UN-CONVICTING THE INNOCENT THE CASE FOR SHAKEN BABY SYNDROME REVIEW PANELS

University of Michigan Journal of Law Reform

Spring 2012

UN-CONVICTING THE INNOCENT: THE CASE FOR SHAKEN BABY SYNDROME REVIEW PANELS

By: Rachel Burg

Introduction

On October 15, 2010, Julie Baumer was finally able to breathe as a free woman.1 Seven years earlier, on October 3, 2003, her nephew, Philipp Baumer, was admitted to Children’s Hospital in Detroit where a CT scan showed subdural bleeding and a brain that had been deprived of oxygen, and an ophthalmologist detected retinal bleeding.2 The hospital immediately suspected child abuse and consulted several social workers in the following days.3 Doctor’s notes on the subsequent tests documenting Philipp’s brain and eye injuries often attributed these injuries to Shaken Baby Syndrome (SBS).4 As Philipp’s primary caretaker, Julie was the suspected abuser. On December 17, 2003, Dr. Cristie Becker wrote to Detective John Rollo of the Macomb County Sheriff’s Department, diagnosing Philipp with “non-accidental trauma involving a shaking episode as well as a striking of the head against a solid, flat surface.”5

*658 In February of 2004, Julie was charged with first-degree child abuse. In September of 2005, at the first of her two trials, a treating neurosurgeon at Children’s Hospital6 and a pediatric radiologist testified for the prosecution as expert witnesses.7 In what he described as “not a difficult case,”8 the treating neurosurgeon testified that the “massive brain injury” was not consistent with an accidental injury, but rather resulted from “a much greater force being imparted upon the child.”9 The pediatric radiologist described the brain injury as “best explained as the result of a shaking.”10 Both doctors testified that based on his injuries, Philipp suffered from “non-accidental trauma”11 which most likely occurred within twenty-four hours of the CT and MRI scans.12 This timeline would have put Philipp in the care of the hospitals–not Julie– when he was injured. The defense attorney, however, failed to note this discrepancy.

The defense’s sole medical expert was found not qualified to read the CT scans, rendering her unable to directly contradict the prosecution’s medical experts.13 While the expert, a forensic pathologist,14 pointed out some of Philipp’s other medical conditions and argued that the child had been sick for a long time,15 the defense did not present any medical experts testifying to a specific alternative theory of causation for the injuries.16 The jury was left with two medical experts suggesting child abuse, and no alternative theory from the defense. Julie was convicted of first-degree child abuse on September 29, 2005.17 In sentencing Julie, due to what he perceived as the “high level of brutality” of the crime, the judge *659 exceeded the sentencing guidelines and sentenced her to 10-15 years in prison.18

In 2007, after receiving a letter from a nun who had visited Julie in prison, the case came to the attention of a professor at Ave Maria Law School, who enlisted the help of a private defense attorney.19 The lawyers sent Philipp’s scans to several doctors, a neuroradiologist, a pediatric neuroradiologist, and a forensic pathologist. All of them diagnosed Philipp with venous sinus thrombosis (VST), a form of childhood stroke that is often associated with seizure-like activity, illness and dehydration.20 Citing this evidence, the defense team filed a motion for post-conviction relief based on ineffective assistance of counsel and actual innocence. At the August 2009 evidentiary hearing, the defense presented testimony from these doctors, expressing their opinions that Philipp had suffered from VST and not child abuse or Shaken Baby Syndrome.21 VST, the doctors testified, was consistent with the dehydration and sepsis diagnosed at the E.R. in Mount Clemens, as well as his history of sickliness since birth.22 The judge granted the motion. Julie and her defense team, joined by the University of Michigan Innocence Clinic, began to prepare for a new trial.

At the second trial in September and October of 2010, the two doctors from the first trial testified again for the prosecution, reiterating their arguments that Philipp’s injuries were caused by non-accidental trauma. However, they shifted their timelines for his injury, to a time when he was likely in Julie’s care.23 This time, however, the defense had an alternate explanation for Phillip’s medical findings, which was presented through the testimony of the three original doctors, as well as a pediatric child neurologist, a *660 clinical and forensic pathologist, and a neurosurgeon.24 After a short deliberation, the jury found Julie not guilty of child abuse.

Unfortunately, Julie is not alone in her experience. The truly heartbreaking stories, however, are those that are not told–the innocent people currently in prison, convicted of seriously injuring a child that they loved, based on a medical diagnosis that has become scientifically questionable. Like Julie Baumer, many defendants enter court unprepared to counter the legion of medical experts that they will face, and most are not as lucky as Julie was to find an Innocence Clinic to take on their causes. This Note examines the interaction between a Shaken Baby Syndrome (SBS) diagnosis and our criminal justice system, and calls for a review process to be put in place. An SBS Review Panel would give those convicted of SBS-related crimes the opportunity to have competent experts review the medical records, and the chance for a fair trial.

When someone is accused of an SBS-related crime, the prosecution typically presents a triad of medical findings–retinal hemorrhages, subdural/subarachnoid hematomas, and cerebral edema–to “prove” that the injury to the baby could only have resulted from shaking. However, medical research is casting doubt on the significance of this triad, and there is currently disagreement within the medical community on what scientific evidence is necessary to establish that SBS caused a particular death or injury, and even whether SBS is a classifiable syndrome at all. This lack of scientific agreement on SBS has led to haphazard and divergent results throughout the country, even in cases with very similar facts. As the medical community continues to shift toward a uniform skepticism of SBS, our legal system will eventually follow suit, leading to more consistent results across courts. However, until that time comes, individuals continue to be convicted of SBS-related crimes25 on the basis of evidence that is scientifically questionable and likely unsound.

This Note proposes that states should develop error-correction bodies to identify past errors that have resulted in wrongful convictions of people accused of shaking a child. These institutions, which I call SBS Review Panels, would be similar to the error-correction bodies and commissions that have recently been established throughout the world to deal with various sorts of wrongful convictions. An SBS-specific commission should be developed because of *661 the high level of scientific expertise that is required to fully understand this diagnosis and the problems associated with using the triad of medical findings as evidence of the defendant’s conduct.

Part I will define SBS and detail the medical and social perceptions of the diagnosis from the 1970′s until the present. In describing in greater depth the recent changes in the medical consensus behind SBS, Part II illustrates why our legal system should not permit convictions based exclusively on disputed medical evidence. Part III analyzes the current state of the law, with several case studies to illustrate the problems with the use of this potentially faulty diagnosis. This Part further details the challenges that face defendants seeking relief from SBS convictions. To address these problems, Part IV proposes the creation of error-correcting bodies to discover errors that have resulted in wrongful convictions or miscarriages of justice for those accused of shaking a child. This Part evaluates examples of post-conviction review boards, and concludes by proposing a Shaken Baby Syndrome Review Panel, and a model statute for its enactment.

For full paper see link

http://www.mjlr.org/wp-content/uploads/2012/05/Burg_45.3.pdf

 

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