August 28, 2012 · 10:19 am

Evidence-Based Medicine and Shaken Baby Syndrome

Drs. John Galaznik and John Plunkett, at the EBMSI conference

Evidence-based medicine (EBM) is a formal discipline intended to sort out what doctors really know from what they simply believe, “to differentiate objective data from opinion,” explained forensic pathologist Dr. John Plunkett at the second Evidence Based Medicine and Social Investigation conference earlier this month. “Evidence should always trump opinion,” he noted.

As detailed below, the EBM movement relies more on scientifically controlled research—and less on expert opinion and case studies—than the approach that’s traditionally dominated the medical literature.

The highest level of certainty under EBM guidelines applies more readily to drug trials, Plunkett said, where researchers can use large populations and appropriate controls, than to shaken baby syndrome research. “Nothing in the child-abuse literature is going to come anywhere near to Level I,” he conceded, on either side of the shaking debate. “There is not going to be a major bulletin about this.”

The arena itself constrains researchers’ ability to study infant head trauma, Plunkett said, and so the results are not reliable, with the exception of “the biomechanical studies that have been repeated over and over with the same results”—that is, that shaking without impact should not cause subdural hematoma.

Plunkett said he himself misunderstood the role of rotation for many years, even after he started doubting classic shaking theory in the 1980s. “I had been taught that rotation causes subdural hematoma, so I was looking for rotation in a fall,” he explained. “I didn’t realize it until 13 years ago:  Impact causes rotation.”

A number of test-dummy videos shown during the conference illustrated his point:  When a dummy’s head hit the floor, it would bounce back up, in an arc constrained by the neck, finally hitting the floor again at least once.

Rotational motion resulting from linear impact, from F.A. Bandak, Forensic Science International, 151 (2005) p. 75

Biomechanical engineers use the term “impulse loading” to describe the rotational forces caused by the head’s motion at the end of its tether, that is, the neck, which is attached to the trunk.

“Everything caused by impulse loading can be caused by impact,” Plunkett declared. “The reverse in not true.” While impact can cause subdural hematoma, retinal hemorrhage, and encephalopathy, for example, shaking cannot cause skull fracture.

There is simply no need to presume shaking, he said, when a child with the triad shows evidence of an impact.

Nor is shaking necessary to explain subdurals when the child shows no evidence of impact, because “Subdural collections occur without trauma.”  A number of metabolic and infectious diseases can cause them, as well as vascular malformations and any interruption of oxygen to the brain. Some causes, like Saggittal Sinus Thrombosis, are easy to diagnose, Plunkett said, but “Superficial Cortical Venous Thrombosis is routinely missed.”

He dismissed ruptured bridging veins as the source of small subdural hematomas, the “thin film” hematomas often associated with a shaking diagnosis. “Bridging veins are large-caliber conduits,” he said, carrying 5 to 10 ml. of blood per minute. “If one of these things is ruptured, you’re going to get a lot of bleeding, and you’re going to get it really fast.” He described stretch tests in which researchers were able to suspend 4 ounces—the equivalent of a stick of butter, which represents about 500 pounds per square inch—from a harvested bridging vein without snapping it.

“How do you break those without impact?” he asked, answering himself: “You don’t.”

When faced with the triad and no clear explanation, Plunkett concluded, “The default diagnosis is ‘I don’t know,’ not ‘Abusive  Head Trauma.'”

Evidence-based medicine guidelines vary in different places and contexts, but the U.S. Preventive Services Task Force defines these levels of reliability for published medical literature (from Wikipedia):

  • Level I: Evidence obtained from at least one properly designed randomized controlled trial.
  • Level II-1: Evidence obtained from well-designed controlled trials without randomization.
  • Level II-2: Evidence obtained from well-designed cohort or case-control analytic studies, preferably from more than one center or research group.
  • Level II-3: Evidence obtained from multiple time series with or without the intervention. Dramatic results in uncontrolled trials might also be regarded as this type of evidence.
  • Level III: Opinions of respected authorities, based on clinical experience, descriptive studies, or reports of expert committees.

The bulk of the child abuse literature is at Level III on this scale. For an evidence-based analysis of the medical literature about shaken baby syndrome, please see this journal article by Dr. Mark Donohoe.

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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August 10, 2012 · 12:45 pm

Parents, Meet the Experts; Experts, Meet the Parents

Attorney Zachary Bravos of Illinois

“Over time, the truth prevails,” Illinois defense attorney Zachary Bravos promised his audience—parents falsely accused of abusing their children—at the second-ever Evidence-Based Medicine and Social Investigation conference this past weekend in Vancouver, British Columbia.

After 30 years of injustice rooted in a flawed model of shaken baby syndrome, Bravos said, “the legal system is getting to the point where at least it recognizes the legitimate dispute in the medical community.”

At the same time, he conceded, “These cases are still coming in by the boatload.”

Paul Bayne with sons Baden and Josiah

As his audience was well aware.  Conference organizer Zabeth Bayne and her husband Paul were accused of shaking their infant daughter, only six weeks old at the time, in the fall of 2007. While the Baynes fought the charges, their children spent four years in foster care—except for the youngest, conceived after the accusations, who was taken from his parents at birth and lived his first six months in foster placement.

All four children were finally returned a year ago, after outside experts looked at the medical records and concluded that the girl’s injuries could have been caused by the incident the parents reported at the time:  One of the older boys had fallen on the baby. The Bayne children were all present at the conference and noticeably well behaved, the older two helpful.

Zabeth and Bethany Bayne

Bravos said that the family’s experience is not unique, with forced foster placement after any accusation. Family court does not operate on the standard of “beyond a reasonable doubt,” but rather on “a preponderence of the evidence,” which takes very little for a finding of abuse. “Once that finding is made, that becomes the reality. If a spouse does not go along with the program, he or she is unlikely to get the children back.

“I can’t blame anybody in that situation who goes along with the program,” Bravos said, “I can’t blame anybody who accepts a plea bargain. But it then becomes another validation for the theory of shaken baby syndrome.”

He advised accused parents to get “every scrap of paper” relevant to their child’s case, from pre-natal records to ER and nurse’s notes. “Parents can often do this even if the attorneys can’t,” he pointed out.

Bravos also recommended filing a pretrial motion—a Daubert motion in some states, a Frye motion in others—asking to exclude testimony about shaken baby syndrome. “We file in every case, and we have lost on every one of those motions,” he reported, “but that’s not what is important.” Filing the motion preserves the right on appeal, he insisted, “These are flares in the night.”

Bravos is a veteran of the legal struggles over “recovered memories,” in which civil and criminal suits were based on presumably suppressed memories of childhood abuse that emerged during certain types of therapy, often including hypnosis. After researchers demonstrated that such memories could also be planted, those cases quit coming to court.

Attorneys Zachary Bravos and Heather Kirkwood

“We could sue for damages” in the recovered-memory cases, Bravos noted. “We could get money out of people’s pockets and, more importantly, out of their insurance companies’ pockets.” Soon insurance companies quit offering coverage to psychologists using those therapies, and the era faded, at least in court.

“We don’t have that leverage now,” he lamented, still maintaining that child-abuse professionals deserve amnesty for their honest opinions. “I don’t blame them, either,” he sighed, “It’s human nature.”

Bravos explained how the legal system let an unproven theory go so far:  Abuse cases are very difficult to begin with, he said, and the evidence can be murky and complex. “When we’re presented with complex problems, it’s really comforting to have a simple answer.” In the case of shaken baby syndrome, that answer is:  The last person alone with the baby is guilty.

Bravos also fought against the satanic ritual abuse cases in the 1980s, discussed on this blog at  “California’s Nightmare Nursery,” one of the on-line chapters of my book.

His talk wrapped up two inspiring and useful conference days that included presentations by expert witnesses from a variety of specialties as well as social service professionals. I will be reporting on more individual talks as I find the time.

My hat is off to Zabeth, her family, and the team of volunteers who made this conference so rewarding. I am dazzled by the resilience of the parents and foster parents I met there, and the people who support them.

-Sue Luttner

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July 30, 2012 · 11:20 am

Jury Frees Accused Father, and More

Richard Britts and his daughters-courtesy of Richard Britts

Richard Britts and his daughters
-courtesy of Richard Britts

Illinois father Richard Britts has been cleared of shaking accusations, two years after his younger daughter, three months old at the time, suffered a seizure while in his care. Jurors acquitted him earlier this month after hearing testimony from both prosecution doctors and forensic pathologist Dr. John Plunkett. The child seems to have fully recovered from the incident.

Reporter Patrick Yeagle’s touching and insightful treatment in the Illinois Times makes this observation: 

It’s the latest case calling into question “shaken baby syndrome” – a triad of symptoms that some doctors say can only be caused by violent shaking. Other doctors, however, say existing medical problems can cause the same symptoms, casting doubt on a diagnosis that has landed several people nationwide behind bars.

A Twin Case in Jersalem

A report in The Jersalem Post (“Israel’s best-selling English daily and most-read English website”) offers an unusual slant on a shaking diagnosis with this statement:

Shaken baby syndrome is an intermediate condition between an accident and physical abuse of children.

In the article’s focus case, a father is facing a manslaughter charge in the death of his 4-month-old son, who with his twin sister was rushed to the hospital in January with “internal injuries,” including bone fractures.

The news report explains the prosecution’s thinking:

The state said it will argue that the death was caused unintentionally, but that the father did intentionally commit acts of violence against the baby who died and that those acts of violence did cause the baby’s death, making an allegation of manslaughter appropriate.

A Successful Appeal

An appeals court in Florida has partially reversed a shaking conviction, ordering a new trial because the first judge had excluded biomechanical testimony. The published opinion focuses on what Florida law allows in the testimony of a biomechanics expert. The key paragraph opens:

Kieran Lloyd, who at 7 months eagerly provided data on repetitive bouncing motions by playing in a commercial jumping toy.

Florida courts have held that a biomechanics expert is not qualified to give a medical opinion regarding the extent of an injury. Stockwell v. Drake, 901 So. 2d 974, 976 (Fla. 4th DCA 2005); Mattek v. White, 695 So. 2d 942, 943 (Fla. 4th DCA 1997). However, it has been recognized that a biomechanics expert is qualified to offer an opinion as to causation if the mechanism of injury falls within the field of biomechanics. See Houghton v. Bond, 680 So. 2d 514, 521 (Fla. 1st DCA 1996) (holding that the defense’s biomechanics expert was qualified to testify that 90% of the plaintiff motorist’s injuries were caused by his hitting the dashboard as a result of his failure to wear a seatbelt because the expert was not offering a medical opinion based on brain anatomy and function); Behn v. State, 621 So. 2d 534, 536 (Fla. 1st DCA 1993) (recognizing that an expert in the field of biomechanics would be qualified to testify that a delay in an automobile accident would have altered the fatal consequences)..

The expert whose opinion was prohibited is biomechanic John Lloyd, PhD, whose most recent paper I described in this blog posting. The key paragraph of the opinion concludes:

In this case, Dr. Lloyd was not offering a medical opinion as to the extent of the victim’s brain injury, a matter which was not in dispute. Rather, based upon his biomechanical studies, he opined that (1) a child of the victim’s height and weight could have sustained similar brain injuries by falling out of a day bed; and (2) shaking alone could not have caused such injuries. We conclude Dr. Lloyd was qualified to offer these opinions as to causation because the mechanism of injury (falls and shaking) fell within the field of biomechanics

A Suicide Attempt

Finally, after a preliminary hearing that lasted four days, a California judge has ordered a foster father to stand trial for murder and child abuse in an especially murky case. The defendant called 911 in November of 2010 with a report that a baby was choking on milk. During interrogation later he said he had accidentally knocked the child from the table in his bouncy chair.

Vacaville Reporter Ryan Chalk summarized the medical testimony in a news story, no longer on line, in The Reporter:

Wednesday saw the conclusion of testimony from Dr. Michelle Jorden, a forensic neuropathologist.

Jorden testified that it was her opinion that Buddy had suffered a traumatic brain injury leading up to his choking episode.

“I think it’s a combination of shaking and impact,” Jorden testified as to the cause of the injuries.

And from another day’s coverage:

Dr. Rachel Gilgoff, a child abuse pediatrician, testified that “both sides of his brain were extremely compromised,” as tests revealed he was suffering from significant bleeding and swelling in the brain.

“His injury is extremely consistent with abusive head trauma, or shaken baby syndrome,” Gilgoff testified.

I’m guessing there was  no evidence of impact, because there’s none mentioned in the articles.

The defendant, Reginald Tanubagijo, attempted suicide at some point before the preliminary hearing, according to The Reporter:

Tanubagijo had already been arrested and released on bail, and during that time, Officer Michael Shephard responded to the Tanubagijo home for a report of a suicide attempt.

Shephard testified that he found Tanubagijo slumped over with a bloody towel over his arm and a very large laceration to his wrist.

Inside the kitchen, Shephard testified that he found a note that read, “I killed Buddy.”

Other notes found at the home read, “I did killed Buddy,” and “Tell the judge I did killed Buddy,” the officer further testified.

The child’s biological mother has filed a civil lawsuit charging negligence by the county and others who allowed the defendant to be a foster parent, the most recent coverage reports.

The unnecessary pain of it all makes me sad.

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July 18, 2012 · 2:04 pm

New Cases Exasperate Me

Although growing armies of professionals and parents are organizing to fight the misguided prosecutions in alleged shaking cases, the tragedies continue.

Second Prosecution

A girl’s death nine years after a presumed shaking assault has led to murder charges against her father, who had already served time for the incident.

Charged in 2001 with felony attempted aggravated battery, the young father pled to a lesser offense and received a 15-year sentence. He spent six years in prison and was released on parole in 2007—but when his severely disabled daughter died of bronchial pneumonia in 2009, prosecutors charged him again, this time with murder.

A judge has heard the arguments and is deciding this father’s fate, according to the coverage in his local newspaper. I wish I had access to the original details, as the news report offers only this hint about what the parents said happened that night :

At that time, the child’s mother, Jodi Pinkas, gave an account of the incident that did not line up with the prosecution’s theory of the case.

Pinkas said Tuesday she was wrong and sorry for what she had said.

The news story also implies that the original diagnosis was based on the triad alone:

A St. Louis County, Mo., medical examiner’s report said the manner of death was homicide and the cause was traumatic brain injury and child abuse – specifically, delayed death due to blunt trauma.

Jensen said blunt trauma could include vigorous shaking. There were no external injuries.

After the disabling brain injury, the girl had been cared for and ultimately adopted by a great aunt, who has been an active voice in the anti-shaking movement.

Circumstantial Evidence

The next story is unsettling in many ways, including the rush to judgment.

A father of 11-week-old twins said he was feeding one of them a bottle when the boy started coughing and expelled liquid from his nose. The father told investigators he turned his son upside down, shook him, and slapped his back, but his breathing was “very much labored.” The man then turned to the internet for advice before actually dialing 911.

The boy arrived at the hospital brain dead and was diagnosed as a shaken baby. When police later seized the family computer as evidence, they found a number of searches just before the 911 call—including “when to call 911″—as well as previous searches regarding child abuse, and a child-abuse game described this way in the Oregon Live coverage:

According to the report, the game is “a simple DOS-based program where the protagonist drives around in a van/bus/ice-cream truck, picks up 10 children, and abuses them (physically and/or sexually) while trying to avoid attention and the police.”

The game had been downloaded to the computer and played once. While I’m repulsed by the description, if we’re to be judged by the games found on our computers, I know a number of young men who are guilty of espionage, war crimes, and intergalactic mass murder.

Like the headline-writer at Oregon Live, I reached an unsupported conclusion the first time I read the article, which makes this observation about the computer forensics report, submitted by the prosecutor, especially unsettling:

The report cites specific searches and web hits, including “father hates infant,” “How do I stop abusing my baby,” and “Parents of Newborn Baby Accused of Horrific Abuse.”

The second time through, I realized it makes a very big difference if these are search terms or the results returned, but we don’t really know. What we do know is how quickly people judge when the doctors diagnose child abuse.

Florida Plea Bargain

As Brian Bonds demonstrated a decade ago, even defendants with solid support structures can be persuaded to accept plea bargains. Now a young man in Florida is reportedly scheduled to plea this September in a short-fall case, even after a host of supporters, including the child’s mother, told the court they believe he’s innocent.

The Orlando Sentinel reports:

Leonard told investigators the baby fell off a bed, according to testimony. But doctors and a medical examiner say it’s impossible the trauma the child suffered was caused by a fall from that height.

The child’s mother reportedly testified, “I actually cannot believe he did anything wrong,” and his father told the court  his son “loved [the girl] to death . . . he wouldn’t hurt her.”

Pointing Fingers in Michigan

According to a report on the website MLive, a couple in Michigan is suing a day-care center over an incident in December, when their son fell unconscious and was rushed to the hospital. The suit alleges the child was “brutally shaken and viciously assaulted” at the center.

The MLive coverage implies that this diagnosis is based on the triad alone:

The suit alleges that Hurley officials found no outward physical signs of trauma on the child but he did suffer multiple hemorrhages and seizures consistent with shaken baby syndrome.

The police have not yet charged anyone in the presumed assault. Supporters of the family and supporters of the day-care center have both joined the on-line conversation, illustrating how a diagnosis of child abuse can poison a community.

I am definitely putting this case in my files. I hope it can make it into the medical literature, because I have heard respected child-abuse experts report that shakings are virtually unheard-of at centers with multiple caretakers.

There are other new cases, of course, but these four seemed to have lessons with them.

-Sue Luttner

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July 12, 2012 · 12:22 am

Innocence Network Scouting for Talent

This position has been filled. Katherine Judson started working this October, 2012.

Ms. Judson can provide sample filings and medical references to attorneys defending false accusations of abusive infant head injury. Contact her at katherine.judson@wisc.edu

In a solid piece of good news, the Innocence Network has found three years of funding for a staff attorney to coordinate defense efforts in shaken baby cases.

The job posting, available at http://globalwrong.files.wordpress.com/2012/07/sbs-fellow-07-02-12.pdf, identifies the position as “Shaken Baby Syndrome Litigation Fellow.” Duties will include following the medical and legal controversies that surround SBS and identifying a strategy for reducing the rate of wrongful convictions.

The Innocence Network is a coalition of individual Innocence Projects across the country and around the world. The original Innocence Project, founded in 1992 by Barry C. Scheck and Peter J. Neufeld, looked only at cases in which evolving DNA technology could be used to re-examine tissue samples from earlier trials. Their web site now reports 292 exonerations through DNA testing, 17 of prisoners on death row. Most Innocence Projects are associated with law or journalism schools, allowing them to bring pro bono student work into the appeals process.

Some Innocence Projects have now expanded their scopes beyond DNA, and the Innocence Network has recognized the alarming rate of wrongful convictions in cases of infant head injury. The job summary for the new SBS position notes:

A growing number of cases are now dealing with shaken baby syndrome, where an adult caregiver is convicted of a crime after the death of a child in his or her care, due to the presence of three internal symptoms that doctors once believed could result only from shaking the child.

Given the pace of new cases and new articles lately, the successful candidate will definitely need several of the specified “Key Competencies,” including “Remains organized amidst multiple, competing demands” and “Keeps a sense of humor throughout.”

September 6 update:  They’re interviewing the final candidates now. Look for an announcement soon.

-Sue Luttner

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July 8, 2012 · 12:04 pm

An Innocence Project Calls for Cases

2020 Update:  The Medill Justice Project has reorganized and refocused, removing the database along with the rest of their SBS matrial.

Journalism students at the Medill Justice Project in Illinois have taken on shaken baby syndrome. This summer, interns and staff members are building a database of all the infant-head-injury cases they can find, through all the channels they can think of.

The team sent out the statement below, asking for input from affected individuals. Do check out the exoneration registry they provide as an example of what they have in mind—those researchers sound eager for input, as well.

-Sue Luttner

From Medill:

“The Medill Justice Project at Northwestern University is working to create a database of U.S. shaken-baby syndrome/ abusive head trauma court cases. We are a journalism organization that examines criminal-justice issues objectively. Our goal is public service: By creating this database, we aim to analyze trends and publish stories that may illuminate this criminal justice issue. As an example, the University of Michigan and Northwestern University law schools created the National Exoneration Registry, which has raised awareness about wrongful convictions: http://www.law.umich.edu/special/exoneration/Pages/about.aspx

Alison Flowers,
courtesy Medill Innocence Project

“The database will include cases in which the defendant is accused of shaking an infant, producing injuries or symptoms associated with, but not limited to, shaken-baby syndrome, abusive head trauma, traumatic brain injury, pediatric traumatic brain injury, and/or shaken-infant syndrome.

“Due to the complex scientific, medical and legal issues surrounding such cases, as well as the statistical task of analyzing the data, we will consult national leaders in these fields as needed.

“If you have information that you are willing to share with us, please contact Alison Flowers at alison.flowers@northwestern.edu or call (847) 467-4945.”

<Fall 2013 Update:  The email address in this press release seems to be obsolete.  The Medill Justice Project web site offers this Contact page: http://www.medilljusticeproject.org/contact/.>

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July 2, 2012 · 10:02 am

Well Said: Law Reviews Address SBS

Keith Findley, co-director of the Wisconsin Innocence Project, at an SBS meeting in February 2012

With manuscripts from seasoned veterans, young idealists, and players in between, law journals are starting to cover the legal tangle surrounding shaken baby syndrome.

Law professor Keith Findley at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project, has collaborated with an all-star team to produce a thorough, careful, and readable response to an article that appeared in the April issue of the Houston Journal of Health Law and Policy, from the University of Houston Law Center.

In the original paper (“A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome,” Volume 11, issue 3), attorney and child-abuse pediatrician Dr. Sandeep Narang rejected the mounting criticism of classic SBS theory and argued that, in the absence of a clear alternative diagnosis, the courts should rely on child-abuse experts to tell them whether the presence of the triad represents abuse.

Findley’s response—written with pediatric radiologist Dr. Patrick Barnes, pediatric neuropathologist Dr. Waney Squier, and law professor David Moran from the Michigan Innocence Clinic—is a must-read for anyone facing or defending an SBS accusation. You can download the unpublished draft of “Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right” at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2048374.

Winter 2013 update:  Dr. Narang’s paper is now available at http://www.law.uh.edu/hjhlp/volumes/Vol_11_3/Narang.pdf, and the response from Findley et al. is now available in situ at http://www.law.uh.edu/hjhlp/volumes/Vol_12_2/Findley.pdf

Past Convictions

The University of Wisconsin Journal of Law Reform, meanwhile, has published a careful analysis that calls for a review of all past convictions in shaking cases. Senior law student Rachel Burg opens her article with the story of Julie Baumer, who was featured in Emily Bazelon’s New York Times Piece in 2010. Baumer served four years in prison before a pro bono attorney brought in new experts, who unanimously and independently diagnosed venous sinus thrombosis. Burg writes, accurately, I’d say:

The truly heartbreaking stories, however, are those that are not told—the innocent people currently in prison, convicted of seriously injuring a child that they loved, based on a medical diagnosis that has become scientifically questionable.

You can download a .pdf of Burg’s article from the journal’s web site, http://www.mjlr.org/2012/05/volume-45-issue-3-spring-2012/

SBS as Established Mistake

In 2011 the Brigham Young University Law Review published a reasoned article calling for bone-density testing before fractures are considered pathognomonic for abuse. Author Matthew B. Seeley, a recent law school graduate, cited shaken baby syndrome as an example of past judicial mistakes. He reviewed the history of the syndrome, including recent rethinking about both the specificity and the timing of the symptoms, and wrote:

There are many lessons to be learned from the history of shaken-baby syndrome, not all of them within the scope of this Comment. One lesson, though, is clear: a misappraisal of whether a certain injury or combination of injuries is pathognomonic can lead to the conviction and imprisonment of innocent caretakers.

Although I’d expect that article to be heading to the archives soon, it is currently available through the Current Issue tab on the journal’s web site, at http://lawreview.byu.edu/issue.php

Shaking as First-Degree Murder

Practicing attorney Derick Vollrath in North Carolina has published an intriguing analysis in the Campbell Law Review, arguing that the prevalence of anti-shaking campaigns is inconsistent with his state’s policy of prosecuting shaking deaths as first-degree murder. Vollrath writes:

These campaigns share a common assumption: a significant number of Shaken Baby Syndrome deaths are not the intended result of a caregiver’s premeditated design.

Caregivers just lose it. They snap. They don’t know any better.  At the same time, North Carolina’s criminal law allows the state’s district attorneys to prosecute these caregivers for first-degree murder,  the most serious criminal charge available.

Although I regret that Mr. Vollrath seems to accept the specificity of the triad, I do appreciate his careful analysis and thoughtful position.  The article is in the current issue of the Campbell Law Review, available at  http://law.campbell.edu/lawreview/

Professor Deborah Tuerkheimer, De Paul University College of Law

The Classic

My files contain a handful of older papers, but the first highly publicized law journal article critical of infant shaking convictions was Professor Deborah Tuerkheimer’s 2009 critique in the Washington University Law Review.

She has since published a follow-up article in the Alabama Law Review addressing the lag in courtroom policy despite the evolving science.

Both Professor Tuerkheimer and Audrey Edmunds—the Wisconsin babysitter whose vacated conviction in 2007 marked the beginning of the Innocence Network’s success with shaking cases—will have books on the shelves soon.  The tide is turning.

©2012, Sue Luttner

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June 21, 2012 · 3:59 pm

Exonerations: Brian Banks Didn’t Do It; The Dingo Did

“A Dingo Took My Baby.”  Photo courtesy of http://www.australian-wildlife.com/Dingo-information.html

Two high-profile exonerations have brought criminal injustice into the headlines this summer:  In southern California on May 24, a judge cleared the record of football player Brian Banks, after the woman who accused him of rape recanted. And in Australia on June 11, authorities officially declared that a dingo really did kill Azaria Chamberlain, the infant whose 1980 disappearance on a family camping trip led to a media frenzy and the mother’s murder conviction.

Brian Banks

On the advice of his attorney, Banks plea bargained ten years ago when charged with rape, rather than risk a possible 25-year sentence if convicted at trial. He had already spent more than five years in prison and was on probation with an ankle monitor when he was contacted by his former accuser, who was ready to recant.

The California Innocence Project helped with Banks’s appeal, which associate director Jeff Chinn says has generated more publicity by far than any other case they’ve worked on. The office had no trouble keeping up press files on Ken Marsh, released in 2004 after serving 21 years in a child-death conviction, and even Shirley Ree Smith, whose infant-shaking conviction reached the U.S. Supreme Court last year, but “Brian Banks was next to impossible,” Chinn told me last week.

In the wake of the exoneration, Nancy Petro at the Wrongful Convictions blog published an insightful observation about plea bargaining by innocent people. A subsequent post by Phil Locke about how false confessions can happen criticized the interrogation strategy known as the The Reid Technique®, which is commonly employed with suspects in shaken baby cases. Locke’s blog triggered a fascinating response from Joseph P. Buckley, president of John E. Reid & Associates, the firm that’s trained investigators across the country in the technique.

On the day of Banks’s dismissal hearing, an Associated Press report quoted him making a comment that contains a double meaning for parents accused of abusing their children:

“I know the trauma, the stress that I’ve been through, but I can’t imagine what it’s like to have your child torn from you,” he said. “I don’t know what I would have done without my parents.”

Lindy Chamberlain

When Azaria Chamberlain disappeared from her family’s tent on a camping trip in 1980, her mother Lindy Chamberlain said she had seen a dingo running off with something when she went to check on the baby. Extensive searching produced no body, only the child’s torn jumpsuit. Investigators concluded that the rips had been caused by a knife, not teeth, and accused Lindy Chamberlain of murdering her daughter in the front seat of the family car before raising a false alarm near the tent. After two years of sensationalized press coverage, Lindy Chamberlain was convicted of murder and sentenced to life in prison. Three years later, however,  police searching for a hiker found the child’s missing jacket in a dingo lair, supporting the mother’s original story. The case was re-opened and Lindy Chamberlain was released from prison.

Last week, coroner Elizabeth Morris issued an amended death certificate that officially declared Azaria’s cause of death as a dingo attack. Australian journalist Julia Baird wrote in an editorial in the Australian edition of the New York Times:

We assumed an innocent woman was guilty. We threw rocks at a grieving mother. And a nation founded by convicts somehow forgot the presumption of innocence.

The case had stayed in the news in Australia for years, with early coverage that suggested the Chamberlains had sacrificed their child in a cultish ceremony followed by criticism of the mother for appearing too “icy” and dressing too well.

Public opinion went from hostility to sympathy, however, after Chamberlain’s conviction was reversed and her story told in the successful 1988 film “Evil Angels”—released outside of Australia and New Zealand as “A Cry in the Dark.” Meryl Streep received her eighth academy award nomination for her portrayal of Lindy Chamberlain.

In an article last week in the Australian edition of the New  York Times, reporter James Gorman said the coroner teared up during the presentation of the new death certificate, telling the parents:

“Please accept my sincere sympathies on the death of your special daughter. I am so sorry. Time does not remove the pain and sadness of the death of a child.”

For a time after her release from prison, Lindy Chamberlain, now Lindy Chamberlain-Creighton, lived in New Zealand, where Matthew Theunissen at the New Zealand Herald reported on her new project, a book about forgiveness. Like so many people who’ve been falsely accused of killing or injuring children, she says she would like the people who press these cases to stop. “I doubt that it’s ever going to happen,” she conceded, but:

“I’ve got a punishment I’d like to see for certain individuals who have been involved with this case, deliberately misconstruing the truth. I reckon it would be really nice not to do it again, to see them have to pay in a charitable fund for other victims for where the system had gone wrong.

“If they did that I’d know that they’d put their bad behaviour behind them and really meant they were sorry.”

®The Reid Technique is a registered trademark of John E. Reid & Associates.

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June 19, 2012 · 1:12 pm

Coming This Summer: A Conference at the Front Lines

The Bayne family, celebrating their reunion in August of 2011

Paul and Zabeth Bayne spent four years fighting accusations that they’d shaken their infant daughter, four desolate years in the lives of their children. They won their battle in August of 2011, when all four of their children were returned home, including the baby, who had been removed from his parents at birth and then spent the first six months of his life in foster care.

From the beginning, Paul and Zabeth Bayne took their struggle to the public. Reporter Kathy Tomlinson with the Canadian Broadcasting Company wrote baldly last winter in a summary news story, “In 2008, after the parents protested publicly about the baby’s removal, the government seized their two boys, then about four and three years old, for involving them in the publicity.”

But Zabeth Bayne kept speaking out, and she started organizing: By chance, in the same month that her children returned home last summer, she was also hosting her first conference for professionals and parents fighting false accusations of child abuse.

Having survived that logistical challenge, she’s organized another conference this summer, August 3 & 4 in Vancouver, British Columbia, Canada. Her list of speakers includes forensic pathologist extraordinaire Dr. John Plunkett; attorney Mark Freeman, who has been suing hospitals and counties on behalf of falsely accused parents; head-injury researcher John Lloyd; and me.

Zabeth says she wants the conference to both improve professional understanding of shaken baby syndrome theory and foster individual connections:

“We encourage a case history upon registration. Last year we had medical records available to be given to the experts, who were able to provide a review of the files. We have also invited advocates and any other persons interested in the issues the conference will be discussing. It is really a unique merging of both professional and client, as both for reasons of their own are seeking information and connections.”

The Bayne family on a precious visitation in 2008

For more information, check out the conference web site: <no longer on line>.

Last year’s conference was filmed by the Canadian news magazine the fifth estate, which featured the Baynes family in an excellent program on shaken baby syndrome, “Diagnosis Murder.”

I’m encouraged. When I started this blog a year ago, I’d never heard of Paul and Zabeth Bayne; I missed the news last summer when their children came home; and I only stumbled on their conference web site a few months ago. Now here I am, thrilled at the prospect of meeting in person various people I’ve been chatting with online for months to years.

The community is building. The story is breaking. Together we are going to make a difference.

-Sue Luttner

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June 12, 2012 · 12:42 am

“Back Door” Tactics Show Through

March 16, 2012, BBC One

Tensions have been mounting among the pathologists on the medico-legal drama Silent Witness, and now the doctors are finally speaking frankly. No, the head of the lab assures his young colleague, there is no conspiracy against Dr. Helen Karamides, the prominent pediatric neuropathologist whose maverick views on shaken baby syndrome have made her a lightning rod for criticism. He is double-checking Karamides’s work not because of a political witch hunt, he explains, but because the pathologist has been accused of conducting her research with illegally acquired brain tissues.

Pediatric Neuropathologist Dr. Waney Squier
At the Evidence-Based Medicine Symposium in Denver in 2009

To anyone familiar with the career of pediatric neuropathologist Dr. Waney Squier, the parallels were obvious:  Like the Karamides character, Squier has testified for the defense in infant-shaking cases, in the face of harsh criticism from her peers and even from the bench—as in the courtroom scene in the opening episode of the two-part show, titled “Paradise Lost.”

Unlike Karamides, however, Squier has published her infant-brain research in the peer-reviewed literature, and she was quickly cleared when accused of violating the human-tissue laws.

The irony is that the conclusion of “Paradise Lost” actually adds to the evidence for a conspiracy of sorts against doctors who question the prosecution model of shaken baby syndrome:  By the end of the wrap-up segment, the Karamides character has videotaped her own suicide, confessing that, “as you correctly alleged,” she had conducted her research on illegally harvested baby brains. Autopsy reveals that she was an alcoholic. The packet that I’d hoped would document her research contains only extensive interviews with a serial killer, who seems to have turned himself into a psychopath by head-banging as a lonely, unloved child.

Anyone who questions the classic model of shaken baby syndrome would be discouraged by the fictional outcome, but Waney Squier has filed a complaint, with both the BBC and Ofcom, an entity that describes itself on the web as an “independent regulator and competition authority for the UK communications industries.”

Dr. Squier declines to talk about the situation, saying only that she trusts the BBC will do the right thing. Her complaint was leaked to the magazine Private Eye, however, which claimed to be quoting from her letter to the two agencies:

“While the storyline portrayed my unique professional circumstances in some detail, it deviates from the truth with respect to an accusation of retaining baby brains for research without permission. Such action would be gross professional miconduct and a criminal offence.”

Squier’s complaint allegedly described the character’s suicide as “disturbing to me and my friends” and “extremely painful to my daughters and my close family.”

The coverage in Private Eye, which doesn’t seem to be posted publicly, also included this observation about the BBC’s embarrassment:

One of the many factors that make the Beeb’s position extremely dicey is that none of the dirt previously directed at Squier by her enemies has stuck, thrown as it was by parties with an obvious axe to grind.

Squier was one of the doctors deeply involved in the response to the Alder Hey organ retention scandal in Liverpool 12 years ago which, ironically, led to the Human Tissue Act three years later and the setting up of the HTA to police it. She now believes she has been depicted as in the mould of Professor Dick Van Velzen, the rogue pathologist at the centre of the Alder Hey scandal.

One of the other factors that “make the beeb’s position extremely dicey” is that Squier had received a call from Silent Witness about a year before the “Paradise Lost” show aired, in which she learned they were doing a program on shaken baby syndrome.

The London Evening Standard published this piece on the complaint, seemingly picked up from Private Eye. 

Heather Kirkwood in 2015

Heather Kirkwood in 2015

What fascinates me about this story is that the BBC faux pas illustrates the kind of “back door” campaign that attorney Heather Kirkwood alerted me to two years ago, between sessions at the Eleventh International Conference on Shaken Baby Syndrome/Abusive Head Trauma, in Atlanta, Georgia.

I happened to catch Kirkwood not long after she’d attended a talk, by Detective Inspector Colin Welsh from New Scotland Yard, with the title “A National Co-ordinated Approach to Cases of Non-Accidental Head Trauma in the UK.” Kirkwood knew complaints had been filed with the General Medical Council (GMC) against Dr. Squier and a colleague of hers, histopathologist Dr. Marta Cohen, based on their courtroom testimony in shaken baby cases. She had just learned why.

“I don’t believe this,” she said, her incredulity tinged with indignation. “Their entire coordinated plan was to keep Dr. Squier and Dr. Cohen off the stand.”

According to Kirkwood’s transcribed notes, D.I. Welsh’s talk had detailed a strategy for improving the conviction rate in shaking cases by neutralizing the “handful of experts” who testify  for the defense and whose role, according to Welsh, is to confuse the jury with the complexity of the science and provide possible alternative causes without explaining why the child died.

In a witnessed statement drafted after the conference, Kirkwood wrote that she had gone to the session expecting to hear about coordination among different arms of law enforcement but realized several minutes into the presentation that “the ‘national coordinated approach’ referenced in the title of the talk was essentially a description of the joint efforts of New Scotland Yard, prosecution counsel, and prosecution medical experts to prevent Dr. Squier and Dr. Cohen from testifying for the defense on their findings in specific cases as well as on their published and peer-reviewed research.”

Welsh’s talk also addressed the problem of “judicial inexperience,” Kirkwood’s notes report. His advice for influencing judges who’ve been listening to SBS critics was not to address the debate in argument, but to work through the “back door,” reaching judges informally outside of court and explaining the prosecution point of view without the opposition present.

Kirkwood’s notes also quote Welsh as advising police to “seek maximum publicity for convictions” and to relay to the press that “shaking undoubtedly causes injuries and in some cases death.” Welsh reported that his team had scheduled SBS training courses for police officers and first responders, and that his agency makes itself available to “offer advice to senior investigating officers.”

Squier and Cohen have so far weathered the complaints lodged against them, but the campaign is having its effect. Last year Squier told the Canadian Broadcasting Company that attacks motivated by her position on shaken baby syndrome threaten her ability to work, and she hesitates to continue testifying.

Presumably the editors at “Silent Witness” consulted one or more child-abuse experts to advise them on their story about shaken baby syndrome. I hope they take a second look at the sources who not only approved such a dismissive treatment of a real problem—the overdagnosis of infant shaking—but also planted a personal attack on one of the rare, courageous physicians willing to rely on scientific evidence instead of popular opinion.

-Sue Luttner

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