The Next Inocence Project: Shaken Baby Syndrome And The Criminal Courts

Deborah Tuerkheimer  DePaul University – College of Law; University of Maine School of Law Washington University Law Review, Vol. 87, 2009  Abstract:       Every year in this country, hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant’s death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling.  New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed.  In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change: for the first time, an SBS conviction was overturned last year because “newly discovered” scientific evidence would likely create a reasonable doubt about the defendant’s guilt; also for the first time, a state Supreme Court is considering whether a trial judge erred in excluding as unreliable the prosecution’s expert testimony regarding SBS; and the U.S. Supreme Court is now reviewing a petition seeking review of a habeas grant in an SBS case. Yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course.  These developments have not attracted the attention of legal scholars. In the face of this void, this article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry – for scientific engagement in law’s shadow, for future systemic reform, and for our understanding of innocence in a post-DNA world – should assist in the task of righting past wrongs and averting further injustice.   Date posted: March 06, 2009 ; Last revised: September 23, 2009 To Download A Copy Of This Publication Please See Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659   Deborah Tuerkheimer Professor of Law A.B., Harvard College J.D., Yale University Office Phone: (207) 780-4409 tuerkheimer@usm.maine.edu View Professor Tuerkheimer’s most recent curriculum vitae. Professor Tuerkheimer joined the University of Maine School of Law faculty in 2002. She teaches Criminal Law, Criminal Procedure, Evidence and a seminar on domestic violence. Professor Tuerkheimer received her undergraduate degree cum laude from Harvard College and her law degree from the Yale Law School, where she served as co-chair of the Yale Law Women and lead editor of the Yale Journal on Regulation. Upon graduation from law school, she clerked for Justice Jay Rabinowitz of the Alaska Supreme Court. Prior to entering academia, Professor Tuerkheimer practiced law for five years as an Assistant District Attorney in the Manhattan District Attorney’s Office, where she specialized in domestic violence prosecution. In addition to handling and supervising domestic violence cases, she prosecuted child abuse, sex crimes, and internet crimes and conducted trainings for prosecutors, law enforcement officers, medical personnel and child protective workers. Professor Tuerkheimer focuses her scholarship on the intersection of criminal law and the lives of women and children. Her recent articles include “Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence,” published in the Journal of Criminal Law and Criminology, “Conceptualizing Violence Against Pregnant Women,” published in the Indiana Law Journal, and “Crawford’s Triangle: Domestic Violence and the Right of Confrontation,” published in the North Carolina Law Review. Professor Tuerkheimer also has publications forthcoming in the George Washington Law Review, Journal of Law and Policy, Texas Law Review’s on-line edition, and the Arizona Law Review. She is a member of Governor Baldacci’s Advisory Council on the Prevention of Domestic and Sexual Violence, and serves as a member of the Board of Directors of the Maine Bar Foundation, a nonprofit organization which promotes the provision of legal services to the poor. Contact Information Deborah Tuerkheimer (Contact Author) DePaul University – College of Law ( email ) 25 E. Jackson Blvd. Chicago, IL 60604-2287 United States   University of Maine School of Law ( email ) 246 Deering Avenue Portland, ME 04102 United States