5. “Never, not once”

September 1998                                                                              Salt Lake City, Utah

“A baby who has been severely shaken will not be fine for hours, then suddenly develop progressively worsening brain swelling, seizures, and so on,” declares Robert Parrish, Chief Child Abuse Counsel for the Utah State Attorney General’s office.

Tall and broad-shouldered, with a Burt Reynolds moustache, Parrish claims a reputation for winning cases. He’s been a prosecutor for the State of Utah for 18 years; he’s specialized in child abuse for 15 of them. Three times, he says, he’s won convictions in child homicides where the medical examiner could not determine a cause of death. “I win the ones I’m not supposed to win,” he grins.

Today he’s training police and social-service investigators at the second-ever National Conference on Shaken Baby Syndrome, at the Little America Hotel in Salt Lake City, Utah. According to conference director Marilyn Sandberg, I’m the only writer among 850 conferees, most of them doctors, lawyers, and law-enforcement officers but also nurses, social workers, psychologists, foster parents, and families of shaking victims. The conference is sponsored by a coalition of child-abuse prevention organizations, spearheaded by the Child Abuse Prevention Center of Utah. I’ve come to see if I can learn why Stephanie was convicted.

Timing is the hot topic, Parrish is explaining, because it’s so important to both the defense and the prosecution. “Experts are reaching a consensus,” he says, “that where you have serious, life-threatening injuries, injuries that are going to cause permanent brain damage, the onset of symptoms is virtually immediate, and by that they mean immediate, like within minutes.”

I’d known it all along, but there in the audience, I feel it in my bones: Stephanie might well be guilty. She had, after all, been convicted by a jury of 12 people who didn’t believe her account of that early spring day in 1996. Why should I?

“Cases are pending around the country which are testing the limits of this immediacy,” Parrish attests.

He cites a textbook[1] and a journal article,[2] which he says we can look up on the web if we need to be convinced.

The number of shaken babies is hard to pin down, Parrish says, especially since the abuse often goes unrecognized. At least 2,000 children a year die from various forms of abuse, and another 20,000 are permanently maimed—like Dinah Nelson, I note, whose life has been devastated but not taken. At three years old, she neither walks nor talks. Her parents push her up the street in a stroller, carry her in and out of the house in a car seat. Dinah is capable of smiling, and neighbors report that she does so readily, but there’s no reasonable expectation of a normal life, for either Dinah or her family.

“Most experts agree the numbers are under-reported,” Parrish continues. His job is to speak for these victims, he says, to send a message to those who would hurt children that we as a society will not tolerate it.

“We can in fact do some pretty amazing things to tell you who the perpetrator is,” he promises. Consider the question of access, for example: “Access to a child doesn’t mean that everybody who had access has an equal chance of having hurt that child, right?”

We’re puzzling over that when he surprises us. “How many of you are pedophiles in this room?” Nervous laughter, and we forget about access for the moment. “I’m glad there’s no hands… Um, how many pedophiles who have access to children in the age range in which they’re interested have sex with every damn one of ‘em?”

He must know we’re too confused to answer, because he helps us out right away, in a familiar cadence: “I don’t think so.” We’re relieved, but then he’s at it again. “How many of you are heterosexuals?” Before the titters fade, he’s growling at us, “Come on, let’s have some hands!” Into the laughter he grins his encouragement, then, “How many of you have sex with every woman or man who comes within ten feet?” The laughter surges and ebbs, bounces back from the corners. Twice he starts to talk, breaks into chuckles, triggering another ripple through the hall. Finally, he signals us quiet. He’s beaming, “You’re starting to get my point!” A murmur of approval, a woman’s laugh, and the chuckles take off again.

When we’re calm, Parrish explains that it all comes down to common sense: “When caretakers—who should know what happened—offer no explanation for an obviously serious injury, or an explanation that does not fit the seriousness of the injury, we know they are lying.”

Over the years to come, I will read and hear again and again that this is the big “red flag” in a child-abuse case:  a story that doesn’t explain the child’s injuries.

Indeed, it was the red flag in Stephanie’s case. Dinah arrived at the hospital with broken bones in various stages of healing, and evidence of both new and old brain injuries. Stephanie had reported a choking, which came nowhere near to explaining the child’s condition.

A thorough investigation is extremely important, Parrish continues—talk to everybody who had contact with the child for the prior 48 hours and get a complete history of the baby’s health. It will be telling.

The most common trigger for a shaking assault is “incessant crying,” Parrish tells us.  In the majority of his cases, the victims have had “some kind of respiratory problems that have made them sick and difficult to take care of” before the incident. Again, he could be talking about Stephanie’s case. The victim’s mother reported that Dinah had been throwing up at home the night before her meltdown; Stephanie reported more vomiting, and fussy crying, on Saturday before the seizures started. A baby who is sick, Parrish is telling us, is more likely to send a caretaker over the edge. The illness itself does not cause the symptoms, except as a trigger to the assault.

Next Parrish explicitly refutes what he calls the “infamous non-existent second-impact theory,” that is, the idea that a child with an old injury can suffer a catastrophic new injury from a minor blow. “Where there is evidence of older subdural bleeding, or prior brain injury, that is only proof that the baby was hurt before,” he says, “It is not an indication that the baby could have been shaken less violently this time.”

Medical imaging of Dinah Nelson’s brain had revealed a brain injury at least a week old the day she was taken to the hospital from Stephanie’s house. I’d been taking that as evidence in Stephanie’s favor, but Parrish is specifically discounting it. He explains that the second-impact theory applies only to adolescents and, “It’s only been documented with football or hockey or some other kind of contact sport.” Pause. “Sex, probably.” The audience titters. I bristle, reminded that he’s a pro, working the crowd.

A few weeks earlier I’d made my first trip to Grand Rapids, where I’d talked with a score of people associated with Stephanie’s case. Her neighbors had been eager to tell me how sure they were of her innocence, how unfair the trial had been. The police had been adamant about her guilt. Her attorney had given me the latest issue of the American Bar Association Journal, featuring an article about controversial SBS convictions,[3] including a case remarkably similar to Stephanie’s:

[Mary] Weaver, of Marshalltown, Iowa, has become something of a poster child for others wrongly accused of baby shaking. She was charged with the 1993 shaking death of an 11-month-old girl for whom she was babysitting. Weaver ended up spending two years of a life sentence in prison for murder before being acquitted of all charges at her third trial last year.

Weaver’s first trial had ended in a hung jury, her second in a conviction. But her conviction was overturned in 1996 by the Iowa Supreme Court, which held that Weaver was entitled to a new trial based on newly discovered evidence that the victim had been knocked unconscious after hitting her head on a table in her own home prior to being placed in Weaver’s care.

Not only was this like Stephanie’s case, it seemed to be exactly the scenario Parrish was arguing against. Prior injuries, Parrish was saying, did not exonerate anybody. The person who was with the child when the symptoms emerged is guilty. This is exactly why Stephanie Olsa was convicted. And Mary Weaver.

Parrish finishes at 5 o’clock sharp, the last session of the first full day. The barbeque social is due to start at 5:45, but a score of people approach the speaker for a semi-private word. Not one to push myself forward, I wait until the crowd has thinned to almost nothing. In his many years as a prosecutor, I ask, has he ever charged anyone in an SBS case who was not with the baby when the symptoms arose?

Parrish has been gathering up his papers, but he stops and looks me in the eye. “Never. Not once.”

Is he familiar with the Mary Weaver case in Iowa? Where the conviction was reversed on new evidence of prior injury? Reported in the latest ABA Journal?

“That was pap for the defense,” he declares, “and I’ve already written them a letter of complaint.”

By the time I’d reached Parrish’s workshop, I wasn’t surprised by his position. Immediate, obvious symptoms, with or without prior injuries, had been a theme from the beginning of the conference. The opening program had featured a panel discussion titled, “Shaken Baby Syndrome:  Fact, Fiction and Controversy.” Dr. Cindy Christian from the Children’s Hospital of Philadelphia, who had just co-authored an article on SBS in the New England Journal of Medicine, specifically dismissed as fiction the notion that rebleeding from an old brain injury can kill a child. “It can give them symptoms,” she’d conceded, “but they don’t actually die from that bleeding.” She also dismissed “Second Impact Syndrome,” arguing that it was documented only in a few cases of adolescent athletes, never among infants. Clearly, most of the professionals at the conference would say that Stephanie was guilty.

And many of them did. From the moment I arrived, I’d been eyeing name badges and buttonholing doctors, to ask them about my case. My first day out I invited myself to lunch with a pair of forensic pathologists from West Virginia, both of them tall, lean, and amiable, the kind of men you would cast as medical examiners in a regional police drama.

They shared forensics stories while we waited in the packed hotel coffee shop. A healthy young man is found dead, one offered, on top of the bedspread on his bed, with no signs of trauma, in an apartment found to have a natural gas leak. He’d filed it as an accidental death. He heard back from the police, though, who said the relatives were asking questions because the man’s dogs had been inside the apartment with him at the time, and they were fine. The pathologist had looked into it and decided he was right regardless of the dogs:  The hydrocarbons in the natural gas have a lower density than air, so the gas would have risen to the top of the room. A man standing up or sitting would have been breathing more of the toxins than the dogs, who were probably lying on the floor. The man lay down on the bed when he got dizzy, but he was still well off the floor. The pathologist wished someone had told him about the dogs in the first place, though. This story wasn’t the stuff of television fiction, I reflected, but it was the real thing.

Over chicken salad and club sandwiches I brought up my case:  An adult woman babysitter, a mother herself, has been watching a 5-1/2-month-old for five hours, I opened, and then I went through the choking, the back blows, the breathing; at the hospital, fresh and healing limb fractures, fresh and aging blood in the brain. With all these old injuries, I asked, how can the doctors be so sure the symptoms were obvious right after the shaking?

They shrugged and one answered, “Well, the people who are supposed to know say the symptoms are immediate. That’s what we’ve always been told.” The other recommended I learn more about head-injury medicine, because I was  misusing the terminology.

I hadn’t had the chance to look up Parrish’s references yet, but the experts I’d approached so far were unanimous about the timing. I had heard one intriguing tidbit early on, though, during the opening panel on Sunday evening. Prosecutor Dyanne Greer of Phoenix, Arizona, recommended careful investigation into the timing of the injury. “The one fallacy in this is that the last person who was with the baby is the perpetrator,” she’d said. “If you have a kid who went unconscious immediately, then it’s easy. In less severe cases, you can’t be so sure.”

I’d been keeping an eye out for Greer since, but I hadn’t seen her off the podium. She was holding a break-out session later in the conference, though, and I had it circled in my schedule. For the moment, after my quick exchange with Parrish, I went off to try my luck at the barbeque social.

(c) 2011 Sue Luttner

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