Affected Families Spark Change

Wrongly accused parents in Texas are on a roll. They’ve pushed through a state bill giving accused families the right to a second opinion on a child abuse diagnosis, and now a tweak that requires that opinion to come from a treating physician, not just another child abuse pediatrician. Another recent Texas law requires CPS to inform parents of their right to record interviews. How are they doing it?

Rana Tyson, a parent who pushed the second-opinion legislation, ascribes their success to a large and active community of accused families, plus whatever force—Rana says she credits God—provided them an audience at the statehouse.

“It started with this opportunity to tell our personal stories to legislators,” Rana explains, “To show them what this does to a family—not just our family, lots of families… It’s been a collective effort.”

Rana and her husband Chad lost custody of their three daughters in 2010, after child abuse pediatricians diagnosed their month-old twins as victims of abuse. Their own family doctor rejected that conclusion and helped the Tysons find the specialists who eventually diagnosed the girls with Ehlers-Danlos Syndrome (EDS), a connective-tissue disorder that can predispose to broken bones and bleeding. Their children came home, although it took additional hearings and another 18 months to have the “reason to believe” finding removed from the CPS records.

Through friends of friends and then media exposure, Rana started meeting other parents with similar stories. In 2013, Dallas news reporter Janet St. James broadcast a segment named Fractured Families featuring Bria and Andrew Huber, also exonerated by an EDS diagnosis. Soon after, both the Tysons and the Hubers told their story on Katie, a national talk show hosted by news veteran Katie Couric. Both reporters were deluged with messages from parents who said they were in the same position.

Then in 2016, Rana answered an unexpected knock on the door to meet Cindy Burkett, her state representative, who was out campaigning for re-election. Rep. Burkett said she wanted to know what was on her constituents’ minds, and so Rana told her.

Since then, Burkett and now other state legislators have held hearings and sponsored legislation, trying to stem the swell of child abuse overdiagnoses.

SB1578, passed last year and written by Sen. Lois Kelkhorst (R), filled a gap in a first piece of second-opinion legislation pushed by the same families, explains Andrew Brown, J.D., vice president of policy at the Texas Public Policy Foundation, who lobbied for both the second-opinion bill and the CPS-interview bill. Since the passage of SB1578, the second opinion now has to come from “a doctor who specializes in diagnosing and treating an underlying health condition,” Brown emphasizes, which prevents a second child abuse pediatrician from applying the same flawed guidelines and reaching the same flawed conclusion as the first. Most child abuse pediatricians diagnose but do not treat patients.

SB1578 includes the same list as the original bill of conditions commonly mistaken for abuse—rickets, EDS, osteogenesis imperfecta, and Vitamin D deficiency—but expands the scope to not only “similar” diseases but also “other medical conditions that mimic child maltreatment or increase the risk of misdiagnosis of child maltreatment.”

Other new provisions specify that

  • state actors cannot remove a child from the family based on the opinion of a physician who has not examined the child in person and
  • the Department of State Health Services must take into account the opinions of specialists consulted by the families at their own expense

While considering SB1578, lawmakers heard from the Hubers and the Tysons as well as a series of other parents, including:

  • Ann-Marie Timmerman, whose son’s findings stemmed from a combination of factors, including a brain bleed from birth trauma
  • Lorina and Jason Troy, whose son had benign external hydrocephalus (BEH), an especially large space between the brain and the inside of the skull that can predispose to bleeding
  • Holly Simonton, whose son had only an accidental bruise considered suspicious by the child abuse pediatricians

Aside from their legislative work, Bria Huber, Rana Tyson, and Rebecca Wanosik in Missouri run a non-profit parent-support organization, Fractured Families, that offers community and advice to newly accused families.

In the spring of 2022, the Family Justice Resource Center (FJRC), an Illinois nonprofit committed to evidence-based medicine in the courtroom, awarded Lorina Troy its annual Child Advocacy Award for her work publicizing the problem of abuse overdiagnosis, pushing legislators, and helping accused families.

Statistics are not available on how effective SB1578 in Texas will be, but a segment of the Canadian news program W5 featured a promising anecdote in February 2022. The segment featured the Timmermans’ story and included an interview with their attorney, Dennis Slate, who said he’d fielded 4-5 calls a month from parents saying were wrongly accused of abuse based on a medical opinion. Since the new law took effect in the fall, he said, “I have not had a new client come in and hire me on a broken bone or a fractured skull or a medical abuse or any of those other claims.”

A similar bill passed last year in Arkansas, “Quincy’s Law,” based on the Texas law. Activist father Zachary Culp, who proposed and championed Quincy’s Law, offers his template to families in other states interested in pushing for the right to a second opinion. Watch this space for the story of how Zachary built support for his bill in the state capitol one elected official at a time.

Press coverage of SB1578:

Text of the two bills:

-Sue Luttner

If you are not familiar with how often and how easily children are misdiagnosed as the victims of abuse, please see the page on this site addressing the larger medical issues.

If you are not familiar with the debate over Shaken Baby Syndrome (SBS), please see the home page of this blog.

Leave a comment

Filed under Uncategorized

Grace in Exoneration, After 18 Years

Even as she went to trial in 2003, Tonia Miller says, she expected to be found innocent. She knew she hadn’t abused her baby, she explains, and, “I trusted the justice system.” Her chuckle at her own youthful naïveté is more wry than bitter.

Unfortunately for Tonia, the medical experts at the time were adamant and unanimous. Even though 11-week-old Alicia showed no bruises, grip marks, or fractures, even though the baby had been sick her entire life, with chronic collections of subdural blood possibly dating from birth, and even though no one had ever seen Tonia mistreat either her baby or her toddler, doctors testified at trial that the pattern of bleeding and swelling inside Alicia’s head could mean only one thing: Shaken Baby Syndrome (SBS). The young mother was found guilty of second-degree murder.

But those experts were wrong.

Tonia’s conviction was vacated in 2020, after four new experts brought in by the Michigan Innocence Clinic re-examined the medical records and concluded, unanimously, that Alicia had died from pneumonia.

“There was nothing subtle here,” emphasizes clinical law professor David Moran, co-founder of the Michigan Innocence Clinic and the driving force behind the appeal. “The pneumonia was blindingly obvious. But the presence of the triad closed down critical thinking. No one ever questioned the initial diagnosis.” Moran calls the case “an especially stark example” of shaking theory in the courtroom.

Incredibly, the autopsy report had noted pneumonia in the child’s lungs, and she’d been recovering from a respiratory infection, a well-recognized precursor to pneumonia in newborns. In the weeks before Alicia’s collapse, Tonia had sought medical help for her daughter repeatedly, with reports of weak sucking, breathing problems, and even seizures, witnessed not only by Tonia but also by relatives and neighbors.

Moran’s appeal also argued that the triad of findings—retinal hemorrhage, subdural hematoma, and cerebral edema—underpinning Tonia’s conviction is no longer considered proof of shaking. The appeal judge concluded that SBS has become “controversial” and noted “a shift in the scientific consensus.”

Dr. Steven Gabaeff, a clinical forensic medical specialist and an emergency physician for 40 years, says he finds the shift-in-consensus element ironic, because there has never been any scientific proof that the triad results only from shaking, despite the testimony at Tonia’s trial. “It was false evidence. It was never true,” he points out, “And this case proves that yet again.”

The pneumonia had compromised Alicia’s lungs, reducing the amount of oxygen available to her brain. Breathing, controlled at the brain stem, is one of the first functions to be affected when the brain is in trouble. Weak breathing can compound the oxygen problem just by itself, and on the morning Alicia was rushed to the hospital, her airways were obstructed by the formula she had apparently choked on. As detailed in the new reports, a series of natural processes readily explains how pneumonia in the lungs can lead to bleeding and swelling in the brain.

Even after her conviction was vacated, Tonia remained in prison while the state appealed the decision. She was finally released on bond in April of 2021, with the spectre of a second trial hanging over her. This fall, the state dropped all charges, and now she is free to plan her life.

Tonia seems to hold few grudges. She says she doesn’t take it personally that the relative who eventually adopted her older daughter cut off all contact—although she still hopes to reconnect with her surviving child, now a young woman. And she understands why Alicia’s father quit writing when he married: “I have to put myself in his wife’s shoes,” she says. “I wouldn’t want my husband in touch with a woman convicted of murdering a baby.”

Tonia even offers a positive angle on her time in prison, which she says gave her the chance to reflect and to process. Her early life was difficult, she says, and “prison helped me deal with those issues from my past.”

Not that the path was easy.

The early interrogations left her numb and confused, she remembers. “The detectives isolated me from everybody… I tried to tell them what happened, but they kept interrupting, saying I was lying… After a while I started thinking, ‘If I tell you what you want to hear, will you just leave me alone?'”

Tonia had said from the first that she had shaken Alicia gently to revive her, after the girl seemed to gasp and quit breathing—but her accusers insisted she had shaken Alicia violently, just before the breathing problems.

As she explains in the essay that accompanies this post, Tonia was “petrified” on her way into prison. Since then, she has risen to the occasion and more. Now that she’s out, she has found a job she likes and is looking forward to finishing her BA—she earned most of the credits she needs while in prison.

Please see Tonia’s reflections on her experience of prison and exoneration, written immediately after her release.

This photo: After escorting her from prison in April of 2021, Tonia’s legal team took her for her first French toast in 18 years.

See also Tonia’s entry in The National Registry of Exonerations.

October, 2021: At the Michigan Innocence Clinic celebration of four wrongly convicted prisoners released this year.

© 2021 Sue Luttner

If you are not familiar with the debate surrounding Shaken Baby Syndrome, please see the home page of this blog.

4 Comments

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

Bone Fragility: A New Cause

Researchers have identified a new underlying cause of fragile bones in developing fetuses, this one apparently associated with maternal Ehlers-Danlos Syndrome (EDS), according to a news release propagated by the American Association for the Advancement of Science.

The paper behind the press release underscores the pitfalls of diagnosing abuse by default when a child with fractures in different stages of healing tests negative for known genetic conditions that predispose to fragile bones.

The original article ran in the journal Children: Fetal Fractures in an Infant with Maternal Ehlers-Danlos Syndrome, CCDC134 Pathogenic Mutation and a Negative Genetic Test for Osteogenesis Imperfecta, by Michael F. Holick, Arash Shirvani, and Nipith Charoenngam

The article is a case report from the Ehlers-Danlos Clinical Research Program at the Boston University Medical Campus, where researchers examined ultrasounds of the developing fetus at several points during gestation and identified what looked like fractures suffered in utero. X-rays after birth confirmed the findings. The boy tested negative for osteogenesis imperfecta (OI) and other known causes of fragile bones, including vitamin D deficiency. The authors note:

If this mother had brought in her son for medical care later in his infancy without prior diagnosis of in utero fractures, these X-ray findings would almost certainly have resulted in the diagnosis of nonaccidental trauma.

Citing other abuse diagnoses based on fractures in children of EDS parents, the authors point to an “urgent need for further investigations to identify additional causative genetic variants for skeletal fragility, including yet to be identified genes associated with a well-recognized bone fragility disorder associated with a genetic defect of the collagen–elastin matrix: EDS.”

Leave a comment

Filed under Child abuse misdiagnosis, diagnosing child abuse

Unconscious Bias and Manner of Death

Graph from studyA sobering study has raised serious questions about the reliability of a document that’s generally treated in the courtroom as objective truth:  the medical examiner’s report.

Researchers at University College London presented a group of forensic pathologists—all board-certified members of the National Association of Medical Examiners (NAME)—with a “not straightforward” case, a 3-year-old who arrives at the emergency room with a head injury and later dies. All pathologists received the same medical findings and investigation reports, but some were told the child was White and in the care of a grandmother, others that the child was Black and in the care of the mother’s boyfriend.

The graph above illustrates the study’s most dramatic finding: Pathologists in the study called the death an accident, not a homicide, twice as often in the case of a White child with a grandmother; in a complete reversal, they called the death a homicide five times as often as accident in the case of a Black child with the mother’s boyfriend. Journalist Radley Balko, in an editorial in The Washington Post, called the study “stark evidence of cognitive bias among medical examiners.”

The study also raises questions about the fundamental reliability of an ME’s conclusions:  78 of the 133 pathologists in the study told researchers they didn’t have enough information to determine whether the death was accident or homicide. Of those who gave an opinion, 23 called it an accident, 32 a homicide.

This is already a problem,” Balko’s editorial noted. “Reliability is one of the key criteria the Supreme Court has said judges should consider in deciding whether to allow expert testimony. The same facts applied to different people should produce the same outcome. That clearly wasn’t the case in this study.”

I recommend reading both the editorial and the journal article itself:

-Sue Luttner

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

1 Comment

Filed under abusive head trauma

Good News on Old Cases

Like so much else in the past year, the first two cases I’ve come across since refocusing on the shaken baby debate involve defendants of color. While any family can be the target of misguided abuse accusations, the chances go up for non-white parents and caregivers. The good news is that these cases are in the news because the courts have reconsidered.

More details about the Texas case

7 Comments

Filed under Uncategorized

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.

Leave a comment

Filed under abusive head trauma, AHT, Falsely accused, Innocence Project, SBS, shaken baby, Uncategorized

Dropped charges, an executive pardon, and other good news

Three court decisions this winter continue a recent surge of good news for families fighting misguided abuse accusations.

Charges Dismissed 

The Parker Family

In Michigan, a judge offered an apology while dismissing charges against Allie and Jimmy Parker, separated for eight months from their two young children after they were accused of abusing their 6-week-old son. Dr. Douglas Smith, who uncovered the medical reasons for the findings that led to the diagnosis, has posted an excellent review of the case on the Torn Family web site, a resource for parents wrongly accused.

For the news treatment, see the WXYZ coverage. Reporter Heather Catallo also produced a broader piece about the over diagnosis of abuse,”Child Abuse Pediatricians: Are parents being wrongly accused?“, featuring Dr. Smith and law professor Keith Findley, founder of the Wisconsin Innocence Project. Both articles invite readers to contact the reporter.

Pardon Granted

In Maine in late December, a judge granted a pardon to Brandon Ross, a father who had accepted a plea bargain in order to reunite his family when the state refused to accept an Ehlers-Danlos diagnosis—even after his son suffered another fracture in foster care. The WMTW8 coverage features the text version of the story and two touching video treatments.

Family Reunited

The Cokers and their attorney

The Coker-Joyner family and their attorney Ryan Schwartz

And in South Carolina, a family court judge reunited a toddler with his parents and derailed a fast-track adoption last week, after accepting a defense doctor’s diagnosis that the boy’s fractures were due to a vitamin D deficiency. Parents Joshua Coker and Ashley Joyner still face criminal charges, but they are with their son again.

After the decision, the family’s attorney, Ryan Schwartz, posted a joyous Facebook entry in which he wrote:

Today was the highlight of my legal career. On May 8, 2017 my client’s child was taken away by DSS after they rushed their infant child to the hospital after they discovered a swollen leg. They had their child taken away after it was discovered he had 16 fractures but never any bruises or ANY evidence of child abuse. They not only had their child taken from them for two years (only seeing him 2 hours a month at the DSS building and supervised) they missed his first words and steps and they were humiliated in the news when they were arrested and charged with child abuse. It took a lot of work, late nights and a ton of research and help from great friends but today we were able to wrap up a three day trial where the Department of Social Services attempted to terminate their parental rights forever and adopt out their child. At the end of trial DSS was ordered to return the child immediately and pay for their counseling for the next year…

Don’t believe everything you read.

Maybe the tide is turning.

copyright 2019, Sue Luttner

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

2 Comments

Filed under parents accused

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.

8 Comments

Filed under AHT, Falsely accused, SBS, shaken baby, Uncategorized

“Why Can’t Uncle Come Home?” – A Book for Families

Author Christiane Joy Allison and illustrator Liz Shine have hit the mark with their engaging and healing children’s book about a relative’s wrongful imprisonment, an offering the author calls “a bittersweet labor of love for both the illustrator and me.”

Why Can’t Uncle Come Home?  addresses the anger, fear, and confusion a child feels when a beloved relative is sent to prison, and it explains how an innocent person might be convicted of a crime. The book succeeds in its own right, but it also fills a need, telling the young relatives of innocent inmates they are not alone.

“I read this book with my 6-year-old grandson. It is a great tool for opening conversation,” posted Vickie Fetterman to a support group for accused families. “He has been so affected by his father’s wrongful conviction.”

Christiane Joy Allison, “CJ” to her friends, knows her subject: Her book chronicles the reactions of her own niece and nephew when her husband, Clayton Allison, was accused and ultimately convicted of murder in the death of his and CJ’s daughter Jocelynn. At the time, while also trying to defend her husband and grieve for her daughter, CJ looked for books to help her young relatives understand what was happening, and found nothing. “I saw a need and I realized I had to fill it,” CJ said in a telephone interview last month. “I didn’t intend to write a children’s book. It just sort of landed on me.”

From the Rasmuson Foundation web site

On-line comments have been effusive. “This beautifully illustrated and accessibly written book fills a hole in the world of literature,” wrote Laura Ojedo in an Amazon review, “A must-read for children, and honestly for people of any age.”

CJ said she was gratified when she read her book recently to school children in her community of Wasilla, Alaska, and found her audience of 5-to-7-year-olds fully engaged. “I felt so blessed when one of the parents pulled me aside afterward and thanked me for tackling the subject, because they just had a friend experience wrongful conviction and felt lost how to explain it.”

When her husband was accused in 2009, CJ and an army of other supporters stepped forward in his defense, and they have stuck with the campaign even after his conviction in 2015.

In the course of the investigation, CJ showed herself both stronger and more ethical than a pair of Alaska state troopers, who thrust grisly autopsy photos in her face, ridiculed her faith in her husband, and misled her during a long and heartless interrogation.

The Allison family’s experience features a number of elements that show up frequently in these cases:

  • a plausible alternative explanation (Clayton reported that the toddler fell down the stairs)
  • a quick diagnosis by physicians unaware of the child’s complex medical history
  • distraught parents subjected to cruel and deceptive interrogation tactics and
  • a tangle of legal rulings that limited what CJ could say at trial

You can follow the family’s struggle through the Free Clayton Allison Facebook page.

The Rasmuson Foundation, which supports artists and non-profits in Alaska, has awarded CJ a grant to publish a follow-up book, Timmy and Kate Go to Visit.

Why Can’t Uncle Come Home? earned honorable mentions for its illustrations and cover design and for its handling of family issues in the 2018 Purple Dragonfly Book Awards from Story Monsters Ink, a magazine about children’s literature for teachers, librarians, and parents.

CJ, a writer by both nature and training, has an MBA in Management & Strategy and a BA in Journalism & Public Communications.

As CJ predicted, Why Can’t Uncle Come Home? is the only children’s book I could find that addresses wrongful conviction. Several books deal with parents in prison, including these titles that have received generally good customer reviews: The Night Dad Went to Jail; Far Apart, Close in Heart; and My Daddy’s in Jail. Customer reviews also give a thumbs-up to Maybe Days, a book written for children entering foster care. The State of New Hampshire publishes this list featuring more titles for children with parents in prison.

Leave a comment

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

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.

 

 

 

 

1 Comment

Filed under parents accused, SBS, shaken baby, shaken baby syndrome, Uncategorized