Tag Archives: Rene Bailey

Good News, Bad News: the Tragedies Continue

Attorneys Khari Tillery & Paige Kenab, exonerated father Zavion Johnson  -photo courtesy Northern California Innocence Project

After maintaining his innocence for 17 years, a California father was freed this winter when Sacramento Superior Court Judge James Arguelles overturned his murder conviction, citing evolving medical thinking about infant head trauma.

Zavion Johnson said in 2001 that he had accidentally dropped his 4-month-old daughter Nadia in the bathtub, but he was convicted by medical testimony that the girl had been shaken to death. Then, in the years since his trial, two of the prosecution experts changed their positions. Prompted by Khari Tillery, a private attorney working pro bono, and Paige Kenab of the Northern California Innocence Project, both doctors provided affidavits saying they now believe a household fall could explain the child’s injuries.

The prosecution’s own filing in the case recognized that the original medical testimony, now recanted, had been key to Johnson’s conviction. In an excellent treatment of the exoneration, Sacramento Bee reporter Darrell Smith quoted a juror who said the panel had relied entirely on the medical evidence:

“All of the doctors said these injuries to Nadia could only have been caused by severe shaking of the baby… One doctor after another, they presented this united front that the medical evidence speaks… We agreed that it didn’t seem to fit him [Johnson]. He really loved his baby and took care of her. We felt he did do it, but that it was badly out of character.”

Zavion Johnson & Paige Kenab

Zavion Johnson was accused at the age of 18, released at 34. Because the jury believed the doctors over Johnson—and over 13 character witnesses, including the child’s mother—he has spent almost half his life, all of his adult life, behind bars. In an email after his release, celebrating the many people who had donated their time and expertise to the appeal, Kenab wrote, “Zavion took his first hot shower since he was 18 years old last night, laid down in a real bed with a real pillow, and from the moment he walked out, told us over and over again how different the air smelled. Thank you.”

The case was closed in January of 2018, when the state dismissed all charges, according to J0hnson’s entry in the National Registry of Exonerations.

Tiffani Calise reported a bathub fall

I’m eager to see this new thinking at work on behalf of other innocent parents and caretakers convicted by flawed testimony about short falls—like the six people I wrote about in my 2014 post Short Falls, Long Sentences, who all remain in prison.

I see progress, but it’s slow and halting. Child care provider René Bailey in New York was released from prison in 2014, when Judge James J. Piampiano vacated her murder conviction, citing what he called “a compelling and consequential shift in mainstream medical opinion” about pediatric short falls. Unlike Johnson’s prosecutor, however, Bailey’s refiled the charges.

Prof. Adele Bernhard

On the eve of a scheduled retrial last summer, Bailey agreed to a plea deal that avoided the risk of a second conviction and more jail time. Under what’s known as an “Alford plea,” Bailey stated in open court that she was pleading guilty to assault because she believed the state would be able to prove its case against her at trial. “She was not forced to say she did something she didn’t do,” pointed out her attorney, Prof. Adele Bernhard, director of the New York Law School Post-Conviction Innocence Clinic. “This is a compromise and not a very happy one,” Bernhard conceded, “but one that allows René to move on with her life and start to move forward.”

The court accepted Bailey’s plea and set a sentence of 12 and a half years, less than the 13 years she had already served, so she remains free but on probation.

In New Jersey, meanwhile, a panel of appeal judges has upheld the conviction of Michelle Heale, a mother and babysitter who said the toddler in her care had choked on a packet of applesauce. Her conviction was based on the triad, with no signs of impact.

In Kentucky, a young man has been sentenced to eight years in prison after accepting a plea deal—the newspaper report says he was accused of shaking but doesn’t specify the charges. He had reported an accidental fall.

Sarah Martin in happier times

And I’ve recently come across a 2016 murder conviction in Oregon, where mother and babysitter Sarah Martin is serving a life sentence for the death of a 7-month-old who quit breathing in her care. She said she thought the boy had choked on a whole grain snack.

On the bright side, a judge in North Carolina dropped murder charges against a Marine veteran who had been in jail for more than five months, after a local pathologist contacted the district attorney to say the man’s daughter had died of a rare heart condition. The video (click on the arrow in the opening image on the WFMY page) continues beyond the end of the text version, after this provocative statement from defense attorney Taylor Brown:

“It is extremely frightening to know that this could happen to anybody. And in fact if you spend 10 minutes on the Internet, you will find out that it is happening all over the country,” he said.

Reporter Erica Harper says she took that advice and found a number of disputed cases on line—the graphics show browser listings for a few of the classic critiques of shaking theory, like the NPR interview with Dr. Norman Guthkelch; the 2016 Washington Post exposé; and the Time magazine treatment of the Annie Li case in New York.

But none of these treatments seems to have had a noticable impact, any more than Lee Scheier’s 2005 treatment in the Chicago Tribune, Emily Bazelon’s 2011 treatment in the New York Times, or the 2011 collaboration among ProPublica, PBS “Frontline,” and NPR—all of which I’d hoped would help wake up the world to the ongoing injustice.

Because short falls are a theme of this posting, I end it with a video demonstration prepared by emeritus physics professor Richard Reimann, who used  an SBS demonstration doll to illustrate one difference between shaking without impact and a short fall. See also his analyses of various fall scenarios, with excellent illustrations.

copyright 2018, Sue Luttner

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

 

 

 

 

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Shaking debate back in the courts and in the news

uphill-gunnThe landscape in the shaken baby debate is shifting again, with a series of developments that have locked in gains, slowed losses, and even claimed new ground in the struggle against unproven science in the courtroom.

In New York state last week, an appeals court affirmed the 2014 reversal of the murder conviction of care provider René Bailey, who said she was out of the room when a little girl jumped or fell from a chair. Prosecution experts had testified, however, that only shaking could explain the brain findings, and that children don’t die from short falls. In his decision reversing the conviction, Judge James Piampiano accepted the argument by Bailey’s appeal attorneys that changes in medical thinking since her 2001 trial constituted new evidence.

Last week’s ruling rejected an appeal by the state, noting that “advancements in science and/or medicine may constitute newly discovered evidence” and explicitly mentioning the evolving SBS research. Coverage in the Democrat and Chronicle led with the optimistic proclamation:

“For the first time, a New York appellate court has ruled that evidence once used to convict people in shaken-baby cases may no longer be scientifically valid.”

That same evidence failed earlier this month to convince a South Dakota jury, which found Aaron Bruns innocent of murdering his 3-month-old son Levi in what appears to be a pure shaking case. Coverage in The Daily Republic offers this summary of the father’s report:

During the trial, Bruns said he thought Levi was choking, so he quickly picked him up and tipped him upside down to clear his airway. Five minutes later, according to Bruns, Levi turned pale, and his eyes rolled to the back of his head, leading Bruns to run him to a nearby hospital.

fox9Other individual victories seem to have triggered a resurgence of press coverage highlighting the controversy. In Minnesota, for example, reporter Tom Lyden at Fox 9 pulled together a provocative treatment with the title “Critics, parents, question diagnosis of shaken baby syndrome,” featuring a local father acquitted at trial; a family whose own experts convinced the county to drop charges; and a mother now fighting the loss of her son. The treatment closes with a statement from the American Academy of Pediatrics (AAP), which persists in shifting the question from whether the brain findings prove abuse (No, they do not) to whether shaking is even dangerous (Yes, of course it is):

“There is no legitimate medical debate among the majority of practicing physicians as to the existence or validity of AHT/SBS…  Claims that shaking is not dangerous to infants or children are not factual and are not supported by AAP policy, despite being proffered by a few expert witnesses in the courtroom.”

presidentialsealThe assertions of the AAP notwithstanding, the real uncertainties about shaken baby theory were acknowledged this fall, briefly but officially, in a presidential report on forensic sciences in the courtroom, undertaken in the wake of the 2009 study that found “serious deficiencies” and called for “major reforms” of the nation’s forensic science system. The follow-up report, published this fall by the President’s Council of Advisors on Science and Technology (PCAST), notes that DNA evidence has disproved past forensic techniques like bite-mark matching and visual hair analysis, and it recommends strategies for bringing courtroom testimony in line with scientific knowledge. Footnote 15 cites an “urgent” need to examine shaken baby theory, which has not been addressed in past studies:

“PCAST notes that there are issues related to the scientific validity of other types of forensic evidence that are beyond the scope of this report but require urgent attention—including notably arson science and abusive head trauma commonly referred to as ‘Shaken Baby Syndrome.'”

For my posting on arson science, please see “Bad Science Goes Up in Smoke.”

SquierProfileNoCaptionAll these developments come in the same season as the decision to reinstate Dr. Waney Squier’s right to practice medicine, and the release of a literature review by a panel of Swedish scientists who concluded that shaken baby theory has not been proven, both of which have generated international news coverage. New Scientist, for example, published a news report about the Swedish study, with a sidebar on Dr. Squier’s case and a promo that nailed the character of the debate, calling it “toxic and polarised.”

The ripples are still spreading in the wake of Dr. Squier’s reinstatement. Even non-subscribers can give a thumbs-up to the letters to the BMJ in support of her, submitted by Michael Birnbaum, QC, and, further down the page, Dr. Jennian Geddes. I’m told our clicks will help the editors understand the scope of the problem. (If you haven’t done so yet, you can also go give a thumbs-up to the earlier letters from a group of more than 250 professionals and from pediatric radiologist David Ayoub.)

The Sunday Times last week published a more detailed treatment of Dr. Squier’s story than appeared in the early news reports—you have to register with the Times to see the article, but the process is free and reasonably painless.

Leo Ackley's Facebook profile shot not long before the accusations

Leo Ackley

The past few weeks have also brought a number of disappointments—in Michigan, a second trial resulted in another guilty verdict against Leo Ackley, whose first conviction had been vacated on appeal, and an appeals court affirmed the conviction of Joshua Burns, who has served his jail time and reunited with his family, although he remains on probation. Both appeals had been pressed by the Michigan Innocence Clinic, which has been focusing on shaking cases.

Leo Ackley’s family insists they will keep fighting for him, and last month the Michigan Innocence Clinic won a grant to help defend clients who may have been wrongfully convicted in shaking cases. Despite two disappointments this season, the clinic will surely keep up the pressure against a flawed theory that’s been winning in court way too long.

I hope the press, the public, and professionals in the arena stay tuned as the debate unfolds.

copyright 2016, Sue Luttner

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

 

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Appeals All Over the Map, as Usual

While the appeals on behalf of care providers Jennifer Del Prete and René Bailey work their ways through the courts, a number of other painful cases have been passing milestones without news coverage.

Hopes Dimmed in the West

Robert and Gabriel Wilkes, 2008

Gabe and Dave Wilkes, 2008, courtesy the Wilkes family. “He was a proud father” -Tony Wilkes

In the “exasperating” category is an April 2 decision in Montana, where a district judge has rejected an Innocence Project petition to reopen the case of  single father Robert James “Dave” Wilkes, convicted in 2009. As described in past news coverage of the case, Wilkes had spent the day moving into a new apartment, and then stopped by the unit of a friend and neighbor who had been caring for 3-month-old Gabriel. He stayed and chatted while feeding the boy a bottle. Wilkes says that a few minutes after the two returned to their own apartment, Gabriel made a “gurgling” noise and quit breathing. At the hospital, though, doctors said the presence of the triad proved the child had been shaken.

The appeal argued that Wilkes had ineffective assistance of counsel, because his trial attorney had called  only one witness, Wilkes himself, who told the jury his version of what happened that evening. But the jury also heard from nine prosecution experts, who agreed that little Gabriel couldn’t have drunk a bottle after the presumed assault. Remarkably, the district court overlooked this imbalance, noting that the attorney had tried to find a defense expert, and in fact had contacted forensic pathologist Dr. Thomas Bennett, a “recognized expert in child abuse”—who had agreed with the state’s doctors.

EdgesOfTruthOne fundamental problem here is that if the defense attorney had done his research, he never would have contacted Dr. Bennett with a shaking case: Dr. Bennett’s over-diagnosis of shaking injuries triggered one of the first high-profile articles questioning shaken baby syndrome in the courtroom, the 1998 piece by Mark Hanson in the ABA Journal, “Why Are Iowa’s Babies Dying?” As also reported in the Los Angeles Times, Dr. Bennett ultimately resigned his post as state medical examiner after a series of unsupportable shaking diagnoses. The eventual exoneration of babysitter Mary Weaver was part of his unraveling.

Still, Judge Ed McLean of the Montana Fourth Judicial District agreed in his written opinion (Wilkes 2014-04-02) with a lower court that the trial strategy had been reasonable and that “any assertion that the mere presence of an expert for the defense would have made a difference… is mere speculation.” Judge McLean’s decision also dismissed new opinions offered in the petition from an array of medical experts for the defense, although attorney Brendan McQuillan from the Montana Innocence Project insists his team “found and presented new evidence never discovered before or after trial that the child had neonatal-hemochromitosis, a rare liver disorder which is most often fatal.”

Clearer Thinking in Maryland

Illustrating the unpredictable nature of these appeals, a Maryland circuit court reached the opposite decision just a few days later in a similar case, overturning the 2010 conviction of Gail Pinder Dobson, a child care provider with both a long history and a sterling reputation in her community before she was accused of shaking a 9-month-old baby to death. Dobson had in fact taken care of the infant’s mother when she was a baby decades earlier.

dobson

Gail Dobson, 2009

Like Wilkes in Montana, Dobson reported that a few minutes after she fed the boy a bottle, he made a “gurgling” sound and stopped breathing. She attempted first aid and dialed 911, but the boy died later that day. Soon after Dobson’s indictment in November of 2009, her attorney contacted a single expert witness, who supplied his report at the end of July for an August trial:  He agreed with the state’s physicians that the infant had suffered an inflicted injury just before the 911 call. Although Dobson’s trial featured a number of character witnesses, her attorney did not call any medical experts, with the explanation that “Petitioner denied any type of abuse and her credibility should have been sufficient.”

In Dobson’s case, though, the court concluded that the attorney “did not use reasonable diligence” by not getting the doctor’s opinion in time to find an alternative expert. The state argued that Dobson’s attorney was employing a legitimate trial tactic, but the judge wrote, “[The attorney’s] assertion that he did not need expert testimony is both illogical and untenable. Such testimony would have both corroborated Petitioner’s version of the facts and refuted the testimony of the State’s experts.” You can read the decision, by Kent County Circuit Court Judge Paul M. Bowman, at Dobson -Kent County, 2014-04-07.

A Long, Lonely Road in Tennessee

russellMaze

Russell and Alex Maze, 1999

I was especially sad to hear that the U.S. Sixth Circuit Court of Appeals has denied the habeas petition of convicted father Russell Maze, now serving a life sentence for the death of his son Alex, only five weeks old and still days short of his due date the afternoon in 1999 that Russell claims he found the boy gasping for breath in his crib. Alex had been born in respiratory distress, with the umbilical cord wrapped tightly around his neck, and he spent his first two weeks of life in the intensive care nursery. A few days before his collapse, his parents had taken him to the after-hours clinic, where they were told they were being over-anxious first-time parents.

Maze’s case history is complex. His prosecutor at two trials was Brian Holmgren, an advisory board member of the National Center on Shaken Baby Sydnrome and the co-author of a passionate essay last year in the Utah Law Review decrying the minority opinion in the Shirley Ree Smith case.

Dropped Before Trial

Finally, in Washington state, a welcome outcome that short-circuits the need for an appeal later: Charges have been dropped against a young father after a prosecution motion that said staffing shortages had precluded their dealing with the case in a timely manner. Charges were dropped without prejudice, so the state could refile, but defense attorney Chuck Henry said he doubts they will revisit, as both the evidence and the handling of the case were inadequate. “This case was truly more about prosecutorial case mismanagement than it was about SBS, which never existed in the first place,” he summarized.

copyright 2014 Sue Luttner

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

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