LONDON, June 16 (UPI) — A lawyer for four people convicted of killing or harming babies through shaking told Britain’s Court of Appeal Thursday the medical evidence was doubtful.
The test cases could determine how cases involving “shaken baby syndrome” are handled in future.
Defense lawyers are challenging the view that swelling of the brain, bleeding behind the eyes and between the brain and skull are necessarily symptoms of abuse.
New research has suggested that similar injuries could be caused by a lack of oxygen to the brain resulting from falls from a relatively low height, vaccinations or medication.
“There is no suggestion that any of these carers were child abusers,” Michael Mansfield told the court.
He said the four were convicted solely on the basis of expert medical evidence that the injuries were sustained in a “momentary loss of control or temper.”
However, the evidence had not shown an “indisputable or objective medical foundation for inferring violent treatment,” he said.
The three men and a woman were convicted of murder, manslaughter and grievous bodily harm.
More than 90 other convictions could be challenged if the Court of Appeal judges rule the medical evidence relied on to establish guilt is questionable.
Child Protection stole Christmas from families around the world with SBS accusations
Christmas time is a time for families and a time for children but sadly many families this year faced a Christmas without their children because child protection agencies and paediatricians misdiagnosed very real conditions, opting instead to accuse parents of shaking their babies. As a result many families could not join in the seasons festivities with the children they love, they could not buy them presents or prepare their Christmas stockings and some were left with no idea where their children were or even who they were with. One such family is Zabeth and Paul Baynes, their children were removed from their care on October 22, 2007 after they say they were falsely accused of Shaken Baby Syndrome.
Their story began after their baby daughter of just a few weeks old, lay on the floor on a blanket, her two year old brother came running along, tripped and fell, landing on her, banging her head with his. The baby showed no visible injuries at the time but just to be safe Zabeth and Paul had her checked by their GP who also found no apparent injury. A few days later however, she vomited after a feed and gasping for air she suddenly became listless, her parents rushed her to emergency giving her CPR on the way. Despite the need for emergency resuscitation on route the hospital were dismissive and Zabeth and Paul were surprised when, after initially hooking her up to oxygen she was given a brief examination and sent home as the hospital said that they were not equipped to treat infants. No further tests took place at the time.
Over the next few weeks the infant was repeatedly taken to the hospital, Zabeth was worried as she remained dazed and began refusing her feeds. Eventually she was transferred to another hospital where she was diagnosed with anaemia and reflux and began medication. This medication included Domperidone, Ranitidine and at one point Diazepan, it should be noted that Zabeth was also taking Domperidone to stimulate breast milk. Over the next few weeks the babies vomiting became worse and she became weaker. Zabeth also noticed that she began to have fit like episodes. On the 6th October a CT scan was requested due to the swelling of her head, however, due to sickness of the technician this could not be done for another 12 days, eventually some weeks after her initial injury had taken place a CT scan finanlly revealed subdural haemorrhaging. As soon as a bleed was identified, instead of the facts of this case being examined in detail, Dr. Colbourne a child protection doctor was brought in and accused Zabeth and Paul of shaking their little girl in a fit of rage, an accusation this couple have always refuted.
So lets examine the facts.
It took a total of 22 days from the first visit to a hospital for this vital CT scan to take place despite swelling to the head being noted. This child had endured several episodes where she stopped breathing and at one point she flat lined altogether, this is an obvious sign that all is not well, she visited a total of four hospitals, was seen by eight doctors which included the GP, she had been given a combination of various drugs including Domperidone a drug known to be dangerous and a drug that her mother was also on.
“There were many other visits that I have lost track of. We went many times to the Hope Clinic, went to the Public Health Department, called the 24 Hour Nurse Helpline and also went to office visits to Dr. Sorial and Dr. Ebesch. There were also more visits to the Fraser Valley Emergency as she would not stop vomiting and the nurse helpline advised me to go back. I was always sent home.”
Immediately after the accusation of child abuse their two boys were placed in the care of their grandparents, even though both boys were reported to be healthy. Due to the couple making a TV appearance they were then abruptly removed from their grandparents care in the middle of their sons third birthday party which caused two very young children a great deal of unnecessary distress and trauma.
“They told us to pass the children to their arms, while our children were reaching out to us to come back out of these strangers arms. They were shoeless, coatless and they did not wait for any of their supplies like training diapers, clothes, stuffy toys, etc.
My screams had caught our neighbors ears and they were standing outside their homes looking at what was happening. I cried so hard my nose was bleeding.” Zabeth said.
What stands out about this case is not only was a highly potent cocktail of drugs including the highly controversial drug Domperidone given to this sick baby but that no one even noticed that Zabeth had also been prescribed Domperidone at the time for the stimulation of breast milk and that this would drastically alter the intake of Domperidone that this small baby was taking, it beggars belief that this major fact was totally overlooked and instead this family was accused of shaking this child so violently that it caused severe bleeding in the brain and behind her eyes.
Another very interesting fact is that this is not the only case where Domeridone has featured and parents have been falsely accused of injuring their children.
In fact in the USA Domperidone has been banned completely for mothers breastfeeding because it has been found to be unsafe, the FDA also have chosen against its use for gastric conditions. In 2004 in the paper FDA Warns Against Women Using Unapproved Drug, Domperidone, to Increase Milk Production the FDA said :-
“Although domperidone is approved in several countries outside the U.S. to treat certain gastric disorders, it is not approved in any country, including the U.S., for enhancing breast milk production in lactating women and is also not approved in the U.S. for any indication.”
Another major fact not picked up until this child was in care was that she had the genetic condition Glutaric Acidemia. This was innocently divulged by one of the other children’s foster carers to the mother, although this diagnoses has since been denied by the MCFD or Ministry of Children and Family Development . It is easy to see why it may be denied because it would be crucial to the Baynes defence, this is because it has been repeatedly reported that some individuals with Glutaric Acidemia have developed bleeding in the brain or eyes that could be mistaken for the effects of child abuse.
Med Pedia – Glutaric Acidemia Type reports the following:-
“Glutaric Acidemia type I is an inherited disorder in which the body is unable to process certain proteins properly. People with this disorder have inadequate levels of an enzyme that helps break down the amino acids lysine, hydroxylysine, and tryptophan, which are building blocks of protein. Excessive levels of these amino acids and their intermediate breakdown products can accumulate and cause damage to the brain, particularly the basal ganglia, which are regions that help control movement. Mental retardation may also occur.
Some babies with glutaric acidemia type I are born with unusually large heads (macrocephaly). Affected individuals may have difficulty moving and may experience spasms, jerking, rigidity, or decreased muscle tone. Some individuals with glutaric acidemia have developed bleeding in the brain or eyes that could be mistaken for the effects of child abuse. Strict dietary control may help limit progression of the neurological damage. Stress caused by infection, fever or other demands on the body may lead to worsening of the signs and symptoms, with only partial recovery.”
Sadly, instead of receiving the treatment that this vulnerable and ill baby needed in foster care, and despite the fact she was ill and continuing to vomit despite being removed from her parents this baby was given yet another cocktail of lethal chemicals, this time in the form of her routine vaccines.
“We were told she was sick, but that she was scheduled to have her vaccinations that day. Both my father and I called the social worker trying to get them to stop the vaccinations. She was vomiting and had even been taken to the hospital the night before due to fever and vomiting.
They called late that night to tell us that the vaccines had been done anyways and that they gave her Tylenol. They promoted the caregiver and told us that they thought she was a medically fragile baby.
On Nov 9, 2007 the social worker called to tell us that she was bleeding still behind the left eye. I don’t know if this was true or not. I do know that she has been constantly sick while in care.”
I am not a medical professional but common sense tells me that something in this case does not add up. Here is an obviously sick child, who not only has had a lethal mixture of medications in her short life but has a genetic illness which has according to her family been left untreated, then whilst in care an environment meant to protect her she is vaccinated with a combination of vaccines which according to a growing number of physicians are also known to cause bleeding in the brain as seen in the on Shaken Baby Syndrome the Vaccination Link Were these vaccinations so important they could not wait until this little girl was stronger?
Ten leading professionals agree and all have written reports saying that in their professional opinion this baby was not a victim of child abuse.
In a lengthy report Dr Peter J Stephens M.D Board certified in Anatomic, Clinical and Forensic Pathology summarized:-
“In summary I see no evidence whatsoever of any intentionally inflicted injury.”
Dr Harry J Bonnell M.D Pathology says:-
“I agree with the comments made by Dr John Plunkett and opine that the findings are totally consistent with the history of accidental injury. To say anything more would be repetitively verbose: suffice it to say that there is no evidence of abuse in the manner in which these injuries were suffered.”
So why is this family, who have no less than ten full medical reports written by some of the top SBS experts in the world, including Dr Michael Innis and Dr Horrace B Gardner stating that in their opinion there is no evidence to support that this case is a case of child abuse, still being hounded and why are their three children still in care? Could it be that the hospital that diagnosed this as a SBS case have a massive conflict of interest? It has since materialised that at the same time as this case came to light that this hospital received $1.4 million of government money in an education and prevention program that will give every new parent in B.C. resources and information to better understand inconsolable crying in infants and help lower the incidence of Shaken Baby Syndrome, Children and Family Development. It has now been revealed that are they involved very heavily in a programme with specialists from around the world including UK’s very own Prof Roy Meadows, an expert who has been proven to get it wrong time and time again Great Britain and who has been found guilty of sending innocent parents to prison.
Prof Meadow has appeared as an expert witness for the prosecution in several trials. His evidence has seen many mothers go to jail for murder of their babies. The General Medical Council (GMC) struck off Meadow after he was found to have offered “erroneous” and “misleading” evidence in the Sally Clark case. Clark was a lawyer wrongly convicted in 1999 of the murder of her two baby sons, largely on the basis of Meadow’s evidence; her conviction was quashed in 2003 after she had spent three years in jail. In 2006 an appeal court reversed the decision on Meadow and the GMC reinstated him.
It has also been revealed that the child protection doctor that the hospital brought in, who should have been impartial had lectured worldwide on Shaken Baby Syndrome at some very impressive conferences along with others involved in this case. This surely shows that this doctor was not impartial and had possible conflicts of interest.
In two weeks from now this case goes to court. So far reports from experts have been ignored and good character witnesses have also been ignored and this has resulted in this family being torn apart for not just one Christmas but two. This time let justice be done and the truth be seen, there is a strong possibility that this was not a case of Shaken Baby syndrome and any number of other causes could so easily have led to this babies head trauma.
“We feel heartbroken daily as we wake up in the morning. We no longer feel a little hand pushing our shoulders to wake up. We no longer have a tiny one crawling into bed with us to wrap our arms around. We have no one to make breakfast for and to dress in the morning. We pass by empty rooms and toys placed neatly around the room. We long for the sound of children laughing, crying and running around the home. We long to have toys to clean up, eyes to dry, times of sharing the good and the bad life brings. We long for the privilege to care for our children and to bring them the security of a loving and caring home, where they feel unconditionally loved by both of their parents and extended family. We long for the opportunity to have our rights restored that belong to so many other families to raise their children with their own values, ethics and religious beliefs.
Our thoughts are constantly with our dear children and our hearts will always mourn them until they are returned.
We also however feel the sting of being falsely accused. We abhor child abuse and to live under the blanket of that title is one that brings such humiliation. We are seen as guilty and have not had the opportunity to defend ourselves in court. We have endured the disregard of the protection of our rights and our children’s rights under the Act and are frustrated with the disrespect seen here regarding the Law. We have been horrified to learn that it is not about what is the best interests of the children, but rather making a case and when the facts don’t stand then the manipulation and introduction of false information to try to make the case. We have been appalled by the lack of care from the government regarding the conditions our children must do visitations with us in and other issues regarding our children’s safety and well being in care. We have been disappointed in the governments one track focus on making a case around a medical misdiagnosis and not seeking further medical opinion, instead of looking at the possibility of the ten experts reports we submitted that support the accident that occurred. It is hard to be branded as guilty of such a horrific crime and are in fact innocent.
This case does not seem to be mindful of the truth, ethical practices, justice, the welfare of our children or justice. We pray that in a legal system where so many innocent people slip through the cracks our family does not wind up another statistic. Daily the tears flow. We weep after visitations. We cry as we hear of the problems our children have in care and our hearts break as we hear their pleas to come home.
After you have children. there is no life without them. They are your very heart and soul and life is devoted to their needs, welfare and complete unconditional undying love.
Yesterday when we had to put our children back in the drivers van to take them away our son ***** pulled Daddy to the back of the van and whispered. “Daddy do I have to go in her van again. When can I come home?” Daddy told him that it would be soon…..In the van as I hugged them goodbye I said in three more sleeps we will see you again. He kicked his feet and said yeah in three sleeps I can come home. Sadly I told him no we would only be visiting, but we see the king (judge) in I think sixteen sleeps and we are asking him to have you come home. Our children are praying too.”
To prove a case of abuse, there has to be proof that goes beyond all reasonable doubt that abuse took place. There are several sound possibilities as to why this baby had subdural haemorrhaging, ranging from her brother falling on her, a genetic condition, Hypoxia from an Apparent Life Threatening event causing subdural and retinal haemorrhages (as mentioned in report from Dr Michael Innis) through to the possible overdose of Domperidone and poor medical care from the hospital.For a guilty verdict the court will have to disprove ten reports from leading experts and prove this couple shook this baby so hard that they caused her brain to bleed.
I would like to thank Zabeth and Paul for giving me their permission to highlight this case and wish them all the best in their court case. May God Bless you all.
I would also like to congratulate Mike and Elizabeth Bruce, a case I highlighted some months ago and who I featured in my webinar in October, this family were reunited just before Christmas, when Dalton their beautiful son was returned home to them. Daltons return was down to the dedication and love of his devoted family and especially Mike his father who researched over many months to uncover the truth of what happened to Cameron, Daltons twin brother who sadly died aged two months.
Household Falls May Produce More
Severe Brain Injuries In Infants Than
PHILADELPHIA, PA — July 29, 2003 — Using a specially designed, highly lifelike doll, researchers at the University of Pennsylvania have determined that rapid head rotations sustained when a baby’s head contacts a hard surface during household falls may result in diffuse brain injuries. The findings call into question earlier assessments of the seriousness of such falls by young infants, previously viewed by some as unlikely to cause widespread brain injury.
The results appear in the July issue of the Journal of Neurosurgery.
“Previously falls were considered relatively benign, because the head was assumed to move in a linear path at the terminus of a fall,” said Susan S. Margulies, associate professor of bioengineering at Penn. “Linear motions are most frequently associated with skull fractures and focal brain injuries, but it is primarily rotational movements that produce more severe diffuse brain injuries. We found that when the head contacted a firm surface before the body, significant rotational motions were produced.”
The Penn investigators found that rotational deceleration — rapid changes in velocity as the head contacts a hard surface and then violently rebounds — increased with higher falls and harder surfaces. The largest rotational decelerations, however, were measured when volunteers intentionally struck the doll’s head against a hard surface. These inflicted impacts resulted in decelerations dramatically higher than those from even a five-foot fall onto concrete.
The findings by Margulies and her colleagues may help abuse investigators differentiate accidental falls from injuries caused by the striking of a child’s head against a surface. Brain injuries — accidental and inflicted — hospitalize or kill an estimated 150,000 children annually in the U.S.
“Traumatic brain injury is the most common cause of death in childhood, and child abuse is believed to be responsible for at least half of infant brain injuries,” Margulies said. “While accidental falls are a frequent cause of pediatric trauma, they are also a common explanation given by caretakers in suspected abuse cases.”
Margulies has been using anthropomorphic dolls to study infant head injuries since 1987. The sophisticated doll used in this experiment was designed to mimic the median body weight, weight distribution and size of a one-and-a-half-month-old infant. The dummy’s neck was hinged to replicate the compliant neck of a young infant, and its skull and scalp were made of materials closely approximating the properties of a young infant.
A sensor on the doll’s head measured changes in rotational velocity and acceleration. Such motions are known to cause a diffuse pattern of strains and injuries throughout the brain, but no previous experiment has compared the rotational motion of the head during falls and inflicted events.
An apparatus dropped the doll 134 times from heights of one, three and five feet onto common household surfaces: a concrete floor, quarter-inch-thick carpet padding and a four-inch-thick foam pad, similar to a crib mattress. In additional tests, volunteers also shook the doll vigorously and then struck its head against one of the same three surfaces.
“We found that vigorous shaking of this infant model had effects similar to one-foot falls and falls onto foam, but inflicted impacts of the head onto hard surfaces produced significantly greater rotational decelerations and changes in velocity than those onto foam, vigorous shakes and even a five-foot fall onto concrete,” Margulies said. “Separate studies have shown that larger rotational decelerations lead to more severe brain injuries. Based on this evidence, our data suggest that inflicted impacts are much more likely than falls or shaking to lead to brain injury.”
Comparing the results with published data from animals and children, the Margulies group concluded that it was highly unlikely that vigorous shaking or falls onto a foam mattress from distances up to five feet would result in severe or fatal brain injuries; however, five-foot falls onto concrete appeared capable of causing serious brain injury. The researchers also concluded that inflicted impacts with a hard surface would likely produce subdural hemorrhage and possibly diffuse axonal injury. Results were inconclusive on the effect of intermediate-height falls onto concrete or carpet padding.
Margulies cautions that extensions of the findings to estimate likelihood of injury are tentative because little is known about how the infant or toddler brain and skull responds to rapid rotational motions and impacts.
“Children are not just miniature adults,” Margulies said. “Learning more about pediatric brain injuries will help us develop protective devices — helmets, playground surfaces, car seats — that better meet their specific needs.”
SOURCE: University of Pennsylvania
NAPLES — For nearly three years, Giovaninna Guardascione has lived with the threat of three decades in state prison — and the possibility she’d die behind bars.
On Friday, the 60-year-old Naples Park woman walked out of court a free woman after a prosecutor dropped a shaken baby case against her — two weeks after she passed a lie-detector test.
“The family has been ecstatic since hearing the news,” her defense attorney, Joshua Faett, said of being notified a few days ago. “They’re thrilled. It’s been a long time and a lot of work.”
Ever since her arrest in November 2006, Guardascione has denied doing anything to the 11-month-old baby she cared for in her home. The polygraph test proved she wasn’t lying.
It also shows she told Collier sheriff’s Sgt. Scott Walters, the polygraph examiner, that she saw the baby’s mother trying to calm her crying son for five minutes that morning before kneeling down and shaking him by the shoulders, asking him to calm down.
After the woman left for work, Guardascione said, the baby stood up in a playpen, crying and falling repeatedly until it sounded like he fell hard. She said she picked him up, saw something was wrong, his eyes rolled back, and she called 911.
Last month, Guardascione told Collier Circuit Judge Frank Baker she had only accepted a plea bargain to avoid a long prison term and no one had believed her before. It was the judge who asked if she’d take a lie-detector test after the boy’s father, Tad Strycharz, told him he didn’t want an innocent woman to be sent to prison.
After she passed, the judge granted a motion by defense attorney Joshua Faett to withdraw the no-contest plea to aggravated child abuse, a first-degree felony.
She had agreed to the plea under the condition that she would face up to three years in prison, not 30, the maximum under the law.
On Friday, the judge detailed the long history of the case, saying he’d felt uncomfortable having to sentence Guardascione. He then commended Assistant State Attorney Deb Cunningham for filing a notice, dismissing the charge.
Guardascione, who is Italian and speaks broken English, looked stunned as she left with her daughter-in-law, who referred comments to Guardascione’s defense attorney.
Faett said he had to tell the family three times before the news sunk in.
“She was at the wrong place at the wrong time,” Faett said, reiterating his medical expert’s opinion that such injuries could be caused at birth. “Whoever is left holding the baby at the time is charged.”
It’s uncertain whether the boy, nearly 4 years old now, suffered permanent injuries. His father cited concern over possible speech problems, but was uncertain whether they’d last.
“Our reason for (dropping charges) was that with the information that the victim’s father provided … and the new information that came to light during the re-interview of the defendant following her polygraph, we felt we could not prove the case beyond a reasonable doubt,” Cunningham said, referring to the father’s desire not to prosecute an innocent woman.
Guardascione, who operated a small, informal day care service in her home, called 911 on Nov. 6, 2006, to report the baby, who had been crying all day and week, appeared injured.
The baby was taken by medical helicopter to Lee Memorial Hospital in Fort Myers for emergency brain surgery and transferred to All Children’s Hospital in Tampa, where tests showed he had a subdural hematoma so severe it was causing part of his brain to shift to the other side. He couldn’t move his right side, the left side of his face drooped, and he needed further emergency surgery to stop the bleeding.
Doctors determined it was shaken-baby syndrome, a controversial diagnosis.
Faett hired a nationally known expert who made headlines in cases that included one in which a Boston nanny serving time in prison was freed and sentenced to time served.
By: Associated Press – | Posted: Tuesday, May 1, 2007 12:00 am
LOS ANGELES – A woman convicted of shaking her 7-week-old grandson to death a decade ago will see her case sent back to the federal appeals court that overturned her conviction last year.
The U.S. Supreme Court on Monday ordered the 9th Circuit Court of Appeals to reconsider its decision that there had “very likely been a miscarriage of justice.”
In a three-sentence order, the high court told the appeals court to reconsider Shirley Ree Smith’s case in light of a December 2006 Supreme Court ruling. In that case, the Supreme Court overturned an appeals court ruling that was favorable to a convicted killer.
Smith’s attorney, Michael J. Brennan, did not immediately return a call for comment. Deputy Attorney General Kristofer Jorstad also did not return calls for comment.
Smith was convicted in December 1997 and was sentenced to 15 years to life at a women’s state prison in Chowchilla.
During trial, experts for both sides testified variously that the child had died from being shaken, from sudden infant death syndrome or for an old brain injury that re-bled.
In reviewing expert testimony in the case, the appeals panel found “no demonstrable support” for the prosecution’s theory that the Southern California woman lost her temper when Etzel Dean Glass III began crying in November 1996 and shook him to death.
There was no evidence to explain what might have caused Smith to snap, Circuit Judge William Canby Jr. wrote, and it was “extremely unlikely” that she would shake the baby when his mother was a few feet away.
Posted in State-and-regional on Tuesday, May 1, 2007 12:00 am Updated: 9:01 pm.
Appeal allowed in shaken baby case
By Allison Jones, THE CANADIAN PRESS
Last Updated: 6th January 2009, 2:34pm
TORONTO — Richard Brant’s conviction more than 13 years ago in the death of his infant son was the result of disgraced pathologist Charles Smith’s work and should be quashed, the man’s lawyer said Tuesday as he prepared to file an appeal.
Brant was taking his two-month-old son Dustin for a walk on Nov. 16, 1992, after the boy had been sick for a few days. When he lifted the rain guard on the stroller he was horrified to find Dustin’s lifeless body with thick, red foam around his nose, Brant said in an affidavit filed with the court.
The infant was taken to hospital and died two days later.
The pathologist who conducted the autopsy listed pneumonia and respiratory failure as causes of death.
When Smith, then a prominent pathologist, examined the case he concluded Dustin likely died from Shaken Baby Syndrome.
“Dr. Smith actually took it on himself to contradict the pathologist who provided the original opinion,” lawyer James Lockyer said Tuesday after Ontario’s highest court granted a time extention to file an appeal.
“It’s a case where he played a very significant role in the prosecution of the father.”
Brant’s lawyer at the time told him “Dr. Smith was ‘The King’ of his field, and challenging his conclusions would be next to impossible,” Brant said in the affidavit.
Facing the prospect of damning testimony from a star witness in court, Brant took a deal and pleaded guilty to aggravated assault, the documents state. His new girlfriend had just told him she was pregnant, and he didn’t want to risk being convicted of manslaughter and never being allowed to see his child.
“I did not cause Dustin’s death or assault him in any way, and pled guilty because I felt I had no other realistic option,” the affidavit reads. “However, I now know that I entered my plea based on flawed pathology.”
Smith’s work was the focus of a public inquiry last year that blasted key players, including Smith, in a forensics scandal that saw innocent people branded as child killers.
The Ontario government has launched a formal review of so-called shaken baby cases in which Smith played a role.
Lockyer said he will be asking the court to quash Brant’s conviction and enter a verdict of acquittal.
There is virtually no way to re-examine Brant’s case through a new trial because key pathology evidence was unintentionally destroyed and a stay of the proceedings would be unacceptable, Lockyer said.
“The evidence now is clear that Dustin died of natural causes,” he said outside the court.
“It’s, in my view, not good enough to just say, ‘We’ll stay the proceedings against you.’ He really should never have been charged in the first place.”
There are several other cases like Brant’s that will likely be brought before the courts again, Lockyer said.
“(Brant’s) case, as much as any of them, was dependent on Dr. Smith’s evidence,” Lockyer said.
“This isn’t going to be the last of them, that’s for sure.”
Because of the time that has passed since Brant’s conviction, Lockyer had to ask the Ontario Court of Appeal for an extension of time to file an appeal.
“The appellant has explained the delay and there is obvious merit to the appeal,” Justice Marc Rosenberg wrote in his endorsement.
Lockyer was given until Friday to file the appeal.
The Ontario government announced Tuesday it will launch a formal review into shaken baby syndrome cases to determine if any judicial errors resulted from the investigations.
Ontario Attorney General Chris Bentley said a team of medical and legal experts including Ontario Court Justice Donald Ebbs and the province’s chief forensic pathologist will head the inquiry into the 142 “shaken baby” cases investigated during 1986 to 2006.
A second team led by Ontario’s former associate of chief justice, Coulter Osborne, will also look into whether compensation should be paid to those who were wrongfully convicted in the cases.
The reviews follow 169 recommendations made by Justice Stephen Goudge in his final report on the injustices committed by disgraced pathologist Dr. Charles Smith during his tenure as the province’s chief pathologist from 1991 to 2001.
“Justice Goudge has given us an excellent roadmap for progress, and we are following it so that Ontarians who may have been affected by these terrible human tragedies can find the justice they deserve,” he said in a statement. “We will take every opportunity to ensure that justice is done.”
These current cases under review were not investigated by Smith but involved other pathologists, Bentley said.
No timeline was given on when the reviews will be completed.
Smith was found to have committed serious errors in 20 of 45 criminally suspicious deaths he investigated during this period.
Though Smith lacked basic knowledge about forensic pathology, he was considered one of Canada’s leading experts in the field and his findings helped lead to homicide charges against parents and caregivers – many of which were unwarranted.
Goudge’s recommendations were aimed at improving the forensic pathology in the province and included: establishing a governing council to oversee the duties and responsibilities of the coroner’s office and the creation of an accredited one-year university training program.
He also called on the province to address the acute shortage of forensic pathologists by recruiting and paying higher salaries.
by Matt Kelley
Published June 23, 2009 @ 05:25AM PT
An excellent new article in The Crime Report by Maurice Possley examines convictions based on medical evidence of Shaken Baby Syndrome and assembles a strong argument that wrongful convictions are common in these cases.
In the last three decades, Possley writes, there have been “thousands of successful prosecutions … of parents and other care-givers who have been found guilty of charges ranging from manslaughter to murder, based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system where the diagnosis is the basis for prosecution.”
Efforts to closely examine shaken baby cases are in no way intended to undermine prosecutions of legitimate child abuse, which is of course a real concern. But people working on issues surrounding wrongful convictions have long questioned whether the science in SBS cases was so clear that a doctor’s diagnosis could be enough for a conviction. Like other fields of forensic science, where empirical data is not available to quantify the strength of evidence, much is left to a doctor’s determination in SBS cases and defendants without the resources to challenge prosecution experts are more likely to be convicted.
About 1,500 babies are diagnosed with SBS each year in the U.S., but no one knows how many of these cases result in criminal prosecutions. An analysis of criminal appeals, however, shows the number of defendants challenging such convictions has grown in recent years and continues to grow.
Possley points to an upcoming law review article by University of Maine School of Law professor Deborah Tuerkheimer, which questions the validity of evidence we’ve been using in shaken baby convictions for years.
“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.
“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 to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena,” Tuerkheimer writes.
Grits for Breakfast has more commentary on this great article by Possley. Scott Henson writes at Grits:
When you think about it, the death of a baby is already such a terrible event, how much more would it compound the tragedy to then falsely accuse a parent or child care worker of homicide? But to judge by the latest research, that appears to be exactly what’s happened in many of these cases since the diagnosis was first popularized in the ’70s.
October 17, 2009
By Jeff Starck
Wausau Daily Herald
At least two Marathon County adults convicted of killing babies stand to be set free from prison as a result of an appeals court ruling in another shaken-baby case.
Prosecutors and doctors said Quentin Louis of Athens killed his 4-month-old daughter, Madelyn, in March 2005. In a separate case, Tammy Millerleile of Wausau was convicted of fatally shaking 14-month-old Jake Mentink in March 2002 while baby-sitting him, according to court records.
Louis was sentenced to 20 years in prison and Millerleile is serving 16 years, both for reckless homicide.
But in August, Marathon County Circuit Court Judge Vincent Howard vacated Louis’ conviction and granted him a new trial based on a ruling that suggests medical evidence in shaken-baby cases is suspect. Prosecutors are appealing the decision to retry the Louis case, but Howard last month also authorized payments for expert witnesses to review Millerleile’s conviction.
Louis’ and Millerleile’s reviews were prompted after a former Madison-area woman convicted in a shaken baby case was freed from prison in 2008. An appeals court ruled she should have a new trial.
The court said new medical information about shaken-baby syndrome called into question the conviction of Audrey Edmunds, and prosecutors elected to dismiss the charges against her after she served 11 years in prison.
Since that landmark decision, courts have been reopening shaken baby cases to examine the evidence that led to convictions, said Keith Findley, a clinical law professor and co-director of the University of Wisconsin Law School’s Wisconsin Innocence Project that worked the Edmunds case.
A paper published last month in the Washington University Law Review said that prosecutors and courts have been slow to adopt new science-based studies that could exonerate those accused and convicted of crimes related to shaken-baby syndrome.
“Guilt is being assigned where the best available science creates, at the very least, reasonable doubt,” DePaul University law professor and former prosecutor Deborah Tuerkheimer said in the paper.
Prosecutors and doctors for years relied on the presence of three injuries — brain swelling and brain and retinal hemorrhaging — as indicators that a baby had been shaken. Findley said doctors and biomechanical engineers now better understand the causes of the brain and eye injuries and there is debate within the medical community over whether shaking a baby can cause death by itself.
“No one wants to protect child abusers, but there are innocent explanations for people who are accused of shaken-baby syndrome in the past,” Findley said.
According to the National Center on Shaken Baby Syndrome, between 1,000 and 1,500 children each year in the United States are badly injured or killed after being shaken. Children’s Hospital of Wisconsin reported 28 shaken-baby cases in 2008, and there have been at least seven since 1995 in Marathon County.
Bonny Armstrong, executive director of The Shaken Baby Alliance, disagrees with those who today question the diagnoses and convictions.
“If shaking didn’t hurt children, why do we have so many people with serious or fatal injuries?” said Armstrong, whose daughter suffered serious injuries from being shaken by a relative.
Dr. Robert Reece, a clinical professor of pediatrics at Tufts University School of Medicine in Boston, called the debate “manufactured controversy.” Reece, a member of an advisory board for the National Center on Shaken Baby Syndrome, said there is no new science involved; doctors always have looked for alternative explanations when making diagnoses.
“We know the implications when these things go to court,” Reece said. “We don’t want to make accusations, we make a diagnosis.”
Still, the issue — for Louis, Millerleile and other defendants — must be resolved in the courts.
Marathon County Assistant District Attorney LaMont Jacobson said he would not be surprised if other shaken-baby convictions, local and statewide, are questioned before the matter is resolved.
By Tim Shufelt | Publication Date: Monday, 14 December 2009
With another overturned conviction for the death of a child, the justice system in Ontario moves a little closer to making amends for one of its darker periods.
But the same conditions that led courts to criminalize the innocent remain today, according to the country’s foremost advocate for the wrongfully convicted.
James Lockyer says the “aura of infallibility” around Crown expert witnesses still lingers, creating the kinds of circumstances that unjustly sent his client to jail for the death of her son.
“Crown experts still are allowed to proffer opinions that shouldn’t see the light of day.”
Lockyer was at the Ontario Court of Appeal last week as his client, Sherry Sherrett-Robinson, was acquitted of infanticide almost 14 years after she found her four-month old son, Joshua, dead in his playpen.
In the face of damning autopsy findings reported by disgraced forensic pathologist Charles Smith, the Trenton mother pleaded guilty to infanticide. She spent a year in jail.
Smith testified in Sherrett-Robinson’s preliminary hearing that he found four suspicious injuries in the autopsy that led him to conclude that Joshua had been intentionally asphyxiated.
However, after the boy’s body was exhumed and re-examined, all of the injuries were determined to be either consistent with accidental asphyxia or caused by Smith himself during the autopsy.
The court declared that Sherrett-Robinson was the victim of a miscarriage of justice. The Crown agreed to an acquittal.
Lockyer says the entire case against his client rested on erroneous evidence manufactured by “a man who thought he had a mission.”
Sherrett-Robinson’s plight is the perfect example of the misguided blind faith and absolute deference courts can grant expert witnesses, he adds.
“Certainly, if I had been representing her back in 1996, I would have been worried she would have been convicted based on Smith’s evidence.”
Despite Court of Appeal Justice Stephen Goudge’s inquiry into Ontario’s child forensic pathology system and the reforms and remedies announced by the provincial government in response, courts still give Crown experts unwarranted credibility, Lockyer says.
“I wouldn’t say it’s remarkably different.”
Ironically, any new skepticism of scientific testimony introduced into the system seems to be applied more to experts called by the defence than those called by the Crown, Lockyer adds.
Others, too, identify disparities in accessing expert witnesses as a big problem.
John Struthers, a Toronto criminal lawyer and murder trial veteran, says there isn’t enough provincial funding for defence teams to hire scientists of the same calibre as those used by the Crown.
“We still have an adversarial system. In an adversarial system, you have to have balance, and we don’t,” Struthers says.
At the same time, considering how scientific evidence has stolen some of the focus away from witness testimony — what Struthers calls the “CSI effect” — that imbalance burdens an accused with a systematic disadvantage, he says.
“Juries very much are now looking for science. You have a doctor testifying before the jury, and it’s mesmerizing.”
In January 2000, Smith testified in a preliminary hearing against a client of Struthers accused of killing a child in her care.
The woman reported that the three-year-old boy had tumbled from the couch and hit his head on a coffee table.
Smith asserted that children don’t die from falls of less than three or four stories, so the caregiver must have caused the child’s head injury.
A panel of pathology experts later described his conclusion as “grossly erroneous.” Although Smith’s claim was absurd even to a layperson, there was no doubting the gravity of the doctor’s looming testimony on the eve of the trial.
“It was terrifying,” Struthers says. “I believed this woman was innocent, and she was being totally railroaded by this charlatan.”
On other remedies already proposed in response to the Goudge report, Lockyer says the province is dragging its heels.
Last December, the Ontario government established a committee led by Ontario’s former associate chief justice Coulter Osborne to examine a compensation framework for victims of Smith’s erroneous medical findings.
So far, there’s no word on progress, Lockyer says.
“I’m afraid they don’t seem to have done anything. I’ve never even spoken to them.”
He previously made an inquiry with the committee, he adds, but didn’t hear back.
“It’s been extraordinarily unsatisfactory and quite brutal. These people need help and they can’t get it.”
In an e-mailed response, a spokesman for the Ministry of the Attorney General said the committee is indeed working on the issue of compensation.
“The government is looking forward to receiving the committee’s recommendations as soon as possible so that we can proceed in the fairest and fastest way possible,” the statement said.
“As it is important to get this right for everyone involved, an arbitrary deadline has not been set.”
The ministry also noted that the team reviewing shaken-baby deaths has completed an initial review of all 142 cases and dismissed those that “don’t involve any issues of criminality or where the convicted person is deceased.”
An international panel of medical professionals is also planning on meeting in Toronto next spring to review the cases and will report its findings to the attorney general, the statement said.