Jurors Acquit Virginia Dad In
Shaken Baby Syndrome Case
Tuesday, March 16, 2010
After another battle of experts over the concept of “shaken baby syndrome,” a Fairfax County jury found a man not guilty of murder on Monday in the death of his 8-month-old son.
Elmer J. Midence, 39, lived with his girlfriend, Rhonda Brown, and their baby, Albert, in the basement of a brick house on Bath Street in the Springfield area, and by all accounts were a happy family. Photos taken the day before Albert was rushed to the hospital showed the family wearing wigs and mugging for the camera at a Saint Patrick’s Day parade.
But on March 16, 2009, Midence called 911 and said Albert was unresponsive. Midence said he had been in the shower with the baby, stepped out, and slipped and fell. He insisted that he did not drop the baby in conversations with the dispatcher, the paramedics and a police homicide detective.
Albert’s brain injury was severe, and Fairfax Commonwealth’s Attorney Kathryn S. Swart told the jury, “that poor child was going to die no matter what the medical people were going to do.” Two days after the baby was hospitalized, he died.
Albert had a subdural hematoma — a blood clot between his brain and his skull — and hemorrhages in the back of his eyes. Both are seen as crucial indicators of shaken baby syndrome, in which an adult shakes a child so hard that his brain bleeds.
But a growing scientific theory holds that it is not possible to shake a baby hard enough to cause brain damage without accompanying trauma to the neck or back or additional severe impact with a hard surface.
In January, a string of experts on both sides of the issue testified in a Fairfax case in which a daycare provider was charged with shaking a 4-month-old baby. The baby boy, after suddenly falling unconscious, suffered lasting brain damage but did not die. The daycare provider, Trudy E. Muñoz-Rueda, testified she did not shake the baby, but the jury convicted her of felony child abuse and child cruelty and sentenced her to 10 1/2 years.
Last week, two of the same experts faced off again. For the prosecution, Craig Futterman, a pediatric intensive care doctor, said he had seen Albert at Inova Fairfax Hospital and that his injuries indicated he had endured severe acceleration and deceleration — the head going back and forth, with the brain colliding off the inside of the skull.
For the defense, Dr. Ronald H. Uscinski, a Georgetown neurosurgeon who has become a renowned critic of shaken baby syndrome, said a sudden fall would provide the force necessary to damage the brain. Forensic pathologist Peter Stephens offered similar testimony.
And they noted that Albert did not have the neck or body trauma that would indicate someone had shaken him with the force necessary to shear veins in the brain. The boy did have a bad bruise on the side of his head.
On the witness stand, Midence said for the first time that he had dropped Albert when he slipped and fell from the shower. Midence said that he had fallen to the side of the makeshift shower in a tiny basement bathroom and that Albert had fallen forward, and when he went to check on Albert, he was unresponsive.
Futterman said Albert’s injuries were inconsistent with a fall. In her closing argument, Swart asked the jury, “Why aren’t children dying by the scores when they fall off their changing tables or off their high chairs?”
Deputy Fairfax Public Defender Dawn M. Butorac pointed to scientific studies that showed it was impossible to generate enough force to shake a baby into brain damage without other trauma and to other studies showing severe or fatal injuries to babies from short falls.
The jury deliberated for more than 12 hours over two days before acquitting Midence of both child abuse and felony murder. Brown, the baby’s mother, declined to comment after the verdict.
Midence’s family members began crying as the “not guilty” verdicts were read.
“We’re very happy, because he’s a good man,” said his cousin, Berta Palm. “He’s a good father and a very generous person.”
Butorac said the case showed “you cannot shake a baby, solely, to get these injuries.” She said there were “dedicated doctors on both sides who disagreed about how you can get an injury,” and without a clear consensus, the jury correctly acquitted.