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

 

Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome

January 18th, 2011

Author: asulawjournal

 

Arizona State University College of Law is previewing its upcoming articles in the winter publication.  This article is written by third-year student, Dan Orenstein.

For decades, the theory of Shaken Baby Syndrome (SBS) has been an accepted scientific reality – one many Americans first became aware of in the late 1990s during the highly publicized trial of British au pair Louise Woodward. SBS is the diagnosed etiology for perhaps thousands of injuries or deaths each year in the United States, and it remains the basis for hundreds of criminal convictions annually.  According to the theory, shaking an infant produces a unique and readily identifiable pattern of symptoms from which the cause, time, and non-accidental nature of injury can all be extracted. This theory has been the sole basis for many criminal trials where there were no witnesses, no other injuries to the child, and no acceptable alternative explanations offered by the accused, such as a car accident or significant fall.

Recently, however, many in the scientific and medical communities have come to question the scientific underpinnings of SBS theory, and some have produced evidence indicating that the injuries previously thought to be uniquely associated with shaking could also be produced by minor falls, infections, or other non-intentional means. This change in opinion has begun to have a ripple effect through the criminal justice system. Some persons accused of shaking a child to death are now having their cases dropped by the prosecution before trial due to a lack of evidence. Courts are struggling with admitting SBS evidence under Daubert.  Other nations have launched investigations into old criminal convictions premised on SBS theory.  In this environment, there are serious questions to be answered regarding how the American criminal justice system can and should address the issue of post-conviction relief in cases premised on science now called into question.

In my comment, Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome, I trace the recent decline of the scientific theory of SBS from nearly unquestioned medical and legal dogma to hotly debated hypothesis. In the context of recent changes in scientific evidence generally (e.g., DNA exonerations, questions about forensic fire science),  I examine the legal ramifications of this dramatic change in scientific opinion, with emphasis on what developing questions regarding the reliability of the theory mean for those already convicted and serving prison sentences solely on the basis of ambiguous scientific evidence. I also propose a testing model (based on forensic science methodology recommendations from the National Academy of Sciences) that begins to address the uncertainties that continue to plague SBS science and stand in the way of meaningful resolution of the issue in the legal sphere. To learn more about the history, current developments, and potential future avenues of scientific research and legal challenge regarding Shaken Baby Syndrome, please see my comment in the Winter Issue of the Arizona State Law Journal.

 

Source:

http://asulawjournal.lawnews-asu.org/?p=100

Shaken Baby Syndrome – the Trap that Catches Innocent People

Author:

Jef Henninger, Attorney

For full bio see:

http://www.njdyfsattorney.com/lawyers.html

 

December 26th, 2010

Most people have heard of shaken baby syndrome.  Few people really know what it is.  To put it simply,  it is the name given to a collection of symptoms thought to be caused by shaking a baby often out of anger and frustration.  Its more art than science and the diagnosis may depend on who the suspects are and who is making the allegation.  An infant really doesn’t have a medical history.  Thus, unexplained injuries need an explanation.  If neither parent admits to dropping the child, than the hospital staff will look to bone disease or shaken baby syndrome.  Bone diseases or other ailments that could cause the injuries could be difficult to diagnose especially right away.  If one of the parents seem like suspects, they will likely be branded suspects be hospital staff.  As a result, when DYFS and law enforcement are called, they will often accept the suspect label that hospital staff has been given to one or both parents.  Of course, an independent investigation would be expected in a perfect world, but this is New Jersey.

What you will see in these cases quite often is DYFS and law enforcement attempting to alienate one parent against the other.  When this doesn’t happen, both parents may become the target.  In one SBS case I was involved with, my client was prevented from having visitation simply because she said she wasn’t sure if her husband was guilty.  Makes a lot of sense right?  In that case, it eventually turned out that the father did nothing wrong.

Another thing you will see in these cases is law enforcement trying to break down the key suspect.  They may give the suspect a stuffed animal and get him/her to show them how the child was dropped, shaken, carried, etc.  As the pressure mounts, the suspect may eventually break and wind up admitting to something they didn’t even do.  Research has born out time and time again that innocent people can be made to admit to something they didn’t do when they are subject to this type of pressure.  Now that are facing criminal charges in addition to possibly losing your rights to your child, you will see that talking could be the worst thing that you ever did.

If you are under investigation for shaken baby syndrome, child abuse or any DFYS investigation, call our team of tough, smart attorneys right away.

Source:

http://njdyfsattorney.com/blog/?p=28

TRIAL TACTICS AND TECHNIQUES

Stevensons LLP

OBA Conference April 9, 2010
INTRODUCTION

You can get mixed messages reading too many advocacy manuals and texts1. For example, some will advise you when opening at trial to be thorough and heavy on the documents, and others will advise you to be short and sweet. In closing some will advise you to make limited written submissions in a fashion akin to bullet points and others will advise you to file a detailed written statement both at the beginning and end of trial.
Some people recommend that you make detailed oral and written submissions covering every material point. Others will recommend that your submissions should be limited in scope so as to allow the judges to develop the argument for themselves: on the psychological basis that a judge’s own thoughts are more likely than your submissions to be incorporated in the judgment. The plethora of advocacy-related education courses and programs would suggest that advocacy skills can be learned. I believe this is true to a certain extent or this paper would not be useful.
Nonetheless, the lifeblood of advocacy is experience. And a lot of experience is a prerequisite to being a successful advocate.

This article further examines the experience and the style of defense lawyers. It will take you through the tactics in timing utilizing case samples for consideration as well as laying out five points of advice when seeking to expedite a trail.

Should you or should you not make an objection and what are some of the common objections made? When should you challenge an expert?

Page 10 of this article:

The Goudge Report (2008)20 on flaws in Ontario’s forensic pathology system had much broader implications for civil and criminal justice in Ontario. It sets out fertile ground for objections to expert evidence. In the context of criticizing the pathologist, Dr. Smith, the Inquiry identified 10 criticisms, all of which can be relevant in any case:
(i) he failed to understand his role was not to support the crown (or party
retaining him) (this goes to bias and may affect both weight and
admissibility);
(ii) he failed to adequately prepare for court (this would be relevant to the
weight of his evidence);
(iii) he overstated his knowledge in a particular area (this may be relevant to
his qualification as an expert or to weight);
(iv) he gave anecdotal evidence which was inappropriately unscientific (this
goes primarily to the weight of his evidence);
(v) he failed to give a balanced view of the evidence and was dogmatic and
was unduly certain (this again goes more to weight);
(vi) he was unprofessional and gave unwarranted criticism of other
professionals (this again goes more to weight);
(vii) he testified on matters outside his area of expertise (this should be the
subject of an immediate objection);
(viii) he gave opinions which were speculative, unsubstantiated and not based
on (pathology) findings (this goes to weight);
(ix) he used loose and unscientific language (again, this goes to weight); and
(x) he lacked candour and honesty (again, this goes to weight).
The Goudge Inquiry established that the complexities of forensic pathology often led to ineffective cross-examination. You must be thoroughly prepared in the particular area of expertise to perform a competent cross-examination.

This article will also take you through your written submissions before and after the evidence has gone in. It will assist in providing direction for both opening statements and closing arguments.

How can one utilize the transcript fully for cross examination purposes? Examine twelve suggestions for this.

There is also an array of excellent resources attached and labeled Schedule A as well as examples of transcripts in the section labeled Schedule B.

Page 35 of article:

Executive Summary

The Death Of  A Child And The Criminal Justice System

This explains the devastation and impact involved on the families who have lost a child coupled with the travesty of being wrongfully accused of being responsible for it.

Dr. Charles Smith is rightly used as an example of medical misdiagnosis complicating an already difficult time for a family. What was his role as an expert and what were his failings in providing evidence?

The article explores ten of these pertinent failings, which not only permeated the cases Dr. Smith was involved in but have been repeated with so many other so called expert evidence.

Page 40 provides an analysis on the roles of the Coroners, Police, Crown and Defense and then moves on in Page 41 to give insight as to the role the court plays. Seven points are elaborated on regarding ways to assist the court with this oversight.

Regarding wrongful convictions on Page 42 I quote:

In my view there is one set of cases in which further review is justified. Simply put, the changes in pathology knowledge concerning shaken baby syndrome and pediatric head injures over the last two decades provide cogent reasons for a carefully constructed review of these cases.

For full PDF article please see Source:

http://www.stevensonlaw.net/TrialTactics.pdf

What Really Is Shaken Baby Syndrome Is It For Real?

On November 4, 2010,

by Justin J. McShane

I have a daughter.  She just turned two.  She is the love of my life.  She is cute and precious and just absolutely lovable.  I cannot imagine what it would be like if she were to die at any age, but especially at this age or younger.  I really could not imagine if I or someone else were accused of killing her by way of Shaken Baby Syndrome (“SBS”).  Without a doubt there are very few topics that bring out more understandable passion than child abuse or the death of a child.  The fact finder, whether it is a Judge or a Jury, does not have the luxury of passion, but is sworn to examine the evidence critically, with skepticism and analytically.

The typical case involves an infant, one year old or less, who is seen with respiratory distress at the home, then sent to the hospital.  The presentation is typically remarkable with notes of subdural hemorrhages with retinal bleeding, no external trauma and no report of a noteworthy fall.

First let’s talk about the current prosecution-oriented myths that surround Shaken Baby Syndrome.  Then, we will employ basic and valid biomechanics and generally accepted principles of anthropometry to reality in order to expose these myths.

Well first, let’s take a look at the “loaded language” inherent in the diagnosis.  It is called Shaken Baby Syndrome, which evokes quite a bit of emotion based simply upon its title.  However, it is now being reframed as Shaken Baby Impact Syndrome, Non-Accidental Injury Syndrome, and Infant Brain Injury Syndrome to exacerbate the cognitive prejudicial effect of it all.

There are several basic myths that underscore and characterize the situation.

The diagnosis is truly a clinical one and not one that is born of any measure of meaningful empirical testing. The notion that the triad or constellation of injuries together can only manifest based upon violent shaking that is intentional to the exclusion of everything else leads to the potential of extreme mistakes.

1. Doctors who seek to diagnosis SBS look at several presentation-symptoms during a physical examine to include:
   1. subarachnoid hemorrhage.  (Arachnoid hemorrhage is blood beneath the arachnoid area of the brain.  The bridging vein connects the dural sinus to the cortical surface of the brain);
   2. subdural hematoma.  (A subdural hematoma is diagnosed when there is bleeding between the dural covering of the brain into the potential space which usually has no bleeding there);
   3. patechial retinal hemorrhaging;
   4. hypoxia;
   5. the lack of lucid interval between alleged shaking and treatment or examination;
   6. whether or not the caregiver posits a reasonable explanation according to the treating physician to account for all of this.  In other words, does the examining physician believe the caregiver’s explaination for how the damage was sustained?
   7. The second myth is that the symptomology cannot present itself from a short distance fall of two to three feet.

According to the prosecution, it is the rotational acceleration of the cranium that ruptures these bridging veins and causes subdural hematoma or subarachnoid bleeding and the retinal bleeding.

Now let’s speak the truth.  Is it true that after a short distance fall that presents with no outward trauma that there can never be a subdural hematoma or subarachnoid bleeding and the retinal bleeding with no lucid interval?

Well, no.

The best example of the lucid interval between a short distance fall with subdural hematoma or subarachnoid bleeding and the retinal bleeding with no outward trauma was the case of Natasha Richardson.  The untimely and unfortunate death of the famous actress occurred when she was on the “bunny hill” during a very short fall at very low impact resulting in no outward trauma.  She remained lucid for quite a while afterwards and then died.

Now let’s use basic anthropometry and basic biomechanics to examine whether or not shaking a baby to cause enough rotational injury resulting in these injuries is indeed even possible without resulting in outward trauma?

Well, again, the answer is no.

The most telling physical realities that confronts Shaken Baby Syndrome and reveals it as an unproven belief or at worst a dangerous myth occurs when one scientifically examines this notion that the only explanation when there is a subdural hematoma or subarachnoid bleeding and the retinal bleeding without outward obvious trauma is SBS.  There can, in fact, be subdural hematomas or subarachnoid bleeding and retinal bleeding without outward obvious trauma other than from SBS.

In order to prove this is not unique to SBS or to establish that SBS is indeed impossible without outward trauma, we must first know that scientifically there are generally two different types of force:  linear force and translational force.  The former is a measure of acceleration that always acts in a particular direction, such as gravity.  The latter is a measure of acceleration based upon a rotation.  In order for there to be sufficient rotational inertia to cause the intracranial injuries in an infant, according to proponents of Shaken Baby Syndrome, there must be between 6000 to 7000 radians per second squared of rotational acceleration exerted on the cranial cavity.

A peer-reviewed study performed on Penn State Division One football players dispels this as a real possibility.  They were given a CRABI device[i] and asked to shake the device as violently as possible with the stated aim for these well-trained athletes to create as much rotational force as possible.  At their best, they could only generate approximately 1500 radians per second squared.  However, when they were asked to slam the child’s head against a hard object, like a floor, they could generate 50,000 radians per second squared.  As the researcher noted with this modified method of slamming the child’s head against the floor, an examining physician would see signs of external trauma. This is basically what we would expect to see if the impulse (J) was low.  (J = FΔt;  as t (deceleration) gets smaller, the J value drops significantly even when presented with the same force.  Small J means the change in momentum is very fast, which is obviously going to have physical ramifications.  When the experiment was modified to include a short distance fall, sufficient radians per second squared were created.

Further the study found that in order for the football players to generate the approximate 1500 radians per second squared, the players instinctively held on to the rib area so strongly that it would very likely cause broken or bruised ribs and/pr a long bone fracture for example in the arm or leg.

Additionally from the world of biomechanics and anthropometry we learn that in an infant the head is a disproportionately large amount of mass as compared to a human with massively underdeveloped neck musculature to support its weight or orientation.  This is why we are all taught to hold a baby’s head when picking it up or the head will flop causing injury to the neck.  Such is the case with SBS.  If it is an alleged SBS situation, the delicate area of a baby’s neck would definitively present to the examining physician with unmistakable signs of trauma.

Additionally, if there is a lack neck injury then there is also less then demonstrable evidence of Shaken Baby Syndrome as the head and the musculature around the neck of an infant is the most vulnerable area involved with babies.

Other myths that are easily demystified include:

• retinal hemorrhaging is exclusive to abuse  (N.B., The true mechanism that causes retinal hemorrhaging is not known)
• subdural hematomas are a presentation of shaking
• retinal bleeding is diagnostic of abuse
• it is impossible to have a period of lucidity afterwards
• chronic subdural hematomas never re-bleed, meaning if there is a preexisting injury then it always heals and it is never subject to re-presentation (N.B., subdural hematomas cannot be dated)

---

[i] The Child Restraint/Air Bag Interaction (CRABI) dummy has been developed at First Technology Systems, Inc. (FTSS) to evaluate small child restraint Systems in automotive crash environments, in all directions of impact, with or without air bag interaction.  There are three sizes of infant dummies: a 6-month-old, 12-month-old, and 18-month old.  Accelerometers are used to measure head, chest acceleration and head angular acceleration.

About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC – Pennsylvania’s top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

 

Source:

http://www.thetruthaboutforensicscience.com/what-really-is-shaken-baby-syndrome-is-it-for-real/

Junk Science Serves Junk Justice: We Can Do Better

Thursday, September 23, 2010

More than once I have heard a prosecutor in trial urge a judge to admit contested evidence: “The state cannot prove its case without this evidence, your honor,” the argument goes. To which I typically respond: “So what?” The rules of evidence require reliable evidence. The trial deck is not supposed to be stacked in favor of conviction.

But the deck is so stacked. And few judges seem prepared to do much about it.

This is rarely so clear as in the case of expert testimony in cases with no victims, or victims who cannot testify. In such cases, the evidence of a crime must be circumstantial: There are no eyewitnesses who can describe the event. Circumstantial evidence, evidence of things seen permitting an inference about things unseen, is, despite television warnings to the contrary, as probative as eyewitness evidence.

But this business of drawing inferences is dangerous. A jury can draw the wrong conclusion and send an innocent man or woman to jail.

Consider the case of so-called “shaken baby syndrome.” In such sad and tragic cases, an infant dies. A medical examiner finds burst blood vessels in the infant’s eyes, bleeding around the brain, and a swollen brain. This fateful trio is a sure sign that the child came to violence at the hand of a person who had cared for it, the prosecution contends.

Each year, more than a thousand infants die and present with such symptoms. Their mothers, fathers and babysitters are then investigated, and often prosecuted. Hundreds of custodial care givers are now in prison because of the presence of these symptoms.

The sad fact is that many of these folks are innocent. These symptoms can occur in the absence of criminal conduct.

Last year, the American Academy of Pediatrics recommended that the diagnosis of “shaken baby syndrome” no longer be used. In the language of the law, the diagnosis is a result of junk science: flawed methodological premises yielding unreliable conclusions. Uncannily, the pediatricians’ findings reflect a general tendency on the scientific community to reject much of the science that is routinely admitted in a courtroom to prove a defendant guilty. The National Academy of Sciences published a comprehensive report recently noting that much of what passes for reliable evidence in a courtroom would not pass muster in a laboratory. Among the areas of evidence suspect by the Academy: bite-mark analysis, firearms evidence and even fingerprint evidence. Only DNA evidence passed rigid methodological muster.

So why are the courts so quick to admit questionable scientific evidence?

I suspect the answer is that the state could not prove many of its cases without junk science. In others words, we sacrifice the presumption of innocence on the altar of something akin to scientific voodoo. We do this because of a concept with which psychologists are familiar: act hunger.

Only stones are unmoved by the sight of another’s suffering. Every heart is inspired to act in the face of life’s great tragedies. A deep-seated hope harbored by all is that of an orderly universe. We want things to happen for a reason. When things occur that inspire pity or horror, we want to restore the hoped for balance. That requires righting what was done wrong. In the criminal courts, that means assigning blame. Thus, when a child dies, there must be a culprit. In a secular age, we prefer a defendant as many of us have long since retired the Devil as an efficacious moral agent.

But acting merely to relieve an inchoate sense of threat is not justice. We should care as deeply about assigning legal guilt to people who have done nothing wrong. A disciplined criminal justice system would refuse to admit junk science at trial and leave the human tragedies that serve as the fodder for criminal trials unresolved. In other words, good courts reject junk science but frustrate the innate impulse to find a villain in every sorrow. The urge to act all too often yields an over reaction.

The next time a prosecutor intones that evidence is necessary to prove the state’s case, I’d like a judge to say, simply: “What has that to do with justice?” Let’s face it: sending a person to prison for decades rarely accomplishes anything.

Reprinted courtesy of the Connecticut Law Tribune.

Source:

http://normpattis.blogspot.com/2010/09/junk-science-serves-junk-justice-we-can.html

Accused Of Shaken Baby Syndrome?

June 24, 2010

Three Things You Can Do to Help Your Attorney Prepare Your Case

If you have been charged with “Shaken Baby Syndrome” (SBS) or “non-accidental head injury to a child,” there are several things that you can do to help your attorney prepare your case. The most important thing you must remember is this: do not talk to anyone about your case without your attorney’s permission. Do not contact experts, do not talk to people on the web, by phone or by email, without clearing it with your attorney first. The second thing you must remember is that this is a long process; it takes a lot of time to learn the medical literature and secure experts to review your case. The more that you can do to help your attorney prepare your case, the better advantage you will have at trial. What follows are three things you can do to help prepare your case for trial.

Step 1. Collect all of the baby’s medical records since birth. If you are the child’s parent, or the child’s parent is supportive of your innocence, you can sign a “release of medical records” form to obtain all past and present medical records of the child. If you are not the parent, if your parenting rights have been terminated, or if the parents of the child are not supportive of your innocence, your attorney will have to subpoena the medical records from each medical facility the child has visited. Do not trust the prosecution to turn over all of the medical records on its own: they will often cherry pick only records that tend to bolster their case. The following is a list of records your attorney will need to obtain before experts can review your case:

• Prenatal records (will be listed under the mother’s name)
• Birth records (under both mother’s and child’s names)
• Well-baby check-ups and all previous doctor visits
• Vaccination records
• Medical records of siblings
• Daycare records
• Paramedic records
• ER records for day of collapse
• CT Scans, Bone Scans, MRI’s, X-Rays, Retinal Camera Photos
• Progress and follow up records—(if the baby lived)
• Autopsy (if the baby died)
• Pathology or neuropathology repots and slides (if applicable)

Step 2. Create a timeline of the child’s medical history. Subdural hematomas cannot be dated accurately. Instead, we tend to think of them in windows of time. An acute subdural is defined as 1-72 hours old, a subacute is 3-10 days old, and a chronic is anything older than 10 days. An accurate timeline of the child’s falls, hospital visits, vaccinations, symptoms, and any peculiar behaviors may help your expert time the bleeds or identify their origin.
Here are some questions that may be important to a child’s medical history:

1. Was the pregnancy difficult?
2. Was the baby’s birth premature?
3. Was childbirth complicated?
4. Were there any short falls or impacts to the head at any time since birth?
   • If so, when?
   • Who was with the child at the time of the fall?
   • Did the child see a doctor?
5. What did the head circumferences look like? Review the medical records and chart out height, weight and head circumference from birth. The most accurate percentile calculators on the web calculate specifically for gender and number of days old.
   • Has the head circumference jumped percentile lines?
   • Is head circumference disproportionate to weight and/or height?
6. Has the child shown any of the following signs of increase intracranial pressure since birth (particularly in the last 3 days
   before his or her hospitalization):
   • Lethargy?
   • Vomiting? (projectile?)
   • Reduced feedings?
   • Inconsolable crying or unusual sounding cries?
   • Positional discomfort? (preferring to be seated in a swing or carrier, crying when layed down etc.)
   • Seizures?
7. Was anyone else with the baby, unsupervised, for the last three days?
8. Did the parents call or visit the doctor in the last 3 days?

Step 3. Get Informed About the Science. Though it is a good idea to do some medical research on the web, be careful to use only peer-reviewed journals and Academy statements when providing your family or your attorney with research for trial. There are websites with annotated bibliographies of the most authoritative articles in the areas of childhood head injuries. Try www.SBSDefense.com for a list or articles and strategies for defending against false accusations of non-accidental trauma.

article by Toni Blake

Source:

http://www.nimmolawgroup.com/criminal-cases/accused-of-shaken-baby-syndrome/

The Great Assault On Families: Four Part Shaken Baby Review

There is no greater assault on American families by the State than the current use of junk science to accuse and convict mothers, fathers, brothers, sisters, grandparents, friends and babysitters of abusing babies by so-called “shaken baby syndrome” (SBS).
This article is the first in a series presented to suggest ways to first understand the history and background of the scientific disputes about the SBS diagnosis and then, in turn, defend cases of alleged shaken baby syndrome (SBS). Part I is about some of the major scientific flaws in the theory of shaking as a cause of pediatric brain injury. Part II is about alternative theories of causation, such as, accidental short falls, as explanations for the signs and symptoms commonly attributed to shaking. Part III is about how to make a (state) Daubert or Frye motion to challenge the State’s science in cases of alleged shaken baby syndrome.

Part I

The Elephant On The Moon

http://www.sharplaw.biz/I_TheElephantOnTheMoon.pdf

In Part I, “The Elephant on the Moon,2” we saw that in the world of science, if one sets out to prove a hypothesis, one risks proving a fallacy and creating pseudo science rather than reliable science. The syndrome called “shaken baby syndrome” or “SBS” is based on faulty assumptions that, in the past half century, many set out to prove, but few set out to test.
While shaking may cause injury to a child’s brain stem, cranio-cervical junction and upper cervical cord, it has now been falsified as a mechanism of causing intracranial bleeding above the convexities of the brain and to other areas of the brain.

Part 2

Matter Of Gravity

http://www.sharplaw.biz/II_MatterOfGravity.pdf

In Part II, we look at another area of pediatric head injury—short falls—and we ask the question: Can they kill? Or, are the stories of short falls nothing more than tall tales woven by the guilty to obscure their evil acts of abuse? And, what of stories of children who fall and seem fine, only to fail and die later? Can some children experience a lucid interval with few or no symptoms after a traumatic brain injury (TBI) caused by a short fall or an alleged act of lethal shaking?

These are forensic issues of “mechanism of injury”—how much gravity on the head is too much?—and “timing of injury”—can there be a delay between TBI and death? These are questions that defendants charged with child abuse by blunt impact and/or shaking must be able to answer. If they do not, twelve angry people, bent on avenging the death of an innocent, surely will.

Part 3

Eighth Circle Of Fire

http://www.sharplaw.biz/III_EighthCircleofFire.pdf

Junk science lurks in child abuse cases of every variety, whether they are alleged sexual molestation, or other physical and mental abuse cases. Parts I and II of this series covered the scientific flaws of a specific area of child abuse: so-called “shaken baby syndrome” (SBS) cases, and the scientific flaws in short falls cases.1 This article2 will cover some of the ways to characterize and challenge those flaws in a pretrial Daubert or Frye motion using the rules of evidence governing the admissibility of scientific evidence. (If you do not have a SBS case, you may still find the section on scientific evidence rules helpful because it applies not only to cases of alleged SBS, but to all scientific evidentiary issues in all civil or criminal cases.) To the extent that the judge agrees to exclude testimony that is not based on reliable science, testimony that is not based on the correct application of reliable science to a case, or testimony proposed by an ‘expert’ who is not qualified to give it, a pretrial motion serves to: (1) possibly minimize the use of some of, if not all, unfairly prejudicial testimony before a jury; (2) educate the trial judge that there are issues of junk science that are more unfairly prejudicial than probative; (3) flush out a refinement of the State’s theories on causation and timing of injury; (4) create an opportunity to discuss a possible plea by educating the State about the weaknesses in its scientific case; and/or (5) build a record for appeal on the junk science issues.
As a matter of strategy, if you do not want to make a pretrial motion challenging the science, consider using the information in this article to help construct cross examination for the purposes of moving for a directed verdict and/or motion to set aside the verdict in cases where the State relies predominantly on medical testimony to establish causation and timing.

Part 4

House Of Innocents

http://www.sharplaw.biz/IV_HouseOfInnocents.pdf

Evil events are rarely committed to paper. The history of child abuse inherently involves pain inflicted in the dark and behind closed doors, providing us with only the barest of facts. We know that royal children were poisoned and murdered for convenience or for their crowns and that the ancient Greeks disposed of handicapped children at birth. We hear words like “beaten,” “burned,” “raped,” and “exploited,” but these do little to reveal the enormous tragedies
for which they are mere codes.
Today, there is a vast infrastructure of child protective services (CPS) in America. It is funded by billions of federal and state tax dollars. History has been turned on its head. Instead of children being ‘seen and not heard,’ or having no right
of survival at birth, children are now revered as precious, as our modern day mocking birds. The entire ‘village’ is involved in their protection and welfare.

About The Author

Shaken Baby Syndrome

Elaine Whitfield Sharp has gained a nation-wide reputation for providing the best and most knowledgeable representation for parents and care-providers wrongly accused of child abuse. Working closely with nationally-known experts, she investigated and developed the medical and scientific defense of Louise Woodward in the “Boston Nanny” case. Ms. Woodward, who was facing life in prison, was released after serving 279 days in jail because the trial judge understood and accepted the defense of which Elaine Sharp was the architect for trial

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Elaine Whitfield Sharp and Daniel S. Sharp are trial attorneys providing quality representation for people in state and federal courts. They represent people and families who have been injured and need help. They represent people who have been wrongly accused of crimes. They do not represent “big business” or insurance companies.

Among other types of cases, Elaine Whitfield Sharp represents parents and care-providers who have been wrongly accused of child abuse, particularly so-called “Shaken Baby Syndrome.” She has recently represented “Shaken Baby” clients in Massachusetts, Connecticut, New Jersey, New York, Rhode Island, Kentucky, Kansas, and Florida. She has been retained as a consultant by attorneys in Georgia, South Carolina, Alabama, Texas, Iowa, California, Idaho, and Kansas.

Daniel S. Sharp, with Elaine Whitfield Sharp, represents people who have been injured as the result of professional malpractice, accidents, and the misconduct of police officers. They have also been retained by numerous attorneys to help them with cases that have gone to higher courts, such as the supreme courts of Michigan and Massachusetts and the United States Court of Appeals for the First Circuit (in Boston) and the Sixth Circuit (in Cincinnati.)
NOTE: the Firm name is Whitfield Sharp & Sharp

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Please note that the email address of the author is

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Defending The Innocent – SBS

Shaken Baby Syndrome – Just the Allegation Ruins a Life

Friday, August 11, 2006

• Robert Bennett
  Law Office of Robert D. Bennett & Associates, PC

• 

A defense lawyer’s nightmare. A severely injured infant, an indigent client who distrusted the system and her lawyer, and the full power of the state coming to bear on an innocent woman.

I was appointed to represent a young, African American woman in an action brought by the Texas Department of Protective and Regulatory Services to terminate her parental rights to the injured child as well as his older brother and sister in late July, 1999. Within a few days of receiving the initial paperwork an indictment was handed down charging my client with a first degree felony, injury to a child. The warrant for her arrest was served immediately following a hearing to determine her visitation privileges, placing her in the County Jail with a $25,000.00 bond.

The pertinent part of the indictment read as follows:

“…[T]hat (defendant’s name) ….did then and there, intentionally and knowingly, cause serious bodily injury to (minor’s name), a child younger than 15 years of age by shaking the said (minor’s name) with her hands;…

Shaken Baby Syndrome (SBS) is a relatively new diagnosis, primarily due to the recent technological advances in Magnetic Resonance Imaging or MRI’s as they are commonly called. This diagnostic imaging tool now enables the medical profession to quickly determine the presence of a subdural hematoma, one of the two principal indicators, along with bilateral retinal hemorrhages, of SBS.

This article is intended to acquaint the reader with a basic knowledge of this syndrome as well as suggestions on how to prepare a proper defense and spot weaknesses in the prosecution’s case.

Pre Trial Matters

In cases where the child is severely injured but does not die, or when the child is deceased but has siblings who reside or have contact with the suspected “shaker”, the cases are often filed concurrently as criminal cases as well as a civil action to terminate or limit access.

This dual “front line” can work to the Defendant’s advantage by allowing more extensive discovery than is usual in a criminal case. In addition to interrogatories, requests for production, and requests for disclosure, depositions are also available to assist you in preparing for the inevitable experts who will be doing their best to ensure your client gets the longest possible sentence.

Typically the experts in the case will include treating physicians of the child both prior to and following the alleged incident. Although the medical reports and records should be discoverable and/or accessible by subpoena in the criminal case, utilizing the civil discovery methods early in the proceedings guarantees you will be prepared to discuss the child’s condition equipped with all of the pertinent information. Although it is probably unnecessary to point this out, I feel compelled to urge you to read each and every page of the medical records. It is possible to glean many tidbits of information which can be used to create reasonable doubt in the minds of your jurors. Often other suspects, disagreements as to extent and severity of injuries among the medical professionals, and poor terminology can be useful. In a recent case I found the physicians, without exception, used the phrasing “these injuries are consistent with Shaken Baby Syndrome”. During cross examination we discussed many other conditions which could cause one or more of the symptoms and injuries of the child.

Another good reason for a very careful review of the medical records is they often contain a number of inadmissible matters which can cause their exclusion or at a minimum the redaction of the offensive information. My suggestion is to tab one copy of the records for your objections and to have another copy, with redactions already done, ready to be offered. This assures an even flow to the trial, if such is your desire, and also enables you to control the redaction method. As a practical note, often if a redaction is done with a black marker or “white out” the information can still be read by holding the paper up to the light or scratching the “white out” off with a fingernail, both of which jurors have been known to do. Instead, make your redaction, then run a copy and hold it up to a light to determine if the information can still be gleaned from the front of the page or the back.

Although a general knowledge of SBS can be obtained by reading articles and the publications cited herein, an expert should be retained at an early stage. If court appointed, a request should be made to the court to set aside funds for this purpose. The expert should be a physician well versed in child abuse issues who can assist you in deciphering the medical records as well as preparing for cross examination of the prosecution’s experts, who you can be assured will be hostile to your position. In my research I quickly discovered the “professional witnesses” and proponents of SBS diagnosis are strident in their beliefs, often refusing to budge on their diagnosis as opposed to the general treating physicians who are more likely to give way on the smaller points and be more noncommital.

I would also suggest attempting to contact the physicians and experts yourself in order to determine their position on the various aspects of your case. Although you may be more successful in your endeavor than I was, since only one of the numerous expert witnesses for the prosecution would return my call and discuss the case with me, this is almost a “no lose” situation for the defense. If the expert does deign to speak to you then it is an excellent chance to expand your knowledge and to elicit positions and information which may be helpful at trial. If instead they refuse to talk to you then this can be addressed both during voir dire and on cross examination.

“Texas Rule of Evidence 702 provides that, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702. The threshold determination for a trial court to make regarding the admission of expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Before scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant. Id. at 573. To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Crim.App.1997), citing Kelly, 824 S.W.2d at 573; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Texas Rule of Evidence 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Kelly, 824 S.W.2d at 573.”

1999 WL 597237, Scherl v. State, (Tex.App.-Texarkana 1999).

I believe a well organized defense will file at least a simple Motion for a Gatekeeper Hearing in an attempt to restrict the nature of expert testimony if not exclude it altogether. For instance, while probably an expert on the issue of retinal hemorrhaging a pediatric opthamologist is probably not qualified to discuss and explain the cause and effect of subdural hematomas. Attached to the end of this article is a “bare bones” motion for a gatekeeper hearing which can be expanded upon with the facts of your particular case.

Without question it is necessary to obtain as much information as possible on the investigation done by law enforcement. Police reports are a gold mine of reasonable doubt, particularly in the area of medical evidence. Just as the police officer can be relied on to ask leading questions in attempting to obtain a confession, frequently they also ask the physicians leading questions in establishing chronologies and determining suspects. As is discussed below, the chronology is extremely important in determining who was present during the “window of opportunity” for the alleged abuse.

In addition to the reports and other paperwork generated by the police and investigating officers, the files of the Department of Protective and Regulatory Services are fruitful areas to dig. While TDPRS vigorously resists all efforts to obtain their files, my experience has been judges often order these turned over, particularly if there is a concurrent civil case pending. Watch carefully for redactions done by the department “in house”. One set of papers I examined in another alleged child abuse case had what was supposedly the name of an anonymous tipster redacted by drawing over it with a black marker. When I held the paper to the light the sentence in fact had read “(My client’s name here) immediately called law enforcement upon learning of this incident.”

One important piece of evidence that is often overlooked but can be vital is the “911″ call, if any was made. It is important to obtain a copy of this tape early in the process as many law enforcement agencies routinely tape over these after a few months.

Another area which is becoming extremely productive is research on the internet. A partial listing of helpful sites accompanies this article. They are valuable in providing background information as well as in locating articles of particular interest. Any experts which are identified as potential witnesses should be carefully researched in order to determine if they have published any papers or articles in the areas of expertise which may be employed at trial. These articles often provide material useful for impeachment or to “keep the expert honest”. Careful research may also provide other useful tidbits. In our case, one of the co-founders of a SBS advocacy organization located in Ft. Worth was identified as a potential witness. A search on the internet provided two articles about this woman, both of which refer to the fact that she and her husband were initially accused of shaking their baby, wrongfully accused as it turns out. While ultimately she was not called as a witness, can you imagine the concessions she would have had to make regarding flawed investigations and wrongful accusations?

Medical Information

Shaken Baby Syndrome is allegedly caused by the shearing of the axonal vessels in the brain when a child is shaken violently. The massive acceleration, deceleration and twisting of the brain tears these vessels and causes a subdural hematoma, or bleeding beneath the “covering” of the brain, the dura, but between the brain and skull. Many of the symptoms and long term effects are likely caused by the pressure and swelling associated with this bleeding. Babies have an increased risk for this type of injury due to their proportionally larger heads and weaker neck muscles.

Some of the long term effects of SBS may include cerebral palsy, epilepsy, blindness, deafness, learning disorders, as well as a myriad of others.

According to most authorities, multi layered, bilateral retinal hemorrhages are almost exclusively caused by a severe shaking. These are readily visible to an opthamologist. While there are several other potential causes for retinal hemorrhages, such as automobile collisions and trauma during birth, as well as diseases such as leukemia, or diabetes, when these hemorrhages are multilayered and bilateral it is generally accepted that some form of trauma is the cause. The addition of a subdural hematoma virtually guarantees an allegation of child abuse.

In some, but not all of the cases, there may also be cerebral edema, posterior rib fractures, and finger marks on the chest wall or around the shoulders. Neck and spine injuries are also found, although the percentage of cases which involve these are not known.

A ripe area for cross examination of the prosecution’s experts regards disagreements among the medical community as to specifics of SBS. The main reason for the differences in opinion are the limited number of studies which have been done on SBS, chiefly due to the nature of the injuries and the fact that the victims are unable to provide any information themselves.

A few of these disagreements concern:

1) Whether or not an impact is necessary for this injury or whether the shaking alone is sufficient;

What degree of force is necessary to cause these injuries;

How long it takes for symptoms to appear;

While a thorough cross examination will cover the disagreement as to whether or not an impact is necessary for SBS, as a practical matter I do not believe this disagreement alone will create a reasonable doubt in a jurors mind and address it only to make it clear to the jury that this issue is not as “cut and dried” as the prosecution would make it appear.

The issue of the degree of force required to cause the injuries is also unlikely to be productive by itself as the medical community is generally in agreement that the shaking must be of such a severity as to cause “a reasonable person to be aware of the danger….” The typical description offered by the medical professional is “[A]t one end of the spectrum the infant’s chin will touch their chest while at the other end the back of the head will touch their back.” It is important to note there are no studies of which I or the physicians testifying in my November, 1999 trial, were aware to demonstrate the precise degree of force required to produce either subdural hematomas or retinal hemorrhaging. It is also significant to note while retinal hemorrhages are present in a large percentage of the cases involving allegations of severe shaking they are not present on all of the cases. This would appear to be a fruitful area of “reasonable doubt” to explore with your expert.

From the defense perspective, the most productive area of disagreement among experts would likely be in the timing of onset of symptoms. By carefully studying the potential symptoms and questioning the persons associated with the child during the relevant time frame additional potential suspects may be identified as well as other potential non-intentional sources of trauma.

Almost without exception the experts will testify, at least in a case where the injuries are severe or death has occurred, that symptoms appear almost immediately. Upon initial review of a case the initial symptoms reported will likely be loss of consciousness or seizure activity, causing the person present with the child when this happens to be the most likely defendant. At first this may appear daunting, since as defense attorneys it is our job to open the “window of opportunity” as wide as possible, thereby creating more suspects who had contact with the child during the time the injury likely occurred. Careful preparation and cross examination of the experts should reveal that by “onset of symptoms” they do not necessarily mean the most severe symptoms. In my case, initial reports from police and medical records was that the first symptom was a seizure at approximately 3:30 P.M.. After a thorough review of the records, careful questioning revealed the infant had in fact been unusually irritable since early that morning as well as showing changes in his sleeping patterns, which may have actually been loss of consciousness as opposed to “napping”. This opened the “window” from a matter of minutes during which only my client had contact with the injured infant, to more than eight hours and included at least two other adults as potential suspects.

Retinal hemorrhaging cannot be used to narrow the time frame for the injury with any degree of accuracy. In my case, the pediatric opthamologist testified retinal hemorrhages could not place time of injury any more exactly than a 72 hour period. Indeed, at least one article in a professional journal cautions against using these as an indicator of child abuse. See Tongue, Andrea C., M.D., “The Opthamologist’s Role in Diagnosing Child Abuse”, Opthamology, July 1991, Vol. 98, Number 7, pp.1009-1010, see also Duhaime, Ann-Christine, M.D., Cindy W. Christian, M.D., Lucy Balian Rorke, M..D., and Robert A. Zimmerman, M.D., “Nonaccidental Head Injury in Infants – The “Shaken Baby Syndrome”, The New England Journal of Medicine, June 18, 1998, Vol. 338, Number 25, pp. 1822-1829.

If multiple MRI’s were run carefully check to determine whether the subdural hematoma is expanding or static. If expanding it generally indicates a more recent injury while one that is static points to an injury somewhat older.

There is also important statistical information regarding the identity of “shakers”. In a study of 151 infants conducted in Colorado it was determined that males are most often the abusers. Biological fathers were implicated in 37% of the cases, boyfriends of the mother in 20.5%, female child care providers 17.3%, and mothers only 12.6% of the time. Regardless of which class your accused falls in, obviously the statistics will usually place them in a minority of cases. See Starling, Suzanne P., M.D., James R. Holden, MS, and Carole Jenny, M.D., MBA. “Abusive Head Trauma: The Relationship of Perpetrators to Their Victims,” Pediatrics, February 1995, Vol. 95, No. 2, 259-262.

Carefully watch for other potential causes of the medical problems and use your expert to evaluate other diagnoses. Recently, a case involving an Amish couple in Pennsylvania has garnered media attention. Initially accused of shaking their baby to death, a well renowned physician and expert on Amish diseases now places the blame on a vitamin K deficiency combined with a rare liver disease. (See http://abcnews.go.com/sections/living/DailyNews/amishdeath000227.html). An excellent resource for discussions of other conditions which mirror SBS and of child abuse in general is a text entitled Child Abuse: Medical Diagnosis and Management by Robert M. Reece, M.D. and published by Williams & Wilkins. I ordered my copy from an online bookstore and would highly recommend it be an addition to the library of anyone who represents clients accused of child abuse or neglect

Conclusion

While cases involving Shaken Baby Syndrome may appear at first to be hopeless, the defense attorney must remember this is a relatively new diagnosis with few studies having been performed. By a careful analysis of the medical records, some familiarity with the causes and symptoms of this condition, as well as a careful check of the chronology of events a successful defense can be waged.

Semi happy ending. The jury in my case was out 35 minutes and acquited my client. We are now in the process of having her children returned to her, as well as obtaining counseling for the stress she has had to endure. As a result of her incarceration she lost both her job and home. Her child, now 11 months old, is expected to have significant long term problems from his injuries.

The true abuser remains at large.

Source:

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