Unexplained Fractures in Infants and Child Abuse: The Case for Requiring Bone-Density Testing Before Convicting Caretakers
Brigham Young University Law Review
By Matthew B. Seeley
Ultimately, researchers may have little power to prove or
disprove by direct evidence whether child abuse is the cause of
unexplained infantile fractures in a given case because of ethical and
practical constraints. Medical practitioners do, however, have the
technology to prove, by direct evidence and with a high degree of
accuracy, whether a given infant with fractures has low bone density
that may have predisposed the child to fractures during nonabusive
handling. Mandating the use of this commonly available and
relatively inexpensive technology would close a major evidentiary
gap, which, ironically, allows room for both innocent caretakers to
be convicted and guilty caretakers to be acquitted. Our
understanding of nonabusive conditions that can mimic child abuse
has evolved to the point where it is simply no longer appropriate to
presume child abuse based solely on the presence of unexplained
fractures—even when those fractures are paired with intracranial
hemorrhaging. Since the technology to measure infant bone density
exists and is relatively ubiquitous, its use should be mandated in cases
where unexplained fractures will be used as evidence of abuse so that
“beyond a reasonable doubt” will mean in practice what it says on
paper in cases of alleged infant abuse
Source:
http://lawreview.byu.edu/articles/1325789487_13Seeley.FIN.pdf
Diagnosis Murder – Documentary on Shaken Baby Syndrome
The Fifth Estate
Diagnosis Murder
Gillian Findlay examines the conventional wisdom around Shaken Baby Syndrome, discovering that those who question it often feel targeted by those who believe passionately in it. And yet new science suggests the so-called syndrome may be a physical impossibility.
“Diagnosis Murder” tells the story of several Canadian parents who say they were wrongfully accused–and the leading-edge medical researchers who believe they’re telling the truth. The stakes are high: Some have gone to jail. All have had their other children taken away from them.
One couple recently had their children returned after a four-year battle. Even though the courts in B.C. cleared Zabeth and Paul Baynes of charges they had shaken their baby, the couple feel they will carry the stigma for life. Another man in Ontario has now had his case put up for judicial review, giving him hope that his name may too be cleared.
Is Shaken Baby Syndrome conclusive evidence of murder? Or is it a scientific hypothesis that has convicted an untold number of parents as killers — when their children actually died from other causes?
Biomechanics of Retinal Hemorrhages
John D. Lloyd, Ph.D., M.Erg.S., CPE, CBIS
Board Certified Ergonomist & Certified Brain Injury Specialist
The occurrence of retinal hemorrhages has been proclaimed as one of the three cardinal features of the triad in the clinical presentation of an infant injured by repetitive rotational acceleration/deceleration from abusive shaking, where the retinal findings were asserted to be the unique primary result of vitreous traction on the retina. However, such claims are unconfirmed and biomechanically implausible. First, retinal hemorrhages are clearly not unique to infants abused by alleged shaking, since such hemorrhages have been reported to occur as a result of increased intracranial pressure of any etiology and are often found in cases of impact injury. Furthermore, efforts to confirm the vitreous traction hypothesis as a valid cause of extensive retinal hemorrhages, retinal schisis, or folds have failed.
Anatomy and Vasculature of the Eye
In the vitreous traction hypothesis, it is asserted that traction is generated between the vitreous humor and the retina inside the eye (Figure 1 ), causing hemorrhage from ruptured capillaries in the retina. However, the relative densities of the vitreous humor and the retinal both approximate that of water (1.0 kg/l). Moreover the point of rotation of the infant head during ascribed non-accidental trauma is the lower cervical spine, therefore the radius of curvature of the retina and the vitreous traction are, for all intents and purposes, equal. Given equal radius of curvature and equal densities, it is highly improbable that a mechanical differential would be generated, particularly at the levels of rotational acceleration/deceleration that might be generated during an abusive shaking. Hence, the concept of vitreous traction cannot be supported by principles of physics.
It is now generally understood and accepted by medical professionals that retinal hemorrhages are caused by any etiology, which increases intracranial pressure of the brain. The eye is the only externally visible element of the central nervous system, where the optic nerve and central retinal vasculature are sheathed within the dura (Figure 1). Since we know that arterial pressure exceeds venous pressure, the venous return from the central retinal vein will be impeded prior to obstruction of blood flow in the associated artery, thereby increasing pressures within capillaries in the retina, which consequently burst producing of retinal hemorrhage. Furthermore, since the underlying etiology is increased intracranial pressure, bilateral observations would be typical, where the extensiveness of hemorrhagic findings would be proportional to the intracranial pressure.
In summary, retinal hemorrhages are no longer generally accepted by medical doctors to be caused by vigorous shaking of an infant.
http://www.drergonomics.com/RetinalHemorrhages.html
Short Fall Lands Man On Death Row For Shaken Baby Syndrome
Short falls as the cause of the symptoms see in alleged shaken baby cases are an ongoing controversy between medical experts. Forensic pathologist John J. Plunkett of Minnesota however states that forensic science does support that short falls can cause these injuries and even death. http://medicalmisdiagnosisresearch.wordpress.com/?s=john+plunkett
How then does a man find himself on death row in the face of a much disputed theory, namely, shaken baby syndrome?
Jerry Mitchell reports:
Silence broken on death row decade later
Jeffrey Havard
After a decade of silence behind bars, Jeffrey Havard is speaking about the death of the 6-month-old that landed him on death row.
Ten years ago today, Chloe Britt died, and prosecutors say he sexually abused and killed her. Havard was convicted of capital murder. He admits accidentally dropping her but denies sexually abusing and killing her.
If the state Supreme Court rejects his post-conviction plea, he will move one step closer to execution.
“Not a morning, noon or night passes that I don’t think about Chloe and her family,” he told The Clarion-Ledger. “Words can’t describe how sorry I am for dropping Chloe. Without a second thought, I would do anything to bring her back.”
Read more at:
For more information on short falls also see:
The following link to an article documents 3 cases of deaths from corroborated/witnessed short falls (10-20 feet). The author states that all three children had SDH and fractures. The author documents that 2 of 3 children had lucid intervals and all 3 children died after a delayed period following the fall. 2 of 3 children showed periorbital echymosis. One child suffered a SDH and severe brain swelling from a 6-foot fall onto a carpeted floor. 1 child fell 2-3 feet from a rocking chair. This article suggests that soft surfaces can still cause fatal injuries. Also, this article includes a lengthy literature review on shortfall debate.
Dr. Lloyd determined that biomechanical risk of brain injury due to non-contact shaking was no greater than that for his 7 month old son playing in his jumparoo. To view the complete report of this study, click the following link: Biomechanical Evaluation of Head Kinematics during Infant Shaking vs Pediatric Activities of Daily Living
http://medicalmisdiagnosisresearch.wordpress.com/category/biomechanics-and-shaken-baby-syndrome/
How the Medical Profession Covered Up Vaccine Injuries and Called it ‘Child Abuse’
By Christina England
February 14th, 2012
Some vaccine injuries are relabeled ‘child abuse’
A short while ago I exposed a series of thirteen papers which unequivocally proved that Prof Roy Meadow the UK’s most famous Munchausen Syndrome by Proxy (MSBP) expert, attended thirteen meetings on adverse reactions to vaccines just about the time MSBP rates rocketed. [1] Up to this time most people researching Meadow were only aware of him attending four meetings with the ARVI (Adverse Reactions to Vaccination and Immunizations) and a few with the CSM (Committee for the Safety of Medicine).
As exciting as the discovery of these new papers were, especially for those parents falsely accused of Munchausen by Proxy (MSBP) or Shaken Baby Syndrome (SBS) after a vaccine injury had affected their children, they only proved that Prof Roy Meadow had attended meetings discussing adverse reactions to vaccines; they did not prove that he actually participated in them. This is because the papers had all the professionals names blacked out by Freedom of Information (FOI). This made it impossible for the public to determine which comments were said by which professional.
Since I published my last paper however, I have received the cleaned up versions of four of those papers revealing exactly what was said and by whom. This is a breakthrough and enables parents of vaccine damaged children, accused of MSBP or SBS by Meadow, to finally have proof that Meadow not only attended these meetings but actually participated, advised and commented on the topics of cot death, seizures, anaphylaxis, and the yellow card reporting system (UK reporting system for adverse reactions to vaccines.)
These papers were deemed so confidential by the UK government that they have been hidden away in government files for over twenty four years. They were marked ‘Not For Publication Commercial in Confidence’. I doubt if anyone at that time bargained for the Freedom of Information Act.
Meadow rose to fame in 1977 when he wrote a controversial paper on Munchausen by Proxy for the Lancet. The paper entitled ‘The Hinterland of Child Abuse’ [2] gives two highly suspect case studies as “evidence” of Munchausen Syndrome by Proxy existence. The paper was deemed problematic by many because the second case study describes a child presenting with excessive sodium (salt) in the blood. During Meadow’s discussion he discloses that this child was force-fed 20 g of sodium, with difficulty, by himself and his colleagues. Sadly the child died!
Since this time Professor Sir Roy Meadow has become known as one of the most influential and respected pediatricians of his generation. He is thought by many to be a lead thinker in the field of child abuse. Many experts say his work has saved countless children from unnecessary suffering.
After reading these papers I would beg to differ.
What Was Said At Those Meetings by Professor Roy Meadow
ARVI meeting 6th July 1987. [3]
Meadow first comments in section 5.4 however, there was a worrying trend of deceit arising earlier on in the minutes in the section marked Item 5 – MMR vaccine – 5.4 Postpartum Rubella immunization associated with development of prolonged arthritis neurological sequelae and chronic rubella arthritis Tingle et al. J of Inf. Diseases (1985), Vol. 152: pages 606-612.
The committee was discussing points raised in the previous ARVI meeting. Dr Cavanagh reminded the committee of a SSPE (SUBACUTE SCLEROSING PANENCEPHALITIS INCLUSION–BODY ENCEPHALTIS) – like syndrome reported from rubella virus infection and noted the reported maternal viraemia and transmission of rubella virus in breast milk discussed in the correspondence submitted. Several other professionals brought up points on this matter. Dr Christine Miller had completed a study of SSPE surveillance and it was thought that none of her cases were associated with rubella. Dr Wallace thought the report to which Dr Cavanagh had referred concerned congenital rubella syndrome, not acquired rubella.
It is interesting that professionals were discussing SSPE in relation to the MMR vaccine because Dr Rebecca Carley M.D. firmly believes that SSPE IS in fact autism. Dr Carley has made her thoughts on the subject very clear even stating on a radio show with David Kirby that autism is actually a non-fatal case of subacute sclerosing panencephalitis caused by demyelination following vaccine induced encephalitis, and that the name of the condition was changed to autism to hide this self evident fact [4] She says if you read the description that Harrison [5] gives on SSPE in his book used to teach internal medicine to medical students all over the world; it is clear that what he is describing is in fact autism. In fact if you read the 10th edition that the above page comes from published in 1983, 4 years before this meeting it says that SSPE can be caused by the measles vaccine.
I would like to point out that Dr Cavanagh did state ‘a SSPE– like syndrome reported from rubella virus infection’, indicating that this was a condition similar to SSPE, which is exactly what Dr Carley is saying today without the benefit of seeing these papers that had been tucked away for all these years.
On to Point 5.4 and the first comment by Meadow
This section shows the ARVI committee discussing how reports of adverse reactions to vaccines should be followed up after they have been reported to the ‘Yellow Card Reporting System’.
The committee’s concerns surrounded adverse reactions to the DPT vaccination.
The committee discussed the fact that in Holland a pediatrician was employed solely for the follow-up of all of the reports of adverse reactions to vaccination. He/she would interview the vaccinator, the parents and the child and carry out a long term follow up.
Various professionals discussed the problems that they felt this would raise.
The whole issue makes extremely sickening and disturbing reading especially in view of Sir John Badenoch’s comments that Holland’s policy posed the dilemma of the provision of huge lists of adverse reactions or of a distillate and commented that it was bad policy to collect useless information, however, he did feel that changes in incidence of reactions were important as was the awareness of permanent or long term sequelae from vaccination.
The minutes stated that Meadow felt that the subject would make an ideal research project for one four-month cohort, to be studied intensively with detailed scrutiny and examination of each report to provide a yardstick for further comparison.
Professor Breckenridge felt that definition of terms was essential and adverse events should be separated from adverse reactions. The ‘events’ he said could be excluded with consideration on the adverse reactions!
I would like to know how Professor Breckenridge justified the elimination of either of these terms. Surely this amounts to deception, as to exclude one from the other would give false results when assessing adverse reactions to a vaccine as both terms mean exactly the same thing.
Meadow asked whether the numbers of vaccines given the study time period should be ‘estimated’ to provide an indication of risk of reaction.
Surely if they were to estimate the number of vaccines then this would not give an accurate indication of risk factor? Estimation after all would enable the assessor to falsify results. Maybe this was what Meadow intended.
It appears to me that the committee were very concerned by the numbers of adverse reactions being reported and were looking for ways to cover this up.
Professor Meadow next commented in point 6.4 when the committee was discussing the JCVI’s (Joint Committee for Vaccination and Immunization’s) revised contra – indications to the pertussis vaccine.
Point six had been specifically discussing whether there was a link between the DPT vaccine and serious neurological illness. The committee felt to ascertain whether there was a significant risk they would need to re-read all the relevant whooping cough documentation from the JCVI, CSM, and the ARVI which they wanted to avoid. After careful consideration however, it was deemed that re-reading was impossible to avoid.
The committee then discussed whether or not the DPT vaccine was causing children to suffer from seizures. The committee concluded that the incidence of children suffering a seizure after the vaccine was no different to those children suffering a seizure who had not had the vaccine of the same age, however, it was decided that the vaccine did appear to worsen seizures in children with a seizure condition. This meant that seizures were a contra—indication of the DPT vaccine.
This section is confusing however, because it does not state whether all of the children were vaccinated. The committee had concluded that the incidence of children suffering a seizure after the vaccine was no different to those children suffering a seizure who had not had the vaccine of the same age, we do not know however, if these children had had the vaccine at an earlier age, which lets face it is a possibility.
(A contra-indication means – could cause harm to a certain group of children i.e. those with a seizure condition.)
Point 6.4 discussed whether or not in view of what had been disclosed the manufacturer’s guidelines should be changed to reflect the committee’s findings.
It was decided that any changes would need to be discussed in full with the manufacturers of the vaccines.
Sir John Badenoch commented that both the JCVI and the JCVI/BPA Working Party had tried to improve guidelines to give specific contra – indications; he said that an attempt should be made to reconcile these with data sheets and product licenses. He said that delay in the new memorandum might be worthwhile in order to obtain manufacturers agreement to changes in data sheets and also to allow the BNF (British National Formulary) opportunity to change its advice. Professor Meadow agreed with Sir John and welcomed the clearer advice from JCVI on pertussis contra – indications which he endorsed.
At this point Prof Miller commented that there was no need for the JCVI advice to change but there should be awareness of the implications of change.
There were discussions regarding the new guidelines that needed to be put into place and how these guidelines should be put forward to the manufacturers.
There was some concern that the new guidelines would be produced at a time of continuing pertussis litigation? Members then discussed the fact that there was likely to be a change in the pertussis vaccine in the near future. Sir John Badenoch agreed that the new pertussis guidance should be sent to the CSM but felt that the new guidance was a rationalization of the old contra-indications some of which he felt had no significance scientifically.
It was at this point that Meadow offered his firm support of the new changes, which he felt were not weakening the old recommendations but making the existence guidance clearer.
I find it of particular interest that Meadow was involved in meetings discussing seizures after vaccination, especially as he had discussed the subject of seizures in various papers describing cases where parents had said their children were suffering from seizures which he felt were caused by the parents. An example of this can be seen in a paper entitled ‘Fictitious Epilepsy’ [6] written in 1984 where the abstract reads:
32 children and 4 adults had extensive investigation and treatment for epilepsy because of false seizures invented or induced by a relative, usually the mother. They also suffered needless hospital admissions and restriction of education and activities. Follow-up of the children suggests a danger of abnormal illness behaviour continuing into adult life. For a few young children seizures are really anoxic episodes caused by the parent. In some cases these lead to brain damage and death, and an important association with sudden unexplained death of infancy (cot death) is emerging.
As this is only the abstract we cannot be sure if Meadow went on to explain how he came to the bizarre conclusion that a seizure is really an anoxic episode caused by the parent, although somehow I doubt it.
This paper was written before the meetings took place so I guess that Meadow could have been forgiven if he had seen the light and realized the error of his ways and at least considered vaccines as a possibility but it is obvious that nothing much had changed because in 1991 whilst he is still seen attending these meetings [1] he proves that he is still accusing mothers of MSBP after a child is reported to be suffering from seizures. [7]
Minutes from 2nd October 1987 CSM/JCVI/ARVI [8]
The ARVI meeting October 1987 is the next meeting showing comments by Meadow.
Meadow is mentioned early on in the minutes, in point 5 during a discussion on the subject of Anaphylaxis. The committee was discussing the completion of the ‘recommendations for the memorandum’. The minutes state that Dr McGuinness had already provided valuable material for this purpose and Dr Salisbury offered to send Professor Meadow examples of this material by post.
The first time that Meadow is seen to make a comment during this meeting, is regarding the Yellow Card System in Point 7 where he questions the delays in reporting and coding.
Meadow next commented interestingly and crucially on the subject of Cot Death in Point 8. The section is entitled ‘Vaccination and Cot Death in Perspective.’
The committee discussed various reports made available on the topic; Meadow identified the need for the present information, that there did not appear to be a casual link between the pertussis vaccination and SIDS, to be dissemination (spread widely) and felt that the Foundation for the Study of Sudden Infant Death Syndrome was the best organization to promote the present knowledge. However, Dr Fine noted that there was a problem with saying that the pertussis vaccine was protective against SIDS as those risk factors for SIDS may overlap with the contra-indications for the vaccine and this issue had not been dealt with the submitted paper. Dr Fine felt that these should be discussed. Meadow immediately questioned this. Dr Fine went on to mention other factors that could be relevant such as ill health, social economic issues which he said inhibited the pertussis vaccine.
Quite right to, at least one of them had a conscience, however, interestingly it is at this point the conversation on this subject ceases and the committee move on to the flu vaccine.
I found this extremely interesting because Meadow has since been involved in many cases where vaccines have played a crucial part in the case. Not only did Meadow appear to misdirect the ARVI on the subject of cot death in the above meeting but it has been reported that Meadow also advised juries as an expert witness that vaccines cannot cause a baby to die in cases where vaccines have been mentioned as a possible cause of death.
Sally Clark spent three and a half years in jail wrongly convicted of murdering two of her babies. This was after Prof Meadow and another expert witness assured the jury that there was no other explanation for the sudden deaths of her children other than that she had deliberately smothered them. This was despite the fact that Harry died five hours after a DPT vaccine and that Prof Meadow had attended 13 meetings discussing adverse reactions to the DPT which included cot death.
The Spectator [9] reporting on the case states:
Not many people know these facts, because at Sally’s trial the defense did not mention immunization as a possible cause of death. Two prosecution witnesses, including the paediatrician Professor Sir Roy Meadow, assured the jury it could be discounted. Their statements went unchallenged, and the issue did not form any part of the appeal hearings. Professor Meadow, a former member of a Department of Health sub-committee on adverse reactions to vaccines, told the jury that he could not think of any natural explanation for Harry’s or Christopher’s deaths.
Surely, this is perjury? Not only did Meadow appear to lie under oath but as far as I am aware he did not declare any conflicts of interest to the court. If there had not been any mention of children dying after vaccination at those meetings, the committee would have not have been discussing this point in the first place, therefore, Meadow would have some knowledge that children can die after the DPT.
March 8th 1988 CSM/JCVI/ARVI meeting [10]
Prof Meadow is next found participating in the above meeting, where he is seen taking a very active role. In Point 5 ‘The Treatment of Anaphylaxis’ it states that:
The Anaphylaxis section of the forthcoming Memorandum on ‘Immunization against Infectious Disease’ had been written to incorporate the recommendations of Professor Meadow, Professor Hull and Dr McGuiness.
So now we have Meadow not only commenting and participating in meetings but being involved in writing guidelines for vaccines against infectious diseases!! Totally unbelievable!
The final proof that Meadow took an active part in meetings involving adverse reactions to vaccines that I have at this time is again in the above meeting.
In Point 6 Report on Yellow Card data
The committee discussed in detail the information supplied on adverse reactions to vaccines during 1987.
After several vaccines were discussed Professor Meadow and Professor Banatvala asked the committee if information could be made available in the future on reactions to plasma derived or recombinant hepatitis B vaccine.
Plasma derived Hep B vaccines were the first Heb B vaccines and were made using blood products. These were later banned from use in 1991.
(Since 1986, the only Hep B vaccine used in the US has been the recombinant vaccine. The way recombinant vaccines work is that they make a piece of the viral genetic material that codes for a protein on the surface of the virus; it is that protein which your immune system thinks is the virus and which causes antibodies to be produced.)
No further comments from Meadow have been found although that is not to say that he has not commented and made recommendations in other meetings past and present.
The fourth set of minutes that I have is the ARVI meeting 6th October 1989. Comments were made by several professional mainly covering the MMR vaccine Pluserix but sadly although there are comments in full, some parts of the minutes were redacted so we do not know if Meadow commented at this meeting or not. [11]
Discussion on Findings
These meetings were held around the time that the rates of autism and neurological disorders were beginning to soar. Professor Meadow was becoming recognized for discovering a new syndrome which he referred to as Munchausen Syndrome by Proxy. It seems only right that both MSBP and these problems should be married together, after all something was causing the children’s problems and if it were the vaccines, the government would need to cover this up as quickly as possible. After reading the paperwork in depth it appears likely that the government was trying to cover up the fact that vaccines were not only capable of causing the death of babies but causing seizures, anaphylaxis and neurological problems. It is my opinion that Meadow was brought in to these meetings as a tool by the government to misdirect various committees into believing that scores of parents were abusing their children in a bid to cover up vaccine adverse reactions.
It seems highly suspicious to me that Professor Meadow is found to be attending meetings at this time. Why was he participating, commenting and helping to write vaccine guidelines?
I have been told by the person who gave me these papers that it is usual for professionals to be announced and welcomed when joining these particular committee’s but there appears to be no such announcement for Meadow. This is not of course to say that he was not announced and welcomed; just that my informant could not find any record of this. It is also strange that he seemed to disappear from these meetings around 1991 as there appears to be no further meetings where is name is mentioned.
Lisa Blakemore-Brown was the first person to ever begin to connect the dots that make the very ugly picture we have today. In fact it was Blakemore-Brown herself who passed me the first papers identifying Meadow as a member of the ARVI.
Blakemore-Brown first began speaking out about her fears and concerns not long after Meadow attended these meetings in 1995.
The last meeting I have seen Meadow’s name on the list of attendee’s was in 1991. [1]
Blakemore-Brown first became concerned in 1995 after she was an expert witness in a case involving twins. She states [12]
In my first false case the twins 1 assessed had been born at just over 26 weeks in the mid eighties. They were tiny babies with horrendous complications. The evidence that such premature infants go on to have developmental problems including attention deficits, motor and social impairments is now indisputable, but it was tossed to one side in this MSBP case. One of the early troubling issues for me was that the MSBP accusers initially totally denied that these children had such birth complications! They said this was ‘what the mother said’ and that I had been ‘beguiled’ by ‘listening to the mother.’
Well, er, actually, I’d read the notes…………………….
I feel that it was around 1997 that Lisa Blakemore-Brown was first seen to be troublesome by the government and particularly to Meadow because it had become clear that Blakemore-Brown had seen exactly what was going on and had seen straight through their plot to use MSBP as a cover for vaccine damage.
In 1997 Blakemore-Brown had been asked to write an article for ‘The Therapist’, this was a year after Sir Roy Meadow had himself written an article for The Therapist. [13]
On reading Lisa Blakemore-Brown’s letter in the ‘Psychologist’ the Editor of ‘The Therapist’ contacted Blakemore-Brown to ask if she would write an article showing the opposite view to start debate.
Little did anyone know at that time just what this intuitive professional was going to write or how Blakemore-Brown without even realizing it had connected the dots and had seen exactly what had been going on.
In her article which she entitled False illness in children – or simply false accusations, she described a tragic case that she had been involved with involving a child that had developed a dangerously high fever, immediately after routine vaccinations. Shortly thereafter, he began to bang his head, soil and lost all his language. After many investigations, the child was diagnosed as having Asperger’s Syndrome. The mother began to suspect that the vaccinations were the root of the child’s problems and decided not to have her other children vaccinated. As time went on, she became desperate for help and turned to the social services, begging them for respite care because she was finding her elder son difficult to manage. Instead of the help this mother so badly needed, she was accused of MSBP and her children were taken away from her.
In foster care, the youngest child, a little girl, was vaccinated against the wishes of her mother. Instantaneously and tragically, her behaviour deteriorated the same way as her brother’s had, only this time the foster carer had video tapes of before and after vaccinations to prove this. Despite this evidence, both of the younger children were adopted.
It seemed as if Blakemore-Brown had hit the nail on the head and it was clear from that one article that she was not afraid to say what she had seen or what she thought.
Once she had began there was no stopping her and she began to speak of her concerns at every opportunity. In 2001 she wrote and presented a paper at a conference held at Durham University. [12] She wrote:
‘Since working as an Expert Witness in a MSBP case in 1995, I am of the opinion that gross errors of judgement are being made (Blakemore-Brown 1997) at the very beginning of the process of ‘identification’ when the easy and increasingly widespread use of the term interweaves with shock tactics and processes of suggestibility.
Once that first gossamer breath of a rumour has been triggered – it can be impossible to turn back. (Blakemore-Brown 1998)’
By this time Blakemore-Brown had already fully grasped that the vaccines were linked to the devastation that she was witnessing. Not great timing for Meadow as he had just been knighted by the government for his ‘amazing work’.
The more that Blakemore-Brown learned the more she began to realize that Meadow was connected. In an article on Prof Meadow on One Click news [14] she wrote:
In my very first experience as an Expert in Court case on so called Munchausen Syndrome by Proxy, with Sir Roy’s colleague David Southall, I was utterly shocked by the lack of logic, the lack of careful detailed examination and the lack of good detective work. In fact I saw the opposite and a profoundly cruel miscarriage of justice followed.
I wrote a letter to the British Psychological Society to express my deep concerns that there was no robust scientific basis to MSBP and I feared if it was not investigated thoroughly, many more miscarriages of justice would follow.
Colleagues of Professor Meadow immediately wrote a letter to the BPS with the aim of discrediting me and what I had to say and the BPS did not allow me a Right of Reply.
It was around this time that a Penny Mellor arrived on the scene and the rest is history as they say. [15] Sadly for Ms Mellor and the many others who tried to destroy Blakemore-Brown’s career, she is still around and it is my belief that she will come back stronger than ever to haunt them all.
It is interesting to see some seventeen years after Blakemore-Brown’s first concerns that MSBP was a cover being used to hide cases of vaccine injury; the proof that lay hidden for all those years is at last being discovered.
There are some of us who never doubted for one moment that she was correct and something very sinister was going on, however, proving it was another thing. I doubt if Blakemore-Brown will be surprised to see the level of corruption and utter deceit hidden in these documents. It is about time the governments and pharmaceutical companies were exposed for their lies and hypocrisy and Blakemore-Brown along with the many others who have been fighting for the families falsely accused of MSBP and SBS were vindicated and apologized to.
The fact that Meadow not only tried to misdirect committees discussing vaccine dangers and cot death but contributed in a memorandum outlining guidelines for the treatment of anaphylaxis called ‘Immunization Against Infectious Diseases’ is totally beyond belief, especially when it has been reported that he stood up in court and assured a jury in a murder case that vaccines could not have been responsible for the death of her child. I have been told by mothers falsely accused that he denied vaccines were responsible for the deaths of other babies in their trials as well. Let us hope that at last these parents will get the justice they deserve and their children can be laid to rest in peace at long last.
It is my opinion that for the crimes that this man has committed he should be striped of his knighthood.
References
- FOI Request Reveals Major Vaccine Conspicacy http://vactruth.com/2012/01/03/foi-request-reveals-major-vaccine-conspiracy/
- ‘The Hinterland of Child Abuse’ http://www.msbp.com/hinterlands.htm
- ARVI Meeting July 1987 http://www.profitableharm.com/sir_roy_medows_meetings_1.html
- RECENT FED CT DECISION IN AUTISM CASE PROVES DR. CARLEY RIGHT http://www.drcarley.com/dr_carley_critique_fed_autism_decision.htm
- Harrison http://www.reversingvaccineinduceddiseases.com/files/3638448/uploaded/SSPE_from_Harrisons%20optimized.pdf
- Fictitious Epilepsy Prof R Meadow 1984 http://www.ncbi.nlm.nih.gov/pubmed/6145941
- Munchhausen by Proxy and Pseudo-Epilepsy http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1627905/pdf/archdisch00753-0089c.pdf
- CSM/JCVI/ARVI October 1987 http://www.profitableharm.com/sir_roy_medows_meetings_1.html
- The Spectator http://www.spectator.co.uk/essays/all/30630/part_2/what-killed-sally-clarks-child.thtml
- CSM/JCVI/ARVI Meeting March 1988 http://www.profitableharm.com/sir_roy_medows_meetings_1.html
- ARVI October 1989 http://www.profitableharm.com/sir_roy_medows_meetings_1.html
- Durham paper http://www.profitableharm.com/an_autism_odyssey_text.html
- The Therapist http://www.profitableharm.com/images/therapist%201.jpg
- Meadow Blakemore-Brown http://www.theoneclickgroup.co.uk/news.php?id=4111#newspost
- The Professional Assassination of Autism Expert Lisa Blakemore-Brown http://medicalmisdiagnosisresearch.wordpress.com/2010/12/29/the-professional-assassination-of-autism-expert-lisa-blakemore-brown/
Christina was born and educated in London, U.K. She left school to work in a children’s library, specializing in story telling and book buying. In 1978 Christina changed her career path to dedicate her time to caring for the elderly and was awarded the title of Care Giver of the Year for her work with the elderly in 1980.
After dedicating much of her spare time helping disabled children in a special school, she then worked in a respite unit in a leading teaching hospital.
In 1990 Christina adopted the first of two disabled boys, both with challenging behavior, complex disabilities, and medical needs. In 1999 she was accused of Munchausen by Proxy after many failed attempts to get the boys’ complex needs met. Finally, she was cleared of all accusations after an independent psychologist Lisa Blakemore-Brown gave both boys the diagnosis of Autism Spectrum Disorder and ADHD as part of a complex tapestry of disorders. During the assessments Ms Blakemore-Brown discovered through the foster care diaries that the eldest boy had reacted adversely to the MMR vaccine.
After taking A Level in Psychology and a BTEC in Learning Disabilities Ms. England then spent many years researching vaccines and adverse reactions. She went on to gain an HND in journalism and media and is currently writing for the American Chronicle, the Weekly Blitz, VacTruth and Namaste UK on immunization safety and efficacy.
England’s main areas of expertise are researching false allegations of child abuse and adverse reactions to vaccines. Her work is now read internationally and has been translated into many languages. England has been a guest on Holy Hormones Honey – The Greatest Story Never Told! on KRFC FM 88.9 in, Colorado. She has spoken at seminars worldwide and including Canada in 2011 and recently co authored the book ‘Shaken Baby Syndrome or Vaccine Induced Encephalitis – Are Parents Being Falsely Accused?’ with Dr Harold Buttram.
Judicial Bias – A Variable That Is Often Overlooked In Family Law Litigation
Posted By Pasadena Family Law Attorney on Jan 14, 2012 7:46am PST
“It is generally agreed that a litigant is entitled to have her case decided by a judge who can approach the facts in a detached and objective manner; indeed, the protection of the integrity and dignity of the judicial process from judicial bias has been hailed as ‘the palladium of our judicial system.’” In fact, California Code of Judicial Ethics provides in part as follows: “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.” In an effort to accompish such a result, “judges are trained to be sensative to problems of bias.” This is a quote from a retired judicial officer in California in response to a Discussion on LinkedIn entitled, “IS THERE GENDER BIAS IN OUR FAMILY LAW COURTS?” That same retired judical officer also stated, “I can say that one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner.”
In his book “Mediating Dangerously – The Frontiers of Conflict Resolution“, Kenneth Cloke made the following statement regarding bias: “[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO’s, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias.” [emphasis added]
After a recent experience in court wherein the Judge’s ruling was either based upon her lack of experience in family law or her personal biases, I started the following Discussion in various groups on LinkedIn: “DOES ANYONE REALLY BELIEVE THAT IT IS POSSIBLE FOR A FAMILY LAW JUDGE TO BE UNBIASED?”
In order to encourage discussion, I commented as follows: “With the divorce rate what it is, everyone has been touched in some way by divorce and/or custody and support issues. We may have been impacted by our own family law matter, our parents’ family law matter or our child’s family law matter. It is pretty well established that with few exceptions, everyone feels as if they paid too much, received too little, obtained a custody/visitation result that was “unfair” to them, etc.
That being said, EVERY judicial officer has their own personal biases in the family law court. We therefore try to determine whether the judge assigned to a particular case is biased for or against our client. We select custody evaluators that are hopefully biased in favor of our particular client. The same exact case would have incredibly different results from one court to the next. The bias impacts the judge’s factual findings, the great discretion they are given and how they opt to apply the law. This bias exists in no other area of law to this degree. No amount of bias elimination training can educate a judge to forget about their life experiences, assumptions, personal beliefs/views and biases.
This issue alone makes family law litigation very unfair and inequitable. In reality, the only unbiased family law judges are those who have never been personally impacted by family law. This is very unlikely and becomes increasingly more unlikely over time.”
With very few exceptions everyone who commented was of the opinion that judicial bias in family law ligitation is a serious concern. However, what I found most interesting was how people’s responses tended to vary based upon their involvement in the legal system.
Three forensic accountants who testify as expert witnesses in on financial matters family law court in various parts of the country made the following comments.
“Mark – This is a great post, which highlights a variable that is often overlooked in family law litigation.” [emphais added] In a subsequent phone conversatation, he told me that on a Monday, he can be testifying on behalf of a husband before a judge who is known to be biased against husbands and he will notice that the judge pays very little attention to his testimony (because the judge was going to rule in favor of the wife regardless of his testimony). He can return to the exact same courtroom on the following Wednesday (only two days later) on a completely different case and notice that the same judge will pay very close attention to his testimony because he happens to be the expert for the wife in that case (and the judge needs to grasp the testimony that will allow him/her to rule in favor of the wife).
“I have noticed judicial bias come into play.” [emphasis added]
“It is ironic in a way. In most litigation, one of the great unknowns (and therefore great concerns) is the jury. You must distill complex legal, commercial or scientific issues to a basic enough level for the least common denominator of a, largely, inexperienced group of people to follow in a short time frame. In family law (and these days some commercial matters in jurisdictions following the Delaware model), we eliminate that concern by putting the matter before a, presumably, intelligent, experienced jurist. What gets lost is the balance that comes from decisions reached through consensus of multiple points of view.” [emphasis added]
Two mental health care professionals who stopped doing custody evaluations for family law court had the following comments.
“That was my experience in NJ 15 years ago. Ex Parte communication, churning cases, corruption among expert witnesses, etc. I simply stopped practicing in the family courts and never looked back…. I recall when I complained to my attorney that something was “not fair” he said, “What make’s you think the system is fair?” As a trained cognitive-behavior psychotherapist, it would have been better of me to have known that.” [emphasis added]
“I have to agree with you. As a former custody evaluator AND as a father who got his parental rights constructively terminated (4 hours with my daughter twice a month, 3000 miles away) because the judge didn’t like me, I speak from experience.
I think the real problem is that family law judges, at least in California, have far too much discretion. They can basically do nearly anything they like, and very few people have the money to file and pursue an appeal. Removing much of that discretion would serve to control the bias to some extent.
There is no way you are going to find unbiased judges or teach judges to be unbiased.
I stopped doing custody evaluations when I realized that the judges didn’t care one bit what my opinion was, and no matter what it was, it always made one of the parties VERY angry.
Mental Health custody evaluators are at extremely high risk for malpractice lawsuits, medical board complaints, and bodily injury.
I can make money in many other less risky ways.” [emphasis added]
A therapist made the following remark: “I know for fact that here in NM the corruption is so wide spread that even when the judge is related to someone appearing before them, the judge does not recuse him or herself in order to provide an unbiased judgement. After all, they are just lawyers. What do they know? We have really screwed up as a culture to allow a specific segment of professionals think that they are the Solomon of our society. Not only are judges not accountable for their bone head decisions but the poser that they feel is incredibly ludicrous. We have to change this system quickly.” [emphais added]
A psychotherapist commented as follows: “Of course judges cannot be unbiased. They are human beings and lawyers who are biased by training and practice. they may be able to assist in deciphering information to degree that decisions might be fair, but let’s be realistic.” [emphasis added]
Another therapist stated, “I treat the trauma people experience as they are going through that process. Despite what I tell them to expect they just come in week after week more deflated. Evidence doesn’t get entered into the process despite information being provided by the child’s therapist. They are dumfounded by how the system is so willing to give the wrong parent primary custody.” [emphasis added]
A family law consultant commented as follows: “All human beings are born with bias and we often
do not recognize it even when it is obvious to others around us.” [emphasis added]
Those family law attorneys were very forthright about the problem with judicial bias in the family law courts made the following comments:
“Makes a lot of sense to me.” [emphais added]
“Even when the trial lawyer has done a good exposition of the case,there are judges that are so traumatized with their own issues, they cannot be unbiased. Some judges are so clearly biased that you can basically read their minds and know the outcome before it is rendered.” [emphasis added]
“[T]here are those [judges] who think they already know what ‘these people’ [the parties testifying] are really like, so they don’t bother with listening to them.” [emphais added]
“Judges are biased. Custody evaluators are biased. Lawyers are biased. Teachers are biased. Friends and family certainly are biased. And the parents themselves are biased. While they know their children best, in the emotional turmoil of a divorce, it is difficult for many to separate their own needs and desires from what is the best thing from the children’s perspective (which is often to have the parents deal with their marital issues and stay together).
There is previous little empirical evidence telling us what parenting plans will work for any given family. There are simply too many variables. About the only robust research findings there are suggest that kids don’t do well when their parents remain bitterly conflicted, and that kids do best when their parents are mature, loving, consistent presences in their lives. But that says nothing about what parenting time should look like. I do believe that a lot of the 50-50 custody time share orders are an easy cop out done more to be “fair” to the parents.
I am a custody lawyer who does NOT try to get custody evaluators who are biased in favor of my adult clients. I am clear to my clients that I will refer them only to people who are trying to figure out what plan will best serve the child, maximizing each parent’s strengths and minimizing their weaknesses as they look for the best fit with these children’s specific needs.
Custody decisions will always be more art than science, and given the unique circumstances of every family, no legislation or protocol or standardized test will ever be able to arrive at the optimal parenting plan. Sowe are left with a bunch of flawed adults making decisions about kids’ lives. The best we all can do is to try to keep the entire process (whether in litigation, mediation, evaluation, or collaborative process) as child-oriented as possible and to return as often as we can to objective criteria. If the parents can do that themselves, terrific. If they can’t we can just do the best we can. But awareness of our own biases is an important first step.” [emphasis added]
“While we may see it (personal bias) most in family law cases, the same is true about every area of the law. People need to remember that people are people and the fact that he or she is a judge doesn’t change that. Stressing the “pot luck” nature of going to court is important as soon as possible to have would be litigants get a reality check, IMHO…” [emphasis added]
“The bias of judicial officers certainly extends to attorneys in their courtroom. Early in my career, I was arguing a motion in Ventura. The opposing counsel had done something really unethical, which would prejudice our client. I filed a motion explaining the situation in detail; opposing counsel filed a reply with a one-line declaration denying all. At the hearing, the judge denied my motion, saying, “I’ve known Mr. X for many years, and simply don’t believe he would do that.” He wouldn’t be dissuaded, and thereafter became the presiding judge. In LASC Central, an otherwise well-respected judge often took an immediate dislike to a client, and his rulings reflected it.In each case, complaints would have been meaningless, given the stature of the judges.” [emphasis added]
“Here in New Jersey family Judges frequently have no family law experience whatever. It is rare to get a judge who actually practiced family law before being appointed to the bench. There is an attitude among legislators and judicial administrators that any fool can be a family judge. That coupled with the biases that new judges bring from their personal lives frequently reeks havoc with client’s lives…. I don’t have any great answers, but the system is a disaster. I’m equally cynical about guidelines. It is a tribute to the lack of fairness in the system, that we have to use a chart to restrain the bad, biased often irrational decisions you would otherwise get. I wonder if you lessened the discretion that the family judge has if you might get a better quality of decision in general.” [emphasis added]
“These are great points by everyone. Mark, thank you for posting this. You’re right. We’ve all seen the judges and lawyers where you just groan knowing you have to deal with this person. First, my bias, I have a close friend who is a judge in Germany and I know how hard she works and how much she believes in justice, understands its history, and wants to do her best. And she has a really tough job. My personal opinion is that the judicial system is like any other. It’s a system that depends on people to make it work. That includes the judges and the lawyers and the higher the quality of both, the better it is for everyone. With that being said, the quality of both run the gamut. I don’t know that there’s anyone who doen’t have preconceived notions of the judicial system, lawyers or people in general (some are just more aware of it than others). As an example, a judge could be raised a certain way or have a childhood experience that colors their view of certain kinds of people (eg., blondes). This is my example because it’s relatively tame. They see a scenario unfold in a courtroom, we’ll assume here well prepared, and their preconceived notions still affect their decisions in ways they don’t understand. I hope that this isn’t too wordy and clear to everyone. My point is, even the best judges and lawyers can really only do their best. My personal opinion is that’s a good start.” [emphais added]
Other family law attorneys acknowledge judicial bias, but tried to minimize the problem by commenting as follows:
“I recall a talk that District Judge Willers of the now defunct Hitchin County Court once gave to the Hertfordshire Family Law Association some years ago. She told the audience that what went on in her private life inevitably impacted on and informed her judgments. Although she managed in the vast majority of cases to reach her judgment based on the facts before her, the fact is that occasionally her own life experiences impacted on the judgments she handed down.
That said,surely the job of an effective advocate is to overcome these biases, to enable the tribunal to refocus or reframe their preception and opinion of the case.
As has already been said,mediation and the collaborative process put the parties in the driving seat and hopefully give them the resources to arrive at arrangements for them and their children that work best for their family.” [emphasis added]
“Everyone has their own prejudices based upon background and life experiences. Judges are no different, although their job is to try and put that aside and deal with what is appropriate in each specific case. A good attorney is aware of this and will find a way to present things to this judge to get an appropriate result for his/her client.” [emphasis added]
“I’m not sure I totally agree, Mark. Yes nearly everyone has been impacted in some way by someone’s divorce. I think, though, that the observations gleaned from those situations can sometimes diminish bias that would otherwise exist -IF the judge is able to take a step back and take a broader perspectve (not all cases are like what they’ve seen, there’s more here than meets the eye, etc.) Unless we get enough experience or somehow get to know a particular judge, however, we don’t know if a particular judge is biased and if so, how.” [emphasis added]
“This discussion is a difficult one. I have been in the domestic relations court since 1992. I have practiced in ten different counties in Ohio during my career. I believe what you are discussing is judicial realism.It is not possible for a judicial officer to shed all of his or her life experiences. However, good judges, and yes Mark I actually have been in front of good judges, are able to acknowledge their personal biases and keep them in check. They actually work with other judicial collegues to discuss wether these personal experiences re interfereing with his or her ability to fairly judge a situation. Additionally, I have practiced in front of inept judicial officers that do not even know they have a personal bias. With all of my interest based training, I find it extremely frustrating to take a family through a traditional litigation, meaning there is never any interest based discussion during the case. It is hard because the outcome is not designed specifically for the facts of the family that is divorcing.” [emphasis added]
“I don’t believe that there are ANY people, much less judges, who don’t have biases. However, judges pledge to, and I believe in the vast majority of cases, actually do set aside their own personal experiences and biases, and they apply the law to the evidence actually admitted before them. I think problems arise in the perception of the fairness of the judgments because the ACTUAL EVIDENCE is often different from what one party says or thinks were the facts. When we hear about what sound like lop-sided family law judgments, I sincerely believe it is, most often, because we don’t hear and see the ACTUAL EVIDENCE presented by BOTH SIDES in court. The parties who are telling what happened are the most biased participants of all!
That said, however,I do agree that in mediation and collaborative divorce, the parties have much more ability to control the outcome; they can take into consideration things that courts cannot; and they can agree to things that courts cannot order (e.g. paying for college expenses – not allowed under Florida law unless the parties agree).” [emphasis added]
“I don’t think family law judges are any more biased than judges in other areas of the law. You can’t expect family law judges to have a blank mind when they take the bench. Most judges are “hired” (elected) we like to hope, for their experience in family law. Most attorneys I know have represented both petitioners and respondents in family court matters. Additionally, in NY, as far as child support, the award is usually right where it should be, at 17% of income. There is little discretion. The only bias is if a judge has some actual conflict in which case he/she should recuse him/herself.” [emphasis added]
I replied to this last comment as follows:
“In California the judges are not ‘hired’ (elected) for their experience in family law. In fact, I received an email from a retired judicial officer on just this issue: ‘We don’t provide enough training for family law judges, and we certainly don’t require that training before undertaking a family law judicial assignment. Most judges still don’t want to do family law. Most judges have no family law experience, for openers. And a family law assignment is a lot more work than most judicial assignments. A lot more. And many judges aren’t comfortable with the different way that emotions play out in family law cases than in, say, civil cases–though my own experience was that civil litigants and their lawyers were often just as angry as family law litigants….‘
It is true that we can find judicial officers who do know family law and who care about families. However, that does not eliminate the “bias” issue.
I would like to give you an example of what I mean by judicial ‘bias.’ In California, the DissoMaster program is designed in such a way that it determines “guideline” child support. Assuming that everyone who uses DissoMaster imputes that same data in the same categories of the program, we will all come up with the identical “guideline” child support. The big assumption is that we are all imputing the same data and in the same categories of the program. In other words, as with any other program, DissoMaster is only as good as the end user — it is all relative.
Let’s discuss the discretion the judges have in California. For example, the Court has the discretion not to apply the guideline child support calculation if the parent paying the support is an extraordinarily high income earner. However, what constitutes an extraordinarily high income earner varies significantly from courtroom to courtroom. When I researched this issue for a case many years ago, I found that the definition varied from a starting annual income of $500,000.00 to $1,500,000.00 (AT THE SAME COURTHOUSE IN LOS ANGELES). Thus, the same exact person will obtain a very different result, depending upon which judicial officer were to hear such a case. Another example has to do with imputation of income. Judges have a great deal of discretion in this regard – at least in California. Here, the only time a judge would not have significant discretion is when both parties work full-time as W-2 income earners and not for a business that is owned by the party or their family. Furthermore, the parties would have to both have approximately the same amount of investment income, otherwise the judge’s discretion might impact someone differently from courtroom to courtroom. Another factor here is the manner in which the timeshare is calculated. The judges can compute timeshare in many different ways. Since guideline child support is based in part on the timeshare,the judges can alter that figure for their particular “bias” by merely playing with the percentage timeshare (how they calculate that percentage).” [emphasis added]
Some non-family law attorneys also participated in the discussion and made the following comments:
“The fact that judges, like all human beings, have opinions makes it improbable that they wouldn’t have biases. The difference between a great judge and one who is not so great is that the great judge doesn’t act on his or her personal biases – either for or against a particular client or for or against a particular attorney….” [emphasis added]
“I think this argument proves too much. Every judge is, over time, likely to be in an automobile accident or have a family member involved in one. Therefore, it’s a bad idea to have judges decide auto accident cases?I don’t believe that this bias occurs any more in family law cases than in any other. Certainly, as an advocate we want to get an expert who is likely to do well for our client. I do think there’s some advantage in family law court to have neutral experts appointed by the court. Obviously, collaborative law with neutral experts presents the same advantages as court-appointed neutrals…. Clearly, a process that gives the parties more control, and somewhat unpredictable and hard to understand judicial officers less control, is better in the long run for the parties involved. We both agree on that point.” [emphasis added]
“While I agree with what you are saying Mark, the same is true of civil litigation, estate litigation, elder law issues, etc.. It’s hard to imaging a judge who has not bought a house and not had some issues (real property lit), or has an elderly parent or spouse whose been unfairly or mis-treated, or has been through some form of estate planning himself or been on the receiving end of some type of benefit from a will or trust.
For the most part, I feel that the trials I’ve been through that the judges have for the most part been able to set their biases down. On the other hand, there have been one or two where I definitely think they didn’t either. That’s one of the many things that makes all of us valuable to our clients (I hope) 
” [emphasis added]
In response to the comparison between family law and other areas of law, I commented as follows: “I respectfully disagree with your comparison of family law and other fields of law. In other areas of practice, there are issues of liability — causation and physical damage, etc.. Family law is no-fault in every state at this point. Therefore, the fact that the “bias” of the judicial officer impacts the results is completely different.” [emphasis added]
The reality as I see it is that good lawyering in Family Law (at least in California) is not what people think. For obvious reasons, the results in court are very much determined by the “experts” used in the case. Great effort is spent by lawyers in trying to find an “expert” who will be biased in his/her client’s favor. That “expert” might be a child custody evaluator, an “appraiser” (who is nothing less than a “gun for hire” – retained on the condition that they do anything necessary to make the value as high or as low as possible – depending upon the needs of the situation), or any other “expert” required in the case. If you happen to have the case before a judicial officer who is “biased” in your client’s favor, the outcome is almost certain before going to trial. It would take an inept attorney to botch up such a “well prepared” case. In other words, the most effective family law litigators are those who are best able to take advantage of the inherent flaws in the system for the benefit of their clients. Anywhere outside of the legal arena, people who do what these lawyers do would be consideredcon artists.
People have the right to opt to resolve their family law matter through mediation or collaborative divorce. If they cannot agree to what is considered “alternative dispute resolution” in the United States, then I am afraid they get the default – which is the litigation (court) system. If the “general public” wants to continue subjecting themselves and their families to the litigation (court) process, then I say “buyer beware.”
Young Couple Found Not Guilty For Killing Baby Son
A young couple walked free from court today after being cleared of killing their four-month-old son who was suffering from rickets.
Rohan Wray, 22, and Chana Al-Alas, 19, of Islington, north London, fell under suspicion when baby Jayden died suddenly two years ago.
But, following a six-week trial at the Old Bailey, charges of murder and causing or allowing his death were dropped
A jury returned not guilty verdicts on the direction of the judge after prosecutors withdrew the charges.
The couple, who were 16 and 19 when Jayden was born, hugged and kissed when they learned that their ordeal was over.
The court heard that Jayden died from brain damage and swelling but nearly 60 medical, professional and expert witnesses were unable to agree the cause.
The prosecution said the brain damage could only have been caused by the trauma of Jayden having been shaken or his head having been hit against something.
But the defence said it was only after the baby’s death that it was discovered he had rickets owing to an undiagnosed vitamin D deficiency in his mother.
This would have caused him to have weak bones, including a weak skull, and could have caused a series of fractures.
The medical condition was also blamed for complications which led to his death.
Barristers for the couple argued that they had been loving parents and had not put a foot wrong with Jayden’s care.
They had taken him to see doctors and to hospital when worried about his health.
Medical staff and health visitors had not detected anything wrong with him.
But after he stopped taking his bottle in July 2009, they took him to hospital and he died after having seizures and being transferred to Great 
Ormond Street Hospital.
Judge Stephen Kramer said it was unsafe to let the case go before the jury.
There was no evidence except the “triad” of head injuries which could be caused by shaken baby syndrome.
But no-one had been able to agree if the injuries were caused by trauma or medical complications.
Judge Kramer said: “The further and deeper one delves into the evidence, the more complex it becomes.”
He added: “We could not have got to this stage without a proper investigation, examination and exploration of the evidence on all sides.”
Wray and Al-Alas denied having caused any injury to Jayden and the defence maintained that the seizures and fractures were linked to rickets.
Sally O’Neill QC, defending Wray, told jurors: “Jayden was indeed a much-loved and cared-for baby.
“Their care for him was transparently that of loving parents, even though they were young.”
She said the couple had been “pre-judged” by doctors and police, but no-one had known how ill Jayden was.
Wray told the court he was “very excited at the thought of being a parent” when he found out his girlfriend was pregnant.
He said he was confused by the baby’s injuries.
Al-Alas told the court the baby had a cold. She looked into his mouth and found his tongue was in the roof of his mouth.
Asked if she or Wray had shaken the baby or injured him, she said: “Never.”
Her QC, Michael Turner, told the court there had never been any criticism of the couple’s care for the baby.
The case comes amid legal warnings to prosecutors that shaken baby cases should be supported by other evidence of abuse.
And some experts believe that breastfeeding mothers such as Al-Alas should be given vitamin D supplements.
Jenny Wiltshire, Al-Alas’s solicitor, said outside court: “Chana Al-Alas and Rohan Wray can now be allowed to grieve the tragic loss of their son who they loved and cherished.
“They have been through two and a half years of hell. They were prevented from comforting their dying son or attending his christening – all because clinicians at both hospitals failed to diagnose congenital rickets.”
She added: “The real criminality in this case is that, if the money spent on this case had been directed to fulfilling the 1991 Government directive that breastfeeding mothers be given vitamin D supplements, this death would not have occurred and rickets, which is now back up to epidemic proportions in this country, would have been wiped out.”
Shaken Baby Syndrome and the AEDPA A Lethal Combination
By all accounts, Shirley Ree Smith was a loving mother and grandmother, just trying to help her daughter raise her young children. Now, she is the latest victim of the junk science associated with shaken baby syndrome, in combination with the United States Supreme Court’s worship of procedure over substance, or legal technicality over true factual innocence. The result? Another innocent person sits in a jail cell, convicted of a crime that she likely did not commit.
On October 31, the Supreme Court pulled off quite a Halloween trick, twisting a legal technicality on its head in issuing a per curium reversal of the 9th Circuit grant of a Writ of Habeas Corpus in the case of CAVAZOS v. SMITH, No. 10–1115. (October 31, 2011).
The facts of Cavazos are that of the classic shaken baby syndrome, junk science, prosecution – including poor representation by a defense lawyer unqualified to handle a SBS case (“Moreover, Smith’s counsel . . . . represented her poorly at trial. In a case as trying as this one, competent counsel might have persuaded the jury to disbelieve the prosecution’s case.” Slip opinion, p 8; J. Ginsburg dissenting.)
On November 29, 1996, Tomeka put her son Etzel to bed on a sofa, and went to sleep in another room. The defendant, Shirley Ree Smith (Tomeka’s mother and Etzel’s grandmother) slept on the floor next to Etzel. Several hours later, Smith ran into Tomeka’s room with Etzel, who was unresponsive. When theEMT’s arrived, Etzel was not breathing and had no heartbeat. Smith told medical personnel that she thought Etzel fell from the sofa to the floor.
Etzel’s death was initially diagnosed as sudden infant death syndrome (SIDS). However, after the autopsy the coroner concluded that the cause of death was shaken baby syndrome (SBS). When a hospital social worker informed Smith of that finding, Smith told her that Etzel had not responded to her touch while sleeping, so she had picked him up and given him “a little shake, a jostle” to wake him. According to the social worker, Smith then said something to the effect of, “Oh, my God. Did I do it? Did I do it? Oh, my God.” In an interview with the police a few days later, Smith said that she had shaken Etzel, but then she corrected herself and said that she had twisted him to try to elicit a reaction.
Smith was arrested and charged with assault on a child resulting in death. At trial, the jury heard several days of expert medical testimony – mainly focusing on the cause of Etzel’s death. The prosecution offered three experts: the medical examiner who performed the autopsy, the head medical examiner that reviewed the autopsy, and an expert in pediatrics. All three testified that Etzel’s death was the result ofSBS, and not SIDS, a short distance fall from the sofa, an old injury, or CPR. However, while Etzel suffered subdural hematomas and edema, the third injury in theSBStrial (retinal hemorrhages) was missing.
The defense called two experts to refute the diagnosis of shaken baby syndrome. First the defense called a pathologist, who testified that Etzel died from brain trauma related to an old injury, but given the lack of retinal hemorrhaging it was not the result of SBS. Then a pediatric neurologist testified that Etzel’s death was due to SIDS. The jury found Smith guilty.
Smith filed a motion for a new trial, attackingSBSand making a sufficiency of the evidence claim. The trial judge denied that motion, and sentenced her to 15 years to life in prison.
In her direct appeal, Smith again argued that the evidence was not sufficient to establish that Etzel died from shaken baby syndrome. The California Court of Appeal rejected this claim, concluding that “The conviction is supported by substantial evidence.” The California Supreme Court denied review.
Smith then filed a petition for a writ of habeas corpus (28 U.S.C. § 2254) in the federal district court. The district court denied the petition, finding that the evidence at trial was “clearly sufficient to support a conviction.” On appeal, the Ninth Circuit reversed and ordered the district court to grant the writ. Smith v. Mitchell, 437 F. 3d 884 (2006). The Ninth Circuit held that there was “no evidence to permit an expert conclusion one way or the other” on the issue of the cause of Ezel’s death, and that because “[a]bsence of evidence cannot constitute proof beyond a reasonable doubt,” the state court of appeals had “unreasonably applied” federal law.
In a 6 to 3 per curium opinion, the United States Supreme Court reversed the 9th Circuit and denied the writ. Justices Breyer, Sotomayor and Ginsburg dissented. The Supreme Court cited to the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the Supreme Court’s precedent in habeas cases, and reasoned that a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision is “objectively unreasonable.”
The problem is that the Supreme Court does not practice what it preaches. The high court receives thousands of cert petitions every year, and grants a small handful for review. The cases it accepts are supposed to involve a novel constitutional question, or a split among the Circuit Courts of Appeal across the country. This case involved neither – as noted by the Supreme Court itself this is a factually intensive case involving dueling experts over the much criticized shaken baby syndrome phenomenon. As Justice Ginsburg correctly observed:
Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family. Is this Court’s intervention really necessary? Our routine practice counsels no.
In a truly chilling observation of the Supreme Court’s true motivation behind its decision, Justice Ginsburg noted in her dissent the significant chance that Smith was innocent, and went on to explain:
In sum, this is a notably fact-bound case in which the Court of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” . . . . Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.
Some observers of Shaken Baby cases have voiced concerns that this could cast serious doubt into the viability of Daubert challenges to the junk science behind SBS. However, this concern appears unwarranted. Daubert challenges toSBS remain very viable, and lawyers must continue to bring them based on the continually evolving science involved (an evolution discussed in detail in Justice Ginsburg’s dissent). The Supreme Court’s decision was a purely procedural ruling, holding that the Ninth Circuit erred under the AEDPA in reaching the merits of Smith’s claim of innocence. Regrettably, the Supreme Court once again refused to establish a federal/constitutional claim of actual innocence in Habeas cases, and ignored the increasingly important issues related to introducing new evidence, or the admissibility of scientific evidence, in motions for new trial or collateral post-conviction motions.
Mark A. Satawa practices in the area of criminal defense, specializing in forensic evidence and shaken baby cases. He is a member of the board of directors of the National Association of Criminal Defense Lawyers and the Criminal Defense Lawyers of Michigan, and is a frequent continuing legal education speaker on shaken baby cases, most recently on April 3, 2009, at the NACDL annual forensic science seminar in Las Vegas.
Source:
http://www.protectingyourfuture.info/shaken-baby-syndrome-and-the-aedpa-a-lethal-combination
Falsely branded a baby batterer
- now Rioch Edwards-Brown’s a fighter for justice
Cradling her baby son, TV researcher Rioch Edwards-Brown stared in disbelief at the two social workers standing before her in the hospital room. Their lips were moving but she could barely make sense of what they were saying.
It was a moment that would fill any loving parent with horror. Rioch had just been told her six-month-old son Riordan — the baby she and her husband Ian had longed for — would be removed from her care in three days’ time.
Paralysed with shock, all she could focus on was the tiny bundle curled up against her chest and the voice inside her head telling her to breathe.
The memories of that Friday afternoon are as sharp today as they were 16 years ago.
‘For a split-second I couldn’t remember how to breathe,’ says the 46-year-old mother-of-four. ‘I couldn’t even tell you my name.’
Rioch and Ian found themselves thrust into a nightmare after a doctor decided their son’s ill health from birth — culminating in an unexplained fit — was caused by shaken baby syndrome. In other words, the caring parents were suspected of shaking Riordan until his brain bled.
The suspicions were unjustified. Medical notes would later back up the fact Riordan had suffered a brain bleed during his premature birth, but by that time child protection proceedings had started — and seemed unstoppable. There were three court hearings and Rioch and Ian fought for nearly a decade to clear their names.
Today, that tiny fragile baby is a strapping young man who loves sport and is studying for A-levels after gaining 12 GCSEs. As for Rioch, she gave up her job working alongside her TV producer husband and started helping other parents facing similar ordeals.
For 15 years, without pay or outside funding, she has run The Five Percenters, a support group that takes its name from the fact that one in 20 cases of shaken baby syndrome is misdiagnosed. From a desk in the living room of her family home in New Cross, South-East London, Rioch, runs the 24-hour free advisory service.
Rioch and Ian’s fight for justice cost £50,000, but since then they have remortgaged their home and spent £250,000 funding the support group in the hope that other parents accused of shaking their babies or other abuse are spared the agony they faced.
Rioch — who also battled a benign brain tumour in 2009 — never imagined the nightmare ahead when she met Ian in 1990.
Their early hopes for children were cruelly crushed when she suffered a series of miscarriages caused by a cervical condition which doctors cured. She went on to have Riordan in 1995. He was born six weeks early, weighing 6lb 3oz.
The couple were delighted, although Rioch soon doubted his health. ‘He’d cry then suddenly stop,’ she said. ‘He looked beaten up, like he’d gone 10 rounds with Mike Tyson.’
Over the following months Riordan’s fragile health meant frequent tests.
‘Eventually, a doctor said he had suffered a brain bleed commonly associated with premature babies,’ recalls Rioch. ‘As we were leaving she said, “You haven’t ever dropped him have you?” I laughed and said, “No.” ’
But Rioch had a niggling doubt something more serious was wrong.
A week later, Riordan suffered a fit and ended up back at King’s College Hospital, London.
Days of tests and questions followed. ‘When the consultant told us Riordan had suffered the sort of bleed they would expect to see in a child with a lot of trauma I just couldn’t take in.
‘Ian said, “Do you mean like a boxer’s punch?”
She replied, “Yes, or Riordan being shaken and swung around by the ankles against a hard surface.”
‘I was told that if I made any attempt to leave the ward the police would be called.’
Rioch suddenly realised the finger of suspicion was pointing at her and Ian — and they were devastated when two social workers revealed they would apply to take Riordan into care within days.
Reeling with shock, they sought legal help and were able to keep Riordan. Three months later, with clear medical evidence pointing to injuries caused by birth trauma rather than abuse, a High Court judge threw out their case.
However, it took eight years before the shaken baby accusation was removed from council and hospital records.
Rioch and Ian went on to have three more children, but were terrified each time one fell sick, fearful they could be accused again.
‘I couldn’t afford for Riordan to get as much as a bruise,’ she says.
‘It was after I did a television interview and 40 families got in touch that I thought about starting the Five Percenters. I found myself wondering how a family without the support and contacts we had would ever stand up against this?’
Over the past 15 years Rioch has helped more than 4,000 families worldwide facing a similar ordeal. ‘Of course, it is disgusting that genuine abuse exists,’ she adds.
‘There will always be people who say they are innocent and are not. But I feel we have a duty to people like us who are wrongly accused. We were told we were a “one-off”, a mistake. But if they can make a mistake once, they can do it again.’
Rioch’s vision, called 24:14, is for a nationwide hospital protocol ensuring all children suspected of being abuse victims are seen by paediatric specialists within 24 hours of admission and for the case to be reviewed within 14 days — sparing the agony of misdiagnosis and cases slipping through the net.
‘Doctors said Riordan wouldn’t walk, talk or swallow,’ she says. ‘But he is now built like a rugby player, eats me out of house and home and never stops talking. He’s amazing.
‘When people say to me, “Why do you do what you do?” I tell them that I have my kids when the majority of families who come to me don’t. I consider myself very fortunate.’
Unsettling Science Experts Are Still Debating Whether Shaken Baby Syndrome Exists
By Mark Hansen
Is Audrey Edmunds an otherwise kind and caring wife, mother and neighborhood child care provider who snapped into a homicidal rage one day under the stress of caring for a sick baby?
Or is she an innocent woman who spent 11 years behind bars for a horrific crime she not only didn’t commit, but that may not have even been a crime?
You decide. We can’t. And neither, apparently, can the courts or the scientific community.
Fifteen years ago, Edmunds, then a 35-year-old stay-at-home mom, was convicted of reckless homicide in the 1995 shaking death of a neighbor couple’s infant daughter. She was sentenced to 18 years in prison.
In 2008, however, a Wisconsin appeals court granted her a new trial on the grounds that a shift in mainstream medical opinion as to the cause of the girl’s injuries now casts doubt on Edmunds’ guilt.
Prosecutors subsequently dismissed the case against Edmunds—not because they think she is innocent but to spare the victim’s parents the agony of having to revisit their daughter’s death.
Three years later, Edmunds’ culpability remains a hotly contested topic of conversation in criminal justice circles. And her case has reignited a fierce debate in the forensic community over the science behind what’s called shaken baby syndrome.
To be sure, the vast majority of doctors still regard it as a valid and reliable diagnosis, one whose scientific basis has been proven time and time again by decades of peer-reviewed research, clinical experience and caregiver confessions.
But a small and apparently growing number of forensic experts have begun to question many of the assumptions upon which the diagnosis rests—like whether shaking alone can produce the kind of traumatic head injuries attributed to SBS in the absence of other injuries, like a broken neck, or whether a child who has been shaken violently would immediately be rendered unconscious.
The decision marks the first time that an appeals court has questioned the scientific basis for a shaken baby conviction, and some hope the Wisconsin ruling will lead to a systematic court review of the evidence in other shaken baby cases, or even an independent examination of the underlying science by some neutral third party like the National Academy of Sciences.
Left to right: A brain MRI showing blood—indicated by the white crescent—between the skull and brain of a baby alleged to have suffered a violent shaking, photos of the right and left retinas of the same baby, a normal retina. Photo courtesy of Jonathan Trobe, MD, University of Michigan Medical System.
Shaken baby syndrome is a term coined in the early 1970s to describe what adherents contend is a characteristic set of head injuries found in infants who have been subjected to violent shaking: swelling of the brain, bleeding around the brain and bleeding in the retinas.
The theory was first espoused by a pair of pediatric specialists as a possible cause of the otherwise unexplained head injuries sometimes seen in infants with no visible signs of physical abuse. It quickly took root in the medical community.
Before long, SBS became widely accepted as a clinical diagnosis for head injuries inflicted on small children. And a nationwide educational campaign to alert the public to the dangers of shaking was launched.
In fact, SBS is now so firmly ingrained in the public consciousness that the World Health Organization has a diagnostic classification for it; the American Board of Pediatrics offers a subspecialty in it; and last year, for the fifth year in a row, the U.S. Senate designated the third week in April as National Shaken Baby Syndrome Awareness Week.
To this day, there is widespread consensus among medical professionals that shaking a baby is dangerous and often lethal. The American Academy of Pediatrics, the American Academy of Ophthalmology and the National Association of Medical Examiners have all issued position papers embracing the theory, although the NAME paper, which was published despite failing peer review, was later withdrawn. The Centers for Dis ease Control and Prevention publishes SBS prevention guides for public health departments and community organizations. And several states, including Ohio, New York and Texas, require prospective parents and child care providers to learn about the perils of shaking.
An estimated 1,200 to 1,400 children are injured each year by shaking, about one-quarter of them fatally, according to the National Center on Shaken Baby Syndrome, a nonprofit organization offering SBS prevention and training programs. The actual number of victims may be much higher, it says, because many such cases are misdiagnosed or go undetected.
But a growing chorus of critics says the entire theory rests on an uncertain scientific footing that continues to erode under the weight of scientific scrutiny, raising the specter that hundreds if not thousands of innocent people—parents, grandparents, baby sitters, nannies, boy friends—have faced criminal charges and even been imprisoned in the past three decades for crimes they may not have committed.
No one apparently keeps count of shaken baby prosecutions, though some experts estimate that about 200 people a year are convicted of shaking-related offenses based on the number of reported appeals. While some of those cases include corroborating medical evidence of abuse, such as cuts, bruises, burns or broken bones, others do not. And though some of the accused have admitted their guilt, others have steadfastly maintained their innocence. So Edmunds’ case was, in many respects, a typical one.
Because she loved kids—by 1995 she had two of her own and was pregnant with a third—and wanted to help out her neighbors, Edmunds quit her secretarial job and started caring for a few children in her home in the Madison, Wis., area. One of her newest charges was 7-month-old Natalie Beard.
Natalie, by all accounts a fussy baby, was particularly irritable on the day in question, Edmunds recalls. She tried to get the girl to eat, but Natalie refused, so she placed her in a car seat in the master bedroom and propped a bottle of formula in her mouth while she got her oldest daughter ready for preschool. She checked on Natalie once and everything seemed fine. But when she went back a second time, the girl was limp and unresponsive. Natalie was airlifted to a nearby hospital, where she died later that night.
Nobody saw Edmunds shake Natalie. There were no external signs of injury on the girl’s body. And Edmunds swore up and down she hadn’t done anything to harm the baby. But the doctors who treated Natalie concluded that she died from brain trauma caused by a violent shaking or a shaking with impact, citing among other things severe brain and eye damage peculiar to shaking and evidence of an impact injury to the girl’s scalp.
Edmunds defended herself as best she could. Her lawyer, Stephen Hurley, couldn’t find any experts who didn’t think Natalie had been subjected to a violent shaking, though he found one doctor who thought the girl had been shaken before she was dropped off at Edmunds’ home that morning. And the lawyer concedes that Edmunds made a terrible witness while testifying in her own defense.
“She was like a deer in the headlights on cross-examination,” he says. “I think that really hurt her.”
An army of prosecution experts testified that Natalie exhibited all the telltale signs of a severe shaking. This was no accidental shaking either, they testified, but one that was the equivalent of a fall from a two- or three-story building, or a car crash at 25 to 30 mph. And Edmunds must have done it, they insisted, because Natalie’s injuries were so severe she would have lost consciousness as soon as she was shaken.
The prosecutors also depicted the defendant as some kind of Jekyll and Hyde figure who reacted violently under the pressure of caring for a sick baby while five months pregnant and in the process of moving. She was convicted and sentenced to 18 years in prison.
Keith Findley, a law professor and co-director of the Wisconsin Innocence Project, got involved in Edmunds’ case after realizing that the medical community could not agree on whether Natalie Beard’s injuries were caused by shaking alone or other factors were involved. Photo by James Schnepf.
Edmunds’ first appeal, in 1999, went nowhere. But her luck changed in 2003 when the Wisconsin Innocence Project took an interest in her case.
The project’s co-director, Keith Findley, who teaches law at the University of Wisconsin, doesn’t remember exactly how he got involved in the case, but he does recall that both Edmunds’ trial and appellate lawyers had been deeply troubled by her conviction and were convinced of her innocence.
Findley knew very little about the subject at the time, other than what he had read about the 1997 Boston trial of British au pair Louise Woodward in the apparent shaking death of 8-month-old Matthew Eappen, the first high-profile courtroom battle over a shaken baby diagnosis. (A jury ultimately convicted Woodward of second-degree murder, but the judge reduced her conviction to involuntary manslaughter and sentenced her to time served.)
But Findley soon realized there were already raging debates in the medical community about whether shaking alone could produce the head injuries Natalie Beard suffered; whether such injuries could be due to other causes, both natural and inflicted; and whether a child with the kind of injuries Natalie had could remain lucid for hours or even days before dying or becoming noticeably impaired.
Then he discovered that one of the state’s key witnesses—Robert Huntington III, the pathologist who had done the autopsy on Natalie—had written a letter in a medical journal contradicting his testimony in the case against Edmunds.
Huntington had testified at Edmunds’ trial that it was “highly probable” Natalie’s injuries were sustained while she was in Edmunds’ care. But in his letter he wrote about a 1999 case he observed in which a child with head injuries similar to Natalie’s remained lucid in a hospital for more than 15 hours before she died.
When Findley contacted Huntington and told him why he was calling, Findley says, Huntington replied, “Oh, Audrey Edmunds. What are we going to do about that?”
Armed with that information, the defense prepared a motion for a new trial on the grounds that medical research developed in the decade since her 1996 trial constituted new evidence establishing a reasonable probability that a different result would be reached the second time around.
At a hearing on that motion, Huntington testified that he was no longer sure that Natalie had been shaken or that her injuries had been inflicted while she was in Edmunds’ care. Other defense experts testified that research advances in the previous 10 years had undermined the scientific basis for SBS and legitimized the views of critics once regarded as being on the fringe.
Prosecutors, however, contended that the case against Edmunds was even stronger than it had been in 1996, saying the intervening years of study and research had only reaffirmed the cause and timing of Natalie’s death. They argued that none of the six defense experts who testified on Edmunds’ behalf could provide an alternative explanation for Natalie’s injuries. They said the evidence the defense cited as new—whether shaking alone can cause such injuries and whether a child with such injuries could experience a lucid interval—had been the subject of an ongoing debate in the medical community that began long before her first trial. And they claimed it didn’t matter whether shaking alone can produce the kinds of injuries Natalie sustained because the state had also produced evidence of an impact injury to her scalp.
A Texas Child Protective Services specialist poses with a doll used for educating about the danger of shaken baby syndrome. Photo by Tyler Morning Telegraph, David Branch.
The trial court judge found that both sides had presented credible evidence. But he denied the defendant’s motion on the grounds that the state’s evidence was more persuasive.
However, the Wisconsin Court of Appeals reversed, saying that a “significant and legitimate debate” had developed in the medical community in the previous 10 years as to whether babies can be fatally injured through shaking alone, whether a baby with a traumatic head injury can experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally associated with shaken baby syndrome. And those are issues for a jury, not a judge, to decide, the court said.
“The newly discovered evidence in this case shows that there has been a shift in mainstream medical opinion since the time of Edmunds’ trial as to the causes of the types of trauma Natalie exhibited,” the court wrote, noting that the debate reflects “a fierce disagreement between forensic pathologists who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians who largely adhere to the science as presented at Edmunds’ trial.”
The decision prompted DePaul University law professor Deborah Tuerkheimer, a former child abuse prosecutor in Manhattan, to take a closer look at the science underlying the syndrome—which she, to put it mildly, found wanting.
Tuerkheimer published her findings in a 2009 Washington University Law Review article called “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts.” She concluded that scientific advances in the past two decades have cast doubt on an entire category of SBS defendants—namely those convicted of shaking-related crimes based solely on the three key symptoms known as the “diagnostic triad.”
“While we cannot know how many convictions are ‘unsafe’ without systematic case review, a comparison of the problematic category of SBS convictions to DNA —and other mass exonerations—reveals that this injustice is commensurate with any seen in the criminal justice arena to date,” she wrote.
With the publication of Tuerkheimer’s article, an already divided scientific community appears to have become even more polarized.
Defenders of the SBS diagnosis complain that she leaves the impression that thousands of innocent people are sitting in prison due to a flawed scientific diagnosis. But critics of the SBS diagnosis, already galvanized by their legal victory in Edmunds’ case, view Tuerkheimer’s analysis as vindication of their complaint: That the research basis for shaken baby syndrome was flawed from the start.
The origins of SBS date back to 1968, when a prominent neurosurgeon conducted an experiment on rhesus monkeys to see whether brain and neck injuries would result from the whiplash forces of a simulated 40 mph rear-end car crash. The monkeys were strapped into a sled mounted on a 20-foot-long track, leaving their heads free to rotate, and the sled was struck from behind with a mechanical piston.
About a third of the monkeys suffered cerebral hemorrhages. Eleven of them also suffered injuries to the brain stem or cervical cord.
The experiment had nothing to do with babies or shaking. But in the early 1970s, two pediatric specialists, writing separately, pointed to the results as evidence for the proposition that a violent shaking with out impact, which one of them dubbed “the whip-lash shaken infant syndrome,” could cause permanent brain damage and mental retardation in infants and small children.
Ever since, critics say, the mainstream medical community has held to the belief that the presence of subdural bleeding, retinal hemorrhages and brain swelling in a child with no other injuries suggestive of an accident or abuse must have been shaken. And that the person with the child when he or she lost consciousness must have done it.
But those beliefs have been steadily undermined by subsequent research showing just the opposite, critics say.
The first big blow to conventional SBS wisdom was struck in 1987. That’s when a neurosurgery resident at the University of Pennsylvania, working with a group of biomechanical engineering students, devised an experiment designed to compare the forces generated by a violent shaking with established injury thresholds. To do so, they created models of 1-month-old babies equipped with sensors to measure acceleration, which were then shaken and slammed against both padded and unpadded surfaces.
Researchers found they couldn’t shake the dummies hard enough to generate the kind of force known to cause even a mild concussion. In fact, the most force they could muster was about one-fiftieth the amount of force generated by dropping the dummies onto a padded surface.
Another big blow to mainstream medical opinion on the subject came in 1998, when a forensic pathologist at East Carolina University School of Medicine studied the interval between injury and the onset of symptoms in 76 alleged child-abuse head injury deaths. In one-quarter of the cases, the interval was more than 24 hours; and, in four cases, it was more than 72 hours, apparently contradicting the conventional belief that a child with traumatic head injuries would be immediately symptomatic.
Further research in the past decade or so has shown that there are many other causes of the three key symptoms associated with SBS, including: short-distance falls, congenital malformations, genetic and metabolic disorders, various forms of childhood strokes, accidental injuries, infectious diseases, poisons, medical and surgical complications, and autoimmune conditions. And the list, now two pages long, continues to grow.
Some critics question the very existence of shaken baby syndrome. “There’s no such thing,” says retired forensic pathologist John Plunkett of Welch, Minn., an early critic of the diagnosis who has gone on to became a leading defense expert in shaken baby cases. “It doesn’t exist.”
Thomas L. Bohan, a lawyer and physicist who is a past president of the American Academy of Forensic Sciences, says he doesn’t know of a single physicist or biomechanical engineer who supports what he calls “this cockamamie notion” of shaken baby syndrome.
“It’s not something I can disprove,” he says, “but I can say that there’s no evidence to support it, and that every attempt to prove it has failed.”
In 2009, during his year as academy president, Bohan convened a blue-ribbon panel to review four areas of forensic science about which serious questions have been raised, including SBS.
The panel called for an independent investigation of the science behind the theory, to be undertaken by a qualified scientific organization amenable to both sides, which it said was “particularly crucial,” given the number of respected doctors on each side of the issue and the number of people who are sentenced to long prison terms each year for shaking-related offenses.
Another critic, Cyril Wecht, a lawyer and former Allegheny County, Pa., coroner, wouldn’t go so far as to suggest that SBS doesn’t exist. But he believes it’s one of the most overdiagnosed and misunderstood concepts in forensic science.
So much so that he wouldn’t want his four children or 11 grandchildren to baby-sit someone else’s kids.
British au pair Louise Woodward sits with her attorney, Barry Scheck, during prosecution testimony in 1997. Woodward was accused in the alleged extreme-force-injury death of infant Matthew Eappen. Photo by AP/Bizuayehu Tesfaye.
“When you come into a hospital emergency room in America today with an injured child, it’s automatically assumed you’re responsible for whatever happened until you prove otherwise,” he says.
Yet defenders insist that the scientific basis for SBS is not only sound but getting stronger every day.
Dr. Robert Block, president of the American Academy of Pediatrics, says there are now decades of ever-accumulating research, clinical observations, individual case reports and other data showing that babies can be injured through shaking, impact or a combination of the two.
Critics “say you can’t shake a baby hard enough to hurt it,” he says, “which they themselves would never do because they know damn well they’d end up with a dead baby or one with significant neurological injuries if they did.”
Block and other defenders say the only controversy over SBS in the medical community is the one that has been created out of whole cloth by a small group of defense-oriented experts who ignore the known science, discount the clinical experience of doctors who treat injured kids every day, and excuse the voluminous confessional literature in an effort to sow confusion and create doubt. They call them denialists.
Denialists, to these SBS defenders, typically use rhetoric to give an appearance of legitimate and unresolved debate about matters long considered to be settled by the medical or scientific communities. Or they are simply inflexible, like those who insist—despite all evidence to the contrary—that childhood vaccinations can be linked to autism and mental retardation.
Dr. Alex Levin, a pediatric ophthalmologist in Phila delphia who studies the eye manifestations of child abuse, says the only real way to find out whether SBS exists is to shake a baby and see what happens. But short of that, all available evidence—computer models; animal models; studies of children with diseases that mimic some of the symptoms of shaking; perpetrator confessions; and child abuse victims, both living and dead—shows that babies do get injured and die at the hands of otherwise well-meaning and loving caretakers who momentarily lose their temper.
“Shaken baby syndrome is real,” he says.
Levin, who testified for the state in Edmunds’ appeal, was reluctant to discuss his testimony without reviewing his notes. But prosecutors say he testified that Natalie sustained a type of severe retinal damage that indicates either a violent shaking or a crushing injury, about which there had been no evidence.
SBS defenders also say the so-called triad of symptoms—as often described by critics—are never the sole basis for a shaken baby prosecution but only the starting point in a diagnostic process. That process includes the medical findings, X-rays, the baby’s prior medical history, law enforcement and child welfare reports, interviews with the caregiver, and various tests to rule out other possible causes of the child’s condition before a final diagnosis is made.
“The medical findings are not presented in a vacuum,” says Leigh Bishop, a senior trial attorney in the special victims bureau of the Queens County, N.Y., district attorney’s office. “Juries base their decisions on all of the facts and circumstances of a case, not on some far-fetched defense claim that a short fall, a vaccine, meningitis, the West Nile virus or CPR may have caused the child’s injuries.”
Defenders concede that there are other potential causes for each of the symptoms associated with SBS, but say there is nothing else that mimics the symptoms in all of its manifestations. And while they acknowledge that people with certain types of brain injuries may experience a lucid interval before the onset of symptoms, they say that’s not the case in babies with the kind of injuries characteristic of a violent shaking.
“It’s like pulling a plug out of the wall,” Bishop says. “Once the plug is pulled, the lights are off.”
SBS defenders also discount the significance of the decision in Edmunds’ case.
“It’s one opinion by one court,” says Randell Alexander, a professor of pediatrics at the University of Florida in Jacksonville and director of the state’s child protection team. “There are plenty of other courts that see it differently.”
Moreover, they suggest that the legal system facilitates irresponsible expert testimony, which they claim was the case in Edmunds’ appeal. They argue that the Wisconsin court allowed the defense great leeway: setting a low bar for the qualification of expert witnesses; allowing experts to offer opinions without stating a basis; and permitting experts to rely on inadmissible evidence, including hearsay.
And both sides say the courts often seem ill-equipped to exercise control over the admissibility of complex medical evidence.
“Legitimate controversy exists in some areas of the medical research, and reasonable medical opinions may differ over select issues,” says Brian Holmgren, a veteran child abuse prosecutor in Nashville, Tenn., who teaches other prosecutors how to handle such cases. “But seldom do these controversies reach the core science of shaken baby syndrome or attack the legitimacy of the medical criteria used to diagnose this form of child abuse.”
In the wake of the decision in Edmunds’ case, a few other courts have followed suit. But those cases are the rare exceptions. Most shaken baby convictions have not been revisited. And new cases are being prosecuted every day.
That’s why critics of SBS are calling for an objective review of the evidence on both sides, to be conducted by a credible scientific organization like the National Academy of Sciences, which published a comprehensive report on the state of forensic science in the U.S. in 2009.
Such a study is not without precedent. In 2005, Great Britain’s attorney general, Lord Goldsmith, ordered a review of 88 shaken baby cases after an appeals court had ruled that triad-only cases “cannot automatically or necessarily” lead to the conclusion that an infant has been shaken. The review identified three convictions that warranted revisiting, in addition to nine others that had previously been identified as suspect.
And in 2007, the Canadian province of Ontario convened an inquiry into 48 shaken baby convictions. The vast majority of those convictions, 44 of them, were found to be of no concern. The remaining four have been referred to the attorney general for further possible action.
Many SBS defenders say they would welcome such a study. But some suggest it would be a complete waste of time.
“To do such a study suggests there’s an issue to be dealt with,” Alexander says. “And I don’t think there are any issues to be dealt with.”
Meanwhile, Edmunds, now 50, maintains her innocence. She says she would never do anything to hurt a child. And she can’t believe that anybody could think she would.
Assistant District Attorney Shelly Rusch says all the evidence in Natalie’s death indicates a violent shaking or other “high-energy traumatic event.” Photo by James Schnepf.
“I’m not the monster they made me out to be,” she says.
Edmunds, whose husband divorced her while she was in prison, moved to the Minneapolis area after her release, where she rents a room in a friend’s house and works in a convenience store until something better comes along.
Though she’s still angry about what happened to her, she’s determined not to be bitter.
“Bitterness will destroy you,” she says.
But Dane County Assistant District Attorney Shelly Rusch—who represented the state in Edmunds’ appeal —still believes that, in a fit of rage, Edmunds killed Natalie.
Rusch says that all of the medical evidence points to either a violent shaking or some other “high-energy traumatic event” like a car crash, which didn’t happen.
“Babies don’t just die for no reason,” she says.
Source:
http://www.abajournal.com/magazine/article/unsettling_science_experts_are_still_debating_whether_shaken_baby_syndrome_/
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