conclusion based on his review of KB’s medical file.”

In its insistence that Dr. Schlievert was innocent of intentional misdirection, the opinion seems to sanction his apparent decision to finalize his abuse assessment in the case of a 2-month-old preemie without examining the birth records or establishing a clear timeline for the reported findings:

“The complaint does not allege that at the time he provided his February consultative report to CSB [Children’s Services Board], Dr. Schlievert knew about the traumatic birth or that the surgeries had preceded the first, and thus baseline, retinal examination.”

I can understand why the unanimity of opinion among child abuse experts gives the impression that shaking theory is well established—that conclusion, alas, is one of the reasons this fight is so difficult. The problem is that shaking theory was adopted before it was proven scientifically, and the research since that point has been premised on the assumption that convictions and plea bargains prove abuse.

My best hope is that Judge Carr might notice a pattern in the child abuse suits that come through his court. A few popular but unproven tenets of child abuse medicine—that the triad proves shaking, for example, and the symptoms are always immediate, or that spiral fractures mean abuse—continue to derail accurate diagnosis and mar the good work that child abuse physicians otherwise do.

copyright 2018, Sue Luttner

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

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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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Filed under parents accused, SBS, shaken baby

Shaking debate back in the courts and in the news

uphill-gunnThe landscape in the shaken baby debate is shifting again, with a series of developments that have locked in gains, slowed losses, and even claimed new ground in the struggle against unproven science in the courtroom.

In New York state last week, an appeals court affirmed the 2014 reversal of the murder conviction of care provider René Bailey, who said she was out of the room when a little girl jumped or fell from a chair. Prosecution experts had testified, however, that only shaking could explain the brain findings, and that children don’t die from short falls. In his decision reversing the conviction, Judge James Piampiano accepted the argument by Bailey’s appeal attorneys that changes in medical thinking since her 2001 trial constituted new evidence.

Last week’s ruling rejected an appeal by the state, noting that “advancements in science and/or medicine may constitute newly discovered evidence” and explicitly mentioning the evolving SBS research. Coverage in the Democrat and Chronicle led with the optimistic proclamation:

“For the first time, a New York appellate court has ruled that evidence once used to convict people in shaken-baby cases may no longer be scientifically valid.”

That same evidence failed earlier this month to convince a South Dakota jury, which found Aaron Bruns innocent of murdering his 3-month-old son Levi in what appears to be a pure shaking case. Coverage in The Daily Republic offers this summary of the father’s report:

During the trial, Bruns said he thought Levi was choking, so he quickly picked him up and tipped him upside down to clear his airway. Five minutes later, according to Bruns, Levi turned pale, and his eyes rolled to the back of his head, leading Bruns to run him to a nearby hospital.

fox9Other individual victories seem to have triggered a resurgence of press coverage highlighting the controversy. In Minnesota, for example, reporter Tom Lyden at Fox 9 pulled together a provocative treatment with the title “Critics, parents, question diagnosis of shaken baby syndrome,” featuring a local father acquitted at trial; a family whose own experts convinced the county to drop charges; and a mother now fighting the loss of her son. The treatment closes with a statement from the American Academy of Pediatrics (AAP), which persists in shifting the question from whether the brain findings prove abuse (No, they do not) to whether shaking is even dangerous (Yes, of course it is):

“There is no legitimate medical debate among the majority of practicing physicians as to the existence or validity of AHT/SBS…  Claims that shaking is not dangerous to infants or children are not factual and are not supported by AAP policy, despite being proffered by a few expert witnesses in the courtroom.”

presidentialsealThe assertions of the AAP notwithstanding, the real uncertainties about shaken baby theory were acknowledged this fall, briefly but officially, in a presidential report on forensic sciences in the courtroom, undertaken in the wake of the 2009 study that found “serious deficiencies” and called for “major reforms” of the nation’s forensic science system. The follow-up report, published this fall by the President’s Council of Advisors on Science and Technology (PCAST), notes that DNA evidence has disproved past forensic techniques like bite-mark matching and visual hair analysis, and it recommends strategies for bringing courtroom testimony in line with scientific knowledge. Footnote 15 cites an “urgent” need to examine shaken baby theory, which has not been addressed in past studies:

“PCAST notes that there are issues related to the scientific validity of other types of forensic evidence that are beyond the scope of this report but require urgent attention—including notably arson science and abusive head trauma commonly referred to as ‘Shaken Baby Syndrome.'”

For my posting on arson science, please see “Bad Science Goes Up in Smoke.”

SquierProfileNoCaptionAll these developments come in the same season as the decision to reinstate Dr. Waney Squier’s right to practice medicine, and the release of a literature review by a panel of Swedish scientists who concluded that shaken baby theory has not been proven, both of which have generated international news coverage. New Scientist, for example, published a news report about the Swedish study, with a sidebar on Dr. Squier’s case and a promo that nailed the character of the debate, calling it “toxic and polarised.”

The ripples are still spreading in the wake of Dr. Squier’s reinstatement. Even non-subscribers can give a thumbs-up to the letters to the BMJ in support of her, submitted by Michael Birnbaum, QC, and, further down the page, Dr. Jennian Geddes. I’m told our clicks will help the editors understand the scope of the problem. (If you haven’t done so yet, you can also go give a thumbs-up to the earlier letters from a group of more than 250 professionals and from pediatric radiologist David Ayoub.)

The Sunday Times last week published a more detailed treatment of Dr. Squier’s story than appeared in the early news reports—you have to register with the Times to see the article, but the process is free and reasonably painless.

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

Leo Ackley

The past few weeks have also brought a number of disappointments—in Michigan, a second trial resulted in another guilty verdict against Leo Ackley, whose first conviction had been vacated on appeal, and an appeals court affirmed the conviction of Joshua Burns, who has served his jail time and reunited with his family, although he remains on probation. Both appeals had been pressed by the Michigan Innocence Clinic, which has been focusing on shaking cases.

Leo Ackley’s family insists they will keep fighting for him, and last month the Michigan Innocence Clinic won a grant to help defend clients who may have been wrongfully convicted in shaking cases. Despite two disappointments this season, the clinic will surely keep up the pressure against a flawed theory that’s been winning in court way too long.

I hope the press, the public, and professionals in the arena stay tuned as the debate unfolds.

copyright 2016, 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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Filed under abusive head trauma, AHT, shaken baby, shaken baby syndrome, Uncategorized