Shaken Baby Syndrome: A Differential Diagnosis of Justice

When King Solomon resolved history’s best-known custody dispute, he implicitly divined that the death of the absent child was due to accidental infanticide, not intentional homicide.1 And his method was an early testament to truth finding. Today, the investigation of infantile death is too often accompanied by hurried accusations and false confessions.2 And the search for truth is left to lawyers and experts who have become as adversarial as the testificants in Solomon’s court. The concept of Shaken Baby Syndrome (SBS)3 has become a battleground where medical evidence and legal presumptions clash, testing the limits of judicial wisdom.4

The investigation and prosecution of SBS cases5 has revealed an historical and ongoing tension among medical experts6 and legal practitioners and scholars.7 From the Supreme Court on down, judges in these cases have had to struggle with complex emotions, societal impulses, conflicting witness and expert testimonies, as well as ineffectiveness of defense counsel, need for appointed experts, admissibility under Frye-Daubert, and assessment of newly discovered evidence.8 Thus, legal investigation into the reasons behind infant deaths has turned into a medical “who done it” with the suspects ranging from accident and natural causes to the criminal conduct of parents and caretakers.9

This is a collection of recent and select court decisions, law reviews and news articles that explore the ongoing scientific and legal arguments about the definition and exclusivity of shaken baby syndrome evidence.

CASES

Brown v. State, 2014 Miss. LEXIS 595 (Miss. Sup. Ct. Dec. 11, 2014)10
“We . . . find that the propriety of the Shaken-Baby-Syndrome theory is improperly before us and that Brown’s conviction was based on sufficient evidence and was not contrary to the weight of the evidence. And we also find that the trial judge erroneously restricted Brown’s cross-examination of two witnesses. But we ultimately reverse the judgment of the Circuit Court of Coahoma County and remand the case to the trial court for a new trial based on that court’s refusal to provide Brown funds for an expert.”

Cavazos v. Smith, 132 S.Ct. 2 (2011)
“The jury was presented with competing views of how Etzel died. It was made aware of the various experts’ qualifications and their familiarity with both the subject of SBS and the physical condition of Etzel’s body. It observed the attorneys for each party cross-examine the experts and elicit concessions from them. The State’s experts, whom the jury was entitled to believe, opined that the physical evidence was consistent with, and best explained by, death from sudden tearing of the brainstem caused by shaking. The Ninth Circuit’s assertion that these experts “reached [their] conclusion because there was no evidence in the brain itself of the cause of death” is simply false. There was “evidence in the brain itself.” The autopsy revealed indications of recent trauma to Etzel’s brain, such as subdural and subarachnoid hemorrhaging, hemorrhaging around the optic nerves, and the presence of a blood clot between the brain’s hemispheres. The autopsy also revealed a bruise and abrasion on the lower back of Etzel’s head. These affirmative indications of trauma formed the basis of the experts’ opinion that Etzel died from shaking so severe that his brainstem tore.”

Del Prete v. Thompson, 10 F.Supp.3d 907 (N.D. Ill. 2014)
“Del Prete timely filed a habeas corpus petition in this Court on August 12, 2010. In her petition, Del Prete asserts two claims. First, she contends that the evidence at trial was insufficient to sustain a conviction of first degree murder. Second, she argues that trial counsel was unconstitutionally ineffective for failing to challenge the admission of expert testimony on the theory of shaken baby syndrome and failing to present appropriate expert testimony to dispute the prosecution’s theory of shaken baby syndrome. . . .

For the reasons stated above, the Court finds that Del Prete has established by a preponderance of the evidence that based on all of the relevant evidence, no reasonable jury would find her guilty beyond a reasonable doubt. The Court will therefore address on the merits each of the claims that Del Prete has asserted in her habeas corpus petition. At the upcoming status hearing, counsel should be prepared to discuss whether there is a need for an evidentiary hearing on Del Prete’s ineffective assistance claim (and if so, to schedule a prompt hearing) and whether the briefing on her claims is otherwise complete.”

People v. Bailey, 2014 NY Slip Op 24418 (Monroe Cty Ct., Dec. 16, 2014)11
“The credible and persuasive evidence presented by the Defense established, by a preponderance of the evidence, a significant change in medical science relating to head injuries in children, generally, and the Shaken Baby Syndrome hypothesis, in particular, since the time of the Trial in this matter. New research into the biomechanics of head injury reveals that the DOs & MDs who testified on behalf of the Prosecution at Trial misinterpreted the medical evidence to conclude that shaking, or shaking with impact, was the only mechanism capable of causing Brittney’s injuries.”

State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008)
“We agree with the circuit court that Edmunds established the first four factors of the newly discovered evidence test by clear and convincing evidence. Edmunds presented evidence that was not discovered until after her conviction, in the form of expert medical testimony, that a significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone, whether an infant may suffer head trauma and yet experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome. Edmunds could not have been negligent in seeking this evidence, as the record demonstrates that the bulk of the medical research and literature supporting the defense position, and the emergence of the defense theory as a legitimate position in the medical community, only emerged in the ten years following her trial. The evidence is material to an issue in the case because the main issue at trial was the cause of Natalie’s injuries, and the new medical testimony presents an alternate theory for the source of those injuries. This evidence is not merely cumulative, in that it differs from the substance and quality of the defense evidence at trial. We find no erroneous exercise of discretion in the circuit court’s findings as to these factors, as they are supported by the medical expert testimony at the postconviction hearing motion as contrasted with the medical expert testimony at trial.”

State v. Louis, 798 N.W.2d 319 (Wis. Ct. App. 2010)
“The State of Wisconsin appeals a final order granting Quentin Louis a new trial. Louis was convicted of first-degree reckless homicide for shaking his infant daughter, Madelyn, to death. At trial, the State’s case was predicated upon expert medical testimony that Louis’s guilt could be inferred from the nature of Madelyn’s injuries. The circuit court concluded the controversy was not fully and fairly tried because the jury did not hear medical testimony that Madelyn’s injuries might have other causes. Accordingly, it ordered a new trial in the interest of justice using its discretionary authority to set aside the verdict. See State v. Henley, 2010 WI 97, P65, 328 Wis. 2d 544, 787 N.W.2d 350. We conclude the court properly exercised its discretion and affirm.” See Brief Filed by Wisconsin Innocence Project.

STUDIES

Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice, (OUP 2014)
“The emergence of Shaken Baby Syndrome (SBS) presents an object lesson in the dangers that lie at the intersection of science and criminal law. As often occurs in the context of scientific knowledge, understandings of SBS have evolved. We now know that the diagnostic triad alone does not prove beyond a reasonable doubt that an infant was abused, or that the last person with the baby was responsible for the baby’s condition. Nevertheless, our legal system has failed to absorb this new consensus. As a result, innocent parents and caregivers remain incarcerated and, perhaps more perplexingly, triad-only prosecutions continue even to this day.

Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice is the first book to survey the scientific, cultural, and legal history of Shaken Baby Syndrome from inception to formal dissolution. It exposes extraordinary failings in the criminal justice system’s treatment of what is, in essence, a medical diagnosis of murder. The story of SBS highlights fundamental inadequacies in the legal response to “science dependent prosecution.” A proposed restructuring of the law contends with the uncertainty of scientific knowledge.” See also Flawed Convictions: ‘Shaken Baby Syndrome’ and the Inertia of Injustice: Introduction, SSRN (2014).

Inquiry into Pediatric Forensic Pathology in Ontario [Goudge Report] (CA 2008)
“The Inquiry into Pediatric Forensic Pathology in Ontario was established by the Government of Ontario under the Public Inquiries Act on April 25, 2007. The Honourable Stephen T. Goudge was appointed Commissioner. The Inquiry’s mandate was to conduct a systemic review and an assessment of the policies, procedures, practices, accountability and oversight mechanisms, quality control measures and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001 as they relate to its practice and use in investigations and criminal proceedings. The Commissioner was asked to make recommendations to address systemic failings and restore and enhance public confidence in pediatric forensic pathology in Ontario.” See also Committee Report to the Attorney General: Shaken Baby Death Review (2011).

LAW REVIEWS

Bridging the Gap: An Application of Social Frameworks Evidence to Shaken Baby Syndrome, 62 Hastings L.J. 1839 (2011)
“Ever since the syndrome was first recognized in the 1960s, a diagnosis of shaken baby syndrome (“SBS”) was believed to be pathognomonic of abuse. New data calls into question the accuracy of the diagnosis and its association with nonaccidental death. This data points to alternative causes of brain injuries in infants and small children and casts doubt on the validity of evidence frequently used at trial. This Note explores problems associated with expert testimony in the context of SBS. It argues that despite the ability to accurately present general causation evidence at trial, introduction of specific causation testimony is often premature and unsupported by existing scientific proof. A careful application of John Monahan and Laurens Walker’s social frameworks theory provides the groundwork for new evidentiary techniques in the defense and prosecution of SBS. By limiting expert testimony to that of social frameworks, courts can encourage thorough exploration of pertinent scientific and corroborating evidence, while simultaneously preventing inappropriate specific causation testimony. Finally, this Note compares SBS to other crimes, such as rape and arson, because applying lessons learned from the use of social frameworks evidence in other litigation contexts can help lawyers more accurately and equitably try SBS cases.”

Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research, 37 Okla. City U.L. Rev. 219 (2012)
“This is the text of a talk given by Keith Findley as part of the Integris Law & Medicine Lecture Series at Oklahoma City University School of Law on September 27, 2011, with commentary by Dr. Patrick Barnes, Professor David Moran, and Professor Carrie Sperling. The talks address controversies that have arisen in the past ten or twelve years over the diagnosis Shaken Baby Syndrome (SBS) (now known also more expansively as Abusive Head Trauma (AHT)) and prosecution of individuals based on the hypothesis that the child was injured or died after an adult caregiver violently shook the child. The talks examine the science-dependent nature of prosecutions (or child removal actions) based on the shaking hypothesis, as well as emerging controversies from new medical research about whether shaking can cause such injuries and death, at least without causing extensive neck and cervical spine injuries; whether the indicators previously attributed almost exclusively to shaking — such as subdural hematomas and retinal hemorrhages — are indeed diagnostic of abuse; whether other causes, both natural and accidental, can mimic abuse and lead medical professionals astray; and whether the onset of clear neurological impairment can reliably be timed to the infliction of injuries so that the medical science can be used to identify the perpetrator (assuming there was one). This talk examines how the legal system is being called upon to re-examine SBS convictions in light of this evolving medical science.”

Ironic Simplicity: Why Shaken Baby Syndrome Misdiagnoses Should Result in Automatic Reimbursement for the Wrongly Accused, 38 Seattle U. L. Rev. 127 (2014)
“This Note recounts those issues primarily to evidence the substantial tension surrounding SBS in the context of misdiagnoses and the treatment of the accused parties. The solution proposed here is to remove the qualified immunity clause in each state’s reporter statute and provide automatic reimbursement for economic damages incurred if any investigation is deemed “unfounded” (meaning the CPS investigation concluded there was no evidence substantiating child abuse). Each state has a reporter statute, which requires medical providers to report child abuse, and these statutes provide qualified immunity if the reporter acted in “good faith.” If the medical provider, law enforcement, or CPS personnel acted in good faith, they would not face civil liability and the damages would be strictly limited to reimbursement for economic damages. However, I [Jay Simmons] also propose that if there is evidence any medical provider, law enforcement, or CPS personnel acted in bad faith or engaged in ethically suspect behavior, any wrongly accused party may pursue non-economic damages. If there is evidence of manipulation or intentional nondisclosure of medical evidence, or unethical or other forms of unscrupulous treatment of the accused, the strict economic damages cap should be voidable and the medical providers, law enforcement, and CPS personnel would become exposed to non-economic damages claims. This should be determined on a case-by-case basis. . . .

Part II of this Note tracks the relevant history of SBS, specifically noting its initial and inherent biomechanical and medical developments. Part III discusses the inherent tension between parents’ fundamental right to the care and custody of their children and a state’s interest in protecting children it believes were abused. Part IV details the multiple, arguably conflicting, roles physicians occupy in SBS proceedings, and Part V relays two anecdotes of failed SBS diagnoses and their disastrous consequences on two families. Part VI discusses the voidable economic damages caps and why they would provide a suitable balance between competing interests, and Part VII provides a brief conclusion.”

Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1 (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.”

Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome, 62 Ala. L. Rev. 513 (2011)
“The path of scientific change is unforeseeable and may be marked by abrupt shifts in course. When these shifts occur, our criminal justice system is ill-equipped to respond expeditiously; it thus lags behind scientific frontiers. In an age where science-dependent prosecutions are proliferating, this failure is of particular concern. Because it is fully constructed by and dependent on medical expertise, Shaken Baby Syndrome (SBS) raises in stark form the problems that arise when science outpaces law–most troublingly, the prospect that we are imprisoning people who have committed no crime. The trajectory of SBS in the criminal courts reveals fundamental limitations of our system’s ability to absorb forensic advances in a manner consistent with the administration of justice. The law may ultimately align itself with the latest scientific thinking, but it is doing so slowly, arbitrarily, and in a wholly unreasoned (and unstudied) fashion. In the interim, we are witnessing patterned injustice.

This Article constructs a conceptual framework that describes and critiques how criminal justice evolves in the wake of scientific change. It thus begins the process of reforming institutions, laws, and practices to better account for the tentative nature of scientific orthodoxy. By priming the system to deal more effectively with epistemic contingency, we affirm our commitment to protecting the innocent.”

Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous. J. Health L. & Pol’y 209 (2012)
“In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing. In the last issue of this journal, Dr. Sandeep Narang marshaled the arguments and evidence that he believes support the diagnostic specificity of the medical signs that are used to diagnose SBS/AHT. Dr. Narang does not dispute the alternative diagnoses but nonetheless argues that, in the absence of a proven alternative, the SBS/AHT hypothesis is sufficiently reliable to support criminal convictions. The cited studies do not, however, support this position since they assume the validity of the hypothesis without examining it and classify cases accordingly, often without considering alternative diagnoses. To address this problem, Dr. Narang argues that, in diagnosing SBS/AHT, we should rely on the judgment of child abuse pediatricians and other clinicians who endorse the hypothesis. Reliance on groups that endorse a particular hypothesis is, however, antithetical to evidence-based medicine and Daubert, which require an objective assessment of the scientific evidence. In the past decades, thousands of parents and caretakers have been accused “and many convicted” of abusing children based on a hypothesis that is not scientifically supported. While we must do everything in our power to protect children, we must refrain from invoking abuse as a default diagnosis for medical findings that are complex, poorly understood and have a wide range of causes, some doubtlessly yet unknown. To this end, we are calling for collaboration between the medical and legal communities for the sole purpose of “getting it right.””

Shaken Baby Syndrome as Felony Murder in North Carolina, 34 Campbell L. Rev. 423 (2012)
“This Article argues that the North Carolina criminal law’s treatment of Shaken Baby Syndrome should be reformed. Rather than leaving in place a legal regime that allows the state to prosecute all Shaken Baby Syndrome cases as first-degree murder, the law should distinguish between accidental and purposeful killings. If the state wishes to punish Shaken Baby Syndrome cases with special severity, the General Assembly should make this policy choice explicit.

In making this argument, this Article proceeds in three parts. First, this Article examines how and why North Carolina subjects all Shaken Baby Syndrome deaths to prosecution as first-degree murder. Part I examines the two rules that, when combined, achieve this result: North Carolina’s felony murder rule, and the State’s codification of the crime of felonious child abuse. Second, this Article digs deeper into the felony murder doctrine, arguing that North Carolina’s felony murder rule is indefensible in the Shaken Baby Syndrome context. Finally, this Article’s conclusion suggests reform of the way the North Carolina criminal law treats Shaken Baby Syndrome cases. This Part argues for legislative and judicial reform that would limit North Carolina’s felony murder rule in child abuse cases. If the State wishes killing children to be punished more severely than killing an adult, the General Assembly should make that policy choice explicit. In the absence of such reforms, prosecutors should take it upon themselves to exercise sound discretion. Prosecutors should bring first-degree murder charges only in those Shaken Baby Syndrome cases that involve a defendant who acted with the premeditated design to kill or with knowledge that death would result from his actions.”

Shaken Baby Syndrome: A Genuine Battle of the Scientific (and Non-Scientific) Experts, 46 Crim. L. Bull. 156 (2010)
“The national campaign against child abuse has changed the face of American evidence law during the past 30 years. The campaign has led to the relaxation of witness competency standards for alleged child victims, the recognition of new procedures for presenting child testimony such as the use of support persons, the creation of new hearsay exceptions, and the development of novel species of expert testimony. One of the most controversial new types of expert testimony is shaken baby syndrome. The proponents of the syndrome claim that the violent shaking of an infant by an adult can generate enough force to inflict fatal brain injuries on the infant even without impact. Many pediatricians and pathologists subscribe to this theory. However, many biomechanical experts dispute the theory. To date, the vast majority of courts have admitted testimony based on the syndrome. The purpose of this article is to critically evaluate the available empirical data relevant to the question of the validity of the syndrome. The article concludes that this is one of the rare situations in which both sides’ expert claims pass muster under Federal Rule of Evidence 702 and the Supreme Court’s leading decisions, Daubert and Kumho. Once a decision-maker posits the validation standard enunciated in Daubert, it is possible to have genuine battles of the experts. In this case, the syndrome opponents can point to relatively well designed experiments finding that even violent shaking by an adult cannot generate enough force to cause fatal injuries to the infant brain. However, syndrome opponents note that in a large number of cases in which infants suffered such fatal brain injuries, the infant’s custodian admitted shaking without impact. It may be tempting to conclude that classical experimentation should always trump more anecdotal expert reasoning. However, that conclusion is indefensible as a matter of both statutory construction and epistemology.”

Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept, 2003 Utah L. Rev. 1109
“Since 1974, when shaken baby syndrome was first described, many caretakers have been convicted of violently shaking a baby to death. When there were no other signs of abuse, if a baby was found to be suffering with two symptoms – bleeding on the brain (subdural or subarachnid hematoma) and bleeding behind the eyes (retinal hemorrhaging) – it was sufficient for conviction. However, recent research, examined in this Note, casts doubt on the presupposition that the presence of SBS in a baby indicates that the baby was abused. Under the existing test for admission of expert testimony into court, evidence of SBS does not show that a crime has been committed, and thus should not be used as grounds for criminal liability without other corroborating evidence.”

Shaken Baby Syndrome: A South African Medico-Legal Perspective, 17 Potchefstroom Electronic L. J. 1287 (2014)
“Shaken Baby Syndrome refers to the violent and repetitive shaking of an infant, and is a form of abusive head trauma. It was first described in 1974, and has since been the topic of intensive study and discussion. The syndrome has classically been diagnosed with a triad of injuries, namely subdural haemorrhage, retinal haemorrhage and encephalopathy (brain abnormalities). However, recent publications have led to some doubt regarding the causation and diagnostic significance of the triad. It is now generally accepted that other conditions, even natural diseases, may cause the findings listed in the so-called “triad”. To date, no reported case law is available on Shaken Baby Syndrome in South Africa; therefore this article focuses on cases in the United States and United Kingdom to delineate some of the issues associated with litigating the condition. This includes the obligation of expert witnesses to give independent, factual evidence about their areas of expertise. It is recommended that medical and legal professionals involved in cases of alleged child abuse should collect as much information as possible about the context of the case. Confessions by parents or caregivers should be treated with circumspection. Awareness campaigns should be aimed at informing the public of the dangers of shaking an infant. And with regards to Shaken Baby Syndrome an increased focus on evidence-based medicine is necessary to dissipate the uncertainty around the condition.”

Shaken Baby Syndrome: Inadequate Logic, Unvalidated Theory, Insufficient Science, Argument & Critique, Apr. 2014
“This paper tells the ‘story’ of shaken baby syndrome/abusive head trauma, tracking the evolving medical literature and demonstrating the influences on some of the significant court cases in which the tenets of the diagnosis were shown to have been faulty. The author argues that current child protection approaches have turned a scientifically unvalidated medical hypothesis into a nearly unstoppable courtroom force. Parents of children with legitimate medical conditions are being targeted as abusers, and concerns have arisen that their children are denied the treatment they need. Child protection resources are being misdirected into prosecuting cases in which, arguably no wrongdoing may have occurred. In both the criminal and the public family jurisdictions, the cumulative effect is the wastage of public resources and miscarriages of justice. In many cases, human tragedy is the result, involving families being torn apart, wrongful imprisonment and the wrongful placement of children into state ‘Care’.”

Shaken Baby Syndrome: Medical Uncertainty Casts Doubt on Convictions, 2007 Wis. L. Rev. 701
“This Comment explores criminal charges based on SBS and the potential for wrongful convictions. Part II introduces the medical terminology, gives a brief legal history of cases involving SBS, and discusses the changing science behind the syndrome. Part III outlines the scope and role of medical experts in SBS trials. In particular, it compares the term “beyond a reasonable doubt” with “reasonable medical certainty,” and determines that the commonly used terms are not compatible. Finally, Part IV looks to the examination and management of SBS cases in other countries.

This Comment concludes that infant deaths can lead to the homicide convictions of innocent people. The medical community does not agree that subdural hemorrhaging and retinal hemorrhaging without evidence of an impact are necessarily indicative of shaking. The standard of “reasonable medical certainty” that medical experts often use at trial is not appropriate for SBS cases and can be extremely misleading. When medical experts cannot come to an agreement about SBS, a jury cannot understand the science well enough to make a reasonable decision. Without corroborating evidence of child abuse, a defendant should not be convicted of any crime due to SBS based only on the existence of the triad of symptoms.”

Shaken Baby Syndrome, Wrongful Convictions, and the Dangers of Aversion to Changing Science in Criminal Law, 48 U.S.F. L. Rev. 147 (2013)
“Shaken Baby Syndrome prosecutions are vulnerable to wrongful convictions because of the erosion of the science behind the diagnosis of SBS and because of the inflammatory nature of the charges. This paper evaluates the science behind the medical and legal diagnosis of SBS. It also explores international reforms related to the same developments in science and finds the American response lacking. The author concludes that without recognition of and reform related to the evolution of our scientific understanding of SBS, actors within the American criminal justice system will continue to contribute to the almost certain wrongful conviction of innocent caregivers and parents.”

Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome, 42 Ariz. St. L.J. 1305 (2011)
“This Comment argues that, with SBS science in its current conflicted state, diagnosis based solely on the traditional clinical indicators does not support criminal convictions premised on existence of guilt beyond a reasonable doubt, and such convictions should be reexamined through existing post-conviction relief processes where they are adequate and through amended processes where they are currently inadequate. For case review to be most beneficial, it should follow further research conducted using the approach recently outlined by the National Academy of Sciences for improving forensic science investigation. Though additional research on SBS and review of questionable cases will potentially lead to a number of new trials and possibly even to the release of some factually guilty defendants, these consequences are justified in the interest of ensuring the soundness of convictions based on a controversial and evolving scientific theory.

Part I briefly outlines the theory and scientific controversy surrounding SBS and the approaches taken thus far by courts hearing post-conviction relief petitions in SBS cases. Part II addresses methodology in potential further research into SBS and proposes a possible test model by analogy to research methods suggested by the National Academy of Sciences. Part III assesses the adequacy of existing post-conviction relief standards as applied to SBS cases, using Arizona’s standard as an example. Part IV considers the likely impact of systematic review on the criminal justice system.”

Sharpening the Tools of an Adequate Defense: Providing for the Appointment of Experts for Indigent Defendants in Child Death Cases Under Ake v. Oklahoma, 50 San Diego L. Rev. 469 (2013)
“This Comment proposes that because of ongoing concerns regarding the reliability and validity of forensic science in the United States, the Due Process Clause constitutionally mandates the appointment of forensic experts for indigent defendants in criminal cases arising out of a child’s death if the prosecution relies on forensic evidence. Part II of this Comment provides an overview of the current law governing the admissibility of forensic expert testimony in criminal cases and explains why these admissibility standards create a need for the appointment of defense forensic experts to protect the rights of criminal defendants. Part III then discusses Due Process Clause jurisprudence on the necessity of appointing defense experts in criminal cases and the absence of an established right to state-funded defense experts for indigent defendants. In light of criminal defendants’ lack of access to state-appointed experts, Part IV examines child death cases wherein the prosecution relied on forensic experts to establish the child’s cause of death and explores the unique ways in which access to defense experts is critical to building an adequate defense in these cases. In Part V, I [Laurel Gilbert] conclude that in the unique context of child death cases built on prosecutorial forensic evidence, due process mandates the appointment of defense experts for defendants who cannot afford to hire them.”

“Shifted Science” and Post-Conviction Relief, 8 Stan. J.C.R. & C.L. 259 (2012)
“Of the many known causes of wrongful convictions, perhaps the most complex and diverse is junk science. We explore here a long-overlooked subset of that category and ask the question: What can be done to cure the injustice of a conviction that was based on scientific testimony that may have been accepted in the relevant scientific community at the time of trial, but has since been completely repudiated? In such an instance, a defendant remains in prison even though the evidence that served as the basis of his conviction has been renounced. After describing the problem and conducting a review of common post-conviction claims- and the reasons they fail in this situation- this article argues that state courts must allow defendants in this unique bind to file new evidence claims to obtain relief. Because new evidence is, as of now, not recognized as a viable basis for a federal constitutional claim, defendants will not have easy recourse in federal habeas corpus petitions, and it is especially crucial that state courts ensure that their rules for new trial motions on the basis of new evidence are broad enough to cover the important category of people discussed here. The article concludes by proposing that federal courts could provide relief to such innocent defendants on habeas if they embrace expansive interpretations of a person’s right to be free from unjust incarceration, and they should do so in order to continue to serve as a check on state court failures causing manifest injustice.”

Un-Convicting the Innocent: The Case for Shaken Baby Syndrome Review Panels, 45 U. Mich. J.L. Reform 657 (2012)
“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 [Rachel Burg] 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 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.”

Unexplained Fractures in Infants and Child Abuse: The Case for Requiring Bone-Density Testing Before Convicting Caretakers, 2011 B.Y.U.L. Rev. 2321 (2011)
“This Comment highlights the problems inherent in making a diagnosis of child abuse based solely on findings of unexplained fractures in x-rays and ultimately proposes a solution to the problem that will help protect innocent children and caretakers alike: a statute requiring that bone-density tests be performed when the prosecution wishes to use unexplained infantile fractures as evidence of child abuse. This Comment proceeds as follows. Part II discusses the problem of child abuse and the strategies used to combat it, as well as the reasons why more effective strategies are often not possible. It then discusses how unavoidable weaknesses in these strategies led to a widespread misappraisal of the degree of certainty with which abuse could be inferred in cases where infants have a set of symptoms once thought to be pathognomonic for abusive shaking. Part III then outlines critical problems with some of the initial studies that gave rise to the commonly held belief that unexplained infantile fractures indicate child abuse with near certainty. Also included in this Part is a brief description of a number of medical conditions now known to cause bone fragility in infants, including the controversial diagnosis of Temporary Brittle-bone Disease. Part IV follows by explaining why unexplained fractures, even in combination with the intracranial bleeding once thought to be caused only by shaking, may not indicate child abuse with as high a degree of certainty as is commonly believed because of problematic assumptions of independence. This Part also highlights a case by the California Supreme Court that explains how unsupported assumptions of independence can be improperly prejudicial to justice. Parts V and VI conclude by suggesting that requiring a commonly available bone-density test in cases involving unexplained fractures would both decrease the likelihood of convicting innocent caretakers and increase the likelihood of convicting guilty ones.”

NEWS

Anatomy of a Misdiagnosis, N.Y. Times, Sept. 21, 2010, at A31
“For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.

But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.”

Dismissed Case Raises Questions on Shaken Baby Diagnosis, NPR, Dec. 21, 2012
“When San Francisco prosecutors dismissed charges against Kristian Aspelin in early December, it became just the latest case to raise questions about how shaken baby syndrome is diagnosed. Aspelin, who was accused of causing the death of his infant son, had one thing in his favor: He had enough money to pay for medical experts who cast doubt on the prosecution’s theory.”

Finally, a Judge Calls Shaken Baby Diagnosis an “Article of Faith”, Slate, May 12, 2014
“Almost a decade into a 20-year prison sentence for murdering a baby in her care, 43-year-old Jennifer Del Prete was ordered freed on bond late last week. The ruling is one of a growing number that reflect skepticism on the part of judges, juries, and even prosecutors about criminal convictions based on the medical diagnosis of shaken baby syndrome. The case is also a critical turning point. The certainty that once surrounded shaken baby syndrome, or SBS, has been dissolving for years. The justice system is beginning to acknowledge this shift but should go further to re-examine and perhaps overturn more past convictions.”

Hardest Cases: When Children Die, Justice Can Be Elusive, Pro Publica, June 27, 2011
“We analyzed nearly two dozen cases in the United States and Canada in which people have been accused of killing children based on flawed or biased work by forensic pathologists, and then later cleared. Some spent years in prison before courts overturned their convictions. In 2004, San Diego prosecutors moved to dismiss charges against a man who’d been imprisoned for two decades for murdering his girlfriend’s son. Others were freed more swiftly but endured hardships nonetheless. An El Paso, Texas, jury acquitted a woman of killing her child in 2010, but after spending 22 months in the county jail, she still had to wage a legal battle to regain custody of her other children.”

Rejecting Shaken Baby Claim, Judge Blasts UIHC Doc, Iowa City Press-Citizen, Dec. 24, 2014
“A judge has found an Iowa man not guilty of shaking and injuring his newborn baby, sharply criticizing a doctor at University of Iowa Hospitals and Clinics [UIHC] for mishandling the investigation into the child’s injuries.”

Rethinking Shaken Baby Syndrome, NPR, June 29, 2011
“The dispute over shaken baby syndrome is a bitter civil war. On one side, doctors, lawyers and other experts say the diagnosis is key to winning convictions of people accused of the most horrible acts of child abuse. Opponents say the diagnosis is used too freely and that sometimes, innocent people go to prison.”

Shaken-Baby Syndrome Faces New Questions in Court, N.Y. Times, Feb. 6, 2011, at MM30
“A small but growing number of doctors warn that there can be alternate explanations — infections or bleeding disorders, for example — for the triad of symptoms associated with shaken-baby syndrome. Across the country, the group of lawyers that has succeeded in exonerating hundreds of people based on DNA evidence is now mounting 20 to 25 appeals of shaken-baby convictions. “No one wants child abuse,” says Keith Findley, a lawyer for the Wisconsin Innocence Project. “But we should not be prosecuting and convicting people in shaken-baby cases right now, based on the triad of symptoms, without other evidence of abuse. If the medical community can’t agree about all the conflicting data and research, how is a jury supposed to reach a conclusion that’s beyond a reasonable doubt?””

Sweden Searches for the Truth, On SBS, Jan. 19, 2015
“A recent decision from Sweden’s Supreme Court is changing the landscape for Swedish citizens fighting misguided accusations of infant shaking.”

Syndrome [documentary] (2014)
“The Syndrome tells the story of a group of doctors who say that shaken baby syndrome, the basis of hundreds of criminal cases every year, is not scientifically valid. The film focuses on three key doctors: A Georgetown University neurosurgeon, a former Minnesota state medical examiner, and the head of Stanford University’s Pediatric Neuroradiology Department. These doctors are part of a growing scientific movement coming to the defense of the some thousand people in prison for shaken baby. In an unprecedented criminal justice crisis, promoters of shaken baby syndrome are not backing down.” See The Syndrome (Reset Films).

Trouble With Shaken Baby Syndrome, Seattle Met, Apr. 1, 2014
“After three decades and thousands of accusations and fractured lives, medical and legal experts are challenging shaken baby syndrome as a diagnosis. And as one family’s saga demonstrates, we can’t wait any longer to get it right.”

Unsettling Science: Experts Are Still Debating Whether Shaken Baby Syndrome Exists, ABA J, Dec. 1, 2011
“[A] small and apparently growing number of forensic experts have begun to question many of the assumptions upon which the diagnosis rests—like whether shaking alone can produce the kind of traumatic head injuries attributed to SBS in the absence of other injuries, like a broken neck, or whether a child who has been shaken violently would immediately be rendered unconscious.”

When Science Moves Forward: Dealing with Post-Conviction Evidence in Shaken Baby Syndrome Cases, Comp. L. Prof Blog, Mar. 14, 2014
“There is a growing body of medical opinion today that believes the conclusion of shaken baby syndrome from the presence of the “triad” alone is not scientifically proven. That is, findings of the “triad” of symptoms can result from other causes, such as common short distance falls. See e.g., Patrick E. Lantz & Daniel E. Couture, Fatal Acute Intracranial Injury, Subdural Hematoma, and Retinal Hemorrhages Caused by Stairway Fall, 56 J. Forensic Sci. 1648 (2011); Scott Denton & Darinka Mileusnic, Delayed Sudden Death in an Infant Following an Accidental Fall, 24 AM. J. Forensic Med. Pathol. 371 (December 2003). Indeed, some biomechanical engineering experts have raised doubts about whether it is possible to shake a baby to death without significant injuries to the child’s neck or spine. See Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int. 71 (2005).”

SECONDARY RESOURCES

Childhood Head Injury: A Short Bibliography of Must Read Articles (SBSDefense.com)
“What follows is a short bibliography of the articles that anyone interested in the field of childhood head trauma must read. There are literally hundreds of articles written on the subject, but these are some of the essentials.” See also Shaken Baby Syndrome Defense (SBSDefense.com)

National Registry of Exonerations (U. Mich. L. Sch. & Center on Wrongful Convictions at Nw. U. Sch. L.)
This is a collection of recent exonerations involving shaken baby syndrome (see SBS Tags).

On SBS (Sue Luttner)
“This blog is based on 17 years of attending the conferences and following the medical literature on the subject of shaken baby syndrome (SBS).” See About This Blog (On SBS).

Shaken Baby Syndrome in: Encyclopedia of Forensic Science (Wiley 2009)
“The diagnosis “shaken baby syndrome” (SBS) has been widely accepted for over 30 years, but recent evidence from biomechanical and clinical observational studies questions the validity of the syndrome.”

US Shaken-Baby Syndrome Database (Medill Justice Project)
This “is a database containing more than 3,000 U.S. shaken-baby syndrome cases, gathered and verified by The Medill Justice Project. The information can be filtered to find specific data. For example, you can isolate gender of the accused and location of the case. To view a geographic visualization of the data, click here. Information is updated periodically. The database was updated Oct. 3, 2014.” See also MJP Watchdog Databases; Pinpointing Shaken-Baby Syndrome Cases.

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1 See generally Walter Int’l Prods. v. Salinas, 650 F.3d 1402 (11th Cir. Fla. 2011) (“When two women each swore to be the mother of a child, King Solomon did not split the baby. Instead, he announced his intention to do that in order to flush out the truth. See 1 Kings 3:16-28. Confronted with the prospect of the baby being split with a sword, the woman who had falsely claimed the child responded with the Old Testament equivalent of “let ‘er rip,” while the woman who had borne the child begged Solomon not to slay the child even if it meant that she would lose it to the other woman: “[G]ive her the living child, and in no wise slay it,” she pleaded. Id. at 3:26 (King James Version). Solomon was wise enough to know that a mother would rather lose her child to another than have it slain, and so he gave the child to the woman begging for its life to be spared. Id. at 3:27. And all of Israel was in awe of his wisdom. Id. at 3:28. In this case the judge did not instruct the jurors to split the baby. Instead, she wished them the judgment of Solomon. A jury blessed with the judgment of Solomon would be wise in discerning the truth. Agreeing with the district court, we wish such wisdom on every jury.” Id. at 1418 (italics added).).

2 See, e.g., Aleman v. Village of Hanover Park, 662 F.3d 897 (7th Cir. 2011) (“Not being a medical expert, Aleman could not contradict what was represented to him as settled medical opinion. He had shaken Joshua, albeit gently; but if medical opinion excluded any other possible cause of the child’s death, then, gentle as the shaking was, and innocently intended, it must have been the cause of death. Aleman had no rational basis, given his ignorance of medical science, to deny that he had to have been the cause.” Id. at 906.). See Jan E. Leestma, “Shaken Baby Syndrome”: Do Confessions by Alleged Perpetrators Validate the Concept?, 11 J. Am. Phys. & Surg. 14 (2006). See generally Gisli H. Gudjonsson, False Confessions and Correcting Injustices, 46 New Eng. L. Rev. 689 (2012); Julia Shaw and Stephen Porter, Constructing Rich False Memories of Committing Crime, Psych. Sci., Jan. 14, 2015.

3 Depending on the field and the time frame, shaken baby syndrome has been known under different and still evolving terminologies. See Keith A. Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous. J. Health L. & Pol’y 209, 218-222 (2012) (“In addressing the changes in the SBS/AHT hypothesis, it is important to distinguish between five terms and diagnoses: “shaking,” “shaken baby syndrome,” “shaken impact syndrome,” “abusive head trauma,” and “blunt force trauma.” Much of the disagreement in this area reflects the confusion of these terms and conflation of the underlying concepts.” Id. at 218. “[Non-shaking] terms include “intentional traumatic brain injury (iTBI),” “nonaccidental injury (NAI),” “nonaccidental head injury (NAHI),” “nonaccidental trauma (NAT),” “inflicted neurotrauma” and “abusive head trauma (AHT)”. See Narang, supra note 3, at 505 (Abusive Head Trauma (AHT) has been known over the years by multiple terms, including Whiplash Shaken Baby Syndrome, Shaken Impact Syndrome, Inflicted Childhood Neurotrauma and Non-Accidental Trauma; to the lay public, it is most commonly recognized as Shaken Baby Syndrome (SBS).)” Id. at 219 n. 21.); Sandeep K. Narang, Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome [- Part I], 11 Hous. J. Health L. & Pol’y 505 (2011)(“[T]his author [Sandeep K. Narang] conducted an all language literature search of the Medline database from 1970 to March 2010, using over 15 different keywords/phrases (to include, but not limited to, “shaken baby syndrome,” “shaken infant syndrome,” “inflicted neurotrauma,” “nonaccidental trauma,” “subdural hemorrhage,” “subarachnoid hemorrhage,” and “retinal hemorrhage”).” Id. at 540 n. 237); Deborah Tuerkheimer, Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome, 62 Ala. L. Rev. 513 (2011) (“A number of different terms are currently employed to describe the former SBS: shaken impact syndrome (SIS); inflicted childhood neurotrauma; abusive head trauma (AHT); inflicted traumatic brain injury (inflicted TBI); and nonaccidental head injury (NAHI). Robert M. Reece, What Are We Trying to Measure: The Problems of Case Ascertainment, 34 AM. J. PREVENTIVE MED. S116, S116 (2008). Acknowledging the move away from shaking as exclusive etiology, the Committee on Child Abuse and Neglect of the American Academy of Pediatrics (AAP) recently recommended that “pediatricians should use the term ‘abusive head trauma’ rather than a term that implies a single injury mechanism, such as shaken baby syndrome.” Cindy W. Christian et al., Abusive Head Trauma in Infants and Children, 123 PEDIATRICS 1409, 1411 (2009). Notwithstanding the rise of various alternative diagnostic labels and the AAP’s newly articulated recommendation, both the medical and legal establishments continue to employ the terminology of SBS.” Id. at 516.). See generally Heads Up: Prevent Shaken Baby Syndrome (Center for Disease Control); NINDS Shaken Baby Syndrome Information (National Institute of Neurological Disorders and Stroke); Shaken Baby Syndrome (Mayo Clinic); Shaken Baby Syndrome Prevention Legislation (National Conference of State Legislatures).

4 See Ken Strutin, Post-Conviction Science and the Philosopher’s Stone, N.Y.L.J., Jan. 24, 2012, at 5 (“While the certiorari petition in Cavazos v. Smith was pending before the Supreme Court, Prof. Deborah Tuerkheimer surveyed the legal landscape of shaken baby syndrome cases (SBS). She observed that prosecutions for infant deaths relying on SBS were principally a “medical diagnosis of murder.” These scientific prosecutions established mens rea and actus reus through a triad of medical evidence: (1) retinal bleeding; (2) bleeding in the brain; and (3) brain swelling. Advances in the differential diagnosis of the multiple causes underlying infant deaths have undermined confidence in SBS-based convictions. Thus, Prof. Tuerkheimer observed that the three-pronged SBS medical evidence approach was no longer sufficient to satisfy mens rea. Yet, courts and prosecutors have been slow to acknowledge “new scientific realities,” a viewpoint that infects all aspects of a case from investigation to adjudication.” Id. (citing Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1 (2009); Deborah Tuerkheimer, Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome, 62 Ala. L. Rev. 513 (2011)).

5See Parents Are Going to Prison for a Medical Diagnosis That May Not Exist [Shaken Baby Syndrome], The Verge, April 15, 2014; Maia Szalavitz, The Shaky Science of Shaken Baby Syndrome, Time Mag., Jan. 17, 2012. See generally Portable Guides to Investigating Child Abuse (OJJDP).

6 Compare George J. Barry and Diane L. Redleaf, Medical Ethics Concerns in Physical Child Abuse Investigations: A Critical Perspective (Family Defense Center 2014); Daniel M. Albert et al., Ensuring Appropriate Expert Testimony for Cases Involving the “Shaken Baby”, 308 JAMA 39 (2012) with John Caffey, Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities With Whiplash-Induced Intracranial and Intraocular Bleedings, Linked With Residual Permanent Brain Damage and Mental Retardation, 54 Pediatrics 396 (1974); A. N. Guthkelch, Infantile Subdural Haematoma and Its Relationship to Whiplash Injuries, 2 British Med. J. 430 (1971).

7 Compare Deborah Tuerkheimer, “Shaken Baby Syndrome” and the Inertia of Injustice (PBS Oct. 9, 2014); Keith A. Findley and Katherine Judson, Post-Conviction Challenges to Forensic Evidence in Shaken Baby Convictions (NACDL 2014); Keith A. Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous. J. Health L. & Pol’y 209 (2012) with Joelle Anne Moreno and Brian Holmgren, Supreme Court Screws Up the Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, 2013 Utah L. Rev. 1357 (2013); Joelle Anne Moreno and Brian Holmgren, Dissent into Confusion: The Supreme Court, Denialism, and the False “Scientific” Controversy over Shaken Baby Syndrome, 2013 Utah L. Rev. 153; Sandeep K. Narang et al. Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome – Part II: An Examination of the Differential Diagnosis, 13 Hous. J. Health L. & Pol’y 203 (2013); Sandeep K. Narang, Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome [- Part I], 11 Hous. J. Health L. & Pol’y 505 (2011); and National Center on Shaken Baby Syndrome.

8 See Cavazos v. Smith, 132 S.Ct. 2 (2011) (Ginsburg, J dissenting: “Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family. Is this Court’s intervention really necessary? Our routine practice counsels no. . . . Its summary adjudication seems to me all the more untoward for these reasons: What is now known about shaken baby syndrome (SBS) casts grave doubt on the charge leveled against Smith; and uncontradicted evidence shows that she poses no danger whatever to her family or anyone else in society.” Id. at 9.).

9 Id. (Ginsburg, J dissenting: “Doubt has increased in the medical community “over whether infants can be fatally injured through shaking alone.” State v. Edmunds, 2008 WI App. 33, P15, 308 Wis. 2d 374, 385, 746 N.W.2d 590, 596. See, e.g., Donohoe, Evidence Based Medicine and Shaken Baby Syndrome, Part I: Literature Review, 1966-1998, 24 Am. J. Forensic Med. & Pathology 239, 241 (2003) (By the end of 1998, it had become apparent that “there was inadequate scientific evidence to come to a firm conclusion on most aspects of causation, diagnosis, treatment, or any other matters pertaining to SBS,” and that “the commonly held opinion that the finding of [subdural hemorrhage] and [retinal hemorrhage] in an infant was strong evidence of SBS was unsustainable.”); Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int’l 71, 78 (2005) (“Head acceleration and velocity levels commonly reported for SBS generate forces that are far too great for the infant neck to withstand without injury. . . . [A]n SBS diagnosis in an infant . . . without cervical spine or brain stem injury is questionable and other causes of the intracerebral injury must be considered.”); Minns, Shaken Baby Syndrome: Theoretical and Evidential Controversies, 35 J. Royal College of Physicians of Edinburgh 5, 10 (2005) (“[D]iagnosing ‘shaking’ as a mechanism of injury . . . is not possible, because these are unwitnessed injuries that may be incurred by a whole variety of mechanisms solely or in combination.”); Uscinski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chir. (Tokyo) 57, 59 (2006) (“[T]he hypothetical mechanism of manually shaking infants in such a way as to cause intracranial injury is based on a misinterpretation of an experiment done for a different purpose, and contrary to the laws of injury biomechanics as they apply specifically to the infant anatomy.”); Leestma, Case Analysis of Brain-Injured Admittedly Shaken Infants, 54 Cases, 1969-2001, 26 Am. J. Forensic Med. & Pathology 199, 211 (2005) (“[M]ost of the pathologies in allegedly shaken babies are due to impact injuries to the head and body.”); Squier, Shaken Baby Syndrome: The Quest for Evidence, 50 Developmental Med. & Child Neurology 10, 13 (2008) (“[H]ead impacts onto carpeted floors and steps from heights in the 1 to 3 feet range result in far greater . . . forces and accelerations than shaking and slamming onto either a sofa or a bed.”).” Id. at 10.).

10 See Radley Balko, Mississippi Supreme Court Overturns Conviction Involving Steven Hayne, Shaken Baby Syndrome, Wash. Post, Dec. 16, 2014(“[T]he court overturned the conviction because the trial court denied funding for Brown to hire his own medical examiner (which, of course, made it nearly impossible for him to introduce those other issues in the first place). Prosecutors argued that because Brown hired his own attorney and paid his own bond, he couldn’t be deemed indigent, and therefore wasn’t eligible for funds to hire his own expert witnesses. The trial judge agreed. Of course, it costs a lot of money to defend against a murder charge. It’s entirely possible for a suspect to have the money to post bond and hire an attorney, and then be broke by the time he’d need to start hiring experts to review the state’s case. And in a case that turns specifically on the testimony of an already suspect expert witness, that part can be pretty important. The Mississippi Supreme Court agreed.”). Accord Thomas v. Kuhlman, 255 F. Supp. 2d 99, 111-112 (E.D.N.Y. 2003) (Retained attorney’s failure to investigate based on insufficient finances was not justified when he did not even petition the trial court for funds to hire an investigator at county expense.).

11 See Gary Craig, DA to Appeal Reversal of Shaken-Baby Conviction, Rochester Democrat & Chronicle, Jan. 7, 2015 (“The Monroe County District Attorney’s Office will appeal the reversal of the conviction of Rene Bailey, an appeal that could set the stage for New York’s most significant challenge to the science of so-called “shaken baby” deaths.”).

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