Category Archives: Uncategorized

Another Father Goes Down in the Far West

Juneau, Alaska

Juneau, Alaska

After four weeks of testimony and two days of deliberations, a jury in Juneau, Alaska, on Monday declared 24-year-old David J. Paul guilty of manslaughter but innocent of second-degree murder in the 2010 death of his girlfriend’s 4-month-old daughter.

Like so many children in these cases, the infant Rian Jambi Orr had a complex medical history, including a skull malformation discovered at autopsy. The prosecution’s case rested heavily on a confession that didn’t match the medical facts, and the trial featured testimony about comments the teenage mother made during the child’s birth.

David J. Paul was not Rian’s biological father, but he was her mother’s boyfriend when the girl was born:  He is listed as the father on her birth certificate and was described as a caring and gentle parent. He and Rian’s mother both say he was the one who got up with Rian early in the morning on August 9, 2010, and fed her a bottle—a few hours before her mother found her seizing and the couple rushed her to the hospital.

Mendenhall Glacier Juneau, Alaska

Mendenhall Glacier
Juneau, Alaska

Rian had no signs of an impact injury:  no bruises, no red marks, no skin swelling—and incidentally, no retinal hemorrhages—but she arrived at the hospital with subdural hematomas and progressive brain swelling. Radiology showed healing thigh and rib fractures. Paul was quickly barred from his daughter’s bedside.

Reporter Emily Russo Miller at the Juneau Empire has captured the tale in a series of compelling courtroom dispatches. In testimony on May 30, the detective in charge of the case said she had zeroed in on Paul as the perpetrator 20 minutes into their first conversation. On June 1, child-protection specialist Dr. Naomi Sugar explained that the healing fractures and bruises on Rian’s chest, even disregarding the recent brain injury, were enough to convince her the girl had been abused.

Paul insisted for a week that he had done nothing to hurt Rian. Three days after the girl’s death, however, police questioned him more closely, and he ultimately said he had accidentally dropped her on the bathroom floor the morning of her meltdown. According to the June 12 trial coverage, he added the statement a year later that he’d then made “one jerking motion” after picking her up.

The prosecutor, Assistant District Attorney Angie Kemp, acknowledged during closing arguments that Paul’s statements didn’t explain the injuries, but argued that his changing story hinted at a much darker truth. From the Empire coverage:

Paul’s statements to police do not “make perfect sense” in and of themselves, Kemp readily conceded. She said if the baby had truly been dropped from three feet on her head on the linoleum bathroom floor during her morning feeding on Aug. 9, there would have been external evidence of that, such as a bump, knot or fracture on the head, and, as the defense points out, none of the expert witnesses at trial asserted that the ‘one shake’ Paul admitted to could have caused the kind of fatal brain injuries Rian died from.

“There is more to what happened,” Kemp said. “And Rian’s not speaking for herself.”

Assistant Public Defender Eric Hedland argued that Rian suffered from a chronic brain injury that merely became symptomatic that morning. Pediatric neuroradiologist Dr. Patrick Barnes testified that the abnormalities on Rian’s x-rays looked like a Vitamin D deficiency, commonly known as rickets, not child abuse:

One by one, Barnes went through images of Orr’s CT scans and skeletal X-rays pointing out characteristic signs of rickets for the jury: the thinning or softening of her skull, beading of the growth centers around her ribs called “rachitic rosary,” curved leg bones that aren’t straight as they should be and fuzzy growth centers in her arm and leg bones instead of a thin white line.

The full-bore defense line-up also included forensic pathologist Dr. Jan Leestma, who said that shaken baby syndrome “probably does not exist”; bioengineer Toby Hayes, PhD, who said Rian’s neck would have broken at shaking forces lower than those required to cause the bleeding inside her head; and psychologist Deborah Davis, who explained how the Reid Technique for police interrogation can elicit false confessions.

Remarkably, even the prosecution pathologist acknowledged that he had found an extra bone in Rian’s head at autopsy. The prosecution’s questioning did not raise the issue, according to the Empire coverage, but Hedland brought it out on cross-examination:

When [prosecutor] Kemp asked Harruff if he observed evidence of chronic hematoma or anything that would suggest a coagulation problem, Harruff said no. Under cross-examination, Harruff told Hedland that he observed a bone in the baby’s brain, which is not normal, but that he could not identify it microscopically. He agreed that bones form in the brain when they are trying to fix something, and would probably take weeks to form.

The defense also researched the child’s birth and pre-natal records. Although I’m uncomfortable with the implications of blaming the mother for a crime that never happened, Hedland was only doing his job, putting on a thorough defense, when he called in a midwife and doulah who testified that Jaki Orr had ignored their nutritional advice during pregnancy and had been “risked out” of their program for non-compliance. Doulah Shayna Rohwer was apparently present for the birth in a more mainstream medical facility:

… Jaki’s doula who was present during the baby’s birth testified that Jaki made statements during labor, such as, “This isn’t what I wanted.”

“She repeatedly said, ‘This isn’t what I wanted,’ ‘This isn’t good,’ ‘This isn’t right,’ and I knew (it was) about her baby, presumably not about the birth itself, which is sad,” Rohwer said.

juneauMeadowMyself, I consider those reasonably mild statements from a woman in the midst of labor, but I was still shocked that the testimony was allowed in the courtroom.  Then I realized that the trial time devoted to Paul’s confession made this testimony appropriate:  We should give about as much credence to statements made during unmedicated childbirth as we give to statements made after three hours of the Reid Technique.

The trial also featured a judicial wrinkle:  After the prosecution rested, Juneau Superior Court Judge Philip Pallenberg dismissed one of two second-degree murder charges against Paul, in response to a defense motion for acquittal. The Empire reported the judge’s reasoning:

“Murder two requires knowing that the conduct was substantially certain to cause death or serious physical injury, and as I said earlier, I don’t think anyone in this courtroom knows that shaking a baby is substantially certain to cause death or serious physical injury,” Pallenberg said. “I think we all know that it creates a risk of that. This requires much more than knowing there was a substantial risk. This requires knowing that it’s substantially certain.”

Although a finding of innocence on the murder charge, even with a manslaughter conviction, can seem like a victory, Hedland said he is disappointed and will appeal immediately. “I could have sat on my hands, and he shouldn’t have been convicted of murder,” he said. “My client is innocent.”

While the jury was deliberating, the Empire posted an interview with Paul’s mother, who is convinced of her son’s innocence. Some other articles from the series contain more details about the case, but because this blog is dedicated to the many victims of these tragic diagnoses, I am closing with this link to that story.

-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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Accused Father Rejects Plea, Insists He’s Innocent

An immigrant father from Queens has made news by turning down a plea offer that would have allowed his immediate release from jail, after more than four years on Riker’s Island waiting for trial. Li Hangbin says his daughter Annie, 70 days old when she died in 2008, seemed to choke on a bottle and quit breathing in his arms. The proseuction says he shook and slammed the little girl to death.

The plea agreement would have required Li Hangbin to plead guilty to reckless endangerment. Rejecting the plea means he will be tried for second-degree murder instead.

Remarkably, the agreement would also have meant that second-degree manslaughter charges would be dropped against Annie’s mother, Li Ying.

According to the report in yesterday’s New York Times, Annie’s mother supports his decision. The good news in yesterday’s report is that Li Ying is now out on bail, as reported in March. The couple’s other daughter, born after her mother was imprisoned in 2008, remains in the custody of the couple’s friend and former landlady.

As described in last January’s New York Time coverage of the case, the Lis have enjoyed the support of their community throughout their ordeal; supporters report that genetic tests have actually exonerated the family.

You can follow the unfolding story at this web site:

2013 Update:  Hang Bin Li was found guilty of manslaughter and sentenced to 5 to 15 years.


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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


Filed under abusive head trauma, AHT, SBS, shaken baby syndrome, Uncategorized

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.


Filed under abusive head trauma, AHT, SBS, shaken baby syndrome, Uncategorized

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,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:

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:   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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