Archive for November 20, 2009

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 

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

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Deborah Tuerkheimer
Professor of Law

A.B., Harvard College
J.D., Yale University

Office Phone: (207) 780-4409

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




Baby shaking testimony barred

Sunday, August 13, 2006

Kentucky judge’s ruling is a first

By Andrew Wolfson
The Courier-Journal

GREENUP, Ky. — After 3-month-old Evan Galloway suddenly collapsed on Dec. 29, 2003, there were no bruises found on his body and no broken bones or other external signs of abuse.

But six months later, his father, Raymond Martin, 35, was indicted on an assault charge, accused of “excessively and violently shaking” his son by investigators who found Evan had the classic signs of shaken-baby syndrome — bleeding in the brain and behind both eyes.

Since the syndrome was first observed in the early 1970s, doctors — and police — have assumed that if a child collapses or dies suddenly and bleeding is found inside the skull with no other injuries, severe shaking is the cause and the last person to care for him is to blame.

But when Martin’s fate is decided in a Greenup Circuit courtroom in November, there likely will be no mention of shaken-baby syndrome.

In what experts say is the first such ruling in the nation, a Greenup Circuit Court judge has barred the prosecution from introducing expert testimony that a baby was injured by shaking, unless there is other evidence of abuse.

“To allow a physician to diagnose shaken-baby syndrome with … no other evidence of manifest injuries is to allow a physician to diagnose a legal conclusion,” Judge Lewis Nicholls said.

Nicholls issued the same ruling in the case of another defendant, Christopher A. Davis, 27, who is charged with criminal abuse of his son, who was 4 months old when allegedly shaken in December 2004.

Both Davis and Martin have pleaded not guilty. Each faces five to 10 years in prison if convicted. Davis is scheduled for trial Nov. 13, a week after Martin.

Though the shaken-baby diagnosis is accepted by the American Academy of Pediatrics and the National Association of Medical Examiners, Nicholls said in his 24-page ruling in April that it hasn’t been scientifically proven.

He cited biomechanical studies that have concluded it’s impossible for an adult to shake an infant hard enough to cause the injuries used to diagnose the syndrome — hemorrhaging behind both retinas and hematomas, or pools of blood, in the membranes of the brain.

In one of the studies he cited, college football players shaking lifelike models of 1-month-old babies couldn’t generate the force necessary to cause brain injuries.

In part because of such findings, former Kentucky chief medical examiner Dr. George Nichols, once a fervent believer in the syndrome, now says he is persuaded that infants cannot suffer brain injuries by shaking alone. He also said autopsies he performed usually showed that the death of a child in such cases was actually caused by impact injuries.

Greenup Commonwealth’s Attorney Cliff Duvall said he will try to proceed with the prosecutions of Martin and Davis, although if he’s unable to present any expert testimony he will have to drop them both.

Nicholls’ ruling isn’t binding on other courts, but defense lawyers said it could influence other cases.

And child advocates — including Dr. Allen Brenzel, a pediatrician and psychiatrist at the University of Kentucky who consults on abuse cases for the state Cabinet for Health and Family Services — said it would be devastating if other courts adopt the same rule.

“It would interfere with our ability to protect kids,” he said.

Unjust convictions?

Nichols, who as medical examiner from 1977 to 1997 testified for the prosecution in shaken-baby cases, last year announced at a meeting of public defenders that he would testify about his new conclusions for any offender previously convicted through his testimony.

“I guarantee there are people in prison who shouldn’t be there,” he said in an interview.

So far there have been no takers; the Department of Public Advocacy says it has only one shaken-baby case on appeal, and the science behind the diagnosis is not at issue.

The National Center on Shaken Baby Syndrome, based in Ogden, Utah, says that about 1,200 to 1,400 children a year in the United States are treated for shaking injuries, and about 25 to 30 percent of them die.

The Kentucky Cabinet for Health and Family Services doesn’t track shaking injuries specifically but says seven deaths were attributed last year to the broader category of inflicted head injury.

Pediatric experts say the biomechanical models used in studies challenging the syndrome were not lifelike enough to produce valid results. And they say attacks on the diagnosis are orchestrated by defense lawyers to produce reasonable doubt for their clients.

The American Academy of Pediatrics says that violent shaking of a child, even if the head doesn’t strike another surface, can cause the vessels around the brain to stretch and rupture. In a 2001 policy statement, the organization said that doesn’t occur with short falls or seizures, and unless there is some other history to explain them, child abuse may be presumed.

Dr. Carole Jenny, a Brown University professor of pediatrics who is a member of the pediatric group’s Committee on Child Abuse and Neglect, said she is so confident in that finding that she would convict a member of her own family based on it.

She said the syndrome can’t be proved in controlled experiments because researchers can’t shake real babies. But she said the diagnosis has been borne out by thousands of parents who have brought injured children to a hospital and told doctors what they did — shook a child until the child collapsed in their arms.

Jenny said shaken-baby syndrome is the only explanation for massive brain injuries to infants who can’t move — or fall — on their own.

“Kids’ heads don’t explode spontaneously,” she said.

Diagnosis questioned

Evan Galloway had just gotten a clean bill of health from his pediatrician on the day that Martin agreed to watch him while his ex-wife was at work.

Martin told investigators later that when Evan awoke from a nap, he was limp and appeared to have had a seizure. He said he sprinkled water on the baby’s face and shook him to rouse him.

Evan’s brain swelling subsided in a couple of weeks, but he was left with crossed eyes and other impairments, according to court records.

At a hearing in March, Martin’s public defender, Sam Weaver, tried to show the shaken-baby diagnosis isn’t reliable enough evidence on which to send somebody to prison. He presented one expert, Dr. Ronald Uscinski, an associate professor of neurosurgery at Georgetown University who has lectured on the syndrome in England, Japan and the United States.

As recounted in Nicholls’ order, Uscinski testified that the medical community went into a “frenzy,” cautioning parents never to shake a child, after a doctor presented “largely circumstantial” evidence about the syndrome in 1974 in the journal PEDIATRICS.

Uscinski said the findings were supported by a study of rhesus monkeys that was flawed in part because the monkeys may have struck their heads on the apparatus that shook them.

And he testified that in 1987, University of Pennsylvania researchers, in a study on human models, found that even “vigorous shaking” was unlikely to cause fatal injuries.

Uscinski noted that another study published last year in Forensic Science International concluded that shaking alone would cause broken necks in infants before bleeding in the eyes and brain. He also testified that researchers have found that even seemingly innocuous events like falling off a bed or chair can later produce bleeding in the brain.

Appearing for the prosecution, Dr. Betty Spivack, a deputy Kentucky medical examiner who has published her own research on the syndrome, said that retinal hemorrhages have a much higher correlation with intentional, rather than accidental, head trauma.

But Nicholls — who was a prosecutor before being elected to the district bench in 1984 and to circuit court in 1994 — said hemorrhages behind the eyes don’t prove that a child was shaken, and that a correlation doesn’t prove cause and effect.

Research needed

During a recent visit to his home, Evan Galloway, who is nearly 3, smiled and chatted as he played with his toys. But he wears thick glasses to correct his vision, and his mother, Kelly Galloway, said he can’t climb stairs and sometimes trips when he runs. She takes him for physical and developmental therapy several times a week.

His father has been released on bail but must stay away from Evan as a condition of release. Weaver said Martin would like to be reunited with his son; he said he directed him not to comment on the charge against him.

Meanwhile, experts say more research needs to be done on abusive head trauma, even as experts debate whether shaking alone can cause it.

Each case must be explored individually, said Dr. Joseph Prahlow, a forensic pathologist in South Bend, Ind., who is vice president of the National Association of Medical Examiners. “The key is to do as thorough an investigation as possible and not to jump to conclusions,” he said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.

Criminal, Evidence – Shaken Baby Syndrome & Daubert Hearing: Hamilton v. Commonwealth (COA 8/14/2009)

September 23, 2009

Hamilton v. Commonwealth
2008-CA-000300 8/14/09 2009 WL 2475291

Opinion by Judge Moore; Judge Wine and Senior Judge Henry concurred.

The Court reversed and remanded a jury verdict and judgment of the circuit court finding appellant guilty of wanton assault in the first degree and sentencing him to eleven years’ imprisonment following the injury of his infant son. The Court held that the trial court erred in permitting expert testimony regarding Shaken Baby Syndrome (SBS) without holding a Daubert hearing to assess the reliability of SBS. At the time of the trial court’s decision to deny appellant a Daubert hearing, the record contained few of the factors indicative of a complete record that would excuse the necessity of such a hearing. The Court further held that the trial court erred by taking judicial notice of SBS and shifting the burden to prove its unreliability onto appellant. The Court then held that the error was not harmless because the Commonwealth relied exclusively upon the SBS testimony without any other piece of direct evidence. Therefore, there was more than a substantial possibility that the verdict might have been different without the testimony. The Court also held that the trial court did not err by failing to give instructions on second or third-degree abuse, as they were not lesser-included offenses of the crime for which appellant was indicted. However, the trial court did err in giving an instruction on second-degree assault as a lesser-included offense.


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