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Arizona Father Freed: Dawn of a Sunnier Era?

Drayton Witt and his wife
Courtesy Arizona Justice Project

After four years of hard work by a team of pro bono attorneys and physicians, the state of Arizona agreed last week to vacate the second-degree murder conviction of Drayton Witt, a young father whose 5-month-old son Steven had suffered a lifetime of medical problems before his final, catastrophic seizure in June of 2000.

Witt’s case was way beyond a triad-only conviction:  Not only did the autopsy reveal no abrasions, grip marks, fractures, or other signs of assault, but the child had been born in respiratory and neurological distress, with the umbilical cord wrapped tightly around his neck, followed by a relentless series of infections, fevers, and bouts of vomiting. A month before his meltdown, Steven spent 6 days in the hospital because of seizures that were never explained, and incompletely controlled with medication.

Prosecution doctors at Witt’s 2002 trial rejected the importance of Steven’s medical history, however, and testified that the presence of the triad proved he had been shaken immediately before he fell unconscious while in the care of his father.

Last year the Arizona Justice Project showed Steven’s medical records to other experts,* who unanimously rejected the shaking diagnosis. Several of them independently noted evidence of venous thrombosis.

Then the attorneys showed these reports to the medical examiner who conducted the original autopsy, and asked him to reconsider his 2002 testimony. In a declaration submitted in February of 2012, Dr. A.L. Mosley noted that medical thinking has changed about the significance of the triad and concluded:

Steven had a complicated medical history, including unexplained neurological problems. He had no outward signs of abuse. If I were to testify today, I would state that I believe Steven’s death was likely the result of a natural disease process, not SBS.

Prosecutors could still recharge Witt, but he has been released from prison for now, with no bail, house arrest, or electronic monitoring.

The vacation of Witt’s conviction joins a handful of other victories for the doctors and lawyers who are fighting for justice in SBS cases, beginning with the reversal of the Audrey Edmunds conviction in 2008 and including the commutation of Shirley Smith’s sentence earlier this year. Witt’s case was pressed by the Arizona Justice Project, a member chapter of the Innocence Network, which has started looking at child-death cases within the past few years. I look forward to more successes.

Emily Bazelon published this article in Slate about Drayton Witt while the case was still under appeal. The Wrongful Convictions Blog posted this item that names the attorneys.

*Forensic pathologist Dr. John Plunkett, pediatric radiologist Dr. Patrick Barnes, neuropathologist Dr. Waney Squier, pediatric opthalmologist Dr. Horace Gardner, biomechanic John Lloyd, PhD, and retired pediatric neurosurgeon Dr. A. Norman Guthkelch, the first person to suggest in writing that shaking an infant could produce subdural hematoma, in a 1971 article in the British Medical Journal. The Witt case is the one Dr. Guthkelch was talking about in the interview on NPR a year ago, when he said, “I wouldn’t hang a cat on the evidence of shaking as presented.”

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

-Sue Luttner

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The Supremes Strike Again

The Supreme Court has made another unfortunate decision in a child-death case, with Justices Sonia Sotomeyer, Ruth Bader Ginsburg, and Elena Kagan dissenting.

Yesterday’s ruling allows prosecutors to retry Alex Blueford in Arkansas on charges of capital murder and first-degree murder in the 2007 death of one-year-old Matthew McFadden Jr., the son of Blueford’s girl friend.

The jury in Blueford’s trial had been instructed to consider four possible charges in sequence, the most serious first:  Capital murder, first-degree murder, manslaughter, and negligent homicide. The jurors had agreed among themselves that Blueford was innocent of capital murder and first-degree murder, but then found themselves deadlocked on the manslaughter charge. The judge declared a mistrial and the prosecution prepared to retry Blueford on all four charges, but his lawyers argued that would be double jeopardy, since the jurors had agreed unanimously he was innocent of the two most serious charges.  The Supreme Court rejected that claim, saying the interrupted verdict did not constitute a legal finding.

At the time of Matthew’s death, Blueford reported that he had accidentally knocked the child to the floor, but prosecutors said he had slammed the child to death.

For more information see the Washington Post coverage and the decision itself.

For the story of the Supreme Court’s last unfortunate child-death decision, see this post.

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Clemency Granted for Shirley Smith

Governor Jerry Brown commuted the sentence this morning of Shirley Ree Smith, whose case will remain a landmark in the arena. Shirley and her family are jubilant, of course, even though her conviction stands.

“I’ve been waiting so long for this day,” she said on the telephone this afternoon, “I can’t believe it’s finally here.”

Shirley said she was especially grateful to the people who helped her, directly and indirectly. “I would like to thank everyone who stood in my corner and fought for justice with me all these years,” she said, “I did not have to stand alone.”

Justice is not complete, Smith conceded, as she still has a criminal record, “but I can get on with my life now, and the story will help people find out what’s going on with shaken baby syndrome.”

In an interview in January, while waiting for the results of the clemency petition, Shirley’s daughter Tomeka Smith reflected, “In a way we don’t want the clemency, because that means she’s done something wrong and she needs to be pardoned. That’s sad. That’s not what she wants.”

This morning, though, when the phone call came from the attorney, “We were all clapping and jumping and shouting and hugging, the whole family,” Tomeka said, adding, “Still, we’d like to see something official, a piece of paper, to let us know it’s really over.”

As followers of this blog know, Shirley Smith was convicted in 1997 for assault on a child resulting in death. The child was Etzel Glass, Tomeka’s youngest, 7 weeks old at the time. The family was staying with relatives and Shirley was sleeping in the living room with her grandchildren, while Tomeka slept in the bedroom a few feet away. Shirley says she found Etzel unresponsive at about 3 am and brought him in to Tomeka, who called 911.

At the hospital, doctors found only one of the three signs usually used to diagnose infant shaking:  subdural hematoma. At Smith’s trial, Dr. Eugene Carpenter and Dr. Stephanie Ehrlich from the Los Angeles County coroner’s office testified that Etzel had died instantly when his brainstem was torn during a shaking assault, leaving no time for the other symptoms to develop.

Smith has had the full support of her family, from the moment a social worker first raised the question of abuse. “Of course my mom is innocent,” Tomeka said in January. “She would never hurt one of her grandkids.”

Smith served a decade in prison before the Ninth Circuit Court vacated her conviction on appeal in 2006, declaring the evidence against her constitutionally inadequate. Since then she has been out of prison but constrained in her movements while the state appealed the circuit court’s decision.

That appeal reached the Supreme Court this past fall. The high court reinstated her conviction, but in a ruling that didn’t address her guilt or innocence: their argument was that the appeals court should not override a jury’s decision. The written opinion even recognized that doubts about her guilt are “understandable,” and it contained a potent dissenting opinion from Justice Ruth Bader Ginsburg that outlined the substantial medical evidence against the traditional model of shaken baby syndrome. (The full opinion is available at this link.)

Through it all, Shirley Smith has kept her faith and her spirit, proving the value of a supportive family. DePaul University law professor Deborah Tuerkheimer, a critic of convictions based solely on the triad (see her op ed from fall 2010), recently called Shirley one of the “incredible figures in this saga.”

The LA Times report about today’s clemency announcement contains only the bare facts, but the news is good.

Shirley says she’s already been called by both national and local news teams, so look for more news stories on her case. Her first television interview is this evening.

If you’re not familiar with shaken baby syndrome and the arguments surrounding it, please see the home page of this blog.

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Shirley Ree Smith Update and More

While Governor Jerry Brown considers the clemency request for Shirley Smith, two new physicians have registered conflicting opinions about the cause of her grandson’s death, after Los Angeles District Attorney Steve Cooley requested  a review of the evidence.

The article in the Los Angeles Times about the new developments, by reporter Carol J. Williams,  includes this fascinating paragraph:

In a letter to the governor that Cooley’s office made available, the district attorney said he was mindful of Smith’s lack of criminal history, age and good behavior in prison, indicating that he wasn’t opposed to clemency on “equitable grounds.” But he cautioned Brown against rejecting “the well-documented and widely accepted medical diagnosis, AHT,” saying that would undermine public confidence in diagnoses of child abuse.

I might be starting to understand why the district attorney won’t just admit that the medical facts don’t support a diagnosis of shaking in Smith’s case:  If he concedes that she might be innocent, her trial demonstrates how easy it is for a jury to convict on the basis of sincere but unproven medical opinion.

Williams also posted a blog on the subject at  http://www.latimes.com/news/local/la-me-shaken-baby-evidence-20120330,0,6785859.story

Meanwhile, the Huffington Post has published a poignant update on a tragic case of mistaken child-abuse diagnosis:  Much too late for the parents, victims of an apparent murder-suicide, doctors now acknowledge that the couple’s 3-month-old daughter was suffering from a debilitating genetic disorder.

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Reports and Requests From the Community

Supporters of Russ Van Vleck report that the State of Vermont has dropped its family court case against him. Van Vleck is now free to live at home and be in the same room as his daughter without supervision.

August 2012 update:  Stephanie Spurgeon has been sentenced to 15 years. The information below for writing to the judge is obsolete.

Second, supporters of Stephanie Spurgeon, the Florida child-care provider convicted last month, have posted instructions for writing to the judge on behalf of Spurgeon before her sentencing on May 7—now postponed until July 24, 2012. The instructions are aimed at friends and family members, but our participation might help educate the  judge.  The key point for us is that it’s not OK to talk about the trial but it is OK to say the evidence against her was inadequate. The news report of the conviction seems to be off the web, but you can get more information from this article written during the trial: http://www.tampabay.com/news/courts/criminal/medical-examiner-says-palm-harbor-infants-death-was-not-shaken-baby/1214742

Update:  Governor Brown pardoned Shirley Smith on April 6, 2012. See my blog posting here.

To almost eveyone’s surprise, meanwhile, there’s been no word from Govenor Jerry Brown in California about the requested commutation of sentence for Shirley Ree Smith, whose conviction was unfortunately re-affirmed in the fall by the Supreme Court. The good news is that the court granted Smith permission to move to another state, so she’s now living with her grandchildren. Her daughter, currently working in another state for financial reasons, will be joining them soon. The best news is that she remains free, at least for now. If you haven’t yet written in support of the pardon, instructions are on the governor’s web site:  http://gov.ca.gov/m_contact.php   If you want to submit your comments electronically:  Choose the “Pardon request” item in the drop-down menu. The box for comments doesn’t show up until you complete the first screen.

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Slate Publishes a Welcome Critique

Emily Bazelon, the reporter who wrote last winter’s New York Times Magazine article about shaken baby syndrome, has published another piece on the subject, in the on-line magazine Slate, at this url.

This shorter piece is even more clear-cut about the issues, and the lead includes her conversation with Dr. A. Normal Guthkelch, the British neuropathologist who first proposed shaking as a mechanism of infant brain injury in 1971. Dr. Guthkelch now says he’s worried that shaking theory is used in the courtroom to target innocent caregivers, as reported last summer by NPR.

The Slate piece is especially welcome right now, when most of the press coverage seems to accept without question the classic model.  In Missouri, for example, a state legislator has proposed a bill to lengthen sentences for people convicted of abuse through shaking, as reported in the Missourian.

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Tragedy Shouts; Innocence Whispers

Today’s New York Times front section tells the story of an immigrant Queens couple in custody on Riker’s Island for four years now, waiting for trial in the 2007 death of their infant daughter, diagnosed as a shaking victim. Their former landlady is now raising their surviving daughter, and their community has rallied around them.

Read the article, by Jeffrey E. Singer and Corey Kilgannon.

The posted comments are encouraging:  Although many writers are adamant that the parents are guilty, others are skeptical.  One responder mentions the ProPublica piece from June, another Friday’s Canadian broadcasts.

Meanwhile, 500 miles southeast, prosecutors in Orange County, North Carolina, have announced that they will not retry child-care provider Cheryl Alston, who was found innocent on two out of three counts in a highly emotional trial this past fall. I heard the news from one of the experts who testified in her defense:  I haven’t found anything in the press about the decision to drop the third charge, but you can read about the case in this story , published after the trial.

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Diagnosis Murder: Tonight on Canadian Television

July 2015 update: The page for this episode has been removed from the CBC archives, as we can’t really expect them to keep everything on line forever. Too bad. It’s an excellent program. I’m sure it’s archived somewhere, waiting to be revived when the rest of the world catches up with them.

the fifth estate, a Canadian Broadcasting Corporation news program, is taking a look tonight at infant shaking: http://www.cbc.ca/fifth/episodes/2011-2012/diagnosis-murder

March 2014 update:  The program is now viewable in the U.S. on YouTube, at https://www.youtube.com/watch?v=6yuxEvN8gp0 March 2012 update: The program is excellent, and it’s posted on the internet in Canada. Alas, the Canadian web site does not let viewers in the U.S. see the program.  The good news is that everything on the site except the feature itself is viewable internationally. See, for example, an interview with the reporter, Gillian Findlay. The site also offers extended interviews with a few of the experts quoted in the story: law professor Keith Findley from the Wisconsin Innocence Project, pediatric neuropathologist Dr. Waney Squier, and forensic pathologist Dr John Plunkett.

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A Coerced Confession Backfires

Because of real investigative journalism by WBUR, Boston’s public radio station, a Massachusetts judge has reluctantly released a moving videotape of a heartless two-hour police interrogation of a teenage mother the day after her baby’s death.

In the video Nga Truang, a slight Vietnamese-American a few days shy of her 17th birthday, sits motionless and cries softly as two full-size Worcester, Massachusetts detectives badger her to come clean with them. The detectives tell her a number of lies, including the false information that an autopsy proved 13-month-old Khyle had been suffocated. In fact, the autopsy was inconclusive: her son had been sick with strep throat and tracheobronchitis when he died, and he had a history of breathing problems; his temperature an hour after death was still at 101°F.

Still, after the detectives make promises of leniency and help, she tells them, yes, she smothered her baby. Of course she received no help: She spent the next three years in jail while attorneys argued about the admissibility of the confession, which was ultimately rejected by a judge—the primary reason seems to be that she should have received more careful Miranda warnings at her young age.

This afternoon NPR ran a feature story about the case:   The story NPR ran today

WBUR also posted its own treatment, which starts at this link.

WBUR also posted excerpts of the videos and additional commentary by the reporter, at excerpts  and commentary.

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Pardon Possible in Smith Case

It’s too early to celebrate, but the Sacramento Bee reports that Governor Jerry Brown is expected to pardon Shirley Ree Smith, the grandmother whose conviction in a shaking case was recently reaffirmed by the Supreme Court:

http://www.sacbee.com/2011/12/29/4150363/calif-gov-brown-weighs-clemency.html

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