And in Florida, the First Coast News has been following the story of a controversial child abuse pediatrician who has now resigned, after leaving jobs in both Wisconsin and Alaska amid complaints like those raised in Florda:
These stories remind me of the parent activists in Leheigh Valley, Pennsylvania, who started organizing in 2023 against their local child abuse expert, ultimately forcing her resignation. My own posting about a report from their county assessor on the costs of misdiagnosis covers some of the group’s first public actions. The headlines from ABC Action News tell the larger tale:
Investigative journalist Pamela Colloff, in a first-rate article last winter in the New York Times (“He Dialed 911 to Save His Baby. Then His Children Were Taken Away“) weaves one family’s compelling story into an examination of the tensions between the physicians who diagnose abuse and the physicians who question the reliability of a Shaken Baby Syndrome diagnosis (now known as Abusive Head Trauma).
A couple of decades ago, after years tracking the footnotes through the medical literature, I concluded that shaken baby theory hit the courtroom before its scientific underpinnings were established, and then the pressures of litigation encouraged child-abuse experts to adopt and defend an early, flawed model of a complex physiological condition. The resulting convictions have calcified unproven core beliefs about both mechanism and timing. Parents of children with rare and misunderstood illnesses and injuries are still paying the price.
-Sue Luttner
If you are not familiar with the debate surrounding Shaken Baby Syndrome, please see the home page of this blog.
In Texas, where the House Criminal Jurisprudence Committee thwarted the Justice Department’s execution last month of convicted father Robert Roberson, the struggle between the governor’s office and the legislature is now playing out both in the courts and in the headlines.
Roberson was convicted in 2003 of murdering his 2-year-old daughter Nikki by shaking, a diagnosis accepted at the time even by his own defense attorney but now in question, both generally and in this case.
Days after the Texas Supreme Court stayed the execution in October, Governor Greg Abbott’s office filed a brief declaring that the legislative committee had “stepped out of line” by usurping the governor’s sole authority over executions (Texas Tribune treatment). Then Lieutenant Governor Ken Paxton issued a statement criticizing the critics and presenting his arguments for Roberson’s guilt. The Fox 4 News coverage summarizes:
“In a newly released statement, Paxton accused State Rep. Joe Moody, a Democrat from El Paso who chairs the committee, and Plano Republican State Rep. Jeff Leach of lying about the details in the case.
“The attorney general also argued for Roberson’s execution, saying evidence showed his daughter died from being beaten by her father.”
The Committee responded with its own refutation of the AG’s statement, which had included both a “jailhouse confession” rejected at the time by the prosecution as not credible and quotes from a witness whose testimony was contradicted by the medical records. Coverage from the Dallas Morning News, reprinted in the Union Bulletin, offered this observation,
“The News’ review found Paxton’s statement and recent court filings by lawmakers have deviated from the trial record by introducing allegations that were either dropped at trial, not presented by prosecutors or discussed when the jury was outside the courtroom.”
Meanwhile, Roberson has not yet testified in front of the legislature, blocked by AG Paxton (Texas Tribune coverage) as the jurisdiction struggle works its way through the courts. CNN reports that any new execution date will have to be set at least 90 days in advance, meaning Roberson can’t be executed during this calendar year.
The attorney general’s office has pushed back hard against Robert’s supporters. AG Paxton has called for the resignation of legislator Jeff Leach, who admits to having sent a personal email to a Texas criminal appeals judge on the subject, contrary to the rules for attorneys—his confession to the crime appears in the sidebar of this paragraph.
The legislators are arguing that the state consistently refused to take a second look at Roberson’s case despite the 2013 passage of a “junk science” law, Article 11.073, intended to let prisoners appeal their cases when advances in forensic science raise questions about their convictions. While the Texas law was the first of its kind in the nation, inspiring other states to adopt similar measures, critics maintain that Texas courts have resisted appeals filed under Article 11.073 (Texas Tribune coverage). The legislators say their goal is to look into how the law is being implemented
A Texas Court of Criminal Appeals ordered a new look at Roberson’s case in 2016, based on an Article 11.073 filing. The Innocence Project offers this summary of the proceedings that resulted:
“His case was sent back to the trial court, which conducted a nine-day evidentiary hearing in 2021. There, experts explained that SBS had been discredited and provided compelling evidence that Nikki died of natural and accidental causes. A pathologist testified that Nikki suffered from a severe form of undiagnosed viral pneumonia that has since been more widely understood due to COVID-19. Signs of Nikki’s advanced pneumonia were noted in her autopsy but, at the time, were unexplained. Tragically, unaware of Nikki’s pneumonia, her treating doctors prescribed her with high levels of prescription medication (found in autopsy toxicology results) that are now understood to be deadly in children of Nikki’s age and in her condition. And biomechanical evidence now shows that short falls like Nikki’s can cause severe injury and even death, an explanation for Nikki’s condition that was vehemently rejected by every medical witness who had testified at her trial
“The trial court ignored new evidence from six expert witnesses and rubber-stamped the prosecution’s 17-page proposed findings of fact and conclusions of law, which relied almost exclusively on the outdated scientific evidence introduced at the 2003 trial and conducted when the medical establishment accepted unquestioningly that the triad of intracranial conditions observed in Nikki could be used to ‘diagnose’ shaking and abuse.”
The state Supreme Court, which handles civil cases, is looking only at the jurisdictional dispute.
Meanwhile, three of the five criminal appeals court judges who approved Roberson’s execution in the past are leaving the panel this year, ousted in primary challenges pushed by Paxton. Depending on who is elected to fill those seats, the new court that must approve the execution could become either more or less sympathetic to defense arguments, as detailed by an analysis in the Texas Tribune.
Meanwhile, the public struggle has reignited the debate over shaking theory in the state, national, and international arenas:
An entertaining detail: The first Scientific American op ed listed above includes a quote in the near-final paragraph attributed to pioneering pediatric neurosurgeon Norman Guthkelch, the first person who proposed in print, in 1971, that shaking an infant without impact could cause subural hematoma. The authors report Dr. Guthkelch’s regret that his “friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent parents.” Although the article doesn’t identify the source of the quote, the highlighted text links to my 2013 posting on this blog, “Dr. Norman Guthkelch, Still on the Medical Frontier,” written after I travelled to interview him in person. The page includes video of key portions of our talk, so I guess the editors gave it the authenticity nod.
June 2025 update: The state has requested a new execution date for Robert Roberson, event though his case is still under appeal, according to KERA news in north Texas.
If you’re not familiar with the debate surrounding SBS/AHT, please see the home page of this blog.
Following a flood of media coverage and days of intense legal maneuvering, Texas father Robert Roberson is still alive, after the state supreme court issued a temporary reprieve minutes before he was scheduled to be executed last evening.
All of Robert’s appeals and petitions had been denied, but on Wednesday the Criminal Jurisprudence Committee in the state’s House issued a subpoena for Roberson to appear for a hearing next Monday, a move that raised a jurisdictional dispute and led to a series of motions, counter-motions, and, eventually, a stay, for now.
“The vast team fighting for Robert Roberson – people all across Texas, the country, and the world – are elated tonight that a contingent of brave, bipartisan Texas lawmakers chose to dig deep into the facts of Robert’s case that no court had yet considered and recognized that his life was worth fighting for,” Roberson’s attorney Gretchen Sween said Thursday night.
Roberson enjoys the support of the Innocence Project; a number of physicians, scientists, and attorneys who question the SBS hypothesis; a majority of the Texas state legislators; and his own friends and family as well as other wrongly accused families, autism and disability-rights groups, and attorney/novelist John Grisham.
Meanwhile, the case has triggered local, national, and international media coverage, shining a much-needed spotlight on the debate surrounding Shaken Baby Syndrome. Some of the news treatments:
Phoenix surgeon Jeffrey Singer, who is also a senior fellow in Health Policy Studies at the Cato Institute, has leapt into action, spurred by the looming execution of Texas father Robert Roberson, whose 2003 conviction was based on a diagnosis of Shaken Baby Syndrome (SBS).
In the few weeks since the state of Texas turned down Robert’s final appeal and confirmed an execution date of October 17, Dr. Singer has not only published an op ed in U.S.A. Today calling for a pardon but also organized an on-line Cato Institute symposium, open to the public, looking at the evidence underlying SBS/AHT theory.
“Regardless of one’s position the death penalty, it is evident that reasonable people with great expertise disagree regarding the plausibility of the SBS/AHT hypothesis,” he argues, “Therefore, we should all agree that the government should not execute someone based on the hypothesis while scientists are continuing to debate it.”
Hoping to assemble a panel of experts from both sides, Dr. Singer reports, he’d started contacting the physicians who’d signed the 2018 consensus statement supporting the prevailing model of SBS/AHT, but no one he’s reached has accepted his invitation to share a dais with critics of the theory. “One representative of the Child Abuse Pediatrics establishment went as far as to say that only clinical pediatricians are qualified to offer expert opinions on the subject,” he noted.
The Cato panel, therefore, features only consensus skeptics:
Emeritus law professor Keith Findley, founder of the Wisconsin Innocence Project and the force behind the pivotal Audrey Edmunds appeal
Radiologist Julie Mack, co-author of a paper this summer reporting on a videotaped short fall that caused subdural hematomas & retinal hemorrhages and a chapter in last year’s careful academic examination of SBS
Forensic pathologist Patrick Lantz, whose groundbreaking work has challenged both the specificity and the timing of retinal findings
The community of families affected by abuse misdiagnosis is encouraging anyone who can attend to register, in hopes that a large turnout will underscore the magnitude of the problem. You can also submit questions ahead of time on the event site.
The scheduled execution of convicted father Robert Roberson in Texas on October 17 has inspired a surge of activism from around the world by doctors, lawyers, scientists, journalists, non-profits, and families wrongly accused of child abuse.
This month in D Magazine, in a story titled “Will Texas Kill This Innocent Man?”, best-selling novelist John Grisham lays out the medical complexities of the case, concluding that Roberson’s daughter died of natural and accidental causes, not Shaken Baby Syndrome (SBS).
The Innocence Project has launched a last-chance public petition, and a coalition of wrongly accused parents in Europe, Adikia, has stepped up not only to gather signatures from families internationally but also to promote an on-line symposium on SBS early next month, organized by the Cato Institute in response to the scheduled execution.
In July, The New York Times posted a video opinion piece by Rev. Brian Wharton, once the detective in charge of the investigation and now an advocate for Roberson’s innocence.
Wharton didn’t know at the time, he says, that Roberson is on the autism spectrum, which explains the “flat aspect” that had seemed consistent with the abuse diagnosis. “No other possibilities for her injuries were considered,” he sighs. “I deeply regret that we followed the easiest path.”
Earlier this week, Roberson’s defense team filed a clemency petition with Texas Governor Greg Abbott and the Texas Pardons Board, pulling together the medical, scientific, and legal arguments against the execution and providing a collection of support documents from medical and legal professionals, political and civil liberty organizations, autism and parent-support groups, 84 members of the Texas House of Representatives, and the mother of a former classmate of Roberson’s who describes him as “a gentle soul.”
Robert Roberson, an Autistic Father Wrongfully Convicted and Sentenced to Death in Texas Based on the Debunked “Shaken Baby Syndrome” Hypothesis, Applies for Clemency to Stop his October 17th Scheduled Execution
Medical and Scientific Experts, Bipartisan Texas Lawmakers, Advocates for Parental Rights, Autism Organizations, Best-Selling Novelist John Grisham, Former Lead Detective Brian Wharton, Innocence Groups, the Texas Catholic Conference of Bishops, and Dozens of Others Urge Texas Pardons Board to Recommend, and Gov. Greg Abbott to Grant, Clemency
(Austin, Texas, Tuesday, September 17, 2024) Today, 34 eminent scientists and doctors, a bipartisan group of 84 Texas legislators, 8 advocates for parental rights, 8 organizations that advocate for people with Autism and their families, faith leaders, innocence advocacy groups, former judges, 70 attorneys who have represented people wrongfully accused of child abuse, and former lead detective Brian Wharton, among others, filed letters in support of Robert Roberson’s clemency petition to the Texas Board of Pardons and Paroles and Governor Greg Abbott. (Exhibits 7, 15-23.)
Mr. Roberson’s petition describes the new medical and scientific evidence that his jury never heard showing that no homicide occurred. Mr. Roberson’s two-year-old, chronically ill daughter, Nikki, actually died of severe viral and bacterial pneumonia that medical professionals missed in 2002, not because of any abuse. Her illness progressed to sepsis and then septic shock, a process likely precipitated by the dangerous respiratory-suppressing medications she was prescribed during her last days, all of which has now been established by detailed reports from highly qualified medical specialists.
No court has been willing to consider three new expert reports showing how Nikki died of pneumonia, proof that Mr. Roberson is innocent of any crime.
The power of Mr. Roberson’s innocence claim is attracting diverse and widespread support, including from best-selling novelist John Grisham, who said, “This isn’t a case where the system got the wrong guy, but rather one where no crime took place at all. Something must be done to stop Robert’s execution. Governor Abbott and the Board of Pardons and Paroles can prevent an irreparable injustice by granting him clemency.”
Brian Wharton, the lead detective in charge of investigating Nikki’s death who directed that Mr. Roberson be arrested based on a doctor’s Shaken Baby hypothesis made even before an autopsy was performed, and who testified for the prosecution at trial, has come to believe Mr. Roberson is innocent and has filed a letter of support, urging clemency.
“I will forever be haunted by the role I played in helping the State put this innocent man on death row,” said Brian Wharton. “Robert’s case will forever be a burden on my heart and soul. But it is not too late for Texas to change course and stop his execution. I sincerely hope that Governor Abbott and the Board will step in to do so.” (See also Exhibit 7.)
Mr. Roberson is scheduled for execution on October 17, 2024, and is at risk of being the first person in the United States executed based on the discredited “Shaken Baby Syndrome” hypothesis, unless the courts or Governor Abbott intervenes.
A combination of Nikki’s undiagnosed pneumonia, medications that suppressed her breathing, an accidental fall, and the medical triage undertaken after her collapse entirely explain Nikki’s condition.
Mr. Roberson’s clemency petition states:
“Nikki’s death … was not a crime—unless it is a crime for a parent to be unable to explain complex medical problems that even trained medical professionals failed to understand at the time. We now know that Nikki’s lungs were severely infected and straining for oxygen—for days or even weeks before her collapse. A recent reexamination of lung tissue collected during her autopsy has revealed that both a chronic interstitial viral pneumonia and a secondary acute bacterial pneumonia were ravishing her lungs, causing sepsis and then septic shock.
“In the days before her collapse, Robert repeatedly took Nikki to the local Emergency Room (ER) and to her pediatrician in rural Palestine, Texas, seeking help. But unaware of her severe pneumonia, doctors sent her home with medications that would only have made her condition worse. As an expert in medical toxicology has now explained, the medications prescribed to her—Phenergan (the brand name for promethazine) and codeine—would only have further suppressed Nikki’s ability to take in oxygen. Codeine is a narcotic, not recommended for anyone under age eighteen; Phenergan now has FDA “black box warnings” against prescribing it to children Nikki’s age and in her condition precisely because it can suppress breathing and result in death. These potent, respiratory-suppressing drugs certainly were not designed to treat a toddler’s severe respiratory illness, i.e., pneumonia.” (Petition at pp. 4-5.)
On the night of January 30, 2002, Mr. Roberson heard a “strange cry” and woke up to find Nikki lying on the floor at the foot of the bed. Mr. Roberson comforted Nikki and wiped a small speck of blood off her mouth but did not observe anything else wrong. They eventually fell back asleep. But when he woke up a few hours later, Mr. Roberson found Nikki unconscious with blue lips. He was horrified and tried to revive her. Then he took her to the ER.
More than 30 medical and scientific experts have written to the Board of Pardons and Paroles stating:
“There was no differential diagnosis undertaken at that time because, in 2003, presuming abuse was recommended pursuant to the Shaken Baby Syndrome hypothesis, then treated as medical orthodoxy. Today, no reputable medical doctor would fail to conduct a thorough, multi-disciplined exploration of all possible causes of death because it is now known that many phenomena—including accidental short falls and naturally occurring disease—can cause the same intracranial conditions that ‘mimic’ inflicted head injury.” (Petition at Exhibit 15.) If Nikki died today, instead of presuming Nikki’s condition was caused by abuse, no doctor would consider Shaken Baby Syndrome as the cause of Nikki’s death because SBS is now considered a diagnosis of exclusion; Nikki’s pneumonia, the extreme levels of dangerous medications found in her system during her autopsy, and her fall from the bed explain why Nikki died.
Mr. Roberson’s Autism – which was not known to the hospital staff and was not diagnosed until 2018 – played a pivotal role in the rush to judgment in his case.
Hospital staff interpreted Mr. Roberson’s seemingly blank reaction to Nikki’s serious condition as callousness, when in fact his Autism explained his non-neurotypical response to the emergency. (Petition at Exhibit 17) (Letter of support from eight state and national advocacy groups for people with Autism and their families.)
“Robert Roberson’s Autism, which affects social and emotional processing, led to a lack of visible emotional response—a characteristic misinterpreted during his trial as a sign of guilt,” said Christopher Banks, President and CEO of the Autism Society of America. “This tragic misjudgment, combined with the absence of expert testimony on Autism, culminated in a wrongful conviction, in which we urge Governor Abbott to grant clemency.”
“The prosecution’s reliance on misjudgment and bias against Mr. Roberson’s Autistic behavior suggests a rush to judgment substantially influenced by criminalizing disability,” said Jacquie Benestante, Executive Director of the Autism Society of Texas. “We are calling for justice and clemency, urging Governor Abbott and the Board of Pardons and Paroles to consider the compelling evidence and prevent a wrongful execution.”
A bipartisan group of 84 Texas lawmakers wrote the Board separately this week, urging it to recommend clemency for Mr. Roberson “out of grave concern that Texas may put him to death for a crime that did not occur.”
The lawmakers emphasized that, more than 10 years ago, the Texas House unanimously passed a law to allow challenges to convictions based on disproven or incomplete science. They have been “dismayed to learn that this law has not been applied as intended and has not been a pathway to relief – or even a new trial – for people like Mr. Roberson. In his case, significant scientific and medical evidence now shows that his daughter Nikki, who was chronically ill, died of a combination of natural and accidental causes, not the debunked shaken baby syndrome hypothesis the State used to convict Mr. Roberson.” (Exhibit 16.)
The lawmakers further emphasized that the House also passed a law in 2021 “which now ensures that parents have the right to a second expert medical opinion after allegations of child abuse. Had these events occurred today, Mr. Roberson would have been legally entitled to an additional medical review at his request.” (Exhibit 16.)
Eight advocates for parental rights wrote to the Governor and the Board that Mr. Roberson’s case “demonstrates a shocking disregard for his parental rights.” They explained:
“Abuse was the default – and wrong – assumption before any determination was made about Nikki’s medical condition. Mr. Roberson was viewed with suspicion from the outset because of symptoms associated with his then-undiagnosed autism spectrum disorder.
“Because of these egregious factors, Mr. Roberson was denied the ability to see Nikki in the hospital, and he was arrested before an autopsy was even performed. What’s more, Mr. Roberson was not advised of any end-of-life decisions being made for Nikki despite having full custody … Clemency is necessary to prevent the irreparable harm of executing this innocent parent.” (Exhibit 18.)
Mr. Roberson’s clemency petition includes numerous letters of support from his spiritual advisors, friends, and supporters who attest to his faithful, peaceful and loving nature.
He has completed some 60 different Bible study courses and has had a virtually pristine disciplinary record during his many years in prison. Because of his record of peacefulness, he was selected to be in the very first faith-based program on death row. In addition, he was one of only 13 men selected to participate in an experimental “group rec” program that allowed him to move freely on the pod with others determined to be no threat to anyone. (Petition at p. 38, 52.) Many people attest to his empathy and concern for others over himself. For example, his spiritual advisor, Donna Drake Farmer, has written that Mr. Roberson’s support for her while she was caring for her dying husband gave her peace and that Mr. Roberson “probably knows more of my concerns and worries than my birth children do.” (Petition at p. 56, Exhibit 23.)
An overview of Robert Roberson’s innocence case is here.
A photo of Mr. Roberson can be accessed here. Source: Roberson Family.
Watch New York Times Opinion Video showing meeting between lead detective Brian Wharton and Robert Roberson here.
A bold new book from Cambridge University Press assembles, in one passionate collection, the fundamental arguments for reconsidering 50 years of shaken baby convictions, Shaken Baby Syndrome: Investigating the Abusive Head Trauma Controversy.
The authors, 32 experts with impeccable credentials from a range of medical, mathematical, scientific, and legal specialties, bring both years of experience and a fresh, international perspective to the debate.
One chapter, for example, opens with a personal anecdote from retired Norwegian neurosurgeon Knut Wester, who has a scientific interest in external hydrocephalus. Asked his opinion in a shaking case, he writes, he was surprised to receive images that looked like a familiar presentation of Benign External Hydrocephalus (BEH) complicated by bleeding. His report convinced the court to drop the charges. Then he was asked his opinion in a second case, and again the images looked like BEH with bleeding. Swedish neuroradiologist Johan Wikström, Wester’s co-author on this chapter, shares his own parallel experience, all as a preface to their examination of the medical and statistical facts suggesting that BEH can be and often is misdiagnosed as SBS/AHT.
In a companion chapter, the two collaborate with pediatric neurologist Joseph Scheller in the US on a groundbreaking survey of neuro-imaging in the child-abuse literature. Their findings appear in this book for the first time anywhere. The implications, as the authors write, are “frightening.”
The book also brings a level of rigorous mathematical analysis to the SBS/AHT research I’ve never seen before.
A chapter by mathematician Leila Schneps at the French National Center for Scientific Research (Centre national de la recherche scientifique), for example, explores the logical and numerical errors in a seminal 1991 article [1] from the Children’s Hospital in San Diego, in which researchers advised that parents who report “short indoor falls” to explain serious injuries are lying.
Schneps has already published a broader look at the short-fall literature [2], where she found one study [3] that not only reported a few deaths following short falls but noted that some of the children could have been saved with prompt medical attention. In this book, Schneps takes a deeper dive into the San Diego analysis, concluding, “These articles claiming that short falls cannot cause serious harm are not only dangerous, but they are wrong.”
Similarly, British mathematician Norman Fenton and Australian health-information technologist Scott McLachlan devote their chapter to a “causal Bayesian network model,” to examine the methodology of the “Cardiff study” [4], a meta-analysis that combined data from six individual studies to build a tool for confirming a shaking diagnosis based on medical findings.
In its conclusion, the Cardiff paper offered itself as a rebuttal to Deborah Tuerkheimer’s 2009 law review article positing that the scientific underpinnings of shaking theory had crumbled. Rather, the Cardiff authors wrote in 2011, their analysis “confirms the association of AHT with specific combinations of clinical features.” Fenton and McLachlan’s modeling, however, reports “strong biases and errors” built into that work.
Meanwhile, medical ethicist Niels Lynøe and forensic medicine specialist Anders Erikssøn contributed a chapter on their own examination of the SBS controversy, inspired by the “massive and surprisingly critical international reaction” to a literature review they worked on in 2014-2016 for the independent Health Technology Assessment authority in Sweden (SBU in English).
Lynøe and Erikssøn had served on a team of SBU research experts who looked only at the study designs in the SBS literature, focusing on the question: ”With what certainty can it be claimed that the triad, subdural hematoma, retinal hemorrhages and encephalopathy, is attributable to isolated traumatic shaking (i.e. when no external signs of trauma are present)?”
Citing the prevalence of circular reasoning in the studies, the team concluded that there was “insufficient evidence on which to assess the diagnostic accuracy of the triad,” triggering a flood of denunciations from the community of child abuse experts. After studying the content of the literature, and the criticisms of their work, Lynøe and Erikssøn now report that proponents of SBS theory disagree with skeptics not only about whether and how shaking leads to the triad but about “whether there is a controversy over SBS/AHT at all.” Having experienced the controversy first hand, they suggest that this denial may be “a symptom of a crisis within the prevailing AHT research field.”
Key to pulling together this international team was French neuroscience researcher and software engineer Cyrille Rossant, whose son was diagnosed as a shaken baby seven years ago—see his blog posting about his experience. (If you or a family member has been interrogated in one of these cases, please see my earlier posting about Rossant’s request for letters.)
The book also includes veteran voices in the arena—like Innocence Project founder Barry Scheck, who defended “Boston nanny” Louise Woodward in the case that brought shaken baby into the headlines in 1997. Scheck’s foreword offers a readable summary of the evidence and testimony that presumably informed the judge’s decision, after Woodward’s second-degree murder conviction, to reduce the charge to manslaughter and set the sentence to time served.
Law professor Keith Findley, a key player since he won a pivotal appeal in 2008 on behalf of child care provider Audrey Edmunds, is surely the most qualified attorney in the arena to have written the chapter on appealing SBS cases, and he brings an insider’s view to his analyses of the confession research as proof of SBS theory and the challenges of cognitive bias.
And of course neuropathologist Waney Squier (winner of the Innocence Project Champion of Justice Award in 2016), in collaboration with forensic pathologist Tommie Olofsson at Uppsala University Hospital, provides a readable overview of the neuropathology of SBS/AHT, addressing some of the misconceptions propagated in the child-abuse literature.
A chapter Squier co-authored with radiologist Julie Mack examines the imaging of the most common brain findings in SBS/AHT cases, with commentary on what isn’t yet understood and the limitations of what imaging can reveal.
The chapter on scientific evidence in the courtroom, by public defense attorney Kathleen Pakes, caught me by surprise, flatly rejecting courtroom testimony from a physician about mechanism of injury.
In conversation Pakes says, “If these were civil cases, if we were Monsanto or Dow Chemical and we had the money to question the science, this stuff would never be allowed.”
Pakes is more restrained in print, where she addresses the difference between a doctor’s ability to identify and treat a medical condition and that same doctor’s ability to divine what caused the condition—a distinction that’s been pivotal in employee-injury and product-liability litigation. Pakes also reviews the circular reasoning in the literature, the questions raised by biomechanics research, and the subjective nature of the diagnosis, concluding, “a consistent application of governing legal principles would exclude opinion evidence purporting to ‘diagnose’ SBS/AHT.”
And there’s lots more–the international statistics, for example, and the histories of SBS in the Swedish and Japanese courts; Marta Cohen on misdiagnosis of SIDS. This book deserves more coverage than I have room to give it in one posting. If you are an attorney working in this vital, complex, divisive arena, or anyone trying to figure out what’s going on, you need to read Shaken Baby Syndrome: Investigating the Abusive Head Trauma Controversy.
The ebook is now available for download. The hard copy seems to be shipping in the U.K., but I haven’t seen the copy I pre-ordered some weeks ago on the US site. Click the button below for a downloadable coupon for 20% off if you order directly from the Cambridge University Press.
(1) Chadwick DL, Chin S, Salerno C, Landsverk J, Kitchen L. Deaths from falls in children: How far is fatal? Journal of Trauma. 1991;31(10):1353–5 (Abstract)
(2) Schneps L, Rossant C. Chutes de faible hauteur et syndrome du bébé secoué, erreurs numériques et logiques. In Hématomes sous-duraux et collections péri- cérébrales du petit nourrisson. B. Échenne, A. Couture, G. Sébire, eds. Sauramps, 2020, pp. 299–328 (English translation)
(3) Hall JR, Reyes HM, Horvat M, Meller J, Stein R. The mortality of childhood falls. Journal of Trauma. 1989;29(9):1273–5
(4) Maguire S, Kemp A, Lumb R, et al. Estimating the probability of abusive head trauma: A pooled analysis. Paediatrics. 2011;128(3):e550–e564 (Abstract)
copyright 2023 Sue Luttner
If you are unfamiliar with the controversy surrounding SBS/AHT, please see the home page of this blog.
Neuroscientist Cyril Rossant and astrophysicist Chris Brook have published a telling analysis of the “environment and conditions” of police interrogations in AHT cases, from a survey of 97 French families accused between 2004 and 2021. Their paper, in the journal Forensic Science International: Synergy, concludes that confessions and partial confessions elicited from parents by police are not reliable.
The researchers say they are hoping that families who recognize their own experiences in the paper will write letters to the editor.
“We feel multiple follow-up letters will add a powerful element to the project—equally important to the article itself,” Chris Brook wrote to this blog. The letter can be any length, he said, “from a short note that they had similar experiences to a detailed account with examples. Even a single paragraph will amplify the message.”
One part of the survey asked these specific questions about the interrogations (translated from the French, with labels used in the data analysis):
The authors also encourage attorneys who have handled AHT cases to contact the journal with their own stories from their own countries.
You will have to create an account with Elsevier, the publisher, which is simpler if you also create an account with Open Researcher and Contributor ID (ORCID), a non-profit dedicated to connecting researchers and their infrastructure. Both accounts are free and require no institutional affiliation. The author-guidelines page provides the necessary links. When asked for personal “keywords,” I put in phrases like “SBS,” “Shaken Baby Syndrome,” “AHT,” and so on. When submitting your “manuscript,” you will choose “Letter to the Editor” from the pop-up menu as the document type.
Feb. 14 update: To submit my letter, I had to create and upload three files:
A title page containing a title for the letter and my contact information
The letter itself, with no author identity revealed
A statement of potential conflicts of interest—the site offers a tool that creates a file in the format they want
The journal is likely to publish only a sampling of the letters, Brooks cautioned, but a large number of letters will get the editors’ attention, and boost the number published.
“We feel multiple follow-up letters will add a powerful element to the project—equally important to the article itself.”
-Chris Brook
The paper argues that child abuse pediatricians should not rely on the confession research to validate their model of abusive head trauma, because the confessions tend to be exacted by investigators who accept the diagnosis they’ve been given by the doctors.
Based on what they were told by police, the paper notes, parents saw little hope of proving their innocence, leaving them with a number of reasons to offer a full or partial confession, including:
hope for a reduced sentence
expectation that children would be returned to the other parent
a desire to stop the accusations against a partner
a desire to end the expensive, painful, and presumably hopeless legal proceedings
hope for eventual reunification
Note: If your case is still in litigation, check with your attorney before making any public statements.
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.
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.”
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)
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.
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.
Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome, now shipping from Academic Forensic Pathology International.
Papetti is not a criminal attorney but a recognized leader in his primary field, commercial litigation. In 2013, he was selected by Best Lawyers and his local peers as the Lawyer of the Year for “Bet-the-Company Litigation.” In 2011, he was inducted into the invitation-only American College of Trial Lawyers. His shaken baby work has all been pro bono.
Randy Papetti
Papetti was only doing a favor for a friend, he told me in a telephone interview, when he agreed to help with his first alleged shaking case, an appeal of a murder conviction. The convicted father had reported a fall from a high chair, but the child abuse experts had insisted that shaking must have been involved. Papetti started researching the medical and legal arguments, he said, and found himself face to face with the difference between medical opinion and proven scientific fact.
Drayton Witt and his wife, courtesy Arizona Justice Project
Papetti won that appeal, and other attorneys started approaching him with their own shaking cases. He was a key player in the 2012 freeing of Drayton Witt, whose son died after a short lifetime of serious health problems, including a seizure disorder. It was the Witt case that brought pioneering pediatric neurosurgeon Dr. Norman Guthkelch back into the arena, four decades after he lay the groundwork for the diagnosis by proposing that shaking an infant could cause subdural bleeding. Like Papetti, Dr. Guthkelch rejected the medical thinking that had convicted Drayton Witt. Guthkelch then spent the final years of his life fighting what he considered a “tragic misinterpretation” of his work.
“Witt was a powerful case,” Papetti said. “It showed how easily a mistaken diagnosis based on the ‘triad‘ can convict.” By then law professor Deborah Tuerkheimer had published her first journal argument against shaking theory, and her New York Times op ed. Papetti thought the tide was turning. “The information was out there, people could see that shaking theory was unreliable.”
Instead of reconsidering their model, however, proponents of shaking theory “took a course I never imagined they would be able to take, claiming there never was a triad,” Papetti marveled in our interview. In his book, he noted that changing the name of the diagnosis from “shaken baby syndrome” to “abusive head trauma” did not address the fundamental problem that the entire theory was speculation. “It merely changed the diagnosis’ name for legal purposes.”
Papetti said he was “stunned” to see how child abuse professionals have lashed out personally at defense experts and attorneys: ridicule at conferences, perjury charges, letters to employers. “That’s not the way the game is played,” he said. Attorneys in civil practice fight hard in the courtroom, he claimed, but can still respect their opponents professionally and maintain personal friendships.
In his book, Papetti traces the evolution of shaking theory in both the medical literature and the courts. He illustrates how the two have co-evolved, distorting each other, and he examines the cooperative relationship among child abuse experts, the police, and social services. He writes:
These institutional realities, not science or clinical validation, best explain how SBS has persisted and why the medical profession is unlikely to correct it any time soon.
“Things tend to get worse before they get better,” he told me, “And I’m afraid that’s where we are now, still getting worse.” At this point, proponents of shaking theory staff the medical schools and the childrens’ hospitals, dominate the professional organizations, and conduct the bulk of the research. Critics tend to be independent thinkers who have researched the literature and reached their own conclusions. “The imbalance of power has distorted everything completely,” Papetti said. “At the end of the day, are you really asking a judge to not allow the testimony of these luminaries because a few brave souls disagree?”
So he keeps chipping away at a calcified theory with the facts, hoping to explain it all clearly enough that judges will see how decades of unproven medical testimony have led to a criminal justice crisis of staggering proportions.
Instead of reconsidering their model, however, proponents of shaking theory “took a course I never imagined they would be able to take, claiming there never was a triad,” Papetti marveled in our interview. In his book, he noted that changing the name of the diagnosis from “shaken baby syndrome” to “abusive head trauma” did not address the fundamental problem that the entire theory was speculation. “It merely changed the diagnosis’ name for legal purposes.”
On Shaken Baby 