"SHAKEN BABY" CASES For: National Seminar for Federal Defenders, Seattle, Washington, June 2, 2010 Jane McCIellan, AFPD, District of Arizona (based on previous presentation with AFPD Doug Passon)
o The number and location of retinal hemorrhages aren't proof of child abuse. They are associated with a wide variety of conditions,
o Bleeding Disorders o CPE and other resuscitation o Induced labor (4___dwn_„t_op_i_(c.n_)_ridE_,_n.._._) o Increased intracranial pressure from any cause
(example: "bulging fontanelle") o Shortfalls! (of less than 10 ft.) o Mild to moderate vitamin C depletion o Vaccination with Hep B vaccine (given at birth) o Being born: oaaa __v.__.nB examined: i?a h_u _ o _H) O»_ tyi,_
iloli v ery cnn l_Hu.nc.}(„!_ther study looked nl 230 infants wllhln n low birth _3/l_.5K)M_ healthy infante- 1-/21.7K)
'no of / V days of ___/
MANY THINGS CAUSE BROKEN
BONES AND BRUISING
o Vitamin C depletion in infants can lead to bone fragility.
o Corner Fractures are considered evidence of abuse.
o Metabolic disease ofthe premature
o Osteogenesis imperfecta and other genetic bone disorders
o Hyperparathyroidism
o Vit. D deficiency and IdiopatMc juvenile osteoporosis 0
1 1 1 1 1 1 1 1 1
MANY THINGS CAUSE BROKEN
BONES AND BRUISING
o Thrombocytopenia (low blood platelet count) -platelets play a role in blood clotting = bruising.
o Henoch-Schonlein Purpura (HSP) is a form of blood vessel inflammation (vasculitis) - causes bruise-like rashes over buttocks and behind lower extremities. Also can cause severe joint inflammation and cramping pain in abdomen.
o Vaccines associated with HSP, Vasculitis, thrombocytopenia.
o Flu shots can cause injection site bruising. Package insert warns against giving to people with, among other things, thrombocytopenia. o
5/12/2010
USING
DAUBERT TO CHALLENGE SBS
o Goal: To block testimony about SBS, and to preclude govt's expert from testifying that injuries were caused from shaldng.
o Will most likely fail, but: o Educate judge. o First crack at the experts (dry run) o Persistence pays off!
USING EXPERTS TO CHALLENGE SBS
o Forensic Pathologist o Biomechanics o Radiologist o Pediatric Neurologist oEtc.
o Dr. Posey (800-620-4644)
o National Child Abuse Defense & Resource Center http://www.falseallegation.org/
DISCOVERY & INVESTIGATION
o Pre-natal records o Birth records o Post-birth health records o Hospital policy records o Ambulance emergency records
o False confession issues o Child suggestibility issues o
1
1
5/12/2010
ASSIMILATIVE CRIMES
o Assimilative Crimes Act: 18 U.S.C. § 13 (reaches crimes "not made punishable by any enactment of congress")
o Govt: 18 U.S.C. § 1153(a) references "felony child abuse", but no specific child abuse statute.
o Assault resulting in SBI on juvenile under 16 (18 USC 113(a)(7))
o Assault by striking beating wounding (a)(4) o Simple assault juvenile <16 (a)(5) .
Shaken Baby Experts
Bill Massello (Bismark) 701-328-6154
1865 NE 214 Terrace Miami, FL 33179 PHONE: 305-527-9535 Mshumanmd(o),netzero. net
George Nichols (Louisville) 502-499-0077
Ed Willey 6727 1st Ave. South Suite 204 St. Petersberg, FL 33707 PHONE: 727-345-2907
Dr. Patrick Barnes Dept. of Radiology Lucile Salter Packard Children's Hospital Stanford Univ. Med. Ctr. 725 Welch Road Palo Alto, CA 94304 PHONE: 650-407-8601
David M. Posey, M.D. Glenoaks Pathology Medical Group, Inc. 2222 Foothill Boulevard Suite E-565 La Canada, CA 91011 PHONE: 818-249-1911 posev(3),vel.net
Cannot review any cases at this time, due to his current position
Avsncinfp Mpdical Kxaminpr in Miami-Dade dountv MK Dent • Interested in reviewing case at NO CHARGE • If needed for testimony will charge • CV available
Number has been disconnected-no longer in service • Currently researching Internet for a valid number
Private Practice of forensic medical and pathological evaluation • Interested and available to review case • When informed of injuries sustained by V, stated that these injuries
are not necessarily caused by shaking • Charges $250/hour • CV available
Not available to review case until July or August - backlogged with other cases • Charges $325/hour to review and consult with attorney • $375/hour to testify; and $3,500.00 if involves overnight stay • Will forward CV for future purposes
Pediatric Neuro-radiologist
Forensic and neuropathologist
Shaken Baby Experts
Chris Van Ee, Ph.D. Senior Biomechanical Engineer Design Research Engineering 46475 DeSoto Ct.
Novi, MI 48377 PHONE: 248-668-5533 chrisv(2),dreng.com
Injury biomechanics expert Highly recommended by several lawyers, the National Child Abuse Defense Resource Center, and Dr. Posey, internationally renowned expert (we have copy of CV) and has a substantial lab to do state of
the art testing using crash test dummies.
He is a pathologist and an expert on head injuries.
child's medical records indicate that the only significant injury for the victim was a
subdural hematoma and retinal hemorrhaging and there was no significant bruising,
fractures, or evidence of impact. The Commonwealth's case is based upon the theory
of shaken baby syndrome, hereinafter referred to as SBS. SBS is the theory that a
caregiver can cause a subdural hematoma and retinal hemorrhaging by violently
shaking a child without the child's head impacting with another surface. This theory
explains why a baby can have the classic symptom of a subdural hematoma and a
retinal hemorrhage usually in both eyes. But, the Defendant challenges whether there
exists any basis in fact for the theory, and in particularly where the consequences can
cause a person to be sentence to the state prison system from five (5) to ten (10)
years.
The Court conducted the hearing on Wednesday, March 29,2006. The Hon.
Clifford Duval, Hon. Maridelle Malone, and Hon. Mel Leonhart were present
representing the Commonwealth. The Hon. Sam Weaver and Hon. Amy Craft were
present representing the Defendant.
FINDINGS OF FACT
The Defendant called as its first and only witness Dr. Ronald H. Uscinski. M.D.,
FACS. Dr. Uscinski earned his B.S. at Fordham University inNew York, New York
in 1964. He earned his M.D. from Georgetown University in Washington, D.C in
1968. He performed his internship at Bronx Municipal Hospital Center, Albert
Einstein University College of Medicine, inNew York from 1968 to 1969. He
performed his residency in neurological surgery, Georgetown University and
affiliated-Hospital from 1971-to-_9_7_5.__- —
Dr. Uscinski's experience included serving as a Medical Officer in the U.S. Navy
at Parris Island, South Carolina, and aboard the U.S. S. Thomas A. Edison (SSNB
610-B) Atlantic Submarine Force, from 1969 to 1971.
Dr. Uscinski served as a Senior Surgeon, in.the U.S. Public Health Service,
Surgical Neurology Branch, National Institute of Neurological and Communicative
Disorders and Stroke, (NIH) in Bethesda, Maryland from 1975 to 1976. He served as
an instructor in neurosurgery at NIH from 1976 to 1977, and as an instructor in
neurosurgery at Medical University of South Carolina, Charleston, South Carolina
from 1977 to 1980. In 1978 he become board certified with the American Board of
Neurological Surgery. From 1980 to 2000 he served as a Clinical Assistant Professor
in the Dept. of Surgery (neurosurgery), at Georgetown Universtty School of Medicine
in Washington, D.C. From 2000 to the present he is still a Clinical Associate
Professor at Georgetown.
In 2004 he was appointed as an Adjunct Research Fellow at the Potomac Institute
for Policy Studies, in Arlington, Va.
Dr. Uscinski has published several papers including The Shaken Baby Syndrome,
Uscinski R. Journal of American Physicians & Surgeons: Volume 9, #3; 76-77,2004;
and The Shaken Baby Syndrome: An Odyssey. Uscinski RH. Neuroiogm medico-
chirurgica (Tokyo) 46, 57-61,2006.
Dr. Uscinski has made numerous presentations on the subject of shaken baby
syndrome including locations at Washington, D.C, London, England, andNara,
Japan. See Dr. Uscinski Curriculum Vitae, Defendant's Exhibit #1.
Dr. Uscinski testified that as a practicing neurosurgeon he became interested in
the subject of SBS because it directly affected his medical practice. As a result of his
interest, he began to survey the different medical publications that existed on the
subject of SBS. His study of the subject combined with his clinical practice led him to
the conclusion that based upon his training, education, and experience, and within a
reasonable degree of medical probability, there is insufficient proof in the medical
community that human beings can generate the required rotational acceleration by
manual shaking necessary to cause an injury to a small child or infant resulting in a
subdural hematoma and/or retinal bleeding unless there is an impact of the head with
another surface. Dr. Uscinski opined that based upon the research conducted and
reported so far, impact is necessary to generate adequate force to cause the injuries
previously mentioned.
Dr. Uscinski began his testimony by stating that a subdural hematoma is a pooling
of blood in the subdural space of the human brain that results from the tearing of
blood vessels. The brain has three membranes that enclose it. They are the outer
layer, the dura, the middle layer, arachnoid, and a thin inner layer, the pia. The
subdural is the space between the dura and the arachnoid layers. Hematomas can be
either acute or chronic. Dr. Uscinski explained that a blow to the head causes an acute
hematoma with symptoms that manifest themselves immediately after the injury. A
chronic hematoma shows up weeks or months after an initial injury that often times
seem to be insignificant. There are no immediate symptoms, and retinal
hemorrhaging, bleeding behind the eye, is a marker of the chronic hematoma.
Dr. Uscinski testified that in 1974 Dr. John Caffey, an MD from Pittsburgh,
Penn., released a paper in the professional magazine PEDIATRICS in which he
suggested that manual whiplash shaking of infants is a common primary type of
trauma in the so called battered infant syndrome. It appears to be the major cause in
these infants who suffer from subdural hematomas and intraocular bleedings." Dr.
Caffey admitted that this opinion was based on, "both direct and circumstantial"
evidence. See PEDIATRICS, The 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,
Vol. 54 No. 4, October 1974. Dr. Caffey went on to state in the article that, "Current
evidence, though manifestly incomplete and largely circumstantial, warrants a
nationwide educational campaign on the potential pathogenicity of habitual, manual
casual whiplash shaking of infants, and on all other habits, practices and procedures
in which the heads of infants are habitually jerked and jolted (whiplashed)." Caffey,
supra.
Dr. Caffey's suggestion that a nationwide educational campaign be initiated took
root, and the Nation went into a frenzy cautioning mothers, fathers, and caregivers to
never shake your child. Although this was good advise, Dr. Caffey pointed out that
his suggestion although sound, was not based on any type of scientific study.
Dr. Uscinski testified that Ayub K. Ommaya, FRCS did experimentation with
rhesus monkeys in 1968. This study concluded that:
Experimental whiplash injury in rhesus monkeys has demonstrated that experimental cerebral concussion, as well as gross hemorrhages and contusions over the surface of the brain and upper cervical cord, can be produced by rotational displacement of the head on the neck alone, without significant direct head impact, these experimental observations have been studied in the light of published reports of cerebral concussion and other evidence for central nervous system involvement after whiplashlnjury in maxiAlfaJour^^ Association, Vol. 204, No. 4, page 75 (285), April 22,1968. (Defendant's Exhibit # 8)
Dr. Uscinski pointed out that the Ommaya experiment study produced injury to 19
out of 50 monkeys by seating them in a chair that accelerated whipping the monkey's
head back and forth. However, the experiment was preformed on monkeys instead of
humans because they ended up killing the monkeys to examine their brains for injury.
The purpose of this research was to study whiplash on humans in automobile accidents. It
was suppose to illustrate that injuries could occur to primates through sheer acceleration
forces without any impact to the monkey's head.
Researchers in the Ommaya study produced an impact curve that predicted at
what level of acceleration the monkeys would start to experience brain injuries from the
sheer acceleration forces without any impact on the head. The researchers prepared an
impact curve and from it were able to tell at what levei of acceleration they observed
brain injury to the monkeys. They called this level the threshold of injury. Dr. Uscinski
pointed out that there were two flaws with the way later researchers interpreted the study.
First, researchers must not assume that by extending out the impact curve they could
accurately predict what threshold level of injury was necessary to produce injury to infant
human brains. They could tell at what threshold they started to observe injuries to the
monkeys; however, these results could not be extended out to predict injuries to humans
because humans, although similar in structure, are still different with larger heads in
proportion to their bodies. Researchers needed to conduct further research to make this
determination. Second, the researchers failed to take into account that in some cases the
monkeys hit their heads on the back of the "monkey seat" during the acceleration
process. Dr. Uscinski also pointed out whipping a head back due to acceleration forces
one time in an acceleration chair is a different kind of motion than shaking a child
repeatedly by holding onto the child's torso.
Next, Dr. Uscinski testified that Dr. A.N. Guthkelch conducted a study in 1971
published in the British Medical Journal. Dr. Guthkelch commented that, " One cannot
say how commonly assault in the form of violent shaking rather that of direct blows on
the head is the cause of subdural haematoma in infants who are maltreated by their
parents. Possibly it will be found that the frequency of this mechanism varies between
different nations according to their ideas of what is permissible, or at least excusable, in
the treatment of children " British Medical Journal, Infantile Subdural Haematoma and
its Relationship to Whiplash Injuries, 1971,2,430-431. (Defendant's Exhibit # 13) Dr.
Guthkelch concluded in his summary, "Subdural haematoma is one of the commonest
features of the battered child syndrome, yet by no means all the patients so affected have
external marks of injury on the head. This suggests that in some cases repeated
acceleration/deceleration rather than direct violence is the cause of the haemorrhage, the
infant having been shaken rather than struck by its parent. Such an hypothesis might also
explain the remarkable frequency of the finding of subdural haemorrrhage in battered
children as compared with its incidence in head injuries of other origin, and the fact that
it is so often bilateral." See Guthkelch, supra. (Bold type in this quotation is placed there
by Judge Nicholls to suggest emphasis.)
Dr. Uscinski pointed out Guthkelch's work was based on several case studies and
not a scientific examination using controlled experiments. In fact Dr. Guthkelch did not
do any experiments himself, he merely commented on, and suggested a possible
explanationfor the-case-studies-he c i t e d J & i _ _ i _ ^ ^
of Dr. Guthkelch's hypothesis was based on the flawed work of Dr. Ommaya. Dr.
Guthkelch's use of words such as "hypothesis" and "suggests" is a cogent clue that these
are his ideas to explain symptoms usually seen in a patient, rather than a solid verifiable
scientific study.
Dr. Uscinski then testified that a 1987 study at the University of Pennsylvania
produced some surprising results. Dr. Ann-Christine Duhaime, M.D., Thomas A
Gennarrelli, M.D., and others conducted a biomechanical study to test the hypothesis that
infants were particularly susceptible to injury from shaking due to a relatively large head
and weak neck. The researchers used models of 1-month old human babies and had
college football players shake the models. The researchers measured the forces on the
models and recorded them. The research team reached the conclusion that, "the shaken
baby syndrome, at least in its most severe acute form, is not usually caused by shaking
alone. Although shaking may, in fact, be a part of the process, it is more likely that such
infants suffer blunt impact." J. Neourosurg. The shaken baby syndrome: A cluneal,
pathological, and b i o m e d i c a l study, Vol. 66, page 409-415, March 1987. (Defendant's
Exhibit # 10) The conclusion they reported in the abstract stated, "severe head injuries
commonly diagnosed as shaking injuries required impact to occur and that shaking alone
in an otherwise normal baby is unlikely to cause the shaken baby syndrome." Duhaime,
supra. The Duhaime study also demonstrated that a baby would most likely receive a
neck injury before it would receive a head injury simply because human shaking by a
human cannot generate the forces necessary to cause injury to the brain. The study went
on to conclude that, "unless a child has predisposing factors such as subdural hygromas,
brain atrophy, or collagen-vascular disease, fatal cases of the shaken baby syndrome are
not likely to occur from the shaking that occurs during play, feeding, or in a swing, or
even from the more vigorous shaking given by a caretaker as a means of discipline.7'
Duhaime, supra.
A second biomechanics study was conducted by Faris A. Bandak in 2004 and
reported in 2005 in the professional magazine Forensic Science International, Shaken
baby syndrome: A biomechanics analysis of injury mechanism. (Defendant's Exhibit #9)
The study concluded that, "we have determined that an infant head subjected to the levels
of rotational velocity and acceleration called for in the SBS literature, would experience
forces on the infant neck far exceeding the limits for structural failure of the cervical
spine." See Bandak, supra. In other words, shaking alone would cause broken necks
before one would expect to see subdural hematomas and ocular bleeding. The study
called for a re-valuation of the current diagnostic criteria for shaken baby syndrome.
Dr. Betty Spivack, M. D., witness for the Commonwealth, testified that
physicians will diagnosis SBS when they observe a subdural hematoma bilateral (both
sides of the brain) coupled with a retinal hemorrhage observed in both eyes. Thus, the
Bandak study was calling for a re-valuation of these criteria for diagnosing SBS. Dr.
Uscinski testified that based upon his own experience the subdural hematoma can
actually cause the retinal hemorrhaging, and that his opinion is currently finding
confirmation based on studies conducted by Japanese researchers who have a great deal
of interest in this problem.
In response to he Bandak study Dr. Susan Margulies and others wrote a published
--\mzx-Xo-Xh&-For-ensicScience-Intematiow
stated, "Based upon his flawed calculations, Bandak erroneously concluded that the neck
forces in even the least severe shaking event far exceed the published injury tolerance of
the infant neck. However, when accurately calculated, the range of neck forces is
considerably lower, and includes values that are far below the threshold for injury. In
light of the numerical errors in Badak's neck force estimations, we question the resolute
tenor of Bandak's conclusions that neck injuries would occur in all shaking events.
Rather, we propose that a more appropriate conclusion is that the possibility exists for
neck injury to occur during a severe shaking event without impact." Forensic Science
International, Shaken baby syndrome: A flawed biomechanical analysis, July 20,2005.
(Defendant's Exhibit # 12)
Then, Dr. Duhaime and PhD Margulies wrote a response to criticism in a letter to
the editor from Drs. Uscinski, Thibault, and Ommaya stating that, "To summarize, new
research is needed to determine if injuries can occur in the brain, cervicomedullaiy
junction, or cervical spinal cord as a result of a single or series of head rotations at these .
low magnitudes, and if these injuries are primary or secondary in nature. Therefore, we
cannot yet answer if shaking can cause intracranial injury in infants, and use of
terminology that includes this mechanism should be avoided." See J. Newosurg. Voume
100/March, 2004. (Defendant's Exhibit # 14)
10
After discussing his review of the different reported studies on SBS, Dr. Uscinski
testified that considering the latest evidence, we must look at the "unexplained head
injury" in a different light. Dr. Uscinski testified that trivial head impact after a fail of as
little as 3 feet results in the same impact as hitting a hard surface at 9 miles per hour
which is more than twice that necessary to fracture the skull of an infant. His point was
that what seems like trivial head impacts for an infant, like falling off of a bed or out of a
chair, may result in a chronic subdural hematoma manifesting itself much later. He
pointed out that we should not jump to the conclusion that there has been parental
shaking.
Dr. Uscinski testified that when a doctor first sees a child with a chronic subdural
hematoma, it might exhibit fresh blood that is interpreted by the doctor of a recent injury.
However, Dr. Uscinski stated that fresh blood has been observed in chronic subdural
hematomas in adults and does not have to suggest a recent injury at all. In fact Dr.
Uscinski stated that most neurosurgeons are aware that fresh bleeding can occur in
chronic subdural hematomas along with older bleeding comprising the hematoma.
Neurosurgeons are very much aware of this re-bleeding, and have observed it even when
they know that there has not been an accompanying second trauma. Dr. Uscinski
concluded that, "for an infant presenting with ostensibly unexplained intracranial
bleeding with or without external evidence of injury under given circumstances,
accidental injury from a seemingly innocuous fall, perhaps even a remote one, or even an
occult birth injury, must be considered before assuming intentional injury." Neuro Med
Chir (Tokyo) Shaken Baby Syndrome: An Odyssey, (Ronald H. Uscinski) 46,57-61,
2006. (Defendant's Exhibit # 4) He concluded that, "some 32 years of cumulative
11
material yielded inadequate scientific evidence to establish a firm conclusion on most
aspects of causation, diagnosis, treatment, or any other matters pertaining to shaken baby
syndrome." Uscinski, supra. He also stated," it was impossible to determine with
scientific rigor what role shaking may have played in abusive head injury in these
reported cases. Finally, it was not possible from the case analyses to infer that any
particular form of intracranial or intraocular pathology was causally related to shaking,
and that most of the pathologies in allegedly shaken babies were due to impact injuries to
the head and body." Uscinski, supra.
The Commonwealth called Dr. Betty S. Spivack, MD to the stand to testify. She is
a forensic pediatrician with the Office of the Chief Medical Examiner located in
Louisville, Kentucky. She graduated from Cornell University with a Bachelor of Arts in
1975 majoring in biology and mathematics. She earned her MD degree from S.U.N. Y.at
Buffalo School of Medicine in 1979. She completed her residency in pediatrics at
Children's Hospital of Buffalo from July 1979 to June 1982. She received a fellowship in
pediatric critical care at Children's Hospital of Buffalo from July 1982 to June 1984; and
a fellowship in forensic pediatrics from the Child Protection Program, Hasbro Children's
Hospital at Brown University in Providence, Rhode Island. She attended an advanced
course in child sexual abuse evaluation at Orange, California from June 21 to 25,2004.
Her academic appointments include assistant professor of pediatrics at S.U.N. Y. at
Buffalo School of Medicine from July 1984 to April 1989, and at the University of
Connecticut from May 1989 to June 1995. She has been an adjunct professor at the
University of Hartford; an assistant clinical professor of pediatrics at the University of
Wisconsin and the University of Louisville. She has published articles on the subject of
12
SBS including Patho biology and Biomecimnics of Inflicted Childhood Neurotrauma by
Susan S. Margulies, PhD, and Betty S. Spivack, MD. (Commonwealth's Exhibit # 11)
Dr. Spivack testified in the form of a PowerPoint presentation. (Commonwealth's
Exhibit #10) She entitled her presentation "The Biomechanics of Abusive Head
Trauma" and outlined the history of research in the area of Shaken Baby Syndrome. She
then answered additional questions from the Commonwealth and then under cross-
examination from the Defense.
Dr. Spivack testified that the injury would tell the story. She stated that the
primary brain injury is a direct result of mechanical forces associated with complicating
factors. She stated that the Duhaime study had never been duplicated.
She opined that a child with a subdural hematoma and retinal hemorrhages
bilateral (in both eyes) and a manifest contusion (bruise that you can see) was sufficient
evidence that a doctor would say that a crime had been committed. Presumably, she was
talking about that amount of suspicion that would cause a reasonable doctor in Kentucky
to believe he/she was legally obligated to report child abuse to the Cabinet for Families
and Children. She also testified that a subdural hematoma coupled with bilateral retinal
hemorrhages was also evidence of a crime, and would presumably invoke the same
responsibility on a doctor to report the incident to the Cabinet.
Dr. Spivack testified that she had co-authored a paper with Dr. Susan s.
Margulies, PhD that is titled Pathobiology and Biomechanics of Inflicted Childhead
Neurotrauma, previous mentioned. In her paper Dr. Spivack pointed out that Ommaya
concluded that neck or spinal cord injury would be present in all cases if whiplash only
13
injury caused SDH or other intracranial pathology. "However, previous studies do not
consistently support this hypothesis." See Spivack, supra.
Dr. Spivack also testified that, "Retinal hemonhages also seem to have a much
--stronger-correlation ^ ^ ^ ^
when the unintentional injury is severe." Spivack, supra.
Dr. Spivack concluded in her paper that, "While the general paradigm of TBI
(traumatic brain injury) has a solid research basis, the applicability of this paradigm to the
spectrum of injuries seen in victims of abusive head trauma still presents significant gaps
and challenges. Basic biomechanical properties have not been well established for
infant skull or brain tissues, nor has the infant neck been well characterized Early
evidence indicates that simple brain mass scaling does not accurately predict
threshold for traumatic axonal injury in immature brains. Little or no
experimental work has been performed using oscillatory loads, s. ch as shaking, to
derive injury threshold in either mature or immature animals." See Spivack, supra.
Dr. Spivack posed a number of questions and pointed out that further research
will hopefiilly provide us with the answers. These questions include:
1. What is the deformation tissue tolerance of pediatric brain and cord (for
primary injuries, such as contusions, tissue tears, hemorrhages, and
axonal transport disruption), and bridging veins?
2. Do repetitive events alter the tissue's thresholds for injury?
3. Is shaking the same thing aswhiplash?
4. How does development and myelinate affect these thresholds?
5. Do gray and white matter have differing thresholds for injury?
14
Dr. Spiveck testified that one question lead to another, and that a lot of research was
currently ongoing in the area of SBS.
Dr. Spiveck also testified that history plays a significant role in assisting a doctor
diagnose child abuse and cited an article that appeared in PEDIATICS Magazine in 2003
as proof to support her conclusron. Drs. Joeli Hettler, MD, and Dr. David S. Greenes, MD
wrote the article that concluded, "We have found that infants who have a head injury and
present with no history of trauma are highly likely to be victims of child abuse. Similarly,
infants with head injury and persistent neurologic injury and a history of low-impact
trauma are highly likely to be victims of abuse. Cases in which the history changes or the
injury is blame don home resuscitative efforts are likely to represent abuse as well. Our
data support the us of these historical features as diagnostic criteria for identifying cases
of abuse." PEDIATRICS, Can the Initial History Predict Whether a Child With a Head
Injury Has Been Abused? Vol. 111 No. 3, March 2003.
CONCLUSIONS OF LAW
The burden of proof is on the party offering the evidence. Staggs v.
Commonwealth, 877 S.W.2"d 604 (Ky. 1993) Thus, the burden of proof is on the
Commonwealth to prove that the offered evidence meets the Daubert test since they are
attempting to introduce evidence into the trial of SBS. But, the Defense could not just
challenge the SBS expert testimony without producing initial evidence that expert
testimony by the Commonwealth's expert could not be presented to a jury for Daubert
reasons. There is a burden shift from the party offering expert testimony to the party
opposingthetestimony.F/o^e, Vs. Commonwealth, 120 S.W.3d699, (Ky. 2003)
Therefore, the Defense presented their evidence first.
15
The aspects of the Daubert doctrine are incorporated into KRE 703 that reads:
(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonable relied upon by experts in the particular field in forming opinions or inference upon the subject, the facts or data need not be admissible in evidence.
(b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of evaluation the validity and probative value of the expert's opinion or inference.
The "preliminary assessment" that a trial judge must make is a "a flexible
one" that requires the judge to focus "solely on principles and methodology, and not on
the conclusions that they generate." The Kentucky Evidence Law Handbook/A Edition),
Lawson, Robert G., (LexisNexis, Matthew Bender, 2003). The assessment the court must
make includes, but is not limited to: (1) whether the theory or technique in question can be (and has been) tested; (2)
whether it has been subjected to peer review and publication; (3) its known or potential rate of error; (4) the existence and maintenance of standards controlling its operation; and (5) whether the theory or technique has been generally (or widely) accepted in a relevant scientific community. Daubert v. MZTDOW Pharmaceuticals, Inc., 509 U.S. 579, 593-594,113 S. Ct. 2786, 2796-2797, 125 L. Ed. 2d 469,482-483 (1993).
We, begin our Daubert analysis with whether the theory of SBS can and has been
tested. Most of the studies that have conducted thus far are not conclusive that
SBS is caused by shaking the baby.
Dr. Caffey study admitted his conclusion that SBS was caused by shaking
was, "both direct and circumstantial." Dr. Caffey suspected that shaking a baby
can cause neurological damage and suggested only that a nationwide campaign be
16
initiated. Caffey even stated that his conclusions were, "manifestly incomplete
and largely circumstantial." Caffey, supra.
In 1968 Ommaya conducted studies upon rhesus monkeys for the purpose
of trying to assess injuries for whiplash for humans in automobile collisions.
Ommaya concluded that when the monkey was placed in an acceleration chair
that injury to 19 of 50 monkeys sustained head and neck injuries without
significant direct head impact, Ommaya, supra. Dr. Uscinski pointed out that the
key here was no "significant direct head impact." Later researchers began to
realize that the monkeys still possibility sustained impact to their heads as a result
of hitting their heads on the back of the chair or on their bodies due to the
significant forces involved.
Dr. Uscinski also pointed out that the impact curve created by Ommaya
was only a projection of at what threshold the scientists believed humans would
sustain injuries. It failed to take into account the different structure of human
babies as compared to adult monkeys, and what impact this difference would
make.
Dr. Guthkelch conducted a study in 1971 in which he was examining why
in some cases the doctors observed SBH's (subdural hematoma) in babies, some
without any other evidence of direct violence. In other words he observed that
some babies have no bruises or other evidence of direct violence, yet they still
observe subdural hematomas in the baby. Dr. Guthkelch was unable to explain a
mechanism for this observation. He concluded his paper by stating that, "Subdural
haematoma is one of the commonest features of the battered child syndrome, yet
17
by no means all the patients so affected have external marks of injury on the head.
This suggests that in some cases repeated acceleration/deceleration rather than
direct violence is the cause of the haemorrhage, the infant having been shaken
rather than struck by its parent. Such an hypothesis might also explain the
remarkable frequency of the finding of subdural haemorrhage in battered children
as compared with its incidence in head injures of other origin, and the fact that it
is so often bilateral." See Guthkeoch, supra. Dr. Guthkelch even came out and
stated that his idea was only a hypothesis, and that his observations might
"suggest" a possible explanation. Dr. Uscinski pointed out that Guthkelch's work
was based on several case studies and not a scientific examination using
controlled experiments. Furthermore, Guthkelch leaned heavily on Ommaya's
possibly flawed study.
Next, Dr. Ann-Christine Duhaime, M.D. and Thomas A. Germarrelli,
M.D. conducted a biomechanical study to test the hypothesis that infants were
particularly susceptible to injury from shaking due to a relatively large head and
weak neck. The research team opined that, "the shaken baby syndrome, at least in
its most severe acute form, is not usually caused by shaking alone. Although
shaking may, in fact, be a part of the process, it is more likely that such infants
suffer blunt impact." Duhaime, supra. The Duhaime study concluded, "Severe
head injuries commonly diagnosed as shaking injuries required impact to occur
and that shaking alone in an otherwise normal baby is unlikely to cause the
shaken baby syndrome." Duhaime, supra. Much of the testing leads one to the
conclusion that the baby must experience a blunt head trauma in order to injure
the child to the point it has a subdural hematoma and bilateral retinal bleeding.
But, blunt head trauma does not always have to leave a mark such as a bruise or
other injury. Further research must be conducted in the area of biomechanics of
babies. '_
Faris A. Bandak conducted a second biomechanics study in 2004. This
study concluded, "An infant head subject to the levels of rotational velocity and
acceleration called for in the SBS literature, would experience forces on the infant
neck far exceeding the limits for structural failure of the cervical spine." See
Bandak, supra. In other works, shaking alone would cause broken necks before
one would expect to see subdural hematomas and ocular bleeding. Dr. Bandak
concluded his paper with a call for a re-valuation of the current diagnostic criteria
for shaken baby syndrome.
Dr. Spivack concluded in the paper she co-authored with Dr. Margulies
that little or no experimental work had been conducted to determine the thresholds
necessary to drive injury in either mature or immature animals such as pigs. Thus,
she recommended that research must continue to determine the answer to
questions such as whether shaking is the same thing as whiplash, whether
repetitive shaking alter the thresholds for injury, and just how much stresses can a
baby brain be exposed to before injuries such as contusions, tissue tears, and
hemorrhages begin to occur?
Dr. Spivack testified that, "Retinal hemorrhages also seem to have a much
stronger correlation with abusive head trauma than with unintentional head
trauma, even when the unintentional injury is severe." See Spivack, supra.
19
A correlation in mathematics does not imply cause and effect.
Mathematical correlations are numbers between -1 and +1 that describe when one
event occurs, then, another event will follow. A positive correlation means that
when one event occurs, one can observe that another event seems to occur as well.
A negative correlation means that when one event occurs, then one observes that
another event does not occur as often. When an observed set of events is
observed, then a correlation of+1 means that the other event always occurs.
When an observed set of events are observed, then a correlation of-1 means that
the other event never occurs. For example, the amount of beer consumption and
teacher salaries have a positive correlation. Does that mean that to raise teacher's
salaries, we must increase beer drinking? Certainly not! Teacher's salaries and
beer consumption are not events that cause each other. Instead, they are events
that occur when another factor occurs, as in the example, that the economy is
going well and people have money at their disposal. One does not cause the other.
When Dr. Spivack observed that there was a stronger correlation between retinal
hemorrhages with abusive head trauma than with unintentional head trauma, even
when the unintentional injury is severe, this does not mean that every time a
doctor observes retinal hemorrhages that abuse has occur. It may be that the
retinal hemorrhage is cause by something else. In fact that is exactly what Dr.
Uscinski pointed out. He said that there is increasing evidence from studies
currently being conducted in Japan that the retinal hemorrhages are the result of
the subdural hematoma blood flowing through paths that were previously
unknown.
20
There can be little doubt that some testing has been accomplished by
researchers, however, their conclusions tend to point to shaking alone without
impact does not cause the subdural hematoma or retina bleeding. The research is
not yet completed and no definitive conclusions have been reached.
The physicians, on the other hand, use a subdural hematoma and bilateral
retinal bleeding as criteria for diagnosing abuse in the form of SBS. Dr. Spivack
made it clear that physicians currently use this diagnostic criterion. These
classical markers of diagnosing an infant brain are certainly in the realm of
physician's duties. However, the diagnosis presupposes the cause. The physician
is diagnosing the legal conclusion that someone has battered this child even
without manifest signs of bruising, broken bones, or other evidence. The
diagnosis is based upon research beginning over 30 years ago that made it into the
medical field through research that is ongoing yet not conclusive. In fact the
research is beginning to indicate that other causes totally unrelated to child abuse
could be responsible for the injuries. The best the Court can conclude is that the
theory of SBS is currently being tested, yet the theory has not reached acceptance
in the scientific community. The theory of SBS may be accepted in the clinical
medical community, but it could be based on flawed studies and concepts that are
currently being tested and retested.
The next criterion to be examined by the Court is whether SBS has been
subjected to peer review and publication. It certainly has, and the peer review
through publication has reached only the conclusion that additional testing must
be accomplished before physicians obtain the actual reasons for the observed
21
subdural hematoma and bilateral ocular bleeding absent any manifest injuries
such as bruising and broken bones.
There is no known or potential rate of error in the studies that have been
completed. Some studies have been conducted in accordance with established
scientific protocols rending their conclusions useful in the area of SBS. However,
other studies are merely educated guesses as to the cause of SBS based upon
empirical studies, anecdotal cases, and advise to the public based on common
sense.
The existence and maintenance of standards controlling the study of SBS
certainly exists. However, not all of the studies have observed the scientific
method in reaching conclusions. In fact the most damning studies supporting SBS
are the ones that failed to follow the scientific method. The more recent studies
appear to utilize a more scientific methodology to their research, but their
preliminary conclusions appear to support the conclusion that the subdural
hematoma and bilateral ocular bleeding are not caused by shaking alone, but
require blunt force impact.
Physicians routinely diagnose SBS and that has gained wide or genera!
acceptance in the clinical medical community, if the baby has the two classical
medical markers of subdural hematoma and bilateral ocular bleeding without any
other manifest injuries. However, this diagnosis is based on inconclusive research
conducted in the scientific research community. SBS has gained wide or general
acceptance in the clinical community and research community, if the baby has the
two classical medical markers of subdural hematoma, bilateral ocular bleeding,
2?
and other manifest observable injuries such as broken bones, bruises, etc. To
allow a physician to diagnose SBS with only the two classical markers, and no
other evidence of manifest injuries, is to allow a physician to diagnose a legal
conclusion. If the physician has the two classical markers (subdural hematoma
and bilateral ocular bleeding) coupled with other manifest injuries, then the
diagnosis arises to more than a legal conclusion—it becomes a medical opinion.
The Court can only conclude that SBS has not gained wide or general
acceptance in the scientific community for the purposes of allowing an expert to
testify that a baby has been subjected to abuse when the baby exhibits a subdural
hematoma, bilateral ocular bleeding with no other manifest injuries such as
bruising, broken bones, etc. The Court can further conclude that based on the
medical signs and symptoms, the clinical medical and scientific research
communities are in disagreement as to whether it is possible to determine if a
given head injury is due to an accident or abuse. Therefore, the Court finds that
because the Daubert test has not been met, neither party can call a witness to give
an expert opinion as to whether a child's head injury is due to a shaken baby
syndrome when only the child exhibits a subdural hematoma and bilateral ocular
bleeding. Either party can call a witness to give an expert opinion as to the cause
of the injury being due to shaken baby syndrome, if and only, the child exhibits a
subdural hematoma and bilateral ocular bleeding, and any other indicia of abuse
present such as long-bone injuries, a fractured skull, bruising, or other indications
that abuse has occurred.
ORDER & HOLDING
23
Therefore, the Court orders and holds that neither party may call a witaess
to offer an expert opinion that a baby has received injuries as a result of being
shaken, unless there exists clinical evidence of at lease one subdural hematoma,
bilateral ocular bleeding, and any other indicia of abuse present such as long-bone
injuries, a fractured skull, bruising, or other indications that abuse has actually
occurred.
Entered this the / TiA day of April , 2006.
I, Allan Reed, hereby certify that a true and correct copy of this document has been sent by U.S. Mail, postage repaid, to the following:
Hon. Clifford Duvall Commonwealth Attorney 201 Harrison Street Greenup, Kentucky 41144
Hon. Samuel Weaver Department of Public Advocacy Courthouse 3d Floor Catlettsburg, Ky. 41120 (606)-739-4161 Fax (606)-739-8388
LEWIS D. NICHOLLS CIRCUIT JUDGE
(X.J-A< A y
D.C.
24
A Critical Look at the By Roger H. Kelly and Zachary M. Bravos
Shaken Baby Syndrome Recent research shows that factors other than abuse may be the cause of damage thought to result from shaking, these defense lawyers argue.
Approximately 1,400 infants and young children are reported to suffer brain injury as a result of abuse each year in the U.S.1
Violent shaking is considered to be a leading cause of those injuries.2
The theory that violent shaking causes brain injuries in infants and young children is referred to as shaken baby syndrome. Is the theory valid?
That question is critically important to those accused of shaking a child. Each year, many parents and child caregivers are accused of child abuse as a result of shaken baby syndrome. Two specific findings, subdural hematoma (bleeding between the brain and the skull) and bilateral retinal hemorrhaging (bleeding behind the eye), • are considered classic signs of shaken baby syndrome.
And in the classic case, the allegation of shaking is sustained solely by these two findings of internal bleeding, There are no long-bone injuries, spiral fractures, skull fractures, evidence of impact or blunt trauma, bruising, or other indications or evidence that abuse has occurred.
Neglect and abuse proceedings and lengthy prison sentences often result from prosecutions based on the shaken baby syndrome. These serious, life-changing outcomes for those accused demand that
1. Center for Disease Control: Facts for Physicians, http://www.cdc.gov/ncip_ tbi/FactsJorJhysiciansJjooklet, pdf, plO.
2. Center For Disease Control: Preventing Injuries in America: Public Health in Action, http://ww\v. cdc.go_ncipe/fa_-_book/l>revcndng%20_nju'ries%20 in%20America%2OPublic%2OHealth%20i„i%2O Action _006.pd..p 42.
Roger H. Kelly and Zachary M. Bravos focus their practice on issues involving science and the law. They have offices in Wheaton and consult throughout the United States. Mr. Bravos is legal editor of the journal Issues in Child Abuse Accusations.
the theory be scrutinized and its validity tested.
Though shaken baby syfidrpme is still embraced by the medical establishment, some forensic scientists sharply criticize the theory as rooted in anecdote, bad study, arid speculation. Some biomechan-
_ical_experts,_pathophysiologists,-physi--cians, medical specialists, and medical researchers have tested elements of the theory .and have established a growing body of .evidence challenging many of its assumptions.
This article briefly discusses this scientific evidence. But first it looks at court rulings that have critically examined the foundations of the shaken baby syndrome.
Some courts question the syndrome
Recent challenges have been successful at the trial court level in Frye and Daubert hearings.3 In April 2006, a Kentucky circuit court ruled that in the absence of other evidence of abuse, the
Similarly, in late 2001, the supreme court of the Australian Capital Territory reviewed the science behind an accusation of shaking based upon subdural hemorrhages and bilateral retinal bleeding in the absence of other injuries.7 The Crown's theory was that the "constellation— of- injuries-was-caused-by-shak— ing.. Seven Crown experts testified, over objection, in support of the theory. Nevertheless, the court found "The evidence revealed a paucity of empirical research on potentially critical issues."8 The high court ruled as follows:
I find that the evidence .was not admissible to.the effect that the injuries were caused in that manner [shaking], whether by the accused or otherwise, or that they could only have been caused in that manner. The evidence suggests that such opinions would not be based wholly or even substantially on the expert's specialized body of knowledge as a pediatrician but [ ] on a combination of speculation, inference, and a process of reasoning beyond the relevant field of expertise.'
1 Empirical research is now being conducted that examines the basic hypothe
sis behind the theory that shaking can and does cause the injuries observed.
Recent challenges to the theory have been successful
at the trial court level in Frye and Daubert hearings.
theory of shaken baby syndrome could not be introduced,4 The Wisconsin Appellate Court recently acknowledged the controversy regarding the shaken baby syndrome theory by granting a new trial to a convicted babysitter who had been imprisoned for over 10 years.3
Overseas courts have also ruled against the admissibility of the theory. In 2005, the court of appeals in the United Kingdom overturned two convictions for murder and reduced' the charges on a third, all of which were based upon the theory of shaken baby syndrome.4 In each case, there was no other evidence about what happened and no evidence of earlier ill treatment. The court rejected the claim that subdural hematoma and retinal hem-orriiaging automatically lead to a conclusion of unlawful killing or injury.
History of the theory In 1971, Dr. A. Norman
Guthkelch suggested that repeated shaking could
. cause subdural hematoma even in the absence of evidence of external injury to
• the head.10 To support his suggestion, Guthkelch ref-
. erenced a series of 23 children of "proved or strongly suspected parental assault." He did not disclose how these assault determinations were made.
Of this group, five children had subdural hematoma with no evidence of direct trauma to the head. Guthkelch theorized that repeated. shaking rather than direct impact was the cause of these Hematomas. He compared such shaking to two cases of adults suffering subdural hematoma as a result of automobile whiplash injury in rear-end col-, lisions published by Dr, Ayub Ommaya in 1968."
The shaken baby syndrome theory was brought further attention by Dr. John Caffey in his 1972 article On the Theory and Practice of Shaking Infants'1
and his 1974 paper The Whiplash Shak
en infant Syndrome." He drew upon the Guthkelch article, a Newsweek magazine article, and the work of Ommaya.
However, in 2002 Ommaya questioned the applicability of his research to support the shaken baby syndrome theory, commenting as follows:
_[0]utexperimental results-were referenced-as providing the experimental basis of the "shaken baby syndrome" (SBS) by Caffey, GulthkeWh and others by analogy not realizing that the energy level of acceleration in our work related to speeds at motor vehicle crashes at 30 mph.14
In suggesting that the associated findings of subdural hematoma and retinal hemorrhages could be sufficient diag-' nostic criteria to determine abuse, Caffey acknowledged that die evidence supporting his theory was contrary to medical expectations.
The most characteristic pattern of physical findings in the whiplashed infant is the absence of external signs of trauma to the head and the soft tissues of the face and neck, and of the facial bones and calvaria, in the presence of massive traumatic intracranial and intraocular bleedings. This is an extraordinary diagnostic contradic-
' tion."
3. Florida (Johnson v Florida, 933 So2d 568 (Fla 2006)j and Florida v Sanidad, 00-524 CFEA (Cir Ct Flager Cty 2006)j Oklahoma {Oklahoma . Watts, CF-2001-43 (D Ct Woods Cty, Okla 2002)). Missouri {Missouri v Hyatt, 06 M7-CROD016-02 (Cir Ct Shelby Cty, MO), Order dated November 6, 2007): Tennessee {People v Maze, M2000-0224.-CCA-R3-CD (Tenn Ct App Davidson Cty Tenn 2002); and Ohio {Ohio v Mills, 2006 CR 100315 (Ct Com Pleas, Tuscarawas Cty, Ohio 2006)).
4. Commonwealth Of Kentucky v Davis, 04 CR 205. Trial Court Opinion April 17, 2006 (Greenup Circuit Court), http://www.aap_nline.org/sbs/daubert. pdf.
5. State . Edmonds, 308 Wis 2d 374, 746 NW2d 590 (2008).
7. The Queen v Stuart lee, SCC 69 of-2000 (Sup Ct Australian Capital Territory, Canberra), 2002 WL 14350.
8. Id at para. 46. 9. Id at para. 52. 10. A, N. Guthkelch, Infantile Subdural Haematoma
and its Relationship lo Whiplash Injuries, British Medical-Journal 2,430-31 (1971).
11. A. Ommaya, F. Faas, P. Yamell, Whiplash. Injury and Brain Damage, JAMA, 204(4) 285-89 (1968).
12. J. Caffey, On the Theory and Practice of Shaking Infants, American Journal of the Disease of Children 124,161-69 (1972).
13. J. Caffey, The Whiplash Shaken Baby Syndrome: Manual Shaking by the Extremities With Whiplash-Induced Intracranial and Intraocular Bleedings, Linked With Residual Permanent Brain Damage and Mental Retardation, Pediatrics 54,396-403 (1974).
14. A. Ommaya, W.' Goldsmith, L. Thibault, Biomechanics and Neuropathology of Adult and Pediatric Head Injury, British Journal of Neurosurgery, 16(3):220-42 (2002). •'
15. Caffrey, The Whiplash Shaken Baby Syndrome at 403 (cited in note U).
VOL. 97 | APRIL 2009 | ILLINOIS BAR JOURNAL I 201
SHAKEN BABY SYNDROME I Continued
This "extraordinary diagnostic contradiction" remains unresolved. Indeed, the lack of external evidence of trauma is the most troubling aspect of the shaken baby syndrome theory because it raises the obvious question: can an infant be shaken with sufficient force to cause
-brain-injury^ and4eave-no~externahevi" dence of trauma?
' Many articles and papers advanced in support of the shaken baby syndrome
Though shaken baby syndrome is still embraced by the medical
establishment, some forensic scientists sharply criticize the theory as rooted in anecdote, bad study, and speculation.
• theory are based on anecdote and experience, The quality of such papers and articles have been criticized in peer reviews and subsequent articles," Indeed, some research appears to refute basic principles behind the theory, As a result, some scientists and medical practitioners now question the very existence of shaken baby syndrome.
Biomechanics A demonstration of the force claimed
to cause shaken baby syndrome has a powerful effect. Imagine a full-grown man shaking an infant back and forth with all of his might and as rapidly as he can. The head flops back and forth violently as the arms, legs, and torso are shaken like a rag doll.
The force involved is such that any
reasonable person would expect injury. It is extremely violent and clearly abusive. A defendant's claim of innocence often fails in the face of the expert testimony that the only way subdural hematoma and retinal hemorrhages can be caused (other than some extremely rare genetic conditions) is _hroughrviolent shaking;—
However, obvious questions arise. Why is there no evidence of external trauma? Why are there no grab marks on
the body? Why are there.no injuries to the infant neck, a structure that seems so weak and vulnerable? This is Caffey's "extraordinary diagnostic contradiction."
Can an infant be shaken so violently as to cause the shaken baby markers without any sign of. exter-. nal injury? The science of biomechanics, the application of mechanical principals to living organisms,.
—: has studied this question, Experiments have called
into question the shaken baby syndrome theory.
In 1987 Ann-Christine Duhaime, et al" sought to quantify.the forces involved in manual shaking of an infant. Model dolls were constructed, fitted with accelerometers, and then shaken.
The results demonstrated that shaking alone.could only generate about 25 percent of the angular acceleration needed to cause brain concussion and only about 7 percent of the angular acceleration required to cause subdural hematoma. The authors concluded that "the angular acceleration and velocity associated with shaking occurs well below the injury range.""
This result has since been replicated. In 2003, Grange, et al, used more real-. istic baby models and obtained similar
The lay science magazine Discover took up ti\e syndrome last December in its
article Do$s t/ie Shaken Baby Syndrome Really Exist7 In addition to reviewing
the scientific debate, it discusses a Rantoul case in which charges against a parent
Were ultimately dropped and includes quotes from Urbana lawyer and ISBA
member K.ris;ten Fischer
The articlejs pp the Web at ^tp'Z/discpvei nnagazine,corn/.2008/de c/02-
does-shaken-baby-syhdrome-really-exist ,, . , ' "
results. Shaking, even with impact on foam, could not produce enough force to cause brain injury, including subdural hematoma."
Even Dr. Ommaya,. whose primate studies were used by Caffey and Guthkelch, confirms that shaking alone produces maximum—angular-acceleration^ "well below thresholds for cerebral con _ cussion,(SDH (subdural hematoma), subarachnoid haemorrhage, deep brain haemorrhages and cortical contusions."20
Other causes of subdural hematoma
A variety of conditions known and unknown can cause subdural hematomas. For example, subdural hematomas are a known complication of childbirth.21
They can occur with no history of birth trauma and have even been described prenataly.22 Hemorrhages have been found in 70 percent of infants who died from non-traumatic causes, some with bleeding identical to cases presented as classic "Shaken Baby Syndrome."23
In a recent survey of asymptomatic newborns, 16 percent had subdural hematomas. Fully 26 percent had some form of intracranial bleed.24 There is no suggestion that these children were abused.
Older infants with external hydrocephalus commonly suffer subdural hemorrhages." Children with external
16. M, Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome Part I: Literature Review, 1966-1998, American Journal of Porensic Medicine and Pathology 24(3), 239-42 (2003).
17. A. C. Duhaime, T. Gcnnarelli, L. Thibault,.D. Bruce, S. Margulies, R; Wiser; The Shaken Baby Syndrome, A clinical, pathological, and biomechanical study, Journal of Neurosurgery 66; 409-15 (1987).
18. Id at 414. 19. M, Prange, B. Coats, A. C. Duhaime, S. Margu
lies, Anthropomorphic simulations of falls, shakes, and inflicted impacts in infants, Journal of Neurosurgery 99, 143-50 (2003).
20. A. Ommaya, W. Goldsmith, L. Thibault, Biomechanics and neuropathology of adult and pediatric head injury, British Journal of Neurosurgery, 16(3):220-42 (2002).
21. S. Chamnanvanakij, N. Rollins, J. Perlman, Si _-dura! Hematoma in Term Infants, Pediatric Neurology 26(4), 301-04 (2002).
22. Id. 23. J. Geddes,R. Taskert, A. Hackshaw, C.Nickols,'
G. Adams, H. Whitweli, I, Scheimberg, Dura! haemorrhage in non-traumatic infant deaths: does it explain the bleeding in 'shaken baby syndrome'?, Neuropathology and Applied Neurobiology 29,14-22 (2003).
24. C. Looney, et al, Intracranial Hemorrhage in Asymptomatic Neonates: Prevalence on MR Images and Relationship to Obstetric and Neonatal Risk Factors, Radiology, 242(2) 535^1 (2007).
25. P. McNeely, J. Atkinson, G. Saigal, A.. O'Gorman, J. Farmer, Subdural Hematomas in Infants with Benign Enlargement of the Subarachnoid Spaces Are Not Pathognomonic for Child Abuse, American Journal of Neuroradiology, 27:1725-28 (2006).
202 | ILLINOIS BAR JOURNAL | APRIL 2009 | VOL. 97
hydrocephalus are subject to spontaneous subdural hematoma at a rate of up to 11 percent.26
Other causes of retinal hemorrhages
Proponents of shaken baby syn-_d___n_"argue~that~ret_mHiemo_r_ages~ are caused by mechanical traction on the optic nerve and retina during shaking.27 However, the exact cause of retinal hemorrhages remains unknown.28 There appears to be a relationship to increased intracranial pressure, which has been known for decades.2' Extensive, bilateral. retinal hemorrhages that in other contexts could lead to diagnoses of shaken baby syndrome have been described in cases of external hydrocephalus.30
Retinal hemorrhages are common. Approximately 30 percent of children are born with them.3' Since children are not routinely screened for retinal hemorrhage, there is no good data regarding their rate of occurrence for older infants. However, , the fact that they are common and related to many other conditions, known and unknown is well documented.32
Concurrence of subdural hematoma and retinal hemorrhage
Retinal hemorrhage and subdural hematoma are found together, at reported rates of 65-95 percent,33 However, the relation, if any, between these two conditions remains unproven.
Proponents of shaken baby syndrome assert that manual shaking causes these conditions. However, the cause(s) of retinal hemorrhages, as already noted, is unknown, with several theories postulated but none proven.
Both subdural hematoma and retinal hemorrhage can appear at birth or from multiple non-traumatic causes. To argue that they are causally related to manual shaking goes beyond the evidence. They may be related as a result of a third or even multiple different causes as yet undetermined.
For example, there is a body of research that asserts that retinal hemorrhages are caused by increased intracranial pressure.3'1 Further, subdural hematoma is a competent medical cause for increased intracranial pressure.35
Therefore, it follows that subdural hematoma, from whatever cause, may also be associated with retinal hemorrhage. In other words, subdural hematoma and
retinal hemorrhages may be correlated by a third factor - increased intracranial pressure - not presumed shaking.
To conclude that manual .shaking causes both subdural hematoma and retinal hemorrhage because they occur together in instances where it is theorized
-that-manual-shaking Tiasoccurred-is-to-construct a circular argument that fails in its proof because the truth of what it seeks to prove is assumed.
Biomechanics and the neck If an act of manual shaking is suffi
ciently violent to cause subdural hematoma and retinal hemorrhaging, how then does the violently shaken infant escape serious neck injury?
The mechanical limitations of the infant neck can be determined. In 2005, Dr. Faris Bandak performed biomechanical research on infant shaking and its consequences dn the head-neck-to determine if it is possible for the infant neck to withstand Shaken Baby Syndrome der fined levels of head accelerations without injury.36 The study concluded that cervical spine or brain stem injuries, perhaps even lethal injuries, would occur "at levels well below those reported for the Shaking Baby Syndrome."37 Peer review of this work is supportive.38
Conclusion No one would disagree that the pro
tection of innocent children is a laudable goal. However, this protection must be grounded in reproducible scientific concepts. We have an obligation to put science to the test lest the innocent become victims themselves.
The history of medicine is filled with unwise and unfortunate diagnostic approaches 'and failed theories .of causation, healing, and disease. Until we learn all that there is no know about all aspects of medical science, such failures are to be expected and represent a normal course of learning.
As attorneys we are not only advocates, we are an integral part of the legal system, a system engaged in the truth seeking process. Justice is served when we are open to considering well-grounded research, even when it challenges long-established theories, •
chanics and neuropathology of adult and pediatric head injury, British Journal of Neurosurgery, 16(3):220-42 (2002).
28. A. C. Duhaime, C. Christian, L. Rorke, R. Zimmerman, Nonaccldental Head Injury in Infants - The "'Shaken-Baby Syndrome," The New England Journal of Medicine, 3'38(25):1822 - 1829 (1998). J. Geddes, G. Tolberr, Paroxysmal coughing, subdural and retinal bleeding: a computer modeling approach, Neuropathology and Applied Neurobiology 32, 625-34 (2006).
—29-_-MullerrJ—De-kj-Intraoculai^and-oplic-nerve— sheath hemorrhage in cases of sudden intracranial hy-pertension, Journal of Neurosurgery 41,160-66 (1974). A. Ommaya, W.,Goldsmith, L. Thibauit, Biomechanics and neuropathology of adult and pediatric head injury, British Journal of Neurosurgery, 16(3):220-42 (2002). R. Uscinski, Shaken Baby Syndrome: fundamental questions, British Journal of Neurosurgery, 16(3): 217-19 (2002). '
30. J. Piatt, A pitfall in the diagnosis of child abuse: external hydrocephalus, subdural hematoma, and reti-. rial hemorrhages, Neurosurgical Focus, 7(4): Article 4, (1999).
31. J. Baum, C. Bulpitt, Retinal and Conjunctival Haemorrhage in the Newborn, Archives of Disease in Childhood 45,344-49 (1970).
32. P. Barnes, Ethical Issues in Imaging Nonaccldental Injury: Child Abuse, Topics in Magnetic Resonance Imaging 13(2), 86-93 (2002), H. Gardner, A Witnessed Short Fall Mimicking Presumed Shaken Baby Syndrome (Inflicted Childhood Neurotrnuma), Pediatric Neurosurgery 43, ,433-35 (2007). Geddes and Talberr, Paroxysmal coughing at 625-34 (2006) (cited in note 24). M, Goetting, B. Sowa, Retinal Hemorrhage after Cardiopulmonary Resuscitation in Children: An Etio-logic Reevaluation, Pediatrics 85(4), 585-88 (1990). P, Lantz, Researchers Say Criterion for Diagnosing Child Abuse Not Always Accurate, Science Daily, 02-26-2006. P. Lantz, S, Sinai, C. Stanton, R. Weaver, Evidence based case report, Perimacuiar retinal folds from childhood head trauma, British Medical Journal 328, 754-56 (2004).
33. Duhaime, et al, Nonaccldental Head Injury at' 1822-29 (cited in note 24).
34. Muiler and Deck, Intraocular and optic nerve at 160-66 (cited in note 25). .
35. Uscinski, Shaken Baby Syndrome at 217-19 (cited in note 25),
36. E Bandak, Shaken baby syndrome: a biomechanics analysis of injury mechanisms, Forensic Science International, 151(1): 71-79 (2005).
37. Id. 38. Geddes and Talbcrt, Paroxysmal coughing at
625-34 (2006) (cited in note 24). R. Uscinski, Shaken Baby Syndrome: An Odyssey, Neural Med Chir (Tokyo) 46,57-61 (2006).
26. J, Piatt, A pitfall in ihe diagnosis of child abuse: external hydrocephalus, subdural hematoma, and retinal hemorrhages, Neurosurgical Focus 7 (4): Article 4,
.(1999). ' 27, A. Ommaya, W. Goldsmith, L. Thibauit, Siome-
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VOL. 97 I APRIL 2009 | ILLINOIS BAR JOURNAL | 203
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Westlaw. 87 WAULR 1 Page 1 87 Wash. U. L. Rev. 1
Washington University Law Review 2009
Article
*1 THE NEXT INNOCENCE PROJECT: SHAKEN BABY SYNDROME AND THE CRIMINAL COURTS
Deborah Tuerkheimer [FNal]
Copyright (c) 2009 Washington University; Deborah Tuerkheimer
Eveiy 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. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, 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.
*2 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 in- justice.
Table of Contents
I. Introduction 2
II. The Age of SBS 9
III. Scientific Evolution 10
A. Flawed Science 12
B. Shifted Consensus 16
1. The Myth of Pathognomony 17
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Natalie Beard died on October 16, 1995. [FN1] That morning, her mother had brought the seven-month-old to the home of her day care provider, Audrey Edmunds. [FN2] The baby was by all accounts fussy. [FN3] According to the caregiver's account, shortly after the baby was delivered to her, Edmunds *3 propped Natalie in her car seat with a bottle, [FN4] left the room, and returned a half-hour later to discover her limp. [FN5] Edmunds-herself a mother-immediately called 911 to report that Natalie appeared to have choked and was unresponsive. [FN6] Rescue workers responded minutes later and flew the baby to the hospital, where she died that night. [FN7]
Prosecutors charged Edmunds with murder based on the theory that Natalie had been shaken to death. [FN8] No witness claimed to have seen the defendant shake the baby. [FN9] There were no apparent indicia of trauma. [FN 10] Ed-
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munds maintained her innocence throughout. [FNll] Yet a jury convicted Edmunds on the sole basis of expert testimony that Natalie suffered from Shaken Baby Syndrome (SBS). [FN12] A court sentenced Edmunds to eighteen years in prison. [FN 13]
In important respects, this case falls squarely within the "shaken baby" prosecution paradigm that developed in the -eariy-4990srJI%_-ir__ant-tF_H4-]-_a_^i_-_xtem
*4 provide an explanation for the child's condition. [FN 17] The medical evidence against the defendant consisted of the three diagnostic symptoms comprising the classic "triad": retinal hemorrhages (bleeding of the inside surface of the back of the eye); subdural hemorrhages (bleeding between the hard outer layer and the spongy membranes that surround the brain); and cerebral edema (brain swelling). [FN18] The presence of these three signs was understood to be pathognomic—or exclusively characteristic—of SBS.
At trial, the prosecution's experts testified that "only shaking, possibly accompanied by impact" could explain the injuries. [FN 19] Regarding the force necessaiy to cause these injuries, jurors heard the explanation typically offered in these cases: the force was equivalent to a fall from a second- or third-story window, or impact by a car moving at twenty-five to thirty miles an hour. [FN20] The prosecution's experts concluded that the shaking necessarily occurred while the baby was in the defendant's care, since the trauma of the shaking would have caused immediate unconsciousness. [FN21] The scientific basis for SBS was not challenged by the defense. [FN22] And *5 indeed, at the time of Edmunds's trial, the medical consensus on this issue was overwhelming. [FN23]
All of this is standard fare for an SBS prosecution. [FN24] With rare exception, the case turns on the testimony of medical experts. Unlike any other category of prosecution, all elements of the crime -mens rea and actus reus (which includes both the act itself and causation of the resulting harm)--are proven by the science. Degree of force testimony not only establishes causation, but also the requisite state of mind. [FN25] Unequivocal testimony regarding timing-i.e., that symptoms necessarily would appear instantaneously upon the infliction of injury-proves the perpetrator's identity. In its classic formulation, SBS comes as close as one could imagine to a medical diagnosis of murder: prosecutors use it to prove the mechanism of death, the intent to harm, and the identity of the killer.
Edmunds is a representative shaken baby case in every respect but one. On January 31, 2008, Audrey Edmunds was granted a new trial on the basis of an evolution in scientific thinking. For the first time, a court examining the foundation of SBS concluded that it had become sufficiently eroded that a new jury probably would have a reasonable doubt as to the defendant's guilt. [FN26] According to the court, "a shift in mainstream medical opinion" [FN27] had undermined the basis of the SBS diagnosis, raising the distinct possibility that Edmunds, who was still serving her eighteen-year sentence in Wisconsin, had done nothing whatsoever to harm the child As is true of an unknown number of *6 convictions like it, [FN28] the science upon which the defendant's conviction rested had advanced, raising the specter of innocence.
This Article explores what ensues when medical certainty underlying science-based prosecutions dissipates. [FN29] It asks how a scientific revolution penetrates the criminal justice system and whether our legal system effectively responds to the inevitable consequences of science outpacing the law. The remarkable transformation of SBS provides a unique vehicle for probing these questions.
This examination begins in Part II, which places SBS prosecution in historical context, exposing the recent and rapid ascendance of a paradigm that, until now, has gone largely unnoticed. [FN30]
Part III assesses the current scientific controversy. A critical look at the creation of SBS exposes a diagnosis flawed from its inception by a tainted methodological approach, one, in all likelihood, corrupted by a too-close medical-legal nexus. [FN31] In recent decades, researchers have uncovered these failings, and the diagnosis has evolved accordingly.
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There is now general agreement among the medical community that the previous incarnation of SBS is invalid. [FN32] The particulars of this evolution are striking-especially from a criminal justice standpoint. Despite continued controversy around aspects of the diagnosis, Part III identifies a number of key areas where the framework for debate itself has been significantly altered. This discussion reveals that the new SBS is different enough from what came before to raise serious challenges to a substantial number of criminal convictions.
Specifically, these scientific developments have cast into doubt the guilt of an entire categoiy of defendants: those convicted of crimes based on a triad-only SBS diagnosis. While we cannot know how many convictions are "unsafe" without systematic case review, a comparison of the problematic category of SBS convictions to DNA-and other mass *7 exonerations-reveals that this injustice is commensurate with any seen in the criminal justice arena to date. [FN33]
Part IV chronicles the criminal justice system's treatment of the changing science. I do so by surveying the various stages in the criminal process where actors make decisions with the potential to account for-or overlook-scientific developments of the past decade. Police and prosecutors investigate cases and prosecutors decide whether to pursue charges. [FN34] Defendants and prosecutors make Daubert and Frye challenges to the admissibility of scientific evidence. [FN35] Jurors determine whether guilt has been proven beyond a reasonable doubt. [FN36] Defendants appeal and collaterally attack their convictions based on insufficiency of the evidence. [FN37] And defendants make motions for post-conviction relief because new evidence has been discovered. [FN38]
This procedural approach to understanding how the law integrates new scientific knowledge uncovers a response that is halting and inconsistent. I focus my critique on the system's treatment of cases in which SBS diagnoses rest on outmoded medical dogma. What can be discerned about the status quo is alamiing. Guilt is being assigned where the best available science creates, at the very least, reasonable doubt. When an outcome reflecting the best available science is generated, it is not because the factual predicate for the prosecution diverges from the typical case but, rather, because the defendant is able to mount an aggressive attack-one that requires resources~on a body of science whose vulnerability is, in theoiy, equally exposed to all.
In short, prosecutors and courts are differentially absorbing scientific developments, resulting in an arbitrary distribution of justice. [FN39] Since *8 January 31, 2008, when Edmunds's new trial motion was granted, dozens of convictions based on SBS have been upheld, either on direct appeal or collateral attack. An unknown number of prosecutions have been initiated and an unknown number resulted in convictions. [FN40] While a portion of these cases rely on corroborating medical evidence of injury beyond the triad, [FN41] many do not.
The stoiy of our legal system's response to SBS speaks to how crime is constructed and reified. It tells of institutional inertia and a quest for finality [FN42] that sit uneasily with our commitment to justice. And it demands consideration of where we go from here. By identifying a problem of tragic dimensions, I hope to begin a conversation that seeks solutions and situates itself in the emerging discourse on innocence. [FN43] The conceptual implications of this inquiry-for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world--should assist in the task of righting past wrongs and averting further injustice.
*9 II. The Age of SBS
The first appeal of an SBS-related conviction was reported in 1984. [FN44] Based on the presence of bilateral retinal hemorrhages and subdural hematoma, the prosecution's expert concluded that a four-month-old infant had been shaken to death, [FN45] and the appellate court affirmed the sufficiency of the evidence to convict. [FN46] Over the next five years, less than fifteen appeals of convictions based on an SBS diagnosis were reported. [FN47]
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Beginning in 1990, however, the number of appeals grew dramatically. In five-year increments, published appellate decisions increased from 74 (January 1, 1990-December 31, 1994), to 160 (January 1, 1995-December 31, 1999), to 315 (January 1, 2000-December 31, 2004). [FN48] The numbers from the first half of the current five-year period suggest that this trend toward rising SBS appeals is continuing: from January 1, 2005 to June 30, 2008, 259 written opinions in this category were issued. [FN49]
Appellate case law is admittedly an inadequate measure of prosecutions, both because most convictions do not result in a written appellate decision, [FN50] and because not all prosecutions result in conviction. Notwithstanding these limitations, the appellate case law can suggest, as it does in this instance, that the total volume of prosecutions has been on a sharply upward trajectory since 1990.
Ascertaining the absolute number of SBS prosecutions is of course far more difficult. [FN51] Approximately 1500 babies are diagnosed with SBS in *10 the United States each year. [FN52] How many of these cases result in prosecution and conviction is unknown, however, since no comprehensive data on SBS cases has ever been collected. [FN53] That said, there are a number of ways to estimate the magnitude of defendants potentially impacted by recent scientific developments. [FN54] One might conservatively assume that the approximately 800 appeals reported since 1990 reflect about 1500 convictions after trial. [FN55] To focus on more recent figures only, it seems fair to conclude that around 200 defendants a year are being convicted of SBS. [FN56] Without additional data, we cannot reasonably speculate about the number of defendants who plead guilty to this type of crime, [FN57] although the estimated 1500 SBS diagnoses a year may provide an outside parameter.
When placed against the backdrop of recent scientific developments, these numbers reflect a crisis in the criminal justice system.
III. Scientific Evolution
As a categorical matter, the science of SBS can no longer support a finding of proof beyond a reasonable doubt in triad-only cases [FN58]~cases *11 which represent a significant number of SBS prosecutions. Put simply, here "change has raised the real possibility of past error." [FN59]
In the past, the mere presence of retinal hemorrhaging, subdural hematoma, and cerebral edema was taken to mean that a baby had been shaken hard enough to produce what were conceptualized as whiplash forces. [FN60] According to the conventional understanding of SBS, [FN61] "[t]he application of rotational acceleration and deceleration forces to the infant's head causes the brain to rotate in the skull. Abrupt deceleration allows continuing brain rotation until bridging veins are stretched and ruptured, causing a thin layer of subdural haemorrhage on the surface of the brain." [FN62] Retinal hemorrhages were thought to result from a similar causal mechanism. [FN63] Most significantly, the triad of symptoms was believed to be distinctly characteristic-in scientific terms, pathognomonic-of violent shaking. [FN64]
Despite its lingering presence in the popular imagination, the scientific underpinnings of SBS have crumbled over the past decade [FN65] as the medical establishment has deliberately discarded a diagnosis defined by shaking. [FN66] Although no single nomenclature has emerged in its place, [FN67] doctors are now in widespread agreement that SBS is an unhelpful characterization, [FN68] *12 and that the presence of retinal hemorrhages and subdural hematoma cannot conclusively prove that injury was inflicted. [FN69]
Although it may be tempting to conclude simply that "science evolves," and leave the inquiiy there, the story is more complex; an object lesson in scientific overreaching and the challenge of correction.
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A number of forces coalesced to transform SBS from a certain diagnosis into its current state of flux. Most importantly, in the mid- to late-1990s, [FN70] medical research, including the SBS literature, became subject to a heightened level of scrutiny. The new "evidence-based medicine" standards required doctors to derive their research from methods th_tome-scientifi_-and-statistfcaHyTigorou^ of areas of medicine, [FN72] and included a comprehensive effort to examine the science underlying SBS. [FN73]
The application of the evidence-based framework to the SBS literature resulted in a remarkable determination: the medical literature published prior to 1998 contained "inadequate scientific evidence to come to a firm conclusion on most aspects of causation, diagnosis, treatment, or any other matters pertaining to SBS." [FN74] More specifically, "[sjerious data gaps, flaws of logic, [and] inconsistency of case definition" meant that "the commonly held opinion that the finding of SDH [subdural hematoma] and RH [retinal *13 hemorrhage] in an infant was strong evidence of SBS was unsustainable." [FN75]
A logical fallacy of profound importance was uncovered by a close examination of the pre-1999 SBS literature: researchers had chosen subjects for study based on the presence of subdural hematomas and retinal hemorrhages and, with little or no investigation into other possible causes of these symptoms, simply concluded that the infants were shaken. [FN76] Scientists accordingly inferred that subdural hematomas and retinal hemorrhages must necessarily result from shaking. [FN77] Put differently, researchers "selected] cases by the presence of the very clinical findings and test results they [sought] to validate as diagnostic. Not surprisingly, such studies tend[ed] to find their own case selection criteria pathognomonic of SBS." [FN78] The circularity of this logic is represented by the following equation: "SBS = SDH + RH [inclusion criteria], therefore SDH + RH = SBS [conclusion]." [FN79]
Other studies purporting to support the validity of the SBS diagnosis relied on "confessions" to establish the mechanism of injury. Here, too, a number of problems undermined the validity of the research. [FN80] Putting aside momentarily the possibility that a suspected abuser would be less than candid with doctors and investigators, [FN81] the classification of an account as a confession in these studies was highly problematic from a *14 methodological perspective: "where caretakers said that they shook the baby, it was never detailed how much they shook the baby, how long they shook the baby, and did the baby's symptoms precede the shaking or did they follow the shaking." [FN82]
Once the edifice upon which SBS had been constructed cracked, researchers began looking beyond the child abuse literature to the expertise of neurosurgeons, biomechanical engineers, [FN83] and pathologists. [FN84] Knowledge gained from these disciplines further eroded confidence in the existence of a pathognomonic relationship between shaking and the SBS triad. [FN85]
Around the same time, magnetic resonance imaging (MRI) revolutionized the field of radiology and significantly altered the diagnostic universe. [FN86] Compared to its precursor, computed tomography (CT), MRI enabled a far more detailed assessment of the "pattern, extent, and timing" of central nervous system injuries. [FN87] New radiological findings challenged what had become akin to scientific gospel, [FN88] revealing the presence of triad symptoms in the "mimics" of abuse: accidental injury and medical disorders manifesting as SBS. [FN89] And as technology and scientific methodology advanced, researchers questioning the basis for SBS reached a critical mass. [FN90]
*15 This momentum was catalyzed by the high-profile prosecution of British au pair Louise Woodward, which in 1997 brought shaken baby syndrome into the international spotlight. [FN91] The case was widely perceived as "one of the more intriguing legal dramas of the age-one that [left] unresolved a mysteiy of sickening fascination to parents everywhere." [FN92] In its wake, an already divided scientific community became even more polarized. Physicians felt
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"compelled to speak out regarding the scientific evidence as portrayed in the trial of Louise Woodward," contending that "media publicity surrounding the case has led to considerable sentiment that she was convicted despite allegedly irrefutable scientific evidence presented by the defense that the infant's injuries had occurred days to weeks earlier." [FN93] And critics of the SBS diagnosis were galvanized by a legal and symbolic victory that commanded the world's attention.
l_n^esponse^cri:hese-TieveIopmentS7^no-uneasy^qunibrmm-has-^een-reaehed^Once-eonsidered a "fringe^roupr-sei--entists challenging the SBS dogma have emerged as a significant force in terms of numbers as well as influence. Meanwhile, rather than abandon it altogether, defenders of the *16 validity of the diagnosis have adapted it in subtle but important ways: SBS has been reincarnated to reflect a shifted consensus. [FN94]
B. Shifted Consensus
Since the mid-1990s, the science surrounding SBS has undergone a striking transformation. With little attention outside of the medical community, universally held tenets have been undermined, leading a segment of the scientific establishment-including some formerly prominent supporters of its validity~to perceive the diagnosis as illegitimate. Others, equally distinguished in their respective fields, have responded to the new research by defending SBS against attack. [FN95] Thus, despite the progression of scientific discourse, the current debate about shaken baby syndrome is remarkably polarized. [FN96] Scientists on each side of the controversy espouse their respective views with a passion and certainty matched in intensity by that of their opponents. [FN97]
This polarization, and the bitterness that accompanies it, can tend to obscure a significant area of consensus that has developed around the invalidity of previously accepted dogma. Doctors who defend the legitimacy of SBS and dismiss many of its critics' attacks are willing to concede that the science has evolved~and that even mainstream thinking has changed in a number of areas. The testimony of prosecution experts marks this movement. [FN98]
The movement is subtle, but undeniable. Its significance may depend upon the context in which it is being evaluated. From the perspective of "pure" science, the similarities between the two factions may be overshadowed by their unresolved differences; [FN99] but in the criminal justice *17 setting, the new common ground should be of critical importance. A brief overview of what has become uncontroversial reveals why.
1. The Myth of Pathognomony
An emerging body of research has undermined the scientific basis for defining the triad of SBS symptoms as exclusively diagnostic of abuse. [FN100] No longer are physicians willing to state with certainty that the constellation of symptoms that once characterized SBS individually [FNlOl] and collectively [FN102] must in eveiy case indicate that a child was abused. [FN103] In particular, as scientific study has generated new explanations for the presence of subdural hematomas [FN104] and retinal hemorrhages, [FN105] doctors have become increasingly reluctant to use the word pathognomonic when discussing these symptoms. [FN106] While many disagree vehemently with the contention that shaking alone cannot possibly cause the diagnostic triad, [FN 107] they have conceded that the triad is not necessarily induced by shaking, *18 and that a differential diagnosis must be considered. [FN 108] This represents a dramatic evolution in mainstream scientific thinking.
Critics of the new research argue that shaking is still the most likely explanation for retinal hemorrhaging and subdural hematoma. [FN 109] Nevertheless, given that the diagnostic paradigm rests fully on the triad, the move away from pathognomony inevitably reframes ongoing debate.
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In the past, defendants prosecuted for SBS were identified by the science— that is, by the certainty of doctors that the perpetrator of abuse was necessarily the person with the infant immediately prior to the loss of consciousness. However, studies have since shown that children suffering fatal head injury may be lucid for more than seventy-two hours before
-death—[__vH-l_>]-Be__u_e-the-prospeet^^^ research dramatically alters the forensic landscape. Without other evidence, the identity of a perpetrator- assuming a crime has occurred—simply cannot be established. [FN111]
Similarly, whereas before, doctors effectively foreclosed the possibility that prior accidental injury caused an infant's later symptoms, lucid interval studies support the notion of a lag time. [FN112]
Those who dispute the importance of this research note that the concept of lucidity is ambiguous and argue that, even in an interval classified as lucid, an infant suffering from fatal head trauma would show signs of severe neurological damage. [FN 113] At least one documented case-where a hospitalized child was observed by medical personnel in a "clingy, but *19 perfectly responsive" state for sixteen hours before her death [FN114]-has proven otherwise. [FN115]
But here, again, the emerging consensus dwarfs the continuing disagreement. [FN 116] A period of time can exist where a child is impaired but functioning, [FN 117] making the lucid interval "a distinct discomforting but real possibility." [FN118] In the past, caregiver accounts of seemingly unprecipitated neurological crises were dismissed or even deemed inculpatory. [FN119] These accounts must now be evaluated with the possibility of a lucid interval in mind.
3. Removing the Shaking from the Syndrome
New debate has emerged regarding whether shaking can generate the force levels sufficient to cause the injuries associated with SBS. Those who believe it cannot point to a number of biomechanical studies, as well as research using animal and computer models. [FN 120] Many of these scientists assume arguendo that rotational acceleration-deceleration forces can, in theory, cause retinal hemon'hage and subdural hematoma, but contend that shaking an infant with sufficient force to do so would necessarily damage *20 the neck and cervical spinal cord or column. Since most infants diagnosed with SBS do not present this type of injury, [FN121] they could not have been simply shaken. [FN122]
This perspective remains subject to considerable criticism within the medical establishment. [FN 123] But even those who vehemently dispute the conclusion that shaking alone cannot cause the triad have revised their thinking. No longer is shaking advanced as an exclusive etiology. [FN124] Instead, the current position of this group of physicians with respect to nonnatural forces (i.e., intentional or accidental trauma) is that either shaking or impact may cause the classic triad. [FN 125] More important is the widespread recognition that the two possible mechanisms cannot be clinically differentiated. Thus, the most committed defenders of the validity of the SBS diagnosis now allow that impact cannot be eliminated as a potential causal mechanism.
Once this fact is acknowledged, the question of how much force is required to generate the types of injury associated with SBS becomes critical to whether trauma was inflicted, accidental, or undeterminable. *21 The latest thinking about force thresholds complicates this inquiry. New research shows that relatively short-distance falls may cause fatal head injury that looks much like the injury previously diagnosed as SBS. [FN126] Moreover, these signs and symptoms may not appear immediately. [FN 127]
While the "short-fall" literature continues to be a source of debate [FN 128] and its scientific significance minimized by some, [FN129] the potential impact of these findings on criminal prosecutions is enormous. [FN130] Where doctors
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would previously have been certain that an infant was shaken, in many cases [FN131] a fall must now be entertained as an explanation for injuries. [FN132] Once the threshold of force sufficient to cause the injuries at issue has been cast into doubt, scientific identification of a causal mechanism that is *22 abusive [FN133] becomes problematic. Put differently, the medical testimony can no longer do the work of establishing mens rea.
Just-^s-researehers-have-idetttified-the-possibHity^ creasing attention been given to of a number of nontraumatic causes of symptoms previously assumed to be pathognomonic of shaking. [FN 134] A "number of medical disorders documented in the medical peer-reviewed literature . . . can mimic [abusive head trauma]," including congenital malformations, metabolic disorders, hematological diseases, infectious diseases and autoimmune conditions. [FN135] In sum, depending upon the clinical picture presented, the differential diagnosis for symptoms previously associated exclusively with SBS now contemplates a wide range of nontraumatic possibilities: medical or surgical interventions; prenatal, perinatal and pregnancy-related conditions; birth effects; infections; diseases; disorders; malformations; post-vaccinal conditions; re-bleeds; and hypoxia (lack of oxygen to the brain). [FN136]
Notwithstanding these rather seismic shifts in medical thinking, the criminal justice system has-with only rare and recent exception—been unyielding to new thinking about a diagnosis that proves a crime.
IV. SBS and the Law
Given the scientific developments described, we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent. Even more certainly, a far greater number of defendants among this group were wrongfully convicted. The distinction is an important one:
The expression "wrongful conviction" is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be *23 extended to those who, whether guilty or not, should clearly not have been convicted at their trials . . . . In cases of this kind,[ [FN 137]] it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. [FN 13 8]
In SBS cases, identifying the factually innocent is complicated by two related propositions. First, no crime whatsoever may have occurred, thus eliminating the opportunity to establish someone else's culpability. [FN 139] Second, at least to date, science has not definitively established an alternative explanation for the injuries associated with SBS. [FN140] What this means is that a significant number of people convicted in triad-only prosecutions [FN141] are likely innocent of wrongdoing, but others are not, and we have no way of differentiating between these groups. [FN 142] Accordingly, we may rightly be troubled by the convictions of those whose factual innocence is unproven.
The criminal justice implications of all of this are staggering. [FN143] To put the scope of the problem in a more familiar framework, it is helpful to *24 consider the number of known exonerations in the United States over the past thirty years. From 1989 through 2007, there were 210 DNA exonerations, mostly for rape. [FN144] It is reasonable to suspect that this number of SBS-based convictions after trial occurred in the past year alone. [FN 145] Additional (non-DNA) exonerations include those of 111 inmates on death row, 135 other individuals, and perhaps another 200 or so defendants whose convictions were overturned based on a "mass" scandal implicating widespread systemic corruption. [FN 146] Unlike SBS cases, none of these exonerations involve a set of paradigmatic facts later determined to be a faulty basis for prosecution. [FN 147]
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Despite the large numbers of potentially impacted cases~or perhaps, because of them-our criminal justice system has yet to respond to new scientific realities. [FN 148] Its failure to do so stands in marked contrast to other nations' recognition of the problematic nature of pure-triad prosecutions. The emphatic institutional responses of the United Kingdom [FN 149] and *25 Canada [FN 150] are particularly instructive. Just as our criminal justice system has seemed to operate within a time bubble, largely untouched by scientific evolution, so, too, it remains insulated from unmistakable
-signs-^^-thaV^lsevvhere-m-^he-weridH^ adapting accordingly. When viewed in a global perspective, our continued adherence to a prosecution template that rests on discredited science is particularly jarring.
What follows is an account of how we have arrived at this place.
A. Investigation and Prosecution
In the United States, unlike the United Kingdom and Canada, the SBS prosecution paradigm that ascended in the 1990s has remained largely untouched by scientific developments of the past decade. [FN152] This systemic failure should not be equated with the prosecutorial pursuit of charges against defendants believed to be innocent of wrongdoing. [FN 153] Rather, SBS cases are going forward because law enforcement officers genuinely believe in the validity of the diagnostic triad that has fallen from scientific grace. [FN 154] But this explanation, while more benign than its alternative, begs the question of why the triad continues to exert an almost talismanic effect. [FN155]
*27 It is worth noting the considerable deference given to child-abuse doctors [FN156]—who, as a general rule, remain believers in the diagnosis. [FN 157] Accordingly, prosecutors may exhibit a disinclination to interrogate the science upon which these physicians' opinions rest. There is nothing novel about the observation that prosecutors tend to defer to their experts; but, in this context, the relationship between the prosecutor and the allied medical professionals is a particularly close one. [FN 158] In the typical SBS case, the expert is the case: there is no victim who can provide an account, no eyewitness, no corroborative physical evidence, and no apparent motive to kill. [FN159] Doctors identify both the occurrence of a crime and its perpetrator, and their assurance regarding each is essential for a conviction. [FN 160] These dynamics may well contribute to a prosecutorial reluctance to challenge the validity of an SBS diagnosis. But they do not fully explain a continued willingness to pursue charges in cases built entirely on contested expert testimony. [FN161]
*28 To complete the account, it is helpful to consider first, how prosecutors are trained in the science of SBS; second, how prosecutors perceive the accounts of those suspected of abuse; and, third, how prosecutors are influenced by the systemic nature of SBS convictions.
1. Prosecutorial Training
Training is especially critical in this area, where a complex and evolving body of science is outcome determinative. [FN 162] As one prominent instructor recently urged, "investigators and prosecutors should obtain a basic education on medical issues common to all of these cases." [FN163] Since most prosecutors encounter SBS cases infrequently, few become experts in the issues they raise. [FN 164] It is unsurprising, then, that a nationwide training apparatus has developed to disseminate information about the basic structure of an SBS prosecution. For instance, the American Prosecutors Research Institute of the National District Attorneys Association [FN 165] transmits newsletters, [FN 166] organizes conferences, [FN167] and *29 provides other support for prosecuting the SBS case. [FN168] The National Center on Shaken Baby Syndrome, an organization dedicated in part to training law enforcement officers, [FN 169] has hosted and collaborated on nine conferences since 2000. [FN 170] And prosecutors who have become leaders in the field have published book chapters with instruction in handling SBS cases from investigation through trial. [FN171]
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These training materials present a view of the science refracted through an advocate's lens. For instance, a 2001 publication asserts: "the [prosecution] expert can testify that the forces the child experiences are the equivalent of a 50-60 m.p.h. unrestrained motor vehicle accident, or a fall from 3-4 stories on a hard surface;" [FN172] and "current research and professional consensus within the medical literature clearly supports the conclusion that . . . there is no lucid interval." [FN173] Similarly, from a chapter published in 2006: "there is emerging consensus among credible medical experts
-__t_^he_-eh__re_-_av«-suff&re_-seiTO immediately after injury;" [FN174] "[fjhe collection of ocular damage, subdural or subarachnoid bleeding over the brain, axonal damage, and severe brain swelling is not seen in the same patterns in any forms of accidental trauma, but is seen in cases involving severe and violent shaking;" [FN175] and "the medical field has reached substantial consensus concerning many of the issues pertinent to criminal [SBS] cases." [FN176]
While it should be expected that materials used to educate prosecutors would be strategically focused with respect to trial, this same orientation with respect to case investigation is more problematic. And while we might also anticipate that the most extreme critiques of the science underlying SBS convictions would be soundly-and passionately-attacked, many of these materials fail to acknowledge the shifting of the *30 center. In defending the science of old, [FN 177] the authors tend to obscure the changed consensus around fundamental aspects of the SBS diagnosis. [FN 178] At the same time, significant challenges to the conventional medical wisdom are ignored. [FN 179] Nomenclature aside, [FN 180] few concessions to developments in research have been made. The digested science describes a diagnosis upon which prosecutors can securely rely.
2. Caregiver Accounts
Prosecutorial confidence in guilt is augmented by statements on the part of SBS suspects-statements which are inevitably perceived as incriminatory. The three accounts most often offered to explain an infant's loss of consciousness or other obviously severe neurological symptoms are that: (i) their onset was unprovoked/without explanation, (ii) the infant fell from a short distance, and (iii) the infant was shaken playfully or in the course of revival efforts. [FN181] Research over the past decade has made each of these explanations newly plausible. [FN182] But because law enforcement officers interrogating the SBS suspect "know" that the infant's injuries were caused by violent shaking—the science is believed to prove this definitively-the narratives are all perceived as false and, therefore, incriminating. [FN 183]
Moreover, if the suspect's story changes in response to familiar interrogation techniques, [FN 184] this fact itself is used to support an SBS *31 diagnosis. [FN185] The ensuing interrogation confirms the suspect's guilt, as this veteran SBS prosecutor's characterization suggests: Each of the three most common histories, and others, may be combined in patterns of changing histories as guilty adults attempt to fabricate new explanations to respond to the probing or suggestive questions of one or multiple interviews. [FN186]
But even if the caregiver's story remains constant, it too may be used as evidence of guilt. [FN 187] The "discrepant history"~"when the history does not match the physical condition in front of you"-is also seen as proof that the infant was shaken. [FN 188] Whatever contradicts the scientific "givens" is deemed "discrepant" and a confession.
In sum, law enforcement officers confirm their suspicions of SBS whenever a suspect provides "a false, discrepant, evolving or absent history." [FN189] The suspect cannot avoid self-incrimination; the investigator's certainty of guilt can only be reinforced. [FN190]
*32 3. Reification
Finally, prosecutorial thinking about these cases is pervaded by an echo of the methodological fallacy of the early
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SBS literature. [FN191] If, across the country over the years, defendants have been proven guilty of shaking babies to death based on the presence of retinal hemorrhages, subdural hematomas and cerebral edemas, then the presence of these symptoms must mean that someone is guilty of shaking a baby to death. All that remains is to identify the last person with the conscious child. That person becomes the suspect, who can then be confidently pursued. In this manner, the triad-based crime constructed by the medical establishment [FN 192] has been reified—its existence affirmed—by the sys-
Defense motions to exclude expert testimony regarding SBS have, almost without exception, proven unsuccessful. [FN194] Despite new challenges to the scientific underpinnings of the diagnosis, the admission of SBS testimony is facilitated by its once-uncontroversial nature. Even recently, and in cases involving triad symptoms alone, courts in both Daubert and *33 Frye jurisdictions [FN195] have rejected arguments that SBS is not generally accepted in the medical community [FN196] and that it is not based on reliable scientific methods. [FN197]
Given the importance placed on the criterion of general acceptance within the "relevant" scientific community—even in Daubert jurisdictions, where it is not dispositive~the consensus among pediatricians has been given particular emphasis by admitting trial judges. [FN 198] In the absence of legally binding precedent, judges are well aware that "for some time, courts in other states have found shaken baby syndrome to be a generally accepted diagnosis in the medical community." [FN 199] Judges have also noted that research into SBS has been peer reviewed, and that there has been "considerable literature put out by professional scientific organizations that substantiate the findings." [FN200] While at least one court has explicitly recognized "[t]he absence of a *34 known rate of error," this void was dismissed as merely "reflect[ing] the limitations of the subject matter." [FN201]
The standards for determining the admissibility of scientific evidence in effect privilege the institutionalized theoretical framework—even despite serious doubts about the validity of underlying methodologies. Perhaps judicial reluctance to keep testimony regarding SBS from the jury derives from faulty evaluations of the science, or from an overly deferential respect for the establishment that recommends it. But it is also quite likely that judges are allowing this type of testimony because our justice system is structured in a way that makes its admission the default. "[T]he standard for admissibility is relevance and reliability, not certainty," as courts often remark when allowing SBS testimony. [FN202]
As is widely recognized, the law of evidence is fundamentally premised on the functioning of our adversary system. As the United States Supreme Court emphasized in Daubert v. Merrell Dow Pharmaceuticals, Inc., "[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." [FN203] Courts often justify the admission of SBS testimony by reference to this foundational principle. For instance: "The 'gate-keeping function of the court was never meant to supplant the adversarial trial process. The fact that experts disagree as to methodologies and conclusions is not grounds for excluding relevant testimony;'" [FN204] '"[a] party confronted with an adverse expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weaknesses through effective cross-examination.'" [FN205]
Admissibility determinations are also grounded in the proper allocation of decision-making authority between judge and juror. In a recent reversal on interlocutory appeal of a trial judge's order excluding the prosecution's *35 SBS testimony, this consideration was explicitly invoked: [FN206] "The gatekeeping function of the trial court is restricted to keeping out unreliable expert testimony, not to assessing the weight of the testimony. This latter role is assigned to the jury." [FN207] Even more emphatically, "[f]he court is only a gatekeeper, and a gatekeeper alone does not protect the
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Systemic factors construct a presumption of admissibility: if the evidence is not "pseudoscientific" or "junk science," [FN209] it comes in. This presumption is overcome only rarely by still-evolving research. [FN210] In recent years, testimony regarding SBS has been excluded only twice. [FN211] In Kentucky, after hearing from experts on both sides, a tri-
-al-eourt-eonduded-tha^-the-diagnosi_-^presupposes-&^ "To-alk_^-a-phys_-cian to diagnose SBS with only the two classical markers, and no other evidence of manifest injuries, is to allow a physician to diagnose a legal conclusion." [FN213] Accordingly, the judge precluded the state from presenting expert testimony regarding SBS based exclusively on subdural hematoma and retinal hemorrhage and in the absence of "any other indicia of abuse." [FN214] As noted, this order was subsequently *36 reversed. [FN215] The defendant has appealed the decision to the state supreme court. [FN216]
The other court to exclude SBS evidence did so in a case also involving a diagnosis based on retinal hemorrhage and subdural hematoma. [FN217] After hearing testimony from experts on both sides, the Missouri trial judge determined that the SBS diagnosis "appears to have gained considerable acceptance . . . among pediatricians. However, there is substantial, persistent and continuing criticism of this diagnosis among many in the medical and scientific research communities." [FN218] In its unpublished order, the court concluded that the state had failed to meet its burden of establishing that SBS is generally accepted in the scientific and medical communities. [FN219] The state was thus precluded from offering testimony that the infant was a victim of violent shaking based on the diagnostic triad alone. [FN220] This ifiling was not appealed. [FN221]
Although the two trial court decisions to exclude testimony about SBS are outliers, they foretell more aggressive defense challenges to the *37 admissibility of the science, as well as greater pressure on judges to restrict the scope of expert testimony. If research in this area continues to erode the foundations of the diagnosis, evidentiary rulings will evolve accordingly-but only after a lag guaranteed by judicial deference to precedent, to physicians, and to the workings of the adversaiy system. For now, with few exceptions, if an SBS case goes to trial, juries will decide the worth of the science and the fate of the accused.
C. Jury Verdicts
Little is known about the operation of juries in shaken baby cases. [FN222] One national trial consultant who assists the defense in this area has estimated a conviction rate of 95%; [FN223] a prosecutor widely recognized as a national authority on SBS has suggested that the figure is closer to 50%; [FN224] and a forensic pathologist who has consulted on many hundreds of cases for the defense places the figure somewhere between the two. [FN225] In the absence of meaningful empirical documentation, [FN226] the impressionistic data of those who see the largest number of these cases--and have done so for at least a decade-becomes a helpful source of information.
Such experts in SBS trial outcomes seem to agree upon certain basic propositions. Juries continue to convict based on medical testimony about the triad of symptoms. [FN227] They are, however, acquitting more frequently today than ever before. [FN228] Although the most important predictor of an *38 acquittal is the defense presentation of nationally prominent experts who challenge the science, [FN229] the presentation of this type of evidence still results in conviction more often than acquittal. [FN230] Therefore, while an increasing reliance on defense experts [FN231] and a growing population of such experts for defendants to draw on [FN232] should be expected to result in a greater number of acquittals proportionally, there is every reason to believe that SBS-based convictions will persist.
In prosecutions that rely on science to prove causation, mens rea and identity, how can jurors faced with genuine sci-
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entific debate as to each of these elements be convinced of guilt beyond a reasonable doubt? To make sense of this question, consider how the prosecution's burden of proof may be effectively eased, first, by the skepticism that greets the "differential diagnosis" offered by the defense experts [FN233] and, second, by the sheer inertial force of SBS.
The current state of the science does not typically allow the defense to identify one cause with certainty. Instead, ex-„ erts^ovide-aoxampfex-OTenskr-analysisT-Fror^ portant because it provides an alternative version of events- albeit a less definitive one-that gives jurors a different way of thinking about what happened. But the differential diagnosis is also dangerous, as it tends to functionally shift the prosecutor's burden of proving its theory of the case onto the defense. [FN234]
The state's winning argument to juries is this: the defendant has not established what caused the child's death while the prosecution experts are in full agreement regarding their diagnosis. They told you what the three presenting symptoms mean-how they are caused, how much force is *39 required, and how soon after the trauma the baby would have lost consciousness. The defense experts gave you a list of various possibilities, but admitted that they could not be sure about what happened here. And, indeed, they did not even agree amongst themselves regarding this child's death. [FN235]
In the Edmunds post-conviction hearing, where the determination for a judge was whether new scientific research would probably result in a different outcome at trial, [FN236] the prosecutor made this appeal: "The primary flaw [in the defendant's theory of post-conviction relief] is the fact-and it's not an opinion; it is a fact-that no one on this defense team could agree on the cause of death in this case." [FN237] Indeed, no defense expert testified to certainty regarding any particular theory of death. [FN238]
This reasoning would seem to have considerable traction with jurors. [FN239] Indeed, the differential diagnosis-or, from the perspective of the prosecution, "a veritable laundry list of alternative medical possibilities which are commonly proffered" by the defense [FN240]~has become a critical area of contention in SBS trials. [FN241]
The defense must concede that it cannot definitively prove a mechanism of injury. [FN242] According to the accused in an SBS case, testimony regarding other plausible diagnoses is important not because it definitively establishes the occurrence of a scenario other than the one *40 hypothesized by the prosecution, but because it casts doubt on the claim that no other scenario could explain the symptoms.
This mode of argument tends to be deeply unsatisfying to the human psyche and, as a consequence, problematic for jury decision making. It is widely recognized that "fact finders look for stories, not just discrete nuggets of fact to fit into a set of legal rules." [FN243] Burdens of proof notwithstanding, a consensus that identifies a single narrative will almost invariably trump an amalgam of possibilities that challenge it. [FN244] In SBS cases, what the defense asks the jury to do is surmount this psychological barrier [FN245] and acquit.
The likelihood of this occurring is diminished by the context in which the medical dispute is presented to jurors. In a typical SBS case, as a matter of law, the prosecution must establish that the presence of retinal hemorrhages, subdural hematoma, and cerebral edema proves beyond a reasonable doubt that the defendant on frial shook the baby to death. If the science cannot bear this burden, the jury must acquit-even in the absence of a known cause. [FN246] The reality is quite different on the ground, where, to prevail at frial, a defendant must disprove the validity of a medical diagnosis with impressive establishment bona fides.
Until only recently, SBS had been embraced nearly unanimously by the scientific community, and it still commands the faithful adherence of a majority of physicians. To the general public, the diagnosis has come to be understood as a
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meaningful marker of criminality. Substance aside, these measures of acceptance serve as powerful proxies for truth, enabling jurors to discount the insights of the skeptics and the challenges raised by their research.
*41 D. Insufficiency Claims
Defendants challenging the sufficiency of the evidence against them in SBS cases [FN247] focus on two areas of arguably deficient proof: mens rea, [FN248] and causation/identity. [FN249] While many prosecutions involve physical evidence of other abuse (i.e., beyond shaking) apart from the triad, [FN250] a substantial number rests solely on the presence of retinal hemorrhaging and subdural hematoma. [FN251] Even in this latter subcategory, courts are invariably affirming convictions. [FN252]
*42 Deference to the fact-finding functions of juries translates into a legal regime generally hostile to insufficiency arguments. [FN253] In the evidentiary context, this judicial deference is exercised at the front-end of the trial process; here it comes at the back-end, after the prosecution has rested, after the defense has rested, and/or after the jury has returned its guilty verdict. [FN254] The governing standard on appeal is "whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt." [FN255] It is thus to be expected that defendants rarely persuade courts to overturn SBS-based convictions on sufficiency grounds. [FN256]
*43 Shirley Ree Smith may be the only defendant to succeed in doing so. [FN257] Her case is extraordinary, particularly because the procedural context in which the claim arose~an appeal of a denial of Smith's federal habeas petition--makes the result exceedingly unlikely.
In certain respects, the facts of Smith diverge from the paradigmatic SBS pattern. The defendant was the child's grandmother. [FN258] The medical evidence showed an absence of retinal bleeding. [FN259] Most significantly, pathologists found "no swelling, and only a small, non-fatal amount" of subdural and subarachnoid bleeding. [FN260]
But in other ways, the facts share important similarities with the typical triad-only SBS prosecution. No bruises on the body, fractures, or grip marks were present. [FN261] The accused claimed to have discovered the infant in a nonre-sponsive state. [FN262] The "discrepant history" was considered evidence of guilt. [FN263] The prosecution experts' testimony was "absolutely critical to its case." [FN264]
Even under the highly deferential standard mandated on federal habeas review, [FN265] a three-judge panel of the Ninth Circuit concluded that this evidence was insufficient to sustain a guilty verdict: "There was simply no *44 demonstrable support for shaking as the cause of death . . . . [Tjhere has very likely been a miscarriage of justice in this case." [FN266]
The court's reasoning in this regard is instructive on when a deficiency in proof rises to the level requiring reversal:
All of the prosecution witnesses based their opinion of Shaken Baby Syndrome on their hypothesis that violent shaking had torn or sheared the brain stem in an undetectable way[ [FN267]] . . . . [A]nd they reached this conclusion because there was no evidence in the brain itself of the cause of death. Thus . . . the tearing might have occurred or it might not have occurred; there simply was no evidence to permit an expert conclusion one way or the other on the point. This is simply not the stuff from which guilt beyond a reasonable doubt can be established . . . . [FN268]
The improbability of a court substituting its view of the sufficiency of the evidence for the jury's in this manner-and
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of that ruling being left intact- is indicated by Smith's highly unusual procedural path. The defendant's conviction was affirmed by the state appellate court. [FN269] The California Supreme Court denied review. [FN270] The federal magistrate judge recommended that the habeas petition be denied and the district court denied the petition. [FN271] After the three-judge panel reversed this denial and the full court voted to deny a petition for rehearing en banc, a number of *45 judges wrote to dissent bitterly. [FN272] The United States Supreme Court then granted certiorari, vacated the judgment,
^nehremanded-the-^ase-foHiurthe^^nsideration-^^ able to federal habeas review of a state court affirmance of conviction. [FN274] After the Ninth Circuit reinstated its earlier judgment and opinion, [FN275] the state once again petitioned the Supreme Court for review. [FN276] This petition is currently pending as this Article goes to print. [FN277]
Now compare Smith to the far more typical case of Drancy Deshann Jackson, whose conviction was recently affirmed on direct appeal by a California court. [FN278] Jackson is currently serving a prison term of thirteen years for felony child abuse. [FN279] The medical evidence consisted of subdural hemorrhaging and diffuse brain swelling-no retinal hemorrhages, no other injuries-which prosecution experts diagnosed as *46 SBS. [FN280] The defendant's account-that the baby fell from the couch where he had been propped with a bottle-was dismissed as "inconsistent" with the observed symptoms. [FN281]
The defense presented evidence that Jackson was an "excellent parent who never abused or hit his children or any other child for whom [he] was the caretaker." [FN282] The baby's pediatrician testified that "there was no evidence [the baby] had been abused" prior to the incident in question. [FN283] The sole defense expert, a biomechanical engineer, questioned the scientific basis for SBS. [FN284] Citing research showing that short-distance falls can cause subdural hematomas, he also noted "that it was an open question whether an earlier injury could make the child more susceptible to injury from a second fall." [FN285]
Applying the familiar standard of review, [FN286] the appellate court determined that:
[tjhe conflict among the experts' opinions . . . did not render the evidence insufficient. . . . In finding [against the defendant], the jury necessarily rejected his experts' contention . . . . The credibility and weight of the expert testimony was for the jury to determine, and it is not up to us to reevaluate it. The jury could reasonably believe the evidence of the prosecution witnesses and reject that of the defense witness. [FN287] *47 As the reasoning of the Jackson court evinces, the legal framework governing sufficiency challenges seems to virtually preordain this result. [FN288] Credibility determinations are within the province of the jury; when the testimony of defense experts is rejected, that rejection must be afforded deference by the appeals court. Provided that the prosecution experts testify in a manner that reasonably justifies a finding of guilt, the conviction is affirmed. [FN289]
In short, a conflict in expert opinions is functionally irrelevant to the disposition of sufficiency challenges. Given this, the legal landscape will not be appreciably altered by a louder chorus of SBS skeptics, but by continued movement in this direction on the part of the SBS faithful. If the testimony of prosecution experts comes to reflect the scientific limitations of a triad-based diagnosis of abuse, a court may well conclude that evidence of SBS is "not the stuff from which guilt beyond a reasonable doubt can be established... ." [FN290]
Even in the midst of continued scientific controversy, this judicial shift may yet occur. [FN291] Despite deep tensions within the competing opinions, [FN292] Smith suggests that the trial record must contain evidence of a sufficient quantum and caliber. According to the Ninth Circuit, habeas relief was warranted because "[a]n expert's testimony as to a theoretical conclusion or inference does not rescue a case that suffers from an underlying *48 insufficiency of evidence to convict beyond a reasonable doubt." [FN293] But the "absence of evidence" [FN294] cited by the court-an absence which "cannot constitute proof beyond a reasonable doubt" [FN295]-- is, more precisely, an absence of evidence worthy
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of conviction. Identifying the qualitative judgment embodied in this determination is not to indict it. After all, even the "rational trier of fact" to whom courts are deferring must have certain standards. [FN296] In triad-only SBS cases, judges willing to assess the value of the state's evidence, as the court did in Smith, may conclude that an absence of evidence has convicted others.
E. Post-Conviction Proceedings
1. Edmunds
In early 2007, the judge who presided over Audrey Edmunds's trial over a decade earlier conducted a five-day evidentiary hearing in support of her motion for a new trial based on newly discovered evidence. The defense experts [FN297] testified that, since the mid-1990s, "significant research has undermined the scientific foundations for SBS, creating substantial challenges to matters that were nearly universally accepted in the medical community at the time of Edmunds's trial." [FN298]
According to the defense experts, a still-emerging body of literature had cast new doubt on previously accepted medical dogma. [FN299] Now in dispute: whether shaking alone can cause the constellation of injuries associated with SBS; [FN300] whether a specific mechanism for the injuries (i.e., shaking) can be accurately identified; [FN301] whether considerable force, as opposed to a minor impact, is necessary to cause the injuries associated with the syndrome; [FN302] whether previously umecognized mimics of child abuse can cause the friad of symptoms said to be pathognomonic of *49 abusive head trauma; [FN303] and whether the occurrence of the type of head trauma leading to serious brain damage inevitably causes immediate unconsciousness. [FN304]
The defense experts testified that "in 1996 they themselves would have testified as the State's experts had at Edmunds's trial," [FN305] but the evolving science had changed their opinions as to the likely cause of death. [FN306] In short, the scientific foundation for concluding beyond a reasonable doubt that Edmunds had shaken Natalie Beard to death was no longer intact. [FN307] The near unanimity that once characterized the medical establishment's understanding of SBS had been shattered. [FN308] Yet no new medical accord had been reconstituted in its place. [FN309] Against this disquieting backdrop, Audrey Edmunds's new trial motion was decided.
*50 While expressly acknowledging that "[s]tanding alone and unchallenged, the defense witnesses provide[d] a sufficient evidentiary basis to order a new trial based upon newly discovered medical evidence," [FN310] the trial judge denied the motion. But an appellate court reversed this decision and concluded that there was a reasonable likelihood that a different result would be reached at a new trial. [FN311]
In a remarkable opinion without judicial precedent, the court noted the "shift in mainstream medical opinion since the time of Edmunds's trial." [FN312] While there were "now competing medical opinions as to how Natalie's injuries arose and . . . the new evidence does not completely dispel the old evidence," [FN313] the court was persuaded that "the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence." [FN314] According to the appeals court,
[at trial,] the State was able to easily overcome Edmunds's argument that she did not cause Natalie's injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds's guilt. Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds's guilt. Thus, we conclude *51 that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would
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have a reasonable doubt as to Edmunds's guilt. [FN315] Audrey Edmunds was granted a new frial. [FN316] Months later, all charges against her were dismissed. [FN317]
2. Beyond Edmunds
Enermous-proeedur^^nd^ubstotive4mKMes^onfront-defendants at the-post-eonviction-&tageH:FN318]^A4though-the--law differs depending on jurisdiction, a number of generalizations can be made about the SBS defendant's burden of proof. Put simply, there are tensions between the governing framework for collateral relief and the issues presented by SBS cases. [FN319] These strains were nicely illustrated by the state's arguments against post-conviction relief in Ed- munds.
First, the evidence presented at the post-conviction stage must be deemed new, or "discovered" after the trial. [FN320] One problem for the *52 defense is that the proffered evidence is less definitive than past "scientific improve-ment[s]" [FN321]-DNA typing, primarily. [FN322] In Edmunds, the prosecutor underscored this point: the defense could offer no "bone test . . . [that] would tell us whether that infant was . . . the subject of [shaking-inflicted] brain injury." [FN323] Instead, the evidence was described as "an academic debate among medical experts," [FN324] and one the prosecution characterized as ongoing at the time of the trial in order to negate a showing of "newness." [FN325] For instance, the article widely recognized as the "classic that really set this all in motion about doubting shaking," [FN326] was published in 1987, [FN327] and a small number of scientists were already questioning the basis for SBS in the early 1990s. [FN328] The state thus argued that "[tjhe debate . . . was fully engaged" at the time of trial. [FN329] Although the court rejected this characterization, [FN330] future defendants collaterally attacking their convictions may have greater difficulty satisfying the "newly discovered" requirement if the evidence offered as "new" at the post-conviction stage was more fully developed when the frial occurred. [FN331]
*53 Second, the evidence must be material to the case and not merely cumulative. [FN332] The prosecution in Edmunds asserted that the "academic debate" about SBS was "beside the point": [FN333] theoretical disagreements about whether shaking alone could cause death and whether the triad alone was pathognomonic of abuse were irrelevant to Edmunds's conviction, given the severity of the infant's injuries. [FN334] The court could dispense with this argument in short order, [FN335] given that the prosecution fell squarely within the SBS paradigm-the cause of death was said to be forceful shaking, the diagnosis was made on the basis of the classic triad, [FN336] and the perpetrator was identified based on the impossibility of a lucid interval. [FN337] But given the current state of scientific research, which (unlike DNA [FN338]) cannot conclusively establish a defendant's innocence, deviations from this prototypical fact pattern will tend to undermine the defendant's materiality claim.
Finally, the evidence must probably have resulted in a different verdict at trial. [FN339] This is the most difficult burden for the defense, [FN340] and was predictably the greatest area of contention in the Edmunds post-conviction relief proceedings. [FN341] The defense argued to the court that, at frial,
[tjhe jury never had any reason to doubt that diagnosis of shaking, with or without impact, and nearly immediate collapse was unassailable as medical evidence. This is simply no longer true . . . . [T]his new evidence of evolving science that rigorously challenges *54 and refutes long-presumed hypotheses . . . veiy well could change the outcome [FN342]
In refuting this notion, the prosecutor explicitly juxtaposed the scientific attacks on SBS with the certainty of DNA exonerations. Unlike the new debate offered by the defense, DNA was "real science" that established innocence "to an astronomical degree of science (sic) or statistical probability." [FN343] DNA did not "dispute a theory or demonstrate a rift or a contention in the scientific community. It didn't provide for alternative hypotheses." [FN344] In contrast to de-
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fense evidence substantiating the existence of lucid intervals, DNA samples "exclude[dj the defendant from the world of possible perpetrators." [FN345] And unlike testimony regarding possible alternative causes of death in Edmunds, DNA provided definitive answers. [FN346]
As the Edmunds arguments show, DNA has implicitly been positioned as the paradigm of newly discovered evidence—Although lhe~appeals coOTt^ti_ratdy^ejecte_^he^rosecutor_^rgument^^ newly discovered evidence" motions [FN347] must be reckoned with. The level of certitude DNA provides has become a de facto "benchmark," [FN348] and the actual innocence it establishes is a touchstone for post-conviction relief. [FN349] As a consequence, legal standards may be formulated and applied in ways that tend to disadvantage other types of proof. As a matter of law, DNA is not the benchmark [FN350] and actual *55 innocence is not the sine qua non of a new trial. But the subjectivity inherent in predicting the effect of new evidence on a jury's deliberations [FN351] means that the litigation of post-conviction relief motions will continue to take place in the shadow of DNA.
Given these formidable obstacles, the trial court's denial of Edmunds's motion [FN352] was to be expected. In the decision, we may rightly discern that similarly situated defendants will have difficulty prevailing in the future. [FN353] Perhaps more surprising is that the trial court's decision was overturned on appeal. [FN354] This development portends hope for those seeking new trials in SBS cases.
Even so, the promise of Edmunds is closely circumscribed by its limited precedential effect. [FN355] Beyond onerous post-conviction relief standards, [FN356] defendants seeking collateral relief in SBS cases confront the likelihood that, in coming years, the current scientific controversy will be suspended in a kind of equilibrium. At some point, unless a revolutionary breakthrough fatally undermines SBS, defendants convicted in this era of uncertainty will be hard-pressed to claim that evidence of the diagnosis's *56 invalidity is new. Newly discovered evidence motions will be effectively foreclosed without ever having become truly viable. [FN357J
This prospect would be somewhat less problematic if, throughout the criminal process, a systemic assimilation of the evolved science was underway. As we have seen, however, it is not.
V. Conclusion
SBS is a case study in the intersection of science and law, and the distorting influence that each may have on the oth- er.
The construction and persistence of SBS raises the distinct possibility that our adversarial system of criminal justice may be corrupting science. It may do so by placing pressure on scientists to articulate opinions more extreme-and certainly with more confidence-than those they actually hold. [FN358] And it may do so by raising the stakes for those who have testified in court, under oath, to their version of scientific reality.
The natural course of scientific evolution has resolved many past medical conflicts. In the case of SBS, as well, ongoing research could ultimately answer the open questions. [FN359] New technological developments *57 would facilitate this process. But SBS, from inception to current iteration, is fully embedded in the domain of law. This reality creates a special kind of urgency: around the country, murder convictions are resulting weekly from evidence that is a source of significant scientific controversy. Even if it were possible for research to progress on this front "naturally"-a dubious proposition given what has come before [FN360]~organic processes take time, which, here, is of the essence.
Even more untenable is the suggestion that this scientific dispute be decided in the courts. As the cautionary tale of
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SBS demonstrates, our adversarial, atomized system of justice, with its need for finality, is a poor forum for this debate. The institutional norms of science and law often collide; in this case, with tragic results. Without proper differentiation of their respective functions, both scientific certainty and individualized justice suffer.
To the greatest extent possible, then, a comprehensive inquiry must take place apart from the fray. [FN361] Perhaps ^nly^he^N^tioml-o___de__y-_£-Sdenees^-N^ ated National Institute of Forensic Sciences [FN363]-can provide this space.
*58 In the meantime, until scientific consensus has been achieved, the criminal justice system must find its own solutions to the problem of a diagnosis already moiphed and still in transition.
To date, our system has failed. In place of adaptation, we have seen massive institutional inertia. Once the SBS prosecution paradigm became entrenched, the crime became reified. Deferential review standards and a quest for finality perpetuated the system's course. How expeditiously, and how deliberately, this course is righted will inform the meaning of justice. [FN364]
Complicating the endeavor, SBS prosecutions raise discomfiting possibilities that diverge from those presented by the innocence archetype. Here, no other perpetrator can be held accountable; indeed, no crime at all may have occurred. The problem is not individual, but systemic, and its source is error, not corruption. Responsibility is diffuse: prosecutors and scientists may each legitimately point fingers. Most fundamentally, scientific developments have cast new doubt without yet creating certainty in its place. The stoiy of SBS thus challenges current notions of wrongful convictions. Underlying conceptual frameworks must evolve accordingly.
For now, we find ourselves situated in an extraordinary moment; one which tests our commitment to innocence that is not proven, but presumed.
[FNalJ. Professor of Law, DePaul University College of Law; A.B. (1992), Harvard College; J.D. (1996), Yale Law School. Susan Bandes, Keith Findley, Samuel Gross, Christopher Knott, Robert Mosteller, Frank Tuerkheimer, and participants at a DePaul University College of Law faculty workshop provided invaluable comments on an earlier draft. I am also grateful to Patiick Barnes, Toni Blake, Thomas Bohan, Stephen Boos, Keith Findley, Christopher Knott, Patrick Lantz, Tina Nadeau, John Plunkett, Maurice Possley, Lawrence Ricci, Jennifer Wriggins, and Kirk Zwink for their helpful assistance during the research phase of this project. Finally, I wish to acknowledge the generous support of Dean Peter Pitegoff and Dean Glen Weissenberger.
[FN1J. State v. Edmunds, 598 N.W.2d 290, 293 (Wis. Ct. App. 1999).
[FN2J. Id.
[FN3J. Id.
[FN4J. Brief of Defendant-Appellant at 4-5, State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008) (No. 2007AP000933).
[FN5J. Id.
[FN6J. Id.
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[FN8J. Edmunds was charged with reckless homicide in the first degree, id., which required the prosecution to prove that she disregarded an "unreasonable and substantial risk of death or great bodily harm" under circumstances evidencing an "utter disregard for human life," id. at 295.
[FN9J. Id. at 293-94.
[FN 10]. Id.
[FN 11]. Id. at 293.
[FN 12]. Id.
[FN13J. Emphasizing the lack of any evidence that "the severe injuries Natalie sustained could have been the result of an accident, rather than intentional, forceful conduct, directed specifically at Natalie," the appellate court affirmed Edmunds's conviction. Id. at 294. After exhausting her state remedies, Edmunds petitioned for federal habeas corpus review, which was denied. Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002).
[FN 14]. The average age of infants diagnosed with SBS is between three months and ten months, though children up to three-years-old have been diagnosed. Stephen C. Boos, Abusive Head Trauma as a Medical Diagnosis, in Abusive Head Trauma in Infants and Children: A Medical, Legal, and Forensic Reference 49, 50 (Lori Frasier et al. eds., 2006).
[FN15J. In a typical case, an infant "is brought to the emergency room with the sudden onset of unconsciousness and respiratory iixegularities or seizure. The given history suggests sudden and unprovoked symptoms...[bjut there is no external evidence to indicate that trauma caused their ailment." Id.
[FN16J. The oft-quoted hierarchy of suspected perpetrators of head injury describes fathers as the most likely abusers, followed by mothers' boyfriends, and unrelated female babysitters. Id. at 62. Regarding the social risk factors for child abuse generally, "[yjoung unmarried parents, lack of education, low socioeconomic status, minority status, and many other risk factors have been shown to predict increased child abuse rates. However ... [ajpplying population variables to individual cases of child abuse may be misleading, and has led to the overassessment of minority populations." Id. at 62.
[FN 17]. See infra notes 181-82 and accompanying text.
[FN 18]. Brief of Defendant, supra note 4, at 5. For discussion of the classic SBS friad, see, for example, Coram, on Child Abuse and Neglect, Am. Acad, of Pediatrics, Shaken Baby Syndrome: Rotational Cranial Injuries- Technical Report, 108 Pediatrics 206 (2001); Mary E. Case et al., The Nat'l Ass'n of Med. Exam'rs Ad Hoc Comm. on Shaken Baby Syndrome, Position Paper on Fatal Abusive Head Injuries in Infants and Young Children, 22 Am. J. Forensic Med. & Pathology 112 (2001). See also Part III.B.l, infra notes 60-64 and accompanying text (elaborating on significance of diagnostic triad).
[FN 19]. Brief of Defendant, supra note 4, at 6. See infra notes 60-64 and accompanying text (discussing how shaking is thought to cause triad of symptoms).
[FN20]. Brief of Defendant, supra note 4, at 7. According to the American Academy of Pediatrics, "[tjhe act of shaking leading to shaken baby syndrome is so violent that individuals observing it would recognize it as dangerous and likely to kill the child." Am. Acad, of Pediatrics, supra note 18, at 206. Prosecution experts have often amplified this type of testi-
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mony with in-court demonstrations of the force believed to be necessary to inflict the brain injuries. For a computerized demonstration of this kind see Expert Digital Solutions, Inc., Shaken Baby, ht-tp://www.expertdigital.com/shakenbaby.html. See infra note 256 (noting reversal of convictions on this basis). But see People v. Mora, 868 N.Y.S.2d 722, 723 (N.Y. App. Div. 2008) (trial court "providently exercised its discretion" in allowing prosecution's expert to "shake his coat in order to demonstrate the amount of force necessary to inflict Shaken
^Baby^yndrome^
[FN21J. Brief of Defendant, supra note 4, at 8.
[FN22J. "Edmunds presented one medical expert witness who agreed with the State's witnesses that Natalie was violently shaken before her death but who opined that the injury occurred before Natalie was brought to Edmunds's home." State v. Edmunds, 2008 Wl App 33, P 3, 746 N.W.2d 590, P 3. Edmunds's theory was that one or both of the parents had shaken Natalie the night before her death. Edmunds v. Deppisch, 313 F.3d 997, 998 (7th Cir. 2002). This (failure to identify the correct perpetrator) has been a common defense in shaken baby prosecutions, as has the argument that, if the defendant shook the baby, the shaking did not achieve the level of force necessaiy to sustain a murder conviction. See infra note 181 and accompanying text (describing most common caregiver accounts).
[FN23J. State v. Edmunds, No. 96 CF 555, slip op. at 5 (Wis. Cir. Ct. Mar. 29, 2007) ("The medical evidence was largely consistent and unchallenged."). See Brief of Defendant, supra note 4, at 9 (discussing unanimity of medical opinions and state's reliance on this in argument to jury).
[FN24J. Once a child protection team has made an SBS diagnosis, suspected perpetrators—those with the child when symptoms appeared—are aggressively prosecuted. Each year, an estimated thousand plus defendants are convicted, most of murder, annually. Toni Blake, Jury Consultant, Address at the Forensic Truth Foundation: When Hypothesis and Data Conflict: An Analysis of an Infant Injury Database (May 12-15, 2007) (estimating that 95% of defendants prosecuted in SBS cases are convicted and 90% are serving life sentences).
[FN25J. "A key component of any expert testimony on SBS involves translating the mechanism of trauma into constructs ... which adequately reflect the mens rea requirements for the charge." Brian Holmgren, Prosecuting the Shaken Infant Case, in The Shaken Baby Syndrome: A Multidisciplinary Approach 275, 307 (Stephen Lazoritz & Vincent J. Palusci eds., 2001). As the prosecutor in Edmunds argued on summation, '"one can only imagine the anger and the intensity of the shaking that goes on and the impact that goes on in these cases.'" Brief of Defendant, supra note 4, at 8. Evidence of force was thus used to establish that the defendant was reckless and exhibited utter disregard for human life.
[FN26J. Edmunds, 746 N.W.2d at 599.
[FN27J. Id. at 598-99.
[FN28J. See infra Part II.
[FN29J. This Article focuses on the criminal justice system's treatment of SBS. It should be noted that SBS's evolution also has powerful family court implications. See, e.g., In re J.S., 785 A.2d 1041 (Pa. Super. Ct. 2001) (affirming removal of two-month-old child and his sibling based on questionable SBS diagnosis).
[FN30J. No legal scholar has attended to the proliferation of SBS prosecutions or explored the strange trajectory of SBS in science and law. This project has been given new urgency by mounting challenges to the validity of the science upon which these cases rest. At this moment, when new perspectives on old science are only just beginning to penetrate the
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criminal justice system, the emergence of a scholarly treatment of SBS and the law is especially critical.
[FN31J. See infra Part III.A.
[FN32J. See infra Part III.B.
[FN33J. See infra notes 142-47 and accompanying text.
[FN34J. See infra Part IV.A. My own intuitions about this phase of the criminal process are informed by my experiences prosecuting child abuse cases as an Assistant District Attorney in the Family Violence Bureau of the New York County District Attorney's Office.
[FN35J. See infra Part IV.B.
[FN36J. See infra Part IV.C.
[FN37J. See infra Part IV.D.
[FN38J. See infra Part IVE.
[FN39J. The same week Edmunds was decided, an appeals court in Arkansas decided the appeal of Samantha Anne Mitchell, an in-home daycare provider for a four-month-old infant. Mitchell v. State, No. CACR 07-472, 2008 Ark. App. LEXIS 98, at *1 (Ark. Ct. App. Feb. 6, 2008). The baby died of what prosecution experts diagnosed as SBS based on the presence of the classic friad of symptoms (again, subdural hemorrhaging, brain swelling, and retinal hemorrhages)--the same friad that convicted Audrey Edmunds. Id. at *5-6. In terms of the medical findings and the prosecution's legal theory, the cases are remarkably similar. Yet the very week that Audrey Edmunds was awarded a new trial, leading prosecutors in Wisconsin ultimately to dismiss the charges against her, Samantha Anne Mitchell's murder conviction was affirmed. Id. at * 10.
[FN40J. See, e.g., Shane Anthony, Nanny Should Get 7 Years in Prison, Jury Says Woman, 22, was Convicted of Assaulting 4-Month-Old Boy, St. Louis Post-Dispatch, July 30, 2008, at Bl; Rebecca Baker, Greenburgh Nanny Pleads Guilty in Shaken-Baby Case, The Journal News (N.Y.), July 30, 2008, available at ht-tp://m.lohud.com/news.jsp?key=l 10532; Sarah Kapis, Stonewood Father Arrested in Shaken Baby Case, W. Va. Media, June 23, 2008, http:// www.wboy.com/stoiy.cfm?func=viewstory&storyid=40376; Robert Kerns, Inquest Jury Rules Infant's Death as Homicide by Shaken Baby Syndrome, Pekin Daily Times (III), June 13, 2008, available at http:// www.pekintimes.com/articles/2008/06/13/news5.txt (on file with author); T.C. Mitchell, Father Pleads Guilty to Infant Daughter's Killing, Anchorage Daily News, Aug. 11, 2008; Molly Montag, Daycare Provider Faces Charges for Injured Infant, Sioux City J., July 3, 2008, available at http:// www.siouxcityjournal.com; Andy Nelesen, Tot Hit Head in Tub, Murder Suspect Tells Police, Green Bay Press Gazette, June 20, 2008; Jamaal E. O'Neal, Man Charged with Felony in Baby's Injury, Longview News-Journal (Tex.), Aug. 12, 2008, at IB; Mona Ridder, Grand Jury: Neglect Results in Child's Death, Cumberland Times-News, June 25, 2008, available at ht-tp://www.times-news.com/local/local_story_177093757.html; Amy Upshaw, Eudora Foster Mother of Dead Toddler Released on Bond, Ark. Democrat Gazette, Aug. 13, 2008.
[FN41J. By one nationally prominent defense expert's account, one quarter of the cases prosecuted as SBS involve a "battered baby," or a child with substantial medical corroboration of physical abuse. Telephone Interview with John Plunkett, Retired Pathologist (June 20, 2008).
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[FN42J. This quest is nicely evidenced by a Connecticut frial court's expression of concern in the wake of Edmunds: "the Edmunds case presents a potential quagmire of epic proportions: the strong likelihood of constant renewed prosecution and relitigation of criminal charges as expert opinion changes and/or evolves over time." Grant v. Warden, No. TSR-CV03004233S, 2008 WL 2447272, at *1 n.l (Conn. Super. Ct. June 4, 2008).
-|TN43-j7-See_nfra-PartV^
[FN44J. Ohio v. Schneider, No. L-84-214, 1984 Ohio App. LEXIS 11988 (Ohio Ct. App. Dec. 21, 1984). For an overview of the diagnostic origins of SBS, see infra notes 60-64 and accompanying text.
[FN45J. Schneider, 1984 Ohio App. LEXIS 11988 at *3-4. At trial, the defense expert cited disagreement among scientists as to the quantity of force necessary to produce the observed injuries:
There are several articles which suggest that just playing with your child and throwing him up and down in the air when they are small infants, the reason infants are very risky incidences, they have very small bodies and large heads so the head tends to flop back and forth. Many people play with their children and throw up and down in the air and there are several experts suggesting that that definitely should not occur because it can cause small areas of brain damage and therefore injure your child. There really is no real documentation of whether or not a tremendous amount of force or several episodes can severely damage an infant.
Id. at *5. The defendant was convicted by jury of involuntary manslaughter. Id. at *1.
[FN46J. Id. at* 14.
[FN47J. Based on culling results of search of'"shaken baby' and convict!"
[FN48J. Id.
[FN49J. Id.
[FN50J. According to Sam Gross, a leading expert on wrongful convictions, it would be conservative to estimate that, in this context, there are at least twice as many trial convictions as appeals, which would represent a higher incidence of appeals than average. Telephone Interview with Samuel Gross, Thomas and Mabel Long Professor of Law, Univ. of Mich. (July 21, 2008).
[FN51J. Media accounts tell of SBS prosecutions commencing daily across the country. See supra note 40. Given the number of SBS diagnoses made each year, see text accompanying infra note 52, this comes as no surprise.
[FN52J. Blake, supra note 24. See also Nat'l Shaken Baby Coal, Facts About SBS!!!, ht-tp://www.shakenbabycoalition.org/facts,htm (last visited July 13, 2009) ("Experts say 1,000-1,500 cases of SBS occur each year in the United States, but the true number of cases is unknown because of misdiagnoses and underreporting.").
[FN53J. This void has allowed the phenomenal aspects of SBS prosecutions to remain largely obscured.
[FN54J. See infra note 58 (noting that not all SBS convictions have been undermined.); infra note 143.
[FN55J. See supra note 50. But national trial consultant Toni Blake has herself been contacted by 2000 to 3000 lawyers over the past decade regarding assistance with SBS trials and appeals, suggesting that the actual number of trial convictions is significantly higher. Mark Anderson, Does Shaken Baby Syndrome Really Exist?, Discover, Dec. 2, 2008, http:// discovermagazine.com/2008/dec/02-does-shaken-baby-syndrome-really-exist.
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[FN56J. This estimate is based on the number of reported decisions from January 1, 2005 through June 30, 2008 (259) and a multiplier of two. See supra note 50 [Sam Gross's conservative assumption],
[FN57], According to Andrea Lyon, a law professor with experience representing clients in SBS cases, pleas in this type of prosecution are veiy much the norm given the likelihood that a jury will convict, see infra Part IV.C, and the almost _:ertdrrharshness-of_^ost^te_rHentenceT4ntervie^rjwithroAndrea D. LyonToAssocT^ean^i^TlmieaFoPrograms-and-Clmie^-al Professor of Law, DePaul Univ. Coll. of Law, in Chi, II. (Oct. 16, 2008). A similar sentiment was voiced by one public defender, who articulated the dilemma faced by his SBS client: "if he went to frial and lost, [the sentence] was either 20 to 50 years, 20 years to life, or life without parole. Agreeing to confess to shaking the child ... would considerably reduce any sentence." Anderson, supra note 55. See infra note 150 (noting Ontario's Goudge Commission recommendations regarding review of guilty pleas).
[FN58]. By this, I mean those whose convictions rest exclusively on the presence of retinal hemorrhage and/or subdural hematomas. In contrast, a sizeable number of SBS prosecutions rely on corroborative evidence beyond the friad; convictions which result in these cases are therefore less dramatically undermined by recent scientific developments. See infra note 143. It should be noted that what constitutes real, as opposed to apparent, "corroboration" in SBS cases is often a difficult question. See infra notes 80-82, 181-90 and accompanying text (challenging validity of perpetrator "confessions"); infra note 146 (critiquing United Kingdom Attorney General's definition of corroboration). See also Stein v. Eberlin, No. L07CV3696, 2009 WL 650363 (N.D. Ohio Mar. 10, 2009) (defense expert opined that "parietal cranial irregularities in the victim's skull likely represent suture variants rather than fractures"); P. Weir et al . Normal Skull Suture Variant Mimicking Intentional Injury, 332 Brit. Med. J. 1020 (2006). Nevertheless, this Article focuses on those cases predicated on the "pure friad," or triad-only prosecutions.
[FN59J. Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario 531 (Ontario Ministry of the Att'y Gen. 2008) (on file with author).
[FN60J. See, e.g., John Caffey, On the Theory and Practice of Shaking Infants, 124 Am. J. Diseases Children 161 (1972); Mary E. Case et al, supra note 18.
[FN61J. The tenn "came into general usage in the 1980s." Robert Reece, What Are We Trying to Measure: The Problems of Case Ascertainment, 34 Am. J. Preventative Med. S116 (2008).
[FN62J. Brian Harding, R. Anthony Risdon, & Henry F. Krous, Letter, Shaken Baby Syndrome, 328 Brit. Med. J. 720, 720 (2004).
[FN63J. Id.
[FN64J. See infra Part III.A.
[FN65J. See infra Part III.B.
[FN66J. See infra Part III.B.3. This move away from etiological diagnosis toward anatomical diagnosis reflects a key concession to the limits of medical science. Telephone Interview with Stephen Boos, Dep't of Pediatrics, Aimed Forces Ctr. for Child Prot, Nat'l Naval Med. Ctr. (June 17, 2008).
[FN67J. Reece, supra note 61, at SI 16 (noting "lack of common nomenclature").
[FN68J. "SBS" has been supplanted by a number of different terms: shaken impact syndrome (SIS); inflicted childhood
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neurotrauma; abusive head trauma (AHT); inflicted traumatic brain injury (inflicted TBI); and non-accidental head injury (NAHI). Reece, supra note 61. Indeed, the Committee on Child Abuse and Neglect of the American Academy of Pediatrics (AAP) recently recommended that "[pjediatricians should use the term 'abusive head trauma' rather than a term that implies a single injury mechanism, such as shaken baby syndrome." Cindy Christian et al . Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409, 1411 (2009). Notwithstanding this proliferation of alternative diagnostic labels and the AAP_-o_rewly^rtfcul3t__-reeomme_d_tio_7-bot^ continue-to-empley-the-ter— minology of SBS. For the sake of clarity, I will do so here as well.
[FN69J. See infra Part III.B. 1.
[FN70J. "1998/1999 is regarded as the turning point in acceptance of the tenets and practice of EBM." Mark Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome: Part I: Literature Review, 1966-1998, 24 Am. J. Forensic Med. & Pathology 239, 239 (2003).
[FN71J. Testimony of Patrick Barnes in Transcript of Evidentiaiy Hearing (Day One) at 17-19, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 DF 555) [hereinafter Barnes testimony, Evidentiaiy Hearing (Day One)]. See Donohoe, supra note 70, at 239 ("In recent years, there has been a clear move toward basing medical practice and opinions on the best available medical and scientific evidence.").
[FN72], Donohoe, supra note 70, at 239.
[FN73].Id. at 241.
[FN74J. Id.
[FN75J. Id. As defenders of the scientific research are quick to note, there are obvious "difficulties in performing experiments in this area," since "[ijt is clearly unethical to intentionally shake infants to induce trauma." Id. at 239.
[FN76J. Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 28-29. "The major criticism of those who would indict and convict based on one or two talismanic findings of 'shaken baby syndrome' is that the justification for their opinions is based on nothing but circular reasoning." Thomas L. Bohan, Letter to Editor, Evaluating Evidence, Chi. Tribune, June 30, 2005.
[FN77J. Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 28-29.
[FN78J. Donohoe, supra note 70, at 239. As Dr. Patrick Barnes, chief of pediatric neuroradiology at Stanford's Children's Hospital and a leading national expert in this area, has explained, "we as a group that wrote those papers assumed what we were concluding." Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 27-28. According to Dr. Barnes's testimony, h e - along with many other scientists --" told a lie on child abuse based on old diagnostic criteria." Id. at 70-71. He has since made every effort to correct his past mistakes. Interview with Thomas Bohan, President, Am. Acad, of Forensic Scis, in Peaks Island, Me. (June 11, 2008). Telephone Interview with John Plunkett, supra note 41.
[FN79J. Patrick D. Barnes, Imaging of the Central Nervous System in Suspected or Alleged Nonaccidental Injury, Including the Mimics, 18 Topics Magnetic Resonance Imaging 53, 55 (2007). "The evidence for SBS appears analogous to an inverted pyramid, with a small database (most of it poor-quality original research, refrospective in nature, and without appropriate control groups) spreading to a broad body of somewhat divergent opinions." Donohoe, supra note 70, at 239.
[FN80J. Jan E. Leestma, "Shaken Baby Syndrome": Do Confessions by Alleged Perpetrators Validate the Concept?, 11 J.
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[FN81J. See infra notes 181-90 and accompanying text (discussing perpetrator accounts).
[FN82J. Barnes testimony, Evidentiaiy Hearing (Day One), supra note 71, at 31. One expert has remarked that it is not surprising^ha^-eamgiver—w__l_-sh_ke^-ehil^ because the medical establishment once instructed that "if you have an unresponsive child, one of the first things you do is you jiggle or shake them and see if they will respond." Id. See also infra notes 181-90 and accompanying text [same as above]. Cf. Hess v. Tilton, No. CIV S-07-0909WBSEFBP, 2009 WL 577661 (E.D. Cai. Mar. 5, 2009) (defendant "admitted that he shook [the baby] but insisted it was only in an attempt to clear her throat because she was choking on her own vomit").
[FN83], Biomechanical research has practical application to "child safety, car seats, [and] playground equipment...." Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 25.
[FN84]. Id. at 24-25. Although "much of [this] literature was available before 1998, [it] was not widely read or applied by the child protection teams ... and, particularly, the forensic pediatricians ...." Id. at 25.
[FN85J. Id. at 24-25.
[FN86].Id. at 26, 115.
[FN87], Patrick D. Barnes, Ethical Issues in Imaging Nonaccidental Injury: Child Abuse, 13 Topics Magnetic Resonance Imaging 85, 89 (2002); see also Marguerite M. Care, Neuroradiology, in Abusive Head Trauma in Infants and Children: A Medical, Legal, and Forensic Reference #, 89 (Lori Frasier et al. eds, 2006).
[FN88], Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 26.
[FN89], Id. at 23, 52-53. See infra notes 132-36 and accompanying text (discussing SBS mimics).
[FN90]. Interview with Thomas Bohan, supra note 78. For an interesting discussion of the "critical role that groups play in social epidemics," see Power of Context (Part Two), in Malcolm Gladwell, The Tipping Point: How Little Things Can Make a Big Difference 169, 171 (Little, Brown and Co. 2000).
[FN91], Commonwealth v. Woodward, No. CRIM. 97-0433, 1997 WL 694119, at *1 (Mass. Sup. Ct. Nov. 10, 1997). The defendant called 911 to report that she could not rouse eight-month-old Matthew Eappen from his nap. Debra Rosenberg & Evan Thomas, 'I Didn't Do Anything', Newsweek, Nov. 10, 1997, available at ht-tp://www.newsweek.com/id/97361. Doctors found massive intracranial bleeding, brain swelling, and a retinal hemorrhage, and Matthew later died. Nanny Murder Trial-Jury Still Out, BBC News, Oct. 30, 1997, available at ht-tp://news.bbc.co.uk/l/hi/programmes/from_our_own_correspondent/16726.stm. The prosecution, as is typical in SBS cases, rested almost entirely on medical evidence. Experts testified that '"there was no doubt ... that this infant was a victim of shaken baby syndrome;'" and that this was '"a classic picture of acute shaken baby injury.'" Id.
The defense challenged the science more aggressively-and far more publicly- than had ever been done before. See id. (describing "clash of the medical men" in which "[b]oth teams produced 'the world's leading experts' to make their own case"). Woodward was represented by Barry Scheck, one of the nation's preeminent defense attorneys, whose advocacy proved the difference that resources can make. See Rosenberg & Thomas, supra ("Scheck and his team hired medical experts (at the cost of thousands of dollars a day) who testified that Matthew's skull fracture had occurred about three weeks before he died, and that the fatal bleeding could have been unleashed by just a slight jar."). The defense
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presented a number of experts to testify to an alternative theoiy of Matthew's death. According to this testimony, the fatal hemorrhage was caused by a "re-bleed" of a chronic brain clot resulting from an undetected injury. Woodward, 1997 WL 694119, at *1. See infra note 194 (citing supporting re-bleed theory). The trial "roil[ed] two nations." Rosenberg & Thomas, supra. After a jury convicted the defendant of murder, the frial judge reduced the verdict to involuntary manslaughter and sentenced Woodward to time already served. Commonwealth v. Woodward, 694 N.E.2d 1277, 1281 (Mass.
-1998), In-his-order, the judge-artieulated-one^^tional^ew-ofHhe-evidenee-whieh-^TO^ baby had a chronic blood clot which re-bled upon "rough" handling by Woodward. Id. at 1287.
[FN92]. Rosenberg & Thomas, supra note 91.
[FN93]. David L. Chadwick et al . Letter to the Editor, Shaken Baby Syndrome—A Forensic Pediatric Response, 101 Pediatrics 321, 321 (1998).
[FN94], Defenders of the new SBS adhere to the view that the cluster of triad symptoms, while not pathognomonic of abuse, are generally indicative of violent shaking and/or impact. See infra notes 107-09 and accompanying text.
[FN95]. Defenders of the validity of the diagnosis fall along a spectrum. For instance, without rejecting the construct in its entirety, many physicians have revised their thinking about the original or "strong" version of SBS— i.e, the syndrome defined by a triad of symptoms understood to be pathognomonic of shaking. See infra Part III.B. 1.
[FN96], See infra notes 109, 113, 123, 128-29 and accompanying text.
[FN97]. Id.
[FN98], See, e.g., Testimony of William Perloff in Transcript of Evidentiaiy Hearing (Day Four) at 11-12, State v. Edmunds, 746 N.W.2d 590 (2008) (No. 96 CF 555); Testimony of Betty Spivak in Transcript of Evidentiary Hearing (Day Three) at 12-14, State v. Edmunds, 746 N.W.2d 590 (2008) (No. 96 CF 555) [hereinafter Spivak testimony, Evidentiary Hearing (Day Three)].
[FN99]. Evaluating this claim is complicated, given that the notion of "pure science" in the domain of SBS may well be a fiction.
[FN100]. See, e.g., J. Plunkett and J.F. Geddes, Letter, The Evidence Base for Shaken Baby Syndrome, 328 Brit. Med. J. 719, 720 (2004) (urging "reconsider [ation of] the diagnostic criteria, if not the existence, of shaken baby syndrome").
[FN101], In cases, the presence of subdural hematoma or retinal hemorrhage alone has provided the basis for an SBS diagnosis. Id. at 719. See infra note 280 and accompanying text (describing prosecutions of this kind).
[FN102]. See Clinical Statement of American Academy of Opthamology, http:// one.aao.org/CE/PracticeGuidelines/ClinicalStatements_Content.aspx?cid=c379ec3e-8251-48e6-a88e-fb6f37954bl4 (last visited July 20, 2009).
[FN103], See supra notes 60-64 and accompanying text.
[FN104], See, e.g., Marta C. Cohen & Irene Scheimberg, Evidence of Occurrence of Intradural and Subdural Hemorrhage in the Perinatal and Neonatal Period in the Context of Hypoxic Ischemic Encephalopathy, 12 Pediatric Developmental Pathology 169 (2009); Julie Mack et al . Anatomy and Development of the Meninges: Implications for Subdural Collections and CSF Circulation, 39 Pediatric Radiology 200 (2009) (on file with author); Eva Lai Wah Fung et al, Un-
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explained Subdural Hematoma in Young Children: Is it Always Child Abuse?, 44 Pediatrics Int'l 37 (2002); V.J. Rooks et al . Prevalence and Evolution of Intracranial Hemorrhage in Asympotomatic Term Infants, 29 Am. J. Neuroradiology 1082 (2008).
[FN 105]. See, e.g., P.E. Lantz et al, Perimacular Retinal Folds from Childhood Head Trauma, 328 Brit. Med. J. 754 -(2004)^-Gregg T. Lender— e^^lrrT'eiinaeula^Ttetinal-T^lds-Simttlating-^.onaeeidental—Injury in an Infant, 124-̂ Arehives— Ophthamology 1782 (2006).
[FN 106], There has been widespread acknowledgment that what one researcher has called "the proposed pathognomonic association between unexplained subdural hematoma/retinal hemorrhages and child abuse" may be suspect. Fung et al, supra note 104, at 37 (adopting a cross-cultural perspective and concluding that the diagnosis may be a "self-fulfilling prophecy"). This concession has been articulated by even those physicians who maintain the validity of the diagnosis. Interview with Lawrence Ricci, Dir, Spurwink Child Abuse Program, in Portland, Me. (June 12, 2008); Telephone Interview with Stephen Boos, supra note 66. See also C. Smith & J. Bell, Shaken Baby Syndrome: Evidence and Experts, 50 Developmental Med. & Child Neurology 6, 7 (2008) (arguing that "trauma remains the most likely cause of SDH [subdural hemorrhage] in infancy" while "stress[ing] that the triad is not pathognomonic of inflicted injury").
[FN107]. See infra Part III.B.3.
[FN108], In SBS cases, the differential diagnosis is a list of possible causes of the infant's symptoms. It results from a methodology that seeks to eliminate those factors that cannot have contributed to the injuries. Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 12, 32. For further discussion of the differential diagnosis, see infra notes 134-36 and accompanying text.
[FN109], This perspective was articulated repeatedly in my conversations with physicians. It is also represented in the scientific literature. See, e.g., David L. Chadwick et al . Annual Risk of Death Resulting from Short Falls Among Young Children: Less than 1 in 1 Million, 121 Pediatrics 1213 (2008).
[FN110]. See, e.g., M.G.F. Gilliland, Interval Duration Between Injury and Severe Symptoms in Nonaccidental Head Trauma in Infants and Young Children, 43 J. Forensic Sei. 723 (1998); Kristy B. Arbogast et al . In Reply to Letter to Editor, Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116 Pediatrics 1608 (2005).
[FN111]. See infra note 250 (noting, among others, cases where identity is in dispute).
[FN 112], See supra note 110,
[FN 113], Interview with Lawrence Ricci, supra note 106; Spivak testimony, Evidentiaiy Hearing (Day Three), supra note 98, at 94-102.
[FN 114], Testimony of Robert Huntington in Transcript of Evidentiaiy Hearing (Day Two) at 36, State v. Edmunds, 746 N.W.2d 590 (2008) (No. 96 CF 555) [hereinafter Huntington testimony, Evidentiary Hearing (Day Two)].
[FN115]. See Robert Huntington, Letter, Symptoms Following Head Injury, 23 Am. J. Forensic Med. & Pathology 105 (2002) (describing case study in which infant was observed by hospital personnel in prolonged lucid state before dying from injuries associated with SBS). This case ("Hernandez") had a transformative effect on Dr. Huntington, the pathologist who performed the autopsy in Edmunds. At trial, Dr. Huntington testified that it was "highly probable" that Natalie had been injured within two hours of being seen by medical personnel. Huntington testimony, Evidentiary Hearing (Day
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Two), supra note 114, at 33. Based on his subsequent involvement with the Hernandez case, Dr. Huntington testified on behalf of Edmunds at her 2007 post-conviction evidentiary hearing that he had "changed [his] opinion about whether there could be a significant lucid interval after injuiy[.]" Id. at 34. See infra Part IV.E.l. Although Hernandez is factually sui generis, "everybody agrees that the single incident, the single validated case can falsify a theory. That's what's significant about them." Attorney for the Defense in Transcript of Oral Argument (Day 5) at 132-33, State v. Edmunds, 746
-4lW.2d 590-(Wisr^iv^trM^-8 r^)9^)-fN<^96-CF^^
[FN116]. There seems to be general agreement in the medical community that, in nonlethal cases, where a child typically presents as lucid, the science can even less readily identify a perpetrator. Interview with Ricci, supra note 106; Telephone Intei-view with Stephen Boos, supra note 66.
[FNll7]. Experts may debate whether the exhibiting signs were so severe that medical professionals would have been aware of a problem, but this does not equate to what a nonmedical person would necessarily conclude—which, for purposes of evaluating a caregiver history, would seem to be the relevant inquiiy.
[FN118], Huntington testimony, Evidentiary Hearing (Day Two), supra note 114, at 44,
[FN119]. See infra notes 80-82 and accompanying text. See also Part IV.A.2.
[FN120], See, e.g., A.C. Duhaime et al . The Shaken Baby Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. Neurosurgery 409 (1987); A.K. Ommaya et al . Biomechanics and Neuropathology of Adult and Paediatric Head Injury, 16 Brit. J. Neurosurgery 220 (2002).
[FN 121]. "As forensic pathologists are keenly aware, neck injuries in a 'shaken' child are a rarity, not a commonality." Kimberley Molina, Neck Injuries and Shaken Baby Syndrome, 30 Am. J. Forensic Med. & Pathology 89 (2009) (citing data presented at Annual Meeting of the National Association of Medical Examiners indicating 0% incidence of neck injuries in seventy-nine potential "snaking" cases).
[FN122], See, e.g., Faris A. Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sei. Int'l 71 (2005).
[FN 123]. Among those who believe that shaking can cause the constellation of SBS injuries, some are willing to concede that this has not been scientifically proven. These physicians posit that the absence of proof is a reflection of poor modeling, rather than anatomical impossibility. They also note that researchers are obviously unable to shake live babies (and ethical considerations prevent this kind of experiment on animals that would be useful for comparison). According to those who adhere to the notion that shaking may result in the diagnostic friad, these realities make it exfremely difficult to prove the causal mechanism involved in SBS. Telephone Interview with Stephen Boos, supra note 66; Interview with Lawrence Ricci, supra note 106.
Along these same lines, in the past, doctors were certain, not only that shaking was the mechanism at issue, but also that the shaking necessary to cause the triad of symptoms associated with SBS was of such an extremely forceful nature that the causal act could not be anything other than abuse. To illustrate the point, doctors compared the hypothesized forces at issue to known causes of subdural hematoma and retinal hemorrhage~i.e, falls off of multi-story buildings and car crashes-and they modeled this violent shaking with baby dolls. See supra notes 19-20 and accompanying text. Today, confronting the absence of a solid scientific basis for these claims, and in recognition of the logic that such extreme force might be expected to cause neck and cervical cord injury, the conventional wisdom regarding degree of force has been disavowed. Telephone Interview with Stephen Boos, supra note 66; Interview with Lawrence Ricci, supra note 106. Disagreement continues, however, regarding whether this type of injury is always clinically discemable.
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[FN124], See supra notes 60-64 and accompanying text (describing original formulation of SBS diagnosis).
[FN125], Telephone Interview with Stephen Boos, supra note 66; Interview with Lawrence Ricci, supra note 106. See also Duhaime, supra note 120.
^6]7^The"injuryTnay be associated witlrlrikteral retinal hemorrhage, and an associated-subdural hematoma Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 Am. J. Forensic Med. & Pathology 1, 10 (2001). See generally Scott Denton, Delayed Sudden Death in an Infant Following an Accidental Fall: A Report with Review in the Literature, 24 Am. J. Forensic Med. & Pathology 239 (2003).
[FN 127]. Id. See infra PartIII.B.2.
[FN128], See, e.g., Robert M. Reece, Letter, The Evidence Base for Shaken Baby Syndrome: Response to Editorial from 106 Doctors, 328 Brit. Med. J. 1316 (2004).
[FN129]. See, e.g., Testimony of Jeffrey Jentzen, in Transcript of Evidentiary Hearing (Day Three) at 30-35, State v. Edmunds, 746 N.W.2d 590 (2008) (No. 96 CF 555). Other physicians, even those who generally testify on behalf of the prosecution in SBS cases, have conceded the importance of the short-falls findings. See, e.g., Testimony of Alex Levin in Transcript of Evidentiaiy Hearing (Day Four) at 133, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 CF 555) (characterizing this research as "valuable addition to the literature").
[FN130], The implications of this research extend beyond traditional SBS prosecutions. For instance, in Texas, one death row inmate, Cathy Lynn Henderson, was recently granted a stay of execution and a hearing on her habeas motion based on newly available scientific evidence regarding the effects of short falls on pediatric head trauma. Ex parte Henderson, 246 S.W.3d 690 (Tex. Crim. App. 2007). At her frial in 1995, Henderson claimed that she had accidentally dropped the infant from her arms~a contention effectively rebutted by the testimony of prosecution experts, who unanimously concluded that the infant's extensive brain injuries must necessarily have been caused by intentionally slamming of the head against a hard surface. Id. at 691. The certainty attending this conclusion has since been undermined by the short-fall literature, as evidenced by the affidavits and reports submitted by the defendant in support of her motion for habeas relief. Id. Most notably, the medical examiner who testified for the prosecution "in essence, recant[ed] his trial-time conclusive opinion" as a result of the "new scientific information" not available when Henderson was convicted of capital murder. Id. at 692. As this Article goes to print, the trial court has not yet ruled on an evidentiary hearing held earlier this year.
[FN131]. To be clear, falls are not the only alternative explanation for the SBS friad. See infra notes 134-36 and accompanying text (discussing natural causes). Depending on the case-in particular, the available physical/forensic evidence (or lack thereof) and the caregiver's account-a fall may be more or less likely than other possible causes of injury.
[FN132]. Infants' heads may encounter impact in a variety of ways: babies fall from high chairs, beds and stairs; babies are accidentally dropped. "A history by the caretaker that the child may have fallen cannot be dismissed." Plunkett, supra note 126, at 10. Given the frequency with which caregivers offer a fall as explanation for the child's injuries, see infra note 181, this scientific development has real criminal justice significance.
[FN133]. The use of "abusive" in this context is meant to convey a mental state beyond negligence, which accords with the vast majority of SBS-based criminal prosecutions. See infra note 248 (elaborating on requisite mens rea).
[FN 134], See supra note 108 (defining "differential diagnosis").
[FN135], Andrew P. Sirotnak, Medical Disorders that Mimic Abusive Head Trauma, in Abusive Head Trauma in Infants
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and Children: A Medical, Legal, and Forensic Reference 191 (Lori Frasier et al. eds, 2006). See also Barnes, supra note 79.
[FN136], See generally K. Hymel et al. Intracranial Hemorrhage and Rebleeding in Suspected Victims of Abusive Head Trauma: Addressing the Forensic Controversies, 7 Child Maltreatment 329 (2002); Barnes, supra note 87; see also supra notes 104-05.
[FN137]. Cases in which "flawed expert evidence was relied on to secure conviction" are specifically referenced. Infra note 138.
[FN 13 8]. This passage is taken from a speech of Lord Bingham, the senior law lord in the United Kingdom until his retirement, in R (on the application of Mullen) v. Secretary of State for the Home Department [2005] 1 AC 1, 4, cited in Stephanie Roberts & Lynne Weathered, Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission, 29 Oxford J. Legal Stud. 43, 50 (2009).
[FN139], "Proving that someone else committed the crime is by far the most common method of achieving an exoneration, but it is unavailable if there was no crime at all." Samuel R. Gross, Convicting the Innocent, 4 Ann. Rev. L. & Soc. Sei. 173, 183 (2008).
[FN140]. See infra notes 233-45 and accompanying text (discussing the challenges associated with the differential diagnosis).
[FN141]. See supra note 58 (defining term). For the moment, I put aside cases in which a suspect's seemingly incriminatory account was used—in retrospect, incorrectly—to corroborate the prosecutor's case. See infra notes 183-90 and accompanying text.
[FN 142], My thanks to Robert Mosteller for helping me to arrive at this formulation. E-mail from Robert Mosteller, Harry R. Chadwick Sr. Professor of Law, Duke University, to Deborah Tuerkheimer, Professor, University of Maine School of Law (Aug. 29, 2008, 15:46 EST) (on file with author).
[FN143]. In the estimation of one forensic medical expert, SBS cases may be divided into four groups. One includes those where injury is clearly inflicted, in all likelihood, by impact. Although, in this group, the causal mechanism may not be shaking, medical evidence apart from the triad indicates to a reasonable degree of scientific certainty that the baby was abused. In these cases, a finding of guilt seems just. The three remaining groups of cases involve evidence that, from a criminal justice stance, tends to negate proof beyond a reasonable doubt of a defendant's guilt: evidence of natural disease, the presence of chronic hematomas, and those in which no likely mechanism presents itself. Telephone Interview with John Plunkett, supra note 41.
[FN144]. Gross, supra note 139, at 175. Of course, DNA has uncovered only a fraction of the cases in which an innocent person was convicted. For a comprehensive examination of what is known—and all that we have yet to learn— about false convictions over the past thirty years, see Gross, supra note 139.
[FN145]. See supra note 56 and accompanying text. To be clear, I do not mean to suggest that every one of these post-trial convictions would, upon review, be found wrongful. See supra notes 58, 143 (refining subset of problematic cases). That said, a fair accounting of the number of defendants whose convictions have been undermined by scientific developments must also contemplate the possibility that some defendants who pleaded guilty before frial were innocent. See supra note 57; Gross, supra note 139, at 180-81 (generally discussing the difficulty of assessing how many innocent de-
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fendants plead guilty). Moreover, any inquiry aimed at quantitative measure should also acknowledge that triad-only prosecutions continue to this day; therefore, a ti_ie reckoning of the magnitude of injustice implicates a somewhat prospective outlook.
[FN 146], Gross, supra note 139, at 175-76.
[FN147], As Sam Gross suggested to me, arson cases may provide the closest analogy, albeit an imperfect one, to the problem that I am describing. Telephone Interview with Samuel Gross, supra note 50. In 1992, the National Fire Protection Association "issued new guidelines that for the first time applied scientific principles to the analysis of the remains of suspicious fires, and revealed that the expert evidence of arson in [one death row inmate's] case, and many others, had no scientific basis." Gross, supra note 139, at 183.
[FN148], As a general proposition, the U.S. criminal justice system—in contrast to those of many other nations—does not respond to extra-legal developments in a monolithic manner. Our system is atomized by its federalist, multi-state nature and by the multiplicity of actors involved in decision making throughout the criminal process. To explicate how scientific developments around SBS have penetrated the justice system, is, therefore, a formidable challenge. This difficulty is compounded by the extent to which SBS prosecutions, as a phenomenon of increasing importance, have gone largely unnoticed and data related to them correspondingly uncollected. Despite this, a procedural analysis of the various stages at which legal standards guide the exercise of discretion follows. It provides a holistic perspective on a system that has not widely absorbed new scientific realities.
[FN149]. In 2005-2006, the Attorney General, Lord Goldsmith, conducted a seven-month review of eighty-eight SBS cases, including guilty verdicts and pleas. (SBS convictions are significantly less commonplace in the United Kingdom than in the States.) Lord Goldsmith's investigation was triggered by a 2005 Court of Appeal decision, now the governing case law, which concluded that "[i]n cases where the triad alone is present ... the triad alone 'cannot automatically or necessarily' lead to a conclusion that the infant has been shaken." The Rt Hon The Lord Goldsmith QC, The Review of Infant Death Cases: Addendum to Report Shaken Baby Syndrome at 9-10 (2006). The Attorney General's review methodology is vulnerable to criticism, particularly because among the evidence considered "to support the finding of SBS" was a defendant's "[a]dmissions to shaking" and the presence of chronic subdural hematomas, id. at 12, each of which may be of limited corroborative value, see infra notes 104, 183-90 and accompanying text. This may explain why only three of the cases reviewed—a not insubstantial false conviction rate of 3.4%, but fewer than what many had expected—were identified as "giving rise to concern" and referred to the Criminal Court of Appeal. Goldsmith, supra, at 14. Irrespective of methodological shortcomings, however, Lord Goldsmith's systemic review and the Court of Appeal decision that preceded it have appreciably altered the course of SBS prosecutions. As one commentator has suggested, "in [the] future there will be demands for each case to be assessed individually, on the evidence available, rather than on a formula which has now been proved to have weaknesses." Sam Lister, Q&A: Shaken Baby Syndrome, Times Online, Feb. 14, 2006, www.timesonline.co.uk/tol/news/uk/article546383,ece.
[FN150], On April 25, 2007, the Province of Ontario established an inquiiy into pediatric forensic pathology and appointed Justice Stephen Goudge of the Court of Appeal its Commissioner. Seventeen months and $8.3 million later, Justice Goudge issued a 1000 page report which told what he called a "tragic story of pediatric forensic pathology in Ontario from 1981 to 2001...." Commissioner's Statement on Release of the Report, Oct. 1, 2008. Many of the Commission's findings related specifically to the mistakes of one particular forensic pathologist and a failed oversight mechanism. But apart from the work of any individual, the report expressed deep concerns about the legitimacy of triad-based SBS prosecutions, concluding that in this set of cases, "a further review is warranted as part of restoring public confidence." Id. See Goudge, supra note 59, at 531 ("[0]ur systemic examination has identified this particular area of forensic pathology
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as one where change has raised the real possibility of past error."). In light of his doubts regarding "convictions based on the pure 'triad,' where no other pathology evidence is identified, and possibly in other SBS cases," id. at 528, Justice Goudge recommended that a review be conducted with the objective of "identifying] those cases in which the pathology opinion can be said to be unreasonable in light of the understandings of today and in which the pathologists' opinions were sufficiently important to the case to raise significant concerns that the convictions were potentially wrongful," id. at Blr^eeause^nany-of^the-eonvieted parties-are^iow claiming^af4hen^eas^wei!e-i%dueedJby^;arieus-4actors, including the serious consequences of potentially being convicted of murder charges and the acknowledged difficulties in challenging [the state's forensic pathologist's] opinions," the report emphasized that "cases should not be excluded from review only because an accused pleaded guilty." Id. at 532-33. Justice Goudge's findings and conclusions are detailed extensively in his full report, supra note 59.
Upon issuance of the Goudge Commission Report, the Ontario coroner's office quickly identified 220 cases where a determination was made that an infant died after being shaken. Antonella Artuso, Shaken Baby Doubts Surface, Ottawa Sun, Oct. 2, 2008, at 7. Under the auspices of the Attorney General, 142 of these cases are being reviewed by a team which includes the province's former associate chief justice, its chief forensic pathologist, a regional supervising coroner, a senior defense counsel, and a senior Crown attorney. Theresa Boyle, Team Selected to Probe 142 Shaken Baby Cases, The Toronto Star, Dec. 2, 2008, available at thestar.com. On November 6, 2008, Anna Sokoynyuk was the first person to have a case dismissed based on the Attorney General's review. She had been charged with murder for the death of her three-month-old daughter. Mom of Dead Baby Walks Free After Charges Against Her Withdrawn in Court, Toronto City News, Nov. 6, 2008, http://www.citynews.ca/news/news_28894.aspx.
[FN151]. Apart from the institutional review mechanisms instituted by the United Kingdom and Canada, it is worth noting that Australia's criminal justice system has also begun to absorb new scientific understandings. In 2003, the Supreme Court of Western Australia issued an important decision in an SBS case. R. v. Court (2003) 308 WASCA 1. At a bench frial for murder, the defendant was acquitted by a judge of all charges in a prosecution based on the presence of retinal hemorrhages and subdural hematoma, as well as spinal injury. Id. PP1, 9. Central to the verdict was the court's reliance on the testimony of a prominent forensic pathologist, who testified that it was "not tenable" that the only possible cause of death was violent shaking. Id. P 5. According to the trial judge,
[a]s I understand [the defense expert's] evidence, he was suggesting that unless a witness had seen the deceased being shaken or unless there was some medical evidence consistent with the child having been shaken, such as braising or other external injury, or acceptable admissions, then to conclude that the deceased had died by being shaken in a prolonged or violent way was, as he expressed it, "highly suspect."
Id. The Supreme Court affirmed the reasonableness of this verdict. Id. PP76.95.
[FN152]. See supra notes 52-57 and accompanying text (discussing quantitative measures). Qualitative data also supports this proposition. Telephone Interview with Toni Blake, Jury Consultant, 2nd Chair Servs. (June 17, 2008); Telephone Interview with Brian Holmgren, Assistant Dist. Attorney, Davidson County Dist. Attorney Gen.'s Office, Child Abuse Unit (July 1, 2008).
[FN153]. While it is easy, and even fashionable, to vilify prosecutors, they are typically motivated by a desire to hold the guilty responsible for their actions. Many child abuse prosecutors seem almost missionary about their task, but this may come with the territory.
[FN154], According to the database maintained by Toni Blake, see supra note 24, the vast majority of prosecutions go forward based solely on the presence of one or more triad symptoms. Telephone Interview with Toni Blake, supra note 152.
[FN155]. Apart from the dynamics discussed in the remainder of this Part, it must be noted that the death of an infant--the embodiment of innocence— inevitably provokes an intense emotional response among participants in the criminal process. It is quite reasonable that those affected would experience what Susan Bandes has insightfully described as an "urge to find an event blameworthy [in order] to convert a loss into a crime." Interview with Susan A. Bandes, Distinguished Research Professor of Law, DePaul Univ. Coll. of Law, in Chi, II. (Oct. 16, 2008).
[FN156], In 2006, "the American Board of Pediatrics approved a petition for subspecialty certification in child abuse pediatrics." Kent P. Hymel & Karen Seaver Hill, Child Advocacy: New Board Specialty Signals Positive Change in Child Abuse Pediatrics, Children's Hospitals Today (2007), available at http:// www.childrenshospitals.net/AM/Template.cfm?Section=Archives&TEMPLATE=/ CM/ContentDis-play.cfm&CONTENTID=31157 (last visited May 6, 2009). The first board certification examination will take place in the fall of 2009. Id.
[FN 157], See Robert Parrish, Prosecuting a Case, in Abusive Head Trauma: A Medical, Legal, and Forensic Reference 393, 396-97 (Lori Frasier et al. eds, 2006) (noting that American Prosecutors Research Institute and other prosecutors are a good source of referral to experts in area).
[FN158]. In many cases, this relationship has been formalized in a manner unique to the child-abuse setting. As described by one leading expert on nationwide prosecutorial practices: Many local prosecutors across the country have formed or participate in interdisciplinary teams intended to bring together child protective service (CPS) workers, law enforcement investigators, medical professionals, mental health providers, educators, and others who play a role in ensuring that justice is appropriately sought for severely abused children. Id. at 395; see also Holmgren, supra note 25, at 276.
[FN 159]. The hypothesis generally advanced by pediatricians and prosecutors is that shaking "results from tension and frustration generated by a baby's ciying or irritability ...." Am. Acad, of Pediatrics, supra note 18, at 206. See also Holmgren, supra note 25, at 289-90 ("Prosecutors will often not be able to point to a traditional 'motive' (e.g., hatred, jealousy, vengeance, greed) to explain the caretaker's conduct. Rather, they must reorient jurors to think about motive in a unique context-one that does not reflect a purposeful mental state but instead a risk factor, stressor or catalyst that prompts the caretaker's reactive and abusive conduct .... The most common motive in SBS cases is anger or frustration resulting from the infant's crying.").
[FN160]. The dominance of the "team approach to investigation," erodes a shaip differentiation between the roles of prosecutor and physician. Parrish, supra note 157, at 395-96. I found this to be true when, as a prosecutor, I participated in a medical grand rounds regarding a case that was the subject of one of my investigations.
[FN161]. Cognitive biases on the part of jurors, infra notes 243-47 and accompanying text, may also affect prosecutors.
[FN162]. Parrish, supra note 157, at 395-96.
[FN163]. Id. at 395. "A fundamental understanding of the medical knowledge concerning AHT committed against children is absolutely essential to a prosecutor's success in refuting commonly offered defenses, clarifying and dispelling myths introduced by opposing expert witnesses, and providing juries with sufficient information to reach a just decision." Id. at 396.
[FN 164], "It is rare for a particular prosecuting attorney to handle multiple cases involving AHT [abusive head trauma] in child victims unless the prosecutor works in a specialized team assigned to handle physical abuse and child homicide."
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Id. at 396. Even those prosecutors who do develop an expertise in this type of case "must be ever mindful that science is an ongoing process and medical research can quickly become dated .... Without a full understanding of the medical research that underlies an expert's opinion, the prosecutor can neither make full use of the physician's expertise, nor adequately cross-examine the opposing expert." Holmgren, supra note 25, at 305.
-fFNUSSL The mission of the American Prosecutors Research Institute is to provide state and local prosecutors knowledge,
skills and support to ensure that justice is done and the public safely rights of all persons are safeguarded. To accomplish this mission, APRI serves as a nationwide, interdisciplinary resource center for research and development, technical assistance, framing and publications reflecting the highest standards and cutting-edge practices of the prosecutorial profes- sion.
American Prosecutors Research Institute, http://www.ndaa.org/apri/index.html (last visited July 21, 2009).
[FN166]. See, e.g., Erin O'Keefe, Shaken Baby Syndrome: Overcoming Untrue Defenses, 10 Update 11 (1997), available at http:// www.ndaa.org/publications/newsletters/update_index.html; Devon Lee et al . Tips for Investigating Child Fatalities, 13 Update 1 (2000), available at http:// www.ndaa.org/publications/newsletters/update_index.html; Victor I. Vieth, Tips for Medical Professionals Called as Witnesses, 13 Update 7 (2000), available at ht-tp://ndaa.org/publicatio_s/newsletters/update_index.html.
[FN 167]. Most recently, in July 2008, the National District Attorneys Association convened a conference on the "Investigation and Prosecution of Child Fatalities and Physical Abuse," which included discussion of Abusive Head Trauma. More information may be found at http:// www.ndaa.org/education/apri/investigation_child_fatalities_abuse_2008.html (last visited July 21, 2009).
[FN168]. See Parrish, supra note 157, at 396.
[FN169], National Center on Shaken Baby Syndrome, About the Center, http:// www.dontshake.org/sbs.php?topNavID=2&subNavID=10 (last visited July 21, 2009).
[FN 170]. National Center on Shaken Baby Syndrome, Conferences, http://
www.dontshake.org/sbs.php7topNavID=5&subNavID=38 (last visited May 6, 2009).
[FN171]. See generally Holmgren, supra note 25; Parrish, supra note 157.
[FN172]. Holmgren, supra note 25, at 307.
[FN173]. Id. at 305. See id. at 307 (stating that "the onset of symptoms is virtually contemporaneous with the abusive act").
[FN174], Parrish, supra note 157, at 398.
[FN 175], Id. at 405.
[FN176].Id. at 395. [FN177], See supra notes 172-76. Support for the assertions made in recent publications is often found in sources from the past that have since been challenged. For instance, a 2001 publication asserts that "the expert can testify that the forces the child experiences are the equivalent of a 50-60 m.p.h. umesttained motor vehicle accident, or a fall from 3-4
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stories on a hard surface" and cites evidence from the records of cases ranging from 1986-1994. Holmgren, supra note 25, at 307. In the same publication, the claim that "the onset of symptoms is virtually contemporaneous with the abusive act" is bolstered by studies from the 1990s. Id. See also supra note 173.
[FN178], See supra notes 174-76 and accompanying text.
[FN 179], See supra notes 173-76 and accompanying text.
[FN180]. See supra notes 67-68 and accompanying text (discussing new diagnostic labels). Most notable, pathognomony as the defining feature of SBS has been supplanted by the more ambiguous claim that "retinal hemorrhages, bilateral subdural hematoma, and diffuse axonal injury are highly specific for SBS as a mechanism." Holmgren, supra note 25, at 306.
[FN 181]. Boos, supra note 14, at 50.
[FN 182]. See supra PartIII.B.3.
[FN183]. Holmgren, supra note 25, at 276 ("[T]he initial history provided by the caretaker is false in the vast majority of abuse cases and frequently evolves or changes over time as the caretaker is confronted with medical findings.") (citations to scientific literature omitted).
[FN184], See Leestma, supra note 80, at 14 (noting that the "interrogator may communicate to the accused that 'if you could tell us exactly what happened and if you shook the baby, we could do something for the baby and maybe save its life.'"). While the particular tactics employed in the SBS context may be unique, the underlying techniques are not. See Richard A. Leo et al . Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 512-20 (2006) (surveying empirical evidence on false confessions).
[FN185]. See, e.g., Carole Jenny et al . Analysis of Missed Cases of Abusive Head Trauma, 282 JAMA 621 (1999); Robert Reece, Medical Evidence in the Context of Child Abuse Litigation, New Eng. L. Rev. 607, 610 (2002) ("[T]he history does not match the physical condition in front of you .... Does the history fit what you see? If it does not, then you must question how such an injury could have occurred."). See also Anderson, supra note 55 (citing a nationally prominent pediafrician's observation, based on his consulting experience, that '"[i]f a parent does not know exactly what's happening, veiy frequently the first conclusion is that they're frying to hide something. And sometimes parents are racking their brains, coming up with one or two possibilities. Then it looks like they're changing their stories. That can be used to damn them.'").
[FN 186]. See Boos, supra note 14, at 50 ("[W]hose story has evolved or changed to fit new information revealed by medical reports, medical personnel, or investigators?"); Parrish, supra note 157, at 416.
[FN187], A model prosecutorial summation makes this point as follows: "it just couldn't happen the way the defendant says-not unless the laws of physics and gravity are different in the defendant's house. These doctors tell us that the defendant is a liar .... A defendant who lies to protect himself points the finger of guilt upon himself." Holmgren, supra note 25, at 325.
[FN188], Reece, supra note 61, at 610. Put differently, "[t]he false histories help identify the likely individual who caused the child's injuries by providing compelling evidence of the abuser's consciousness of guilt." Holmgren, supra note 25, at 277.
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[FN 190]. Consider the dynamics reflected in the following interrogation of a day care provider suspected (based on the presence of the friad) of shaking a six-month-old infant to death. According to the caregiver's initial account, after leaving the children unattended for a short time, she returned to find a toddler sitting on the neck of the baby, who was hav-
4ng-frouble-breathing. Afters.aMng-her^randa^TO__agS7^e-ear_giver-(Rog by the interrogating officer— (Wheeler) that: according to a "panel of doctors," a child "could not have caused" the baby's injuries; that "anyone could have been pushed 'over the top' by all of the children in Rogers's care," and "if Rogers was just overwhelmed, then that was 'explainable'"; that Wheeler "already knew something 'aggressive' happened, but now she just needed to know why;" that "only an adult could have inflicted the force necessaiy to hurt [the baby] in this manner and that the injury occurred close to the time that [the baby] began seizing," when only Rogers was present; that "if [police] could not go to the doctors with a logical explanation for what happened, then it looked 'veiy, very bad' for Rogers; and that Rogers's story "had to match the medical evidence." Two hours after the interview began, Rogers confessed to shaking the baby and ("she thought") repeatedly slamming his head on the floor. She was arrested, charged and convicted of intentional child abuse resulting in death, and sentenced to life imprisonment.
In an extraordinary decision, the Nebraska Supreme Court reversed the defendant's conviction due to a violation of her Fifth Amendment right against self-incrimination. Specifically, the court held that Rogers had invoked her right to silence, and that this invocation was not scrupulously honored by the police. The case will be fried later this year. Telephone Interview with Tim Bums, Douglas County Pub. Defender's Office (June 10, 2009).
[FN191], The cognitive dissonance resulting from having prosecuted people whose guilt has now been scientifically undermined should not be discounted. But here I am identifying a dynamic that is more systemic.
[FN 192]. See supra Part III.A.
[FN193]. This dynamic has likely been perpetuated by media coverage of always sensational "baby-killing" cases. See supra note 40. See also Vanessa Bauza, Abusive Shaking Top Killer of Babies; Police Say Infant Latest Area Victim, Sun Sentinel (Fort Lauderdale, Fla.), Oct. 4, 1999.
[FN 194]. In the course of my research, I have not been made aware of any case in which the testimony of defense experts challenging the basis for an SBS diagnosis was excluded on Daubert or Fiye grounds. See infra note 195 for a summary of the Daubert and Frye standards. Prosecutors are either declining to make these challenges or are making them unsuccessfully. See Holmgren, supra note 25, at 316 ("There is no scientific research which supports the re-bleed theory of causation in very young children.... Accordingly, the application of this theory to infants should be challenged on Fiye and Daubert grounds.").
[FN 195]. Two approaches [to the admissibility of scientific testimony] are dominant- general acceptance [Frye] and sci
entific soundness [Daubert]. Under the former, the proponent must show that the scientific community agrees that the principles or techniques on which the expert relies are capable of producing accurate infonnation and conclusions. Under the latter standard, general acceptance remains an important consideration, but the court must consider other factors to decide for itself whether the expert's methodology is scientifically valid.
Charles McCormick et al, McCormick on Evidence 335 (Kenneth S. Brown et al. eds, 6th ed. 2006).
[FN196]. See, e.g., Middleton v. State, 980 So. 2d 351, 353 (Miss. Ct. App. 2008) (defendant contended that "Shaken Baby Syndrome is not a condition or theory that is generally accepted in the medical community").
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[FN197], See, e.g., State v. Leibhart, 662 N.W.2d 618, 623 (Neb. 2003) (defendant argued "that the theory of shaken baby syndrome as a cause of certain injuries was not supported by reliable scientific authority, data, or research").
[FN198], See, e.g., id. at 627-28 (SBS "is generally accepted within the scientific medical community of pediatrics") (internal quotations omitted). The Leibhart court concluded that
r . ^ . I .J - l ^ ..A~,.An± _•„ ~.._ . ^ , . . . _. I n n . i n r . ^ l n - 1 j - l _ . . - ^ < _ i _ . H - . _ . . - ^ . . . . i - f j . f_ . - - ^ _ - _ _ 1 ^ , , _ ^ . .4--- - - . - . ^ . — . . 4 - . . ^ * - . ._ _-. f ^ . . ,. 1 , , ri. ._ .> r.V. j-l* i r. . ' , . „ _->.. i~l 4-t_ __ j -
l wjiui lcspeci io general causation, mc uismci court uiu not aousc lis uiscicuoii in conducting on una lccoru mat the reasoning or methodology underlying testimony regarding shaken baby syndrome was valid, and with respect to specific causation, the district court did not abuse its discretion in concluding that such reasoning or methodology properly could be applied to the facts in issue in this case.
Id. at 628.
[FN199]. Id. at 628 (citing State v. Lopez, 412 S.E.2d 390 (S.C. 1991); State v. McClary, 541 A.2d 96 (Conn. 1988); In re Lou R, 499 N.Y.S.2d 846 (NY. Fam. Ct. 1986)). See also State v. Vandemark, No. 04-01-0225, 2004 Del. Super. LEXIS 376, at *8-9 (Del. Super. Ct. 2004) ("[I]t seems that the science behind Shaken Baby Impact Syndrome has been accepted in Delaware and just about every other jurisdiction."). See Holmgren, supra note 25, at 306 ("Expert testimony involving a diagnosis of SBS is well recognized and does not need to satisfy the Daubert or Frye Standards governing the admissibility of expert testimony or novel scientific evidence.").
[FN200]. Leibhart, 662 N.W.2d. at 627 (internal quotation omitted).
[FN201]. Vandemark, 2004 Del. Super. LEXIS 376, at *16-17. Discussing a particular study where the rate of false positives (i.e, cases incorrectly diagnosed as abuse) was admittedly unknown, the frial judge noted that "no suggestion was made about how to structure [a more rigorous] analysis." Id. at *16. In Leibhart, the court made a similar observation regarding the limits of the science proffered by the prosecution: "it [has] been clinically tested as the best it can." Leibhart, 662 N.W.2d at 627.
[FN202]. See, e.g., People v. Martinez, 74 P.3d 316, 322 (Colo. 2003).
[FN203], Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 596 (1993).
[FN204]. Commonwealth v. Martin, Nos. 2006-CA-002236-MR, 2006-CA-002237-MR, 2008 WL 2388382, at *7 (Ky. Ct. App. June 13, 2008) (quoting LP Matthews LLC v. Bath & Body Works, Inc, 458 F. Supp. 2d 198, 210 (D. Del. 2006)).
[FN205], Id, at *8 (quoting Stecyk v. Bell Helicopter Textron, Inc, 295 F.3d 408, 414 (3d Cir. 2002)).
[FN206]. According to the appellate court, the trial judge's order was an abuse of discretion, because it was founded on the unsupported legal conclusion that because there was
dispute amongst the experts as to the possible cause of the infants' injuries, it was the court's role to choose the side it found more convincing and exclude the side it found less convincing, based in part on giving greater weight to "scientific" as opposed to "clinical" studies.
Id. at *7. For further discussion of the evidentiary ruling in Martin, see infra notes 212-16 and accompanying text.
[FN207]. Martin, 2008 WL 2388382, at *7.
[FN208], Id. at *8 (quoting United States v. Mitchell, 365 F.3d 215, 245 (3d Cir. 2004)).
[FN209], Id. at *7 (noting that testimony of prosecution experts, "even accepting ... its flaws" cannot be so described).
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[FN210]. State v. Leibhart, 662 N.W.2d 618, 628 (Neb. 2003) (reexamination under Daubert appropriate "where recent developments raise doubts about the validity of previously relied-upon theories") (citation omitted).
[FN211]. This conclusion is based on searches of the LEXIS database and the web, as well as my conversations with the likely participants in these litigation efforts. Telephone Interview with John Plunkett, supra note 41; Telephone Interview
^with Toni Blake, supra-nete 152; Telephene-Tnterview-^with Brian Holmgren, supra_iete 152. In-additien to the twe-ad— missibility decisions discussed above, a few trial courts have disallowed experts from using the SBS terminology. For instance, a judge in Ohio precluded reference to SBS, concluding that testimony to this effect would improperly usuip the role of the jury. The prosecution expert was, however, allowed to testify "as to the characteristics of the injuries suffered by a child believed to have been subjected to rotational acceleration/deceleration." Renee Brown, Judge Denies Reference to Syndrome During Trial, Times Reporter (New Phila, Ohio) (on file with author).
[FN212], Order and Opinion Re: Daubert Hearing, Kentucky v. Davis, Case No. 04-CR-205 at *21 (Ky. Cir. Ct. Apr. 17, 2006).
[FN213].Id. at*23.
[FN214]. Id.
[FN215]. Commonwealth v. Martin, Nos. 2006-CA-002236-MR, 2006-CA-002237-MR, 2008 WL 2388382, at *9 (Ky. Ct. App. June 13,2008).
[FN216], The appeal to the Kentucky Supreme Court was filed on July 14, 2008 and is pending as the Article goes to print. The "Caselnfo" sheet for Martin is available at http://apps.kycourts.net/coa_public/CaseInfo.aspx? Case=2006CA002236.
[FN217]. Order, State v. Hyatt, No. 06M7-CR00016-02 (Mo. Cir. Ct. Nov. 6, 2007). In Hyatt, the one-year-old who was being cared for by the defendant was released from the hospital without lasting injury. The caregiver has been charged with abuse of a child for "knowingly inflictfing] crael and inhuman punishment upon [the baby] by shaking her, and in the course thereof ... caus [ing] serious emotional injury...." The felony is punishable by five to fifteen years in prison. Felony Complaint, State v. Hyatt, No. 06M7-CR00016-02 (on file with author).
[FN218]. Order, supra note 217. The court further noted: "The critics contend that subdural hematoma and retinal bleeding can have many other causes and that the diagnosis of shaken baby syndrome is merely a 'default' diagnosis, one which pediatricians use when they have no other explanation for the cause of the child's injuries." Id.
[FN219], Id. Missouri is a Frye jurisdiction. Request for 'Fiye' Hearing and Brief in Support of Request, State v. Hyatt, No. 06M7-CR00016-02 (Mo. Cir. Ct.) (on file with author).
[FN220], The Court therefore finds that in the absence of some other evidence or indicia of abuse besides subdural hemat
oma, retinal bleeding and absence of cranial trauma, neither party may call a witness to give an expert opinion that the child was the victim of violent shaking; the Court further finds that an expert may not opine that a (small) subdural hematoma and retinal bleeding in an infant can only be caused by manual shaking.
Order, supra note 217.
[FN221]. Nevertheless, the state attempted to proceed on the theory that previously occurring injuries (i.e, a small bruise and scrape) constituted "other indicia of abuse." Telephone Interview with Kirk Zwink, Esq, Sole Practitioner, Karl
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Zwink Law Office (July 21, 2008). According to Kirk Zwink, who represented Kathy Hyatt, the state's evidence at trial included claimed inconsistencies in the defendant's account, as well as the expert testimony of two pediatricians. Id. The defendant testified and presented an expert pathologist on her behalf. After a three-day frial in January 2009, the jury returned its verdict within a half hour: not guilty. Id.
^pically, a jury verdreHno-a-erimmal-ease-is^nsenrtabler^e-jui^^ funetion-as fact finder shrouded in secrecy, and it is impossible to say why or how the jury convicted or acquitted in any given case." Julie A. Seaman, Black Boxes, 58 Emory LJ. 427, 432 (2008). For reasons already discussed, the "black box" nature of the jury may well be compounded in the SBS context. See supra note 148 (observing that ascendance of the prosecution paradigm has gone largely unnoticed and remarking on a corcesponding failure to collect data).
[FN223], Telephone Interview with Toni Blake, supra note 152. As a basis for comparison, for an analysis of overall conviction rates, see Andrew D. Leipold, Why are Federal Judges so Acquittal Prone?, 83 Wash. U. L.Q. 151 (2005). See also Daniel Givelber, Lost Innocence: Speculation and Data about the Acquitted, 42 Am. Crim. L. Rev. 1167 (2005).
[FN224], Telephone Interview with Brian Holmgren, supra note 152.
[FN225]. Telephone Interview with John Plunkett, supra note 41 (estimating conviction rate of 1/2 to 2/3 of cases tried).
[FN226]. The National Center on Shaken Baby Syndrome keeps no centralized database, and no other organization tracks prosecutions. The largest database containing this type of information belongs to Toni Blake, the leading trial consultant in this area. Blake's database contains over 500 SBS cases from 1997-2007, Telephone Interview with Toni Blake, supra note 152.
[FN227]. Where there is medical corroboration of abuse beyond the triad - e.g., rib fractures, grip marks, long bone fractures, and evidence of injuries in various stages of healing-the case is often resolved by a guilty plea before trial. See supra note 41.
[FN228], Telephone Interview with Toni Blake, supra note 152; Telephone Interview with Brian Holmgren, supra note 152; Telephone Interview with John Plunkett, supra note 41. For an account of one recent acquittal, see Wendy Davis, Danforth Woman Found Not Guilty of First Degree Murder, Watseka Times Republic, Mar. 3, 2009.
[FN229]. Toni Blake has also suggested that mothers are convicted at the highest rates. Telephone Interview with Toni Blake, supra note 152.
[FN230]. Id.; Telephone Interview with Brian Holmgren, supra note 152; Telephone Interview with John Plunkett, supra note 41.
[FN231], As noted by the expert who is widely credited (or, depending on perspective, maligned) for spearheading the movement of SBS skeptics, the more doctors a defendant can afford, the greater the likelihood of an acquittal. Telephone Interview with John Plunkett, supra note 41. While the equity concerns raised by SBS cases are not unique to this context, they may be particularly acute where, as here, the science dictates outcomes.
[FN232], The minority view is becoming more prevalent. Barnes testimony, Evidentiaiy Hearing (Day One), supra note 71, at 70; Testimony of George R. Nichols in Transcript of Evidentiary Hearing (Day One) at 170, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 CF 555); Telephone Interview with John Plunkett, supra note 41; Interview with Thomas Bohan, supra note 78.
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[FN233], See supra notes 132-36 and accompanying text.
[FN234]. A specifically crafted jury instruction could explain the interplay between defense evidence of a differential diagnosis and the prosecution's burden of proof.
I IH __ I f A ̂ I _. __•** f* *_'*__•_- I _. •___*__ ._»_"»Ti'f'_r_V"t-l f* 1 __ o _ T_ rr _ _* n_ _ ___ _* t_ ̂ . __ _> _. _/ r* o . .* . r* _-* I—I /_ 1 w_ _rjt*_"*t_ r n t M . t_ __"0"_"* / ^ n^" T ^ _ l rt ^.r^r* o l r A A _-^ T I N Z O J J . J r t J i c ra l l ip ic p_OaCUUl_)Ilal (_lt_ a l l lg aigUIIlCIlL 111 __£___ UaSC, SCC £1U i l l l g l c l l j S U p i a lit. lc Z-J, a l J Z T " Z / . oCC alo U / r t "
tomey for the State in Transcript of Oral Argument at 89-90, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 CF 555) ("It might be interesting, it might be fun for the defendant to have the jury speculate, but that's not what we do in courts of law.").
[FN236]. More precisely, the court must determine "whether a reasonable probability exists that a different result would be reached at trial." Edmunds, 2008 Wl App 33, P 13, 746 N.W.2d 590, P 13 (citation omitted). See infra Part IV.E.l.
[FN237]. Attorney for the State in Transcript of Oral Argument, supra note 235, at 75-76. The prosecutor reiterated this point later in the argument: "the mud balls; throw, throw, see if something sticks. Differential Diagnosis." Id. at 87-88.
[FN238], See, e.g., Barnes testimony, Evidentiaiy Hearing (Day One), supra note 71, at 71.
[FN239], As one prosecutor has instructed, "[d]efenses are frequently focused on other possible medical explanation for the injuries. A responsive theme might be that 'arguments derived from possibilities are idle.'" Holmgren, supra note 25, at 288.
[FN240]. Id. at 314. See id. at 319 ("The expert who acknowledges the classic findings of SBS include subdural hematoma, retinal hemonhage and edema, but chooses to ignore this constellation of findings in favor of an alternative hypothesis will appear foolish."); id. at 312-19 (discussion of "meeting untrue defenses and cross-examination of defense experts").
[FN241], See Parrish, supra note 157, at 410 (suggesting prosecutorial strategy for dealing with defense experts' testimony regarding differential diagnosis).
[FN242], Edmunds acknowledged as much in her post-conviction relief hearing, but argued that this burden was not properly hers: "The state says in terms of differential diagnosis, bring it home .... [p]rove your other causes. Well, this ... puts the burden backwards. We don't have a burden of proving some alternative cause." Attorney for the Defense in Transcript of Oral Argument, supra note 115, at 141. See id. at 138.
[FN243]. Maiy I. Coombs, Telling the Victim's Story, 2 Tex. J. Women & L. 277,288 (1993).
[FN244]. I have previously observed that "verdicts reflect which narrative was more persuasive to the jury." Deborah Tuerkheimer, Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence, 94 J. Crim. L. & Criminology 959, 981 (2004).
[FN245]. This type of reasoning is "speculative," see supra note 235, insofar as it requires jurors to reach a verdict in the absence of a proven causal mechanism. But thus defined, where the prosecution's version of events has not been adequately established, a speculative verdict is completely appropriate, and indeed dictated by the presumption of innocence. Put differently, SBS defendants who challenge the science do not advance any particular explanation as the definitive cause of death, but, rather, insist that since a number of possibilities could have been causal, the prosecution cannot satisfy its burden of proof. The jury need not speculate that any one of the alternatives is in fact the cause; the very existence of alternatives negates proof of inflicted injury beyond a reasonable doubt.
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[FN246]. As Edmunds's attorney argued in her post-conviction relief hearing, the "evidence is now there that undermines the state's ability to prove the mechanism and timing of death." Attorney for the Defense in Transcript of Oral Argument, supra note 115, at 138.
[FN247]. Defendants may move for a judgment of acquittal based on an insufficiency of the evidence at the conclusion proseei__o_--case7^fter-the-deferi-e-h3s^este_^n verdict
motion is given considerable deference, but is reviewable on direct appeal or on collateral attack. While the applicable legal standards differ, claims that a conviction rests on insufficient evidence raise similar issues across jurisdictional and procedural contexts.
[FN248], See Charles A. Phipps, Responding to Child Homicide: A Statutory Proposal, 89 J. Crim. L. & Criminology 535, 551-74 (1999) (discussing mental states associated with traditional homicide statutes used to prosecute defendants under SBS theory). For a sampling of cases from just this past year, see, e.g., Mitchell v. State, No. CACR 07-472, 2008 Ark. App. LEXIS 98 (Ark. Ct. App. Feb. 6, 2008); People v. Lemons, No. 273058, 2008 Mich. App. LEXIS 387 (Mich. Ct. App. Feb. 26, 2008); State v. Gilbert, No. M2007-00260-CCA-R3-DC, 2008 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. Apr. 8, 2008).
[FN249]. See, e.g., U.S. v. Dimberio, 56 M.J. 20 (C.A.A.F. 2001); State v. Cort, 766 A.2d 260 (N.H. 2000). See also infra notes 257-68.
[FN250]. See, e.g., People v. Frank, No. A109619, 2007 Cai. App. Unpub. LEXIS 3777 (Cai. Ct. App. May 10, 2007); People v. Heredia, No. Al 12828, 2007 Cai. App. Unpub. LEXIS 9537 (Cai. Ct. App. Nov. 28, 2007); Moore v. State, 656 S.E.2d 796 (Ga. 2008); State v. Hollins, 981 So. 2d 819 (La. Ct. App. 2008); State v. Hill, 250 S.W.3d 855 (Mo. Ct. App. 2008); State v. Batich, No. 2006-A-0031, 2007 Ohio App. LEXIS 2127 (Ohio Ct. App. May 11, 2007); Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. Ct. 2007); State v. Sweet, No. E2007-OD202-CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 280 (Tenn. Crim. App. Apr. 15, 2008); Hammond v. State, No. 2-06-417-CR, 2008 Tex. App. LEXIS 969 (Tex. Ct. App. Feb. 7, 2008).
While this Article is largely concerned with triad-based SBS prosecutions, it bears mentioning that even cases involving proof apart from the triad may be problematic. Some physical evidence is of questionable conoborative value. See, e.g., People v. Montgomery, No. 269957, 2007 Mich. App. LEXIS 2412 (Mich. Ct. App. Oct. 23, 2007) (braise on right temple). Moreover, even where the physical evidence clearly indicates abuse, the identity of the perpetrator may be disputed. See, e.g., People v. Garcia, No. H023327, 2003 Cai. App. Unpub. LEXIS 3479 (Cai. Ct. App. Apr. 7, 2003). In Garcia, the defense expert testified to preexisting injuries unrelated to head trauma. Id. at *10. He "agreed that [the baby] was a battered child, that his injuries were nonaccidental, and that his death was a homicide. But he believed that it was impossible to detennine with medical certainty whether the injuries that caused his death occuned shortly before the time of death or whether death resulted from complications from earlier patterns of injuries." Id. Finally, reliance on perpetrator "confessions" to prove guilt may be misplaced. See supra Part IV.A.2
[FN251], See, e.g., People v. Jackson, No. D049865, 2007 Cai. App. Unpub. LEXIS 9866 (Cai. Ct. App. Dec. 6, 2007); Middleton v. State, 980 So. 2d 351 (Miss. Ct. App. 2008).
[FN252], In the past year, the only court to reverse an SBS conviction did so because the defendant was denied effective assistance of counsel. In Schoonmaker, the New Mexico Supreme Court noted that "[e]xpert testimony was critical to the defense to call into question the State's expert opinions that [the child's] injuries could only have been caused by shaking of a violent nature." State v. Schoonmaker, 176 P.3d 1105, 1113 (N.M. 2008). Based on the testimony of defense experts in other cases and published scientific research, the court found that "disagreement exists in the medical community as to
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the amount of time between when injuries occur and when the child becomes symptomatic, and whether injuries like [the child's] can be caused by short-distance falls...." Id. at 1114. It was clear, therefore, that the defendant's failure to call experts to testify on his behalf was due not to the absence of supporting science, but to poverty. Id. at 1113-16. In a remarkable opinion, the court concluded that because of the frial courts' role in "deny[ing] counsel access to the necessary funding," the defendant was entitled to a new frial. Id. at 1114.
In-another-appeaH_ased on ineffective assistance, the Utah Supreme Court in 2007 reversed a murder convietion-based on defense counsel's failure to retain a qualified expert to examine CT scans of the infant's injuries. State v. Hales, 152 P.3d 321 (Utah 2007). In Hales, SBS was diagnosed based on brain swelling and retinal hemorrhages. Id. at 326, According to the State's expert, these injuries could only have been caused by violent shaking which would have caused immediate unconsciousness with no possibility of a lucid interval. Id. at 329. In support of his motion, the defendant submitted the affidavit of a pediatric neuroradiologist stating that, based upon his (post-conviction) review of the CT scan, it would have been impossible for trauma to have occuned during the time period in which the defendant was with the baby. Id. In response to the court's ruling, the state determined that there was insufficient evidence to proceed with further prosecution. Stephen Hunt, New Evidence Frees Inmate in Murder Case, Salt Lake Tribune, June 16, 2007.
[FN253]. "The basic problem seems to be that judges to not want to look as though they are abrogating the role of the jury as frier of fact. The legal sufficiency of evidence is, technically, a question of law, but it looks and sounds like a judgment on the weight of the evidence-it is a judgment on the weight of the evidence, only an extreme one." Samuel R, Gross, Substance & Form in Scientific Evidence: What Daubert Didn't Do, in Reforming the Civil Justice System 234, 252 (Larry Kramer ed, 1996).
[FN254], See supra note 247 (detailing procedural postures of various types of sufficiency challenges).
[FN255], State v. Gilbert, No. M2007-00260-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. Apr. 8, 2008) (citations omitted).
[FN256], In the rare instance where an appellate court has reversed a SBS conviction, it has done so on other grounds. See, e.g., United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993) (prejudicial in-court shaking demonstration with baby doll); People v. Basuta, 94 Cai. App. 4th 370 (Cai. Ct. App. 2001) (evidentiary); Andrews v. State, 811 A.2d 282 (Md. 2002) (same); State v. Maze, No. M2004-02091-CCA-R3-CD, 2006 WL 1132083 (Term. Crim. App. Aug. 28, 2006) (failure to instruct on lesser-included charges); Schoonmaker, 176 P.3d 1105 (ineffective assistance of counsel); Caban v. State, No. 5D08-279,2009 WL 722049 (Fla. Dist. Ct. App. Mar. 20, 2009) (improper impeachment of defense expert).
[FN257], I reach this conclusion based on a thorough search of the LEXIS database and my conversations with leaders on both sides of nationwide litigation efforts.
[FN258]. As the court remarked, [fjhis is not the typical shaken baby case. Grandmothers, especially those not serving as the primary caretakers,
are not the typical perpetrators. Further, Petitioner was helping her daughter raise her other children (a 2-year-old and a 14-month-old) and there was no hint of Petitioner abusing or neglecting these other children, who were in the room with [the baby] when he died.
Smith v. Mitchell, 437 F.3d 884, 889 (9th Cir. 2006).
[FN259], Smith, 437 F.3d at 887. Notwithstanding this observation, it is important to note that SBS-based convictions in the absence of retinal hemonhages are routinely affirmed on appeal. See, e.g., People v. Jackson, No. D049865, 2007 Cai. App. Unpub. LEXIS 9866 (Cai. Ct. App. Dec. 6, 2007); State v. Humphries, No. 06CA00156, 2008 Ohio App. LEXIS 315 (Ohio Ct. App. Feb. 4, 2008).
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[FN261]. The only external injury was "recent small abrasion, approximately 1/16 by 3/16 of an inch, on the lower skull, upper neck region, and a recent braise beneath this abrasion." Id.
-[FN262]. Id. at-8-86.
[FN263]. Smith apparently told police that she had given the baby a "jostle" to rouse him and responded, "Oh my God, Did I do it?" to a social worker when informed that the baby had died of shaking. Id. at 889 n. 11.
[FN264].Id. at 890.
[FN265], Jackson v. Virginia, requires courts to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319. The Antitenorism and Effective Death Penalty Act (AEDPA) even more "severely restricts" the scope of review of state court decisions, as it "mandates that [courts] apply the standards of Jackson with an additional layer of deference ... and only grant habeas relief where the state court's adjudication of a Jackson claim is objectively unreasonable." Smith v. Mitchell, 453 F.3d 1203, 1203-06 (9th Cir. 2006) (Bea, J, dissenting) (internal citation omitted).
[FN266]. Smith, 437 F.3d at 890. "With all due respect to the California Court of Appeal, and even with the additional layer of deference mandated by AEDPA, we conclude that the Court of Appeal unreasonably applied Jackson when it held the evidence to be sufficient to convict Smith of causing [the child's] death." Id.
[FN267]. See infra note 268 (further discussing disputed significance of lack of visible shearing in brain stem).
[FN268], Smith, 437 F.3d at 890. A number of Ninth Circuit judges criticized the panel for "adopting] the defense experts' view of what physical evidence is necessary to support a valid diagnosis of shaken baby syndrome." Smith, 453 F.3d at 1207 (Bea, J, dissenting). The judges who would have affinned Smith's conviction had a very different view of the evidence against her:
The physicians called by the prosecution reached their conclusion despite the lack of visible shearing, not because of it, and explained why. Indeed, what provided the basis for the doctors' opinions was the evidence of recent trauma to [the child's] brain: (1) the subdural hemorrhaging; (2) the subarachnoid hemonhaging; (3) the hemoirhaging around the optic nerves; (4) the blood clot between the hemispheres of [the child's] brain; and (5) the braise and abrasion at the lower back of [the child's] head. The prosecution's experts considered and rejected other causes of [the child's] death .... Since none of these alternate theories explained [the child's] death, the prosecution's doctors opined that [he] died from violent shaking, as evidenced by the trauma.
Id. at 1206.
[FN269]. Id.
[FN270]. Id.
[FN271], Id.
[FN272]. Id. ("[T]he opinion is inaccurate."); id. at 1207-08 ("Under our court's approach, a federal court of appeals may, effectively, set aside an expert opinion where it conflicts with the views of the other side's experts.").
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[FN275]. Smith v. Patrick, 508 F.3d 1256 (9th Cir. 2007). The court's rationale for reinstating the opinion is emphatic: Nothing-in^he-StateVofailnre-of-evidenceriakes-this case out of the class of cases-subject to the-tes
Unlike Musladin ... this case presents merely one more instance where the evidence presented by a state is wholly insufficient to permit a constitutional conviction. Jackson makes clear that such cases cannot constitutionally stand if the evidence was insufficient "to convince a frier of fact beyond a reasonable doubt of the existence of eveiy element of the offense." ... Jackson makes clear that a conviction is unconstitutional even if there is some evidence of guilt when all of the evidence, viewed in the light most favorable to the prosecution, does not permit any rational fact-finder to find guilt beyond a reasonable doubt. Smith's case accordingly falls squarely within Jackson. Moreover, the prosecution's evidence falls so far short that it was umeasonable for the state appellate court to conclude that it met the Jackson standard.
Id. at 1258-59 (citations omitted).
[FN276], Petition for Writ of Certiorari, Patrick v. Smith, No. 07-1483 (9th Cir. May 27, 2008).
[FN277], Whether the Court decides to review the case may depend on its assessment of the following reasoning advanced by the Ninth Circuit:
It is true, of course, that the Supreme Court has never had a case where the issue was whether the evidence, expert and otherwise, was constitutionally sufficient to establish beyond a reasonable doubt that a defendant had shaken an infant to death. But there are an infinite number of potential factual scenarios in which the evidence may be insufficient to meet constitutional standards. Each scenario theoretically could be constraed artfully to constitute a class of one. If there is to be any federal habeas review of constitutional sufficiency of the evidence as required by Jackson, however, [AEPDA] cannot be interpreted to require a Supreme Court decision to be factually identical to the case in issue before habeas can be granted on the ground of umeasonable application of Supreme Court precedent. The Supreme Court does not interpret AEDPA in such a constrained manner.
Smith v. Patrick, 508 F.3d at 1259.
[FN278], People v. Jackson, No. D049865, 2007 Cai. App. Unpub. LEXIS 9866 (Cai. Ct. App. Dec. 6, 2007).
[FN279].Id. at*l .
[FN280], Id. at *4-5. Other prosecutions have gone forward on the basis of subdural hematomas alone. See, e.g., People v. Collier, No. A120808, 2009 WL 389721 (Cai. Ct. App. Feb. 18, 2009) (affirming conviction). Prosecutors have also proceeded on the basis of retinal hemhonages (without subdural hematoma). See, e.g., Hess v. Tilton, No. CIV S-07-0909,2009 WL 577661 (E.D. Cai, Mar. 5, 2009) (affirming conviction).
[FN281]. Jackson, 2007 Cai. App. Unpub. LEXIS 9866, at *13.
[FN282].Id. at*8.
[FN283]. Id.
[FN284], Id. at *5-6.
[FN285].Id. at*6.
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[FN286]. The standard was described in Jackson as follows: When reviewing a claim attacking the sufficiency of the evidence to support a conviction, the question we ask is
"whether, after viewing the evidence in the light most favorable to the prosecution, any rational frier of fact could have found the essential elements of the crime beyond a reasonable doubt." As an appellate court, we '"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier
-could reasonably deduce fronrthe-evidenee.'" ... A conviction will not-bc reversed for insufficient evidence unless it ap-pears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ... "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."
Id. at *9-10 (citations omitted).
[FN287]. Id. at *13 (citations omitted).
[FN288]. For a recent example of this phenomenon, see Thomas v. State, No. 03-07-00646-CR, 2009 WL 1364348, at *7 (Tex. App. May 14, 2009) ("Sharply conflicting evidence was presented regarding the scientific basis of shaken baby syndrome and, consequently, the diagnosis of the State's witnesses .... Once admitted, this conflicting evidence presents an issue for the jury to resolve."). The same is true of manifest weight challenges. See State v. Humphiies, No. 06CA0015b, 2008 Ohio App LEXIS 315, at *23-24 (Ohio Ct. App. Feb. 4, 2008) ("[A] conviction is not against the manifest weight of the evidence solely because the jury heard inconsistent testimony.") (internal quotations omitted). In Humphiies, the court affirmed the child endangerment conviction of Latasha Humphiies for the death of her child, whose SBS diagnosis was based on subdural hematoma and cerebral edema alone. Id. at *12. Humphries was identified as the perpetrator based on a perceived impossibility of a lucid interval, as well as the defendant's "fail[ure] to provide a reasonable explanation for [the child's] injuries...." Id. at *22. Only one expert testified on behalf of the defendant. Id. at *2. See supra note 231 (noting significance of presenting more than one expert). The opinion references marijuana use, Humphries, 2008 Ohio App. Lexis, at *5, the defendant's status as an unmanied mother, and the impoverished environment in which the child was being raised (e.g., "dingy one piece pajamas," crib missing one side, id. at *9-10)-factors which may well have disadvantaged Humphries at frial and on appeal.
[FN289], As Samuel Gross has observed in the civil context, "traditionally courts have held that the testimony of any qualified expert is sufficient to sustain a verdict on any issue on which she testified." Gross, supra note 253, at 252.
[FN290]. Smith v. Mitchell, 437 F.3d 884, 890 (9th Cir. 2006).
[FN291]. In what may indicate an overall trend in this direction, frial consultant Toni Blake noted that, in 2007, '"we saw one of these cases overturned about once a month.'" Anderson, supra note 55.
[FN292]. See supra notes 268, 272 and accompanying text.
[FN293]. Smith, 437 F.3d at 890 (emphasis added).
[FN294], Id.
[FN295], Id.
[FN296].Id. at 885.
[FN297]. The following physicians testified as experts for the defense: the chief of pediatric neuroradiology at Stanford's Children's Hospital; the former Chief Medical Examiner for Kentucky; a forensic pathologist; a pediatrician; an ophthal-
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mologist; and the autopsy pathologist who testified at Edmunds's frial as a prosecution witness. Transcript of Evidentiary Hearing (Days One and Two), State v. Edmunds, 746 N.W.2d 590 (2008) (No. 96 CF 555).
[FN298], Brief of Defendant, supra note 4, at 11.
[FN299]. Id. at 3 ("[T]hc science that sent-Audrcy Edmunds"to-priso_-did___ stand still.").
[FN300], Id. at 13-16.
[FN301]. Id.
[FN302].Id. at 20.
[FN303], Id. at 16-20.
[FN304].Id. at 20-23.
[FN305].Id. at 11.
[FN306]. Regarding the particular circumstances of Natalie's death, the defense experts testified that the evidence upon which Edmunds was convicted had been undermined by a number of scientific developments: studies using biomechanical models, animal models, and computer simulations suggested that Natalie's brain injuries could not have been caused by shaking alone; even if Natalie's death were caused by trauma (i.e, impact), considerably less force than previously suspected could have caused her injuries; new research had uncovered a number of causes of the retinal hemonhages which, at trial, were said to conclusively prove that Natalie had been shaken; emerging science revealed that chronic subdural hematomas—like the one discovered at Natalie's autopsy—may re-bleed with little precipitation, causing further brain injuiy; the differential diagnosis (a range of possible explanations for Natalie's injuries other than abusive head trauma) had evolved considerably in recent years; and, finally, the evidence thought to be dispositive on the timing of injuries was contradicted by a number of "lucid interval" studies, undermining past certainty that Natalie was injured during the hour that she was in Edmunds' care. Id. at 14-23.
[FN307], The appellate court summarized the evidentiary record of the post-conviction hearing as follows: 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 frial.
State v. Edmunds, 2008 Wl App 33, P 15, 746 N.W.2d 590, P 15.
[FN308]. Even the state's experts acknowledged, to varying degrees, that scientific consensus about SBS had changed since the mid-1990s. See State v. Edmunds, No. 96 CF 555, slip op. at 7 (Wis. Cir. Ct. Mar. 29, 2007) ("Expert witnesses on both sides now indicate that research about Shaken Baby Syndrome has evolved ...."); supra Part III.B.
[FN309]. The defense experts maintained that Natalie's death was caused by some combination of violent shaking and impact, and that this trauma could only have been inflicted immediately prior to the onset of unmistakable and severe
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neurological damage. Brief Plaintiff-Respondent at 35-37, State v. Edmunds, 746 N.W. 2d 590 (Wis. Ct. App. 2008) (No. 2007AP000933) [hereinafter "State's brief ].
[FN310], Edmunds, No. 96 CF 555, slip op. at 6 (Wis. Cir. Ct. Mar. 29, 2007). Nevertheless, the court engaged in a deliberate balancing of the defense evidence against the evidence offered by the state in rebuttal. After having "lookfed] at all the-evidenee from the frial as-well as the-evidence presented by both sides on defendant's motion for-a-_iew-tri concluded that "[t]he newly discovered evidence presented by the defense is significantly outweighed by the evidence presented by the prosecution." Id. at *10-11.
[FN311]. The appellate court held that the frial judge had inconectly applied the law, and that this enor constituted an abuse of discretion:
After determining that both parties presented credible evidence, it was not the court's role to weigh the evidence. Instead, once the circuit court found that Edmunds's newly discovered medical evidence was credible, it was required to determine whether there was a reasonable probability that a jury, hearing all the medical evidence, would have a reasonable doubt as to Edmunds's guilt. This question is not answered by a determination that the State's evidence was stronger.... [A] jury could have a reasonable doubt as to a defendant's guilt even if the State's evidence is stronger.
Edmunds, 2008 Wl App 33, P 18, 746 N.W. 2d 590, P 18. Noting that the trial judge had already made its credibility determinations, the appeals court proceeded to apply the correct legal standard itself rather than remand the case. Id. P 19. On April 14, 2008, Wisconsin Supreme Court denied the petition for review. State v. Edmunds, 749 N.W.2d 663 (Wis. 2008).
[FN312], Edmunds, 2008 Wl App 33, P 23, 746 N.W.2d 590, P 23.
[FN313], Id. "Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely adhere to the science as presented at Edmunds's frial." Id.
[FN314].Id.
[FN315].Id.
[FN316].Id.
[FN317]. On July 11, 2008, the state announced its decision to dismiss charges against Edmunds. Ed Trevelen, Citing Wishes of Baby's Parents, Prosecutors Won't Retry Edmunds, Wis. State J, July 11, 2008.
[FN318]. This discussion is confined to newly discovered evidence claims, which are most relevant to SBS cases given the trajectory of the underlying science. "[E]very state cunently permits at least some form of post-trial relief on the basis of newly discovered evidence." Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 659 (2005) (citing 1 Donald E. Wilkes, Jr, State Postconviction Remedies and Relief: With Forms, 1-13, at 55-58 (2001) (all states provide a direct remedy in the form of a new trial motion based on newly discovered evidence). Newly discovered evidence "represents a ground for relief through the principal state post-conviction remedies in thirty-two states." Id. at 682.
Apart from Edmunds, I am aware of only two SBS cases where post-conviction relief was granted. In each, murder charges were ultimately dismissed, albeit on somewhat different grounds. One defendant's conviction was overturned in 2004 based on the discoveiy of flaws in the autopsy. Dad Freed from Life Sentence in Son's Death, Orlando Sentinel (Fla.), Aug. 28, 2004, at Al, available at http:// articles.mercola.com/sites/articles/archive/2004/09/18/yurko-case.aspx.
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That same year, charges against another defendant were dismissed by a newly elected District Attorney after an extensive review of "new evidence that point[ed] to reasonable doubt." Maura Dolan, Fatal Abuse or Tragedy Compounded?, L.A. Times, June 16, 2006, at Al.
[FN319]. I focus here on the legal standards applicable to these claims, as opposed to the formidable procedural bamers .o collateral^elief^These-baniers-diave-been-criticized by ProfessorT^ameHVledwedpv.hcrTias-proposed reforms targeted-
at greater systemic embrace of newly discovered non-DNA evidence, including abolishing statute of limitations, allowing innocence claims to be heard by a new judge, and creating a de novo standard of appellate review for summary dismissals of newly discovered evidence motions. Medwed, supra note 318, at 686-715.
[FN320], Edmunds, 2008 Wl App 33, P 13, 746 N.W.2d 590, P 13. Related to this is the requirement that the defendant's failure to discover the evidence is not the result of negligence, which raises issues similar to those presented by the "newly discovered" standard. Id. See infra notes 323-33 and accompanying text.
[FN321], Attorney for State in Transcript of Oral Arguments (Day 5) at 69, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir. Ct. Mar. 8,2007) (No. 96 CF 555).
[FN322], Defendants making newly discovered evidence motions face impediments to relief that are very much situated against the backdrop of DNA exonerations. See infra notes 343-50 and accompanying text (DNA as paradigm of newly discovered evidence).
[FN323], Attorney for State in Transcript of Oral Arguments, supra note 321, at 69.
[FN324]. State's brief, supra note 309, at 17. Compare id. at 17 ("Edmunds' newly discovered evidence claim is a 'non-starter' because, despite two days of expert testimony, she failed to present clear and convincing evidence of anything 'new' here.") with Defendant's brief, supra note 4, at 35-36 ("The new evidence demonstrates that the scientific basis for SBS theory is under serious challenge.").
[FN325]. State's brief, supra note 306, at 18-22.
[FN326]. Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 97 (referencing Duhaime study, supra note 120).
[FN327], Duhaime, supra note 120.
[FN328]. At least one physician, Dr. John Plunkett, has been doing so for decades. Telephone Interview with John Plunkett, supra note 41; Interview with Thomas Bohan, supra note 78.
[FN329]. State's brief, supra note 309, at 21.
[FN330], "While there may have been strands of disagreement about Shaken Baby Syndrome present in 1996, studies, research, debate and articles about the concept have grown exponentially since the trial .... All the defense experts indicated they would have agreed with the prosecution's theoiy if they had been testifying in 1996." State v. Edmunds, No. 96 CF 555, slip op. at 6 (Wis. Cir. Ct. Mar. 29, 2007). The appellate court affirmed this aspect of the ruling. See supra note 307.
[FN331]. Edmunds, unlike most defendants requesting post-conviction relief, was also able to point to the fact that the autopsy pathologist retracted important portions of his trial testimony. See Defendant's brief, supra note 4, at 24
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("Perhaps most significantly, Dr. Huntingon refracted key parts of his 1996 testimony—both on the certainty that Natalie was shaken, and the assessment that there could have been no significant lucid interval."); supra note 115 (explaining basis for Huntington's conversion).
[FN332], Edmunds, 2008 Wl App 33, P 13, 746 N.W.2d 590, P 13.
[FN333]. State's brief, supra note 309, at 33.
[FN334]. "The severity of the injuries sustained by Natalie takes this case out of the classic 'triad' mold. Not only did Natalie sustain retinal bleeding, she sustained retinal folds and retinoschisis." Id. at 27.
[FN335], "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." Edmunds, 2008 Wl App 33, P 15, 746N.W.2d590,P15.
[FN336]. According to prosecution experts, differences between retinal hemonhages—in terms of extent, location, and pattern—are significant. See, e.g., Testimony of Alex Levin in Transcript of Evidentiaiy Hearing (Day Four), supra note 129, at 99-101.
[FN337]. Defendant's brief, supra note 4, at 40 ("[T]he science was the whole case, and new research seriously challenges the foundations of the scientific case").
[FN338], See infra notes 343-51 and accompanying text (discussing DNA as "new evidence" paradigm).
[FN339]. Edmunds, 2008 Wl App 33, P 13, 746 N.W.2d 590, P 13.
[FN340]. See State's brief, supra note 309, at 16 ('"[T]he hardest requirement to meet is that the offered evidence in view of the other evidence would have probably resulted in an acquittal.'" (quoting Lock v. State, 142 N.W.2d 183 (Wis. 1966)).
[FN341]. "The real crux of the dispute in this case is whether the new expert medical testimony Edmunds offers establishes a reasonable probability that a different result would be reached in a new frial." Edmunds, 2008 Wl App 33, P 16, 746 N.W.2d 590, P 16. Here the trial judge sided with the state. See supra note 310.
[FN342]. Attorney for the Defense in Transcript of Oral Argument, supra note 115, at 58.
[FN343]. Attorney for the Prosecution in Transcript of Oral Argument, supra note 321, at 65.
[FN344]. Id.
[FN345]. Id. at 105.
[FN346], The prosecutor in Edmunds argued this point as follows: "Is there an enzyme that still exists in the bones of this deceased child that will tell us if she was the subject of rotational acceleration-deceleration injury that killed her? No." Attorney for the Defense in Transcript of Oral Argument, supra note 115, at 88.
[FN347]. Attorney for the Prosecution in Transcript of Oral Argument, supra note 321, at 64-65.
[FN348].Id. at 88.
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[FN349], An emerging scholarly literature explores the post-DNA meanings of "actual innocence" and "wrongful conviction" and considers the conceptual, strategic, and practical implications that follow. See generally Gross, supra note 139; Susan A. Bandes, Framing Wrongful Convictions, 2008 Utah L. Rev. 5 (2008); Richard A. Rosen, Reflections on Innocence, 2006 Wis. L. Rev. 237 (2006); Carol S. Steiker & Jordan M. Steiker, The Seduction of Innocence: The Attraction and Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J. Crim. L. & Crimino-logy 587 (2005); AndrevroMr_jiegel7^_oving Down the Wedge of Injustice: A-Proposal for a Third-Generation of Wrongs ful Convictions Scholarship and Advocacy, 42 Am. Crim. L. Rev. 1219 (2005); Margaret Raymond, The Problem With Innocence, 49 Clev. St. L. Rev. 449 (2001).
[FN350], Edmunds's attorney emphasized this: Yes, the DNA evidence can absolutely prove that somebody did not commit a crime and can absolutely prove
somebody else did commit the crime, but that is not to say that that's what you have to have in order to create a reasonable probability of a different outcome. That's a real red herring here. That's a much higher standard than the clearly established legal standard under the case law.
Attorney for the Defense in Transcript of Oral Argument, supra note 115, at 135.
[FN351], Daniel Medwed has observed generally that non-DNA cases are difficult for defendants to overturn ... given the subjectivity involved in assessing most
forms of new evidence and the absence of a method to prove innocence to a scientific certainty. This inherent difficulty in litigating innocence claims predicated on newly discovered non-DNA evidence is exacerbated by the structural design of most state post-conviction regimes ....
Medwed, supra note 318, at 658. Professor Medwed helpfully summarizes these collateral relief regimes. Id. at 681-86.
[FN352], See supra notes 310-11 and accompanying text.
[FN353]. Edmunds was represented by Professor Keith Findley and the Wisconsin Innocence Project, a clinical program of the University of Wisconsin Law School whose mission is described at http:// www.law.wisc.edu/fjr/clinicals/ip/index.html. It is worth noting that the Innocence Project, like others of its kind, has more resources, greater access to experts, and more extensive research capabilities than what is available to most defendants seeking post-conviction relief.
[FN354], See supra notes 311-16 and accompanying text. Although he denied the defendant's motion, the trial judge's factual findings were particularly helpful to Edmunds on appeal. Id.
[FN355]. This is an inevitable feature of federalized system of justice. Where Edmunds is controlling, however, its impact may prove significant. See Shaken-Baby Ruling Worries Prosecutor, Wis. State J, Feb. 29, 2008, at C3 ("[A] prosecutor says it will be virtually impossible to convict anyone who shakes a baby to death in Wisconsin if a recent court rating stands.").
[FN356]. One response to these realities is resort to a review commission, which may be the most efficient way of dealing with the systemic nature of triad-based SBS convictions and their potential failings. See supra notes 149-50 and accompanying text (describing approaches of United Kingdom and Canada).
[FN357]. As the evolutionary trajectory of the science progresses and newly discovered evidence motions become obsolete, defendants whose trial lawyers failed to mount a substantial challenge to now-suspect medical orthodoxy will assert that their representation was ineffective. Keith Findley has articulated this point as follows:
where the medical evidence is 'new' in the ordinary sense-that is, the jury at frial never heard the medical evidence—but not new in the legal sense—it existed and could have been presented at frial—the defendant's claim will likely shift to a claim of ineffective assistance of counsel based on counsel's failure to marshal the available scientific evidence.
E-mail from Keith Findley, Clinical Professor and Co-Director, Wisconsin Innocence Project, University of Wisconsin Law School to Deborah Tuerkheimer, Professor, University of Maine School of Law (Dec. 10, 2008, 17:52) (on file
-̂ with author).
[FN 3 5 8]. One pediatrician with whom I spoke elaborated on this point: the fact that we interact with lawyers and the court makes things worse. When you swear to tell the truth and
nothing but the truth, are you swearing to speak only the truth, or to convey only the truth. Let's assume you believe you know the truth in the first place. You can only communicate in court through the artifices of the court by answering lawyers' questions that are purposely configured to structure and manipulate the truth. Within this venue, how do you deliver the "proper" concept into the minds of the jury, to whom you are trying to convey the truth. Some would assert that you should not reflect on uncertainties that you feel do not influence your ultimate opinion. You need to polarize your position, so that after cross and opposing witnesses, the jury lands in the middle where they belong.
This pediatrician, who asked not to be named, later added: "the urge to polarize your opinion significantly increase^] when you are facing opposing 'expert' opinion, which you consider to be hyper-polarized, incompletely reflective of the clinical case, scientifically inconect or outright disingenuous."
[FN359]. My conversations with advocates on both sides of this debate can be generalized as follows. Those who believe that SBS is an invalid diagnosis cite ongoing research into the previously undetected prevalence of retinal hemorrhages (by Patrick Lantz, among others) and subdural hemonhages (by Ronnie Rooks, among others) as critical to resolving the debate. Defenders of the diagnosis point to better modeling and the possibility of capturing a shaking episode on film as the impetus for resolution. But see, http:// www.youtube.com/watch?v=jBsXA4H5Dzw (last visited July 23, 2009) (shaking of an infant recorded on a "nanny-cam;" baby was not injured). Of course if, in the future, shaking resulting in the classic SBS symptoms is recorded on video, this may tend to establish that shaking alone can cause the friad, but it will not prove a pathognomic relationship between shaking and the triad. Put differently, proof that A can cause B does not equate with proof that B is necessarily caused by A.
[FN360], See supra Part III.A.
[FN361]. Others within the scientific community have been agitating for a neutral body to undertake a thorough study of the basis for SBS. See, e.g., Bohan, supra note 76 (calling this "long past the time that persons capable of scientifically examining [the controversy sunounding the diagnosis] be called on to do so as part of an independent broad-based team under the auspices of the National Academies of Science;" Interview with Thomas Bohan, supra note 78. Even outside the SBS context, one commentator has recently argued that greater "institutionalized oversight of forensic sciences, by scientists, is needed to compensate for the inadequacies of adversary adjudication." Keith A. Findley, Innocents at Risk: Adversary imbalance, Forensic Science, and the Search for Truth," 38 Seton Hall L. Rev. 893, 955 (2008).
[FN362]. According to its own assessment, "[t]he reports of the National Academies are viewed as being valuable and credible because of the Institution's reputation for providing independent, objective, and non-partisan advice with high standards of scientific and technical quality." From National Academies: Our Study Process, http:// www.nationalacademies.org/studycommitteprocess.pdf (last visited July 23, 2009). Within the scientific community, this seems to be a generally accepted characterization. A NAS study requires a federal agency as its primary financial sponsor, implicating the willingness of Congress to authorize funds for the endeavor. Id.
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[FN363], In February 2009, the National Research Council of the National Academies issued its much heralded report, Strengthening Forensic Science in the United States: A Path Forward, available at http://www.nap.edu/catalog.php? re-cord_id=12589 (last visited July 23, 2009). Although the NRC Report did not specifically address the problem of SBS, it did catalogue a wide range of ways in which "substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people." Id. at S-3. Perhaps most importantly, the Re-r, ~r± r i . f n t n m f t i _ r~(\ rM'r* o t i r,-*. n~_ _ nrM.. inr_r»r_<~.nrir.tit •fr.firM".! . frfr . . .. t i l . "NT_tn_r.nl Tt l" 11 tl 1 tp. r_T T^f-VEM.*11. N ^ i p n f p fNTTFV. p o r i reCOmiriCIlUCa CICailOIl Ol a n e w m a C p C I l t t C I l l _ _ _ _ _ ! U g C l l C y ^ tllC ___t±t__t± ± _ _ _ _ _ _ c r t _ r _ * _ _ _ a l b OL.1C11V.C ^nntr £)},
whose mission would encompass "establishing and enforcing best practices for forensic science professionals;" "developing a strategy to improve forensic science research and educational programs, including forensic pathology;" and "promoting scholarly, competitive peer-reviewed research ... in the forensic science disciplines and forensic medicine." Id. at S-14.
[FN364]. I pursue the question of reform in a future Article. 87 Wash. U. L. Rev. 1
END OF DOCUMENT
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A NUTS AND BOLTS APPROACH TO LITIGATING THE SHAKEN BABY OR SHAKEN IMPACT SYNBROME
Lieutenant Colonel Matthew D. Ramsey*
CiDid he fall, or has he suffered inflicted injury?" is a question faced frequently by clinicians caring for infants and toddlers with traumatic brain injury. Published court cases, with widely divergent medical opinions, illustrate the dilemma of distinguishing between inflicted and accidental causes, especially when there are no other signs of abuse but just an uncorroborated, alleged accident, often [a] fall. Although there has been resistance to diagnose abuse there may also be over enthusiasm to do so, although there is an increasingly prevalent opinion that short falls can never cause serious injury; this, too is still open to debate.
I. Introduction
One of the most difficult cases for counsel to litigate is one involving an infant or toddler alleged to have died as a result of violent, non-
* Judge Advocate, U.S. Araiy. Presently assigned as Chief, Military Law, Office of the Command Judge Advocate. Human Resources Command-St. Louis, St. Louis, Missouri. LL.M., 2006, The Judge Advocate General's School, U.S. Army, Charlottesville. Virginia; J.D., 1992, Cumberland School of Law; B.A., 1989, University of Alabama. Previous assignments include 90th Regional Readiness Command, Camp Robinson, Arkansas (Chief, Military Justice, 2003-2005; Chief, Administrative Law, 2001-2003); Senior Defense Counsel, Fort Wainwright, Alaska, 1999-2001; 1st Armored Division, Germany (Chief, Soldier Services, 1997-1999; Administrative Law Attorney, 1996-1997; Chief, Operational Law. Bosnia-Heizegovina, 1995-1996); Fort Meade, Maryland (Claims Attorney, 19944995; Trial Counsel and Special Assistant United States Attorney, 1992-1994). Admitted to practice before the Alabama bar. This article was submitted in partial completion of the Master of Laws requirements for the 54th Judge Advocate Officer Graduate Course. 1 Barry Wilkins, Head Injury-Abuse or Accident?, 76 ARCHIVES OF DISEASES IN CHILDHOOD 393 (1997).
2 MILITARY LAW REVIEW [Vol. 188
accidental shaking or shaking in connection with some form °f cranial impact Often referred to as the "shaken baby syndrome (SBS) or "shaken impact syndrome"3 (SIS), these cases not only contain the emotional turmoil of a dead child, but must also be tried using evidence that is highly dependent on complex circumstantial medical data. Interpretation of this highly complex data is typically dependent on expert testimony and is extremely vulnerable to subjective interpretations. Consequently, practitioners often find themselves eas_y overwhelmed and in a highly-charged atmosphere where emotions and the personal agendas of the purported experts can run roughshod over logic, science, and the law.4
The purpose of this article is to provide trial and defense counsel with a basic foundation for use when preparing to litigate a case where SBS or SIS is alleged. A comprehensive guide covering every conceivable nuance of a SBS/SIS case is beyond the scope of this ar_cle^ Instead,' this article will define SBS/SIS as it is most commonly regarded by the medical and legal community, outline the medical t e r m i n g and definitions common to such cases, provide a framework for requesting expert assistance and using and challenging expert teS^™ony at trial, and conclude with a discussion of several of the current controversies surrounding SBS/SIS.
II. The Starting Point
A review of recent military cases involving SBS/SIS reveals that it is mosVoto one of the parents or primary caretakers, typically the male pient or c l taker , that is suspected and charged with perpetrating the
s __*_, r__ev The Whiplash Shaken Infant Syndrome: Manual Slicking by the
__£_-_ iS_£™- - ' r s t ir?___.'5_5.
( r s f e s * * _srs. "'"*"• FM°^ rl_:„-S_!S;6"rxsrT-S„ ,_ __. *. Svndrome, 328 Burr. MED. J. 767 (Mar. 27,2004).
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alleged abuse.5 Regardless of the alleged perpetrator's gender, the relationship between a parent or caretaker and a child is private m nature.6 As a result, it is not uncommon for there to be no witnesses, other than the accused parent or caretaker, to the suspected abuse. Absent any eyewitnesses, practitioners rely heavily on medical evidence (e.g., medical reports, autopsy reports, etc.), medical expert assistance and medical expert testimony (e.g., forensic neuropathologist, etc.) to either prove or disprove that traumatic brain injury was caused by SBS/SIS.8 Therefore, the first step for any practitioner is to become intimately familiar with the medical terminology found in such evidence. To assist the reader, a non-exhaustive list of medical terms frequently used by the medical and legal community when addressing cranial injuries or SBS/SIS is found at Appendix A.
In addition to being intimately familiar with the medical terms associated with these types of cases, the following hypothetical may also help the practitioner understand the information presented in this article:
Hypothetical: A Soldier presents his near comatose infant child at the emergency room. A computer tomography scan reveals a large subacute subdural hematoma. The child is placed on a respirator but dies two weeks later. A subsequent autopsy reveals diffuse axonal injury. There is nothing in the autopsy to suggest that the child suffered any form of recent blunt force trauma (i.e., no current contusions or external bleeding).
5 See United States v. Buber, No. 20000777. (Army Ct. Crim. App. Jan. 12. 2005) (unpublished) (finding father guilty of unpremeditated murder of his son by means of SBS- murder conviction overturned due to insufficient ev.dence): United States y. Bresnahan, 62 M.J. 137 (2005) (finding father guilty of involuntary mmsta.ghter of his fnfTnt son by means of SBS); United States v. Davis 53 M.J. 2 f ( ^ O H f e f g fete guilty of involuntary manslaughter of his daughter by means of SBS); Umted States v Wright No. 32089, 1998 CCA LEXIS 177 (A.F. Ct. Cnm. App. Mar 13, 1998) (unpublished) (finding mother guilty of negligent homicide of her infant son by means of SBS) Interestingly, in the Bresnahan case, the court allowed the trial counsel to question the defense's expert witness concerning two studies: one claiming that seventy-nme percent of SBS cases axe perpetrated by males and another claiming that seventy percent of SBS cases are perpetrated by males. Bresnahan, 62 M.J. at 146^ 6 John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 AM. J. FORENSIC MED. & PATHOLOGY 1 (2001).
8 ___ J F Geddes & John Plunkett, The Evidence Base for Shaken Baby Syndrome. 328 BRIT. MED. J. 719 (Mar. 27,2004), available at http://bmj.bmjjo_mals.com/ cgi/content/f_ll/328/7442/719.
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The cause of death is cerebral edema. Because a subdural hematoma and diffuse axonal injury are found, the doctor concludes the infant was shaken to death. The father admits to briefly shaking the child one day prior to bringing him to the emergency room, but claims that he did not hit the child, nor did the child's head hit anything. The day the father shook the child is the same day he returned from being in the field for three weeks. Subsequent to the child's death, the child's sister admits that the week before she dropped the child in the porcelain bathtub while babysitting when "mommy was at work and daddy was in the field."
Should the government immediately file charges for unpremeditated murder or involuntary manslaughter against the Soldier in this case? The answer requires a close look at the available evidence.
111. Shaken Baby Syndrome/Shaken Impact Syndrome—What Is It?
Guard well your baby's precious head; Shake, jerk and slap it never; Lest you bruise his brain and twist his
mind; Or whiplash him dead forever.
Shaken Baby Syndrome/Shaken Impact Syndrome is generally defined as traumatic brain injury consisting of "a combination of subdural hematoma (brain hemorrhage), retinal hemorrhage, and diffuse axonal injury (diffuse injury of nerve cells in brain and/or spinal cord)" in infants and toddlers with little to no evidence of external cranial trauma, the effects of which cause death or significant physical injury. Referred to within the medical community as the "triad of diagnostic criteria,"12 medical practitioners who find at least two of these symptoms
9 Caffey. Whiplash, supra note 2, at 403 (quoting a proposed national educational campaign poem used by Dr. Caffey to close the referenced article). 10 Harold E. Buttram, Woodland Healing Research Center, Shaken Baby/Impact Syndrome: Flawed Concepts and Misdiagnosis, Sept. 3,2002, http:// www.woodmed.com. . . 11 G.F. Gilliland & Robert Folberg, Shaken Baby—Some Have No Impact Injuries, 41 J. FORENSIC Sci. 114 (Jan. 1996). 12 Buttram. supra note 10.
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often conclude that the child has suffered intentional abuse as opposed to some form of accidental injury.13
IV. Shaken Baby Syndrome/Shaken Impact Syndrome—The Clash of the Experts
In recent years, the term battered baby has given way to the term shaken baby as a label for infants or young children who have apparently suffered inflicted injuries at the hands of parents, caregivers, or others. The assertion is broadly held by many physicians that the physical act of shaking cm infant may, by itself, cause serious or fatal injuries but may be accompanied by impacts, referred to by some as the "shaken impact" syndrome . . . . Currently, there are wide differences of opinion regarding the supposed syndrome within the medical and legal communities.
A. The Majority and Minority Views
There are generally two primary schools of thought concerning the degree and type of force needed to cause the above-mentioned injuries. The majority view believes shaking alone is sufficient to cause traumatic brain injury, whereas the minority view posits that shaking plus some form of cranial impact is required to cause traumatic brain injury. Military practitioners, however, should be aware that within the military justice system, the terms associated with each are sometimes used interchangeably despite their different implications.17 Such an
13 Id 14 Jan Leestma, Case Analysis of Brain-Injured Admittedly Shaken Infants in 54 Cases, 1969_2001,26 AM. J. FORENSIC MED. & PATHOLOGY 199 (Sept. 2005). 15 John Plunkett Letter to the Editor-Author's Reply, 101 AM. ACAD. PEDIATRICS 200 (Feb 1998) ("The majority opinion (the specificity of retinal and subdural hemorrhage for inflicted trauma, non-lethality of short distance falls, and absence of lucid interval in ultimately fatal head injury) is certainly on their side. I wrote the article to encourage consideration of a minority view supported by biomechanical analysis and nontautologic reasoning."). . T 16 Id.; Ronald Uscinski, Shaken Baby Syndrome: Fundamental Questions, 16 BRIT. J. NEUROSURGERY 217 (2002). "• See, e.g., United States v. Allen, 59 M.J. 515, 526 (2003) (noting government experts used both SBS and SIS as bases for their opinions—e.g., "Lastly, as for CPT Craig, she
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oversimplification or generalization of an otherwise complex syndrome ignores the critical nuances of each view—nuances that may well determine the guilt or innocence of an accused.
1. The Majority View—Shaking Alone
The majority view holds that most adults possess sufficient strength to shake an infant or toddler to the point of causing intracranial injuries that can ultimately cause death or grievous bodily harm without any form of cranial impact or blunt force trauma.18 This view first gained a foothold within the medical community in 1974 when Dr. John Caffey postulated the "whiplash shaken baby syndrome" theory, stating that shaking alone could produce the forces sufficient to cause both subdural hematomas and retinal hemorrhages in small children.19 Dr. Caffey then took his theory one step further and opined that finding a subdural hematoma and retinal hemorrhages in an infant with no external signs of cranial trauma was pathognomonic20 (i.e., absolutely and exclusively diagnostic) of child abuse.21
In order to support his theory; Dr. Caffey relied primarily on a 1968 biomechanical study conducted by Dr. Ayub Ommaya.22 In his study, Dr. Ommaya used primates strapped into a piston-activated rail chair to specifically simulate rear-end collision whiplash (i.e., no head impact)
too opined that CJ's injuries were the direct result of shaken baby or shaken-impact
^'"plunkett, 'supra note 15, at 200; Uscinski, supra note 16, at 217-18; Elaine W Sharp, The Elephant on the Moon, WARRIOR MAG.-J. TRIAL LAW. C, Fall 2003, at 31 ("that another human being, by violently shaking a baby, can inflict one or more of the following injuries"). 19 Caffey, Whiplash, supra note 2, at 396. , , . . /».,., 20 Mark Donohoe, Shaken Baby Syndrome (SBS) and Non-Accidental Injuries (NAJ), http-//www.whale.to/v/sbs.html (last visited Sept. 11, 2006) (Dr. Donohoe states "The term pathognomonic implies a two-way relationship between the symptoms and signs on one hand, and the disease in question on the other hand. Pathognomonic symptoms or signs not only allow recognition of the disease, but differentiate it from all other diseases or disorders."). 21 Caffey, supra note 2, at 397. 22 Ronald Uscinski, The Shaken Baby Syndrome, 9 J. AM. PHYSICIANS & SURGEONS 76 (Fall ?004); see Ayub K. Ommaya, Whiplash Injury and Brain Damage: An Experimental Study, 20 JAMA 285 (1968) (Dr. Ommaya's tests were designed to determine what threshold or quantitative force (i.e., measurable amoun of force) was, necessary to cause certain types of internal brain injuries such as subdural hematomas.).
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injuries.23 Through this landmark study, Dr. Ommaya determined two things. First, he determined that when the primate's head was subjected to sufficient angular or rotational acceleration (e.g., whiplash) force, traumatic brain injury would occur regardless of whether or not skull impact occurred.24 Second, he determined that traumatic brain injuiy, subdural hematomas, or diffuse axonal injury did not occur until the primate experienced approximately 155 gs25 of acceleration force. In other words, Dr. Ommaya "demonstrated the concept of an injury threshold for neural tissue."27 In postulating his whiplash shaking theory, however, some experts argue that Dr. Caffey relied solely on Dr. Ommaya's finding that cranial injuries occurred without impact, while specifically ignoring the amount or degree of force Dr. Ommaya (i.e., 155 "g" forces) determined necessary to actually cause traumatic brain injury.
23 Ommaya, supra note 22, at 285-86. 24 _i 25 "The term g force or gee force refers to the symbol g, the force of acceleration due to gravity at the earth's surface" Wikipedia, The Free Encyclopedia, Acceleration Due to Gravity, http://www.factbook.org/ wikipedia/en/g/ge/gee.html (last visited Sept 11, 2006) ("The acceleration due to gravity denoted g (also gee) is a non-SI unit of acceleration defined as exactly 9.80665 m/s"* or 9.80665 m/s-2 (almost exactly 32.174 i. _~2 ") Id. (Gravity due to the earth is experienced the same as being accelerated upward with an acceleration of 1 g. The total g-force is found by vector addition of the opposite of the actual acceleration (in the sense of rate of change of velocity) and a vector of 1 g downward for the ordinary gravity (or in space, the gravity there.)). Id. 2S Werner Goldsmith & John Plunkett, A Biomechanical Analysis of the Causes oj-Traumatic Brain Injury in Infants and Children, 25 AM. J. FORENSIC MED. & PATHOLOGY 89 91 (June 2004) (stating that Dr. Ommaya measured force m units of angular acceleration using the formula radians per second-per second. Goldsmith and Plunkett convert this measurement to "g" forces which, arguably, is more recognizable by both legal practitioners and juries.). 27 Uscinski, supra note 22, at 76-7. . 28 Faris Bandak. Shaken Baby Syndrome: A Biomechanics Analysis of Injur)' Mechanisms, 151 FORENSIC So. INT'L 71, 76 (2005) ("Caffey translated Ommayas results without considering injury biomechanics, into an explanation tor a confess.on ot shaking."): Sharp, supra note 18, at 35.
Caffey concluded that just as acceleration-deceleration without an impact (i.e„ free shaking or 'whiplash') damaged fee monkeys-brains, this also explained how parents inflicted brain injuries on their babies. [Caffey] actually telephoned Ommaya to thank him for the article Today, Ommaya is adamant that he told Caffey that acceleration-deceleration forces involved in the monkey experiment were much greater than he believed could be generated by a human.
Id.
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For roughly the next fifteen years, Dr. Caffey's shaking-alone theory circulated through both the medical and legal communities and went virtually unchecked without the benefit of any significant peer review.-As a result, Dr. Caffey's theory became firmly ingrained as an accepted
30
medical syndrome.
2. The Minority View—Shaking Plus Impact
It was not until approximately 1987 that the first skeptics began questioning the accuracy of Dr. Caffey's study and his theory. One of the first to question Dr. Caffey's theory was Dr. Ann-Christine Duhaime who observed that "[wjhile the term 'shaken baby syndrome'_ has become well entrenched in the literature of child abuse, it is characteristic of the syndrome that a history of shaking in such cases is lacking."32 As a result of her observation, Dr. Duhaime conducted a biomechanical study to determine whether an adult could, by means of shaking alone, exert sufficient force to produce traumatic brain injury m
29 Sharp, supra note 18, at 35. 30 Uscinski. supra note 22, at 76 ("Two further papers by Caffey over the next two years emphasized shaldng as a means of inflicting intracranial bleeding m children. After publication of these papers, shaken baby syndrome became widely accepted as a clinical diagnosis for inflicted head injury in infants."); Letter from John Plunkett, M.D forens.c palologist Regina Medical Facility, to American Journal of Forensic Medicine and P a Z l o i Sh J e n Baby SyndronJand Other Mysteries (Spring 1998) (on file with author) [hereinafter Plunkett Letter],
I suspect that Caffey and others evaluating head injuries in the '40s, '50s and '60s asked a number of caretakers if the infant had been •shaken' and were told 'yes' in at least some cases. The caretakers were never asked about an 'impact' because direct trauma was not part of the theory. Scientific theory was quickly accepted as scientific fact: Subdural hemorrhage and retinal hemorrhage in an unconscious or dead child is a shaken infant; there is no need to 'prove otherwise,' only a fall from a _ vo story building or a motor vehicle accident could cause such an injury, if it was not due to shaking. Studies critically evaluating the biomechanics of rotational brain injury and a subdural hematoma, available from experiments performed for (among others) the automotive industry and the space program, were forgotten, not sought or ignored.
Id. 31 Duhaime et al., supra note 3, at 409, 414. 32 Id. at 409.
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infants.33 Using infant models, Dr. Duhaime and her team subjected proportionately correct models to a series of shaking events, some of which were followed by an impact.34 Using Dr. Ommaya's 155 gs as the threshold for when traumatic brain injuries (e.g., subdural hematoma, retinal hemorrhages, diffuse axonal injury) manifest themselves,^Dr Duhaime observed that shaking alone produced at most only 9.3 gs of force, a mere fraction of the force Dr. Ommaya determined was required to cause subdural hematomas, retinal hemorrhages, or diffuse axonal injury. However, when the "shakers" were asked to create an impact by "slamming" the models' heads into a fixed object, Dr. Duhaime observed that the force produced was equivalent to almost 428 gs, an increase fifty-times greater than that of shaking alone.36 As a direct result, Dr. Duhaime and her team concluded that "severe head injuries commonly diagnosed as shaking injuries require impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome."37 As a result of this questioning, the minority view—the shaken-impact syndrome—emerged.3
33 Id. 34 Id. at 409-11. 35 Mat413. 36 Id. at 413. 37 Mat409. , . ..
It is our conclusion that the shaken baby syndrome, at least in its most severe acute form, is not usually caused by shaking alone. Although shaking may in fact be part of the process, it is more likely that such infants suffer blunt impact. The most common scenario may be a child who is shaken, then thrown into or against a crib or other surface, striking the back of the head and thus undergoing a large, brief deceleration. This child has both types of injuries-impact with its resulting focal damage, and severe acceleration-deceleration effects associated with impact causing shearing effects on the vessels and parenchyma.
38' Ann-Christine Duhaime, et al., Nonaccldental Head Infury in Infants-The Shaken Baby Syndrome." 338 NEW ENG. J. MED. 1822 (1998) ("Thus, the term -shakmg-impac S r o m e ' may reflect more accurately than 'shaken-baby syndrome' the usual mechanism responsible for these injuries.").
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B. The Emerging View—Shaking Without a Corresponding Neck Injury Proves Shaking Plus Impact
In recent years, numerous published medical studies have strongly supported the minority position.39 In 2002, Dr. Ommaya published an article postulating that if it were possible for an infant to suffer traumatic brain injury by shaking alone, the infant would also suffer a significant corresponding neck injury.40 He further concluded that the "[ajbsence of cervical spinal cord injury would indicate a component of impact in the presence of hemorrhagic brain lesions."41 In February 2005, Dr. Bandak, using Dr. Ommaya's injury threshold criteria, postulated that if an infant was shaken hard enough to cause traumatic brain injury, the mfant would almost certainly have some form of significant neck injury. 2 Or to put it plainly, absent a corresponding neck injury, the child was not shaken to the point of traumatic brain injury.
C. Why Practitioners Should Know the Divergent Views
Practitioners should be aware of the minority and emerging views for two primary reasons. First, an understanding of the medical literature in this area will assist practitioners in effectively questioning witnesses. Second, understanding the minority or emerging views may assist defense counsel in making a motion to request expert assistance, to disqualify a proffered government witness from being considered an expert, or to challenge the scientific basis upon which an alleged expert is relying.
39 See Leestma. supra note 14; Bandak, supra note 28; Ayub Ommaya, Werner Goldsmith, & L. Thibauit, Biomechanics and Neuropathology of Adult and Pediatric Head Injury, 16 BRIT. J. NEUROSURGERY 220 (2002). 40 Ommaya etal, supra note 39, al 220-21. _ 4 x Id at 228-29 ("At these levels of inertial loading, induced impulsively without contact, the neck torque in the infant would cause severe injury to the high cervical cord and spme lone before the onset of cerebral concussion."). , . , , < . 42 Bandak, supra note 28, at 71 ("We have determined that an infant head subjected to the levels of rotational velocity and acceleration called for in the SBS literatae, would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine."). 43 Id 4 4 'see MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M 703(d) (2005) Thereinafter MCM]; MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 702 Wmsello Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993); United States v. Warner 62 M J 114 (2005): United States v. Houser, 36 M.J. 392 (C.M.A. 1993). These resources are the starting point for seeking expert assistance or expert witness testimony.
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V. Types of Injuries Caused by SBS/SIS
Experts differ regarding the degree and type of force (i.e., shaking alone or shaking plus impact) necessary to trigger traumatic brain injury.45 Regardless of their biases concerning injury thresholds, however, most experts agree on the types of injuries shaking or impact can inflict. These injuries are generally broken down into the following two categories: primary injuries and secondary injuries.
Primary cranial injuries consist of subdural hematomas, epidural hematomas, subarachnoid hemorrhage, retinal hemorrhages, and diffuse axonal injury.47 In cases involving cranial impact, the following injuries may also be present: external scalp bruising under the point of impact, extravasted blood under the point of impact (i.e., blood within the epidural layer (scalp)), skull fracture(s), coup contusions (i.e., bruising or injury beneath the site of impact), and contra-coup contusions (i.e., bruising or injury directly opposite the impact).48 Secondary injuries consist of brain hypoxia (i.e., insufficient oxygen flow to the brain), brain ischemia (i.e., insufficient blood flow to the brain), and cerebral edema (i.e., swelling of the brain).49 With the exception of diffuse axonal injury, the primary injuries listed above usually do not cause death.50 A significant primary injury, however, may trigger^ secondary injury (e.g., such as cerebral edema), which can cause death.
"Primary injury occurs at the time of impact, either by a direct injury to the brain parenchyma or by an injury to the long white matter tracts through acceleration-deceleration forces . . . . The secondary injury is represented by systemic and intracranial events that occur in response to the primary injury and further contribute to neuronal damage and cell death "52 Put another way, a primary injury is the injury that is caused by or directly results from the act inflicting the trauma, whereas a secondary injury is the injury that results from or is the byproduct of the primary
45 See Leestma, supra note 14; Plunkett, supra note 15; Uscinski, supra note 22; Goldsmith & Plunkett, supra note 26; Bandak, supra note 28. 46 Lieutenant Colonel Kent Hymel, Abusive Head Trauma? A Bwmechamcs-Based Approach, 3 CHILD MALTREATMENT 116-17 (May 1998). 47 Id, 48 Id. at 117, 119; see also infra app. A. 49 Bandak, supra note 28, at 79; see also infra app. A. 50 Wilkins, supra note 1, at 394. 51 Hymel, supra note 46, at 118. . 52 Arabela Stock, Emedicine-Access to the Minds of Medicine, Head Trauma (Sept. 15. 2004), http://www.emedicine.com/ped/topic929.htm.
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injury. Consider the following example: Joe is punched in the face and his jaw is broken. As a result, Joe's mouth swells up and blocks his airway. The broken jaw is the primary injury which, in turn, caused the secondary injury of the blocked airway.
VI. Why the Lesson in Primary and Secondary Injuries?
The legal practitioner must be able to recognize and distinguish primary versus secondary injuries for two important reasons. First, primary injuries can be linked to their biomechanical origins (i.e., their direct causes),53 whereas secondary injuries generally cannot.3 Thus, certain injuries are indicative of specific acts, such as an epidural hemorrhage being specifically indicative of an impact.55 A secondary injury, however, may have many different causes and is not indicative of any specific, telltale act, origin, or cause.56 For example, cerebral edema is a secondary injury. Cerebral edema can occur with blunt force trauma, with whiplash, because a large subdural hematoma displaces the brain cutting off oxygen and causing it to swell, or from extended attachment to or reliance upon a respirator.57 None of these examples, however, indicate the specific act or incident that caused the primary injury which, in turn, triggered the cerebral edema (the secondary injury).
Second, in addition to identifying the cause of the injury, primary injuries can, to a certain degree, often be used to date or time stamp when an injury occurred.58
A subdural hematoma (SDH) is classified by the amount of time that has elapsed from the inciting event, if
53 Ayub Ommaya, Head Injury Mechanisms and the Concept of Preventive Management, 12 J. NEUROTRAUMA. 527-28 (1995); Bandak, supra note 28, at 72. 54 Bandak, supra note 28, at 72 ("Primary injuries are those caused directly by the mechanical insult and secondary injuries result as part of tbe pathophysio logical progression following primary injury.")-55 Telephone Interview with John M. Plunkett, Forensic Pathologist and Coroner, Regina Medical Facility (Dec. 4, 2005) [hereinafter Plunkett Telephone Interview]. 56 Bandak. sz<pr_ note 28, at 72, 78-9. "SBSDefense.com, "Shaken Baby Syndrome"- A Tutorial and Review of the Literature, http://www.sbsdefense.com/SBS_101.htm (last visited Sept. 12, 2006) [hereinafter SBSDefense.com] (noting that some experts claim prolonged use of a respirator can mask or mimic the finding of diffuse wonalmjuiy) 58 Grant Sinson & Tim Reiter, Emedicine, Subdural Hematomas, Jan. 12, Z.-l, http://www.emedicine.com/med/topic2885.htm.
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known, to the diagnosis. When the inciting event is unknown, the appearance of the hematoma on [computed tomography or CT] scan or [magnetic resonance imaging or MRI] can help date the hematoma. Acute SDHs are less than 72 hours old and are hyperdense compared to the brain on CT scan. Subacute SDHs are 3-20 days old and are isodense or hypodense compared to the brain. Chronic SDHs are older than 20 days and are hypodense compared to the brain.
VII. Putting It All Together
Should the Soldier in the hypothetical be charged with the death of the child? When the medical evidence is applied to the facts, perhaps not. First, the child taken to the emergency room showed no current signs of cranial impact or neck injury. An expert subscribing to the minority or emerging view would likely state that the child was not shaken to the point of traumatic brain injury. One must also remember that several experts are of the opinion that prolonged use of a respirator can either mimic diffuse axonal injury or mask or taint a finding of diffuse axonal injury.60 As such, a strong argument can be made that because of the respirator, the diffuse axonal injury is not conclusive (i.e., pathognomonic) of either the drop in the tub or the shaking. Thus, the diffuse axonal injury cannot indicate anything other than that the child's brain suffered some form of injury.62 Most experts, however, will agree as to the timing of a subdural hematoma.63 In this hypothetical, the doctor concluded that the subdural hematoma was subacute, meaning between three and twenty days old.64 Thus, since the father was in the field during this period, the evidence tends to suggest that the drop in the tub caused the fatal injury instead of the father's shaking of the child.
There is much more investigation and evidence collection that must occur, however, before a charging decision can be made in the above
59 Id. 60 SBSDefense.com, supra note 57. _)D>____J_____;m, .uyiu u _ - . . _ _ 61 Sharp supra note 18, at 38 ("It's critical to note that in forensic medicine, the finding of axonal pathology is 'non-specific,' meaning that one cannot infer anything about its origin or cause."). 62 See id. 63 Sinson & Reiter, supra note 58. 64 Id.
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hypothetical. For example, was the child displaying symptoms of a serious injury, such as lethargy or vomiting, after the drop in the tub? Based upon the above infoimation, the practitioner should now be generally familiar with the signs to look for, questions to ask, evidence to collect, and issues to resolve before charging the Soldier with murder.
As can be seen from the hypothetical, understanding these nuances is essential to preparing a SBS/SIS case. Doing so allows the practitioner to critically review and challenge the purported experts' conclusions concerning both the causation of an injury and its respective timing. In addition, appreciating the differences between primary and secondary injuries and their respective timing will aid either the defense counsel in corroborating his client's version of the facts or the trial counsel m ascertaining the actual sequence of events.
VIII. Expert Assistance or Expert Consultation for the Defense
A. Acquiring Expert Assistance
Due to the medical complexities inherent in any case where SBS/SIS is alleged, both trial and defense counsel should consider retaining an expert consultant for "evaluating, identifying, and developing evidence and "to test and challenge" the opposing party's c a £ 5 Further, because traumatic brain injuries can manifest themselves differently mcbUra i than in adults,66 counsel should pursue the assistance of highly-
65 United States v. Warner, 62 M.J. 114,118 (2005).
One important role of expert consultants is to help counsel develop evidence. Even if the defense-requested-expert consultant would not have become an expert witness, he would have assisted the defense in evaluating, identifying, and developing evidence. Another important function of defense experts is to test and challenge the Government s
case.
« Due to the developing nature of childrens' brains and skulls a head injuiy can manSst tseTf different^ in a child when compared to the brain and skull of an adult
^«M^.SS__SSK ^ ' r _ ^ T _ _ _ _ l t _ LA ..Wdia.* — ^ *» >""
2006] SHAKEN BABY IMPACT SYNDROME 15
specialized experts as opposed to generalists.67 For example, counse should consider using a forensic pediatrician instead of a general pediatrician or using a pediatric-neuro radiologist in lieu of a general radiologist.68
For defense counsel, however, acquiring a government-funded expert consultant, much less a highly-specialized expert consultant, can be difficult and burdensome. The defense is not entitled to a government-funded expert consultant by merely "noting that the prosecution has employed expert assistance to prepare its case."69 Rather, as held by the Court of Military Appeals in United States v. Robinson, the "Equal Protection Clause, the Due Process Clause, and the Manual for Courts-Martial provide that servicemembers are entitled to expert assistance when necessary for an adequate defense."70 In elaborating on this entitlement, the Court of Appeals for the Armed Forces (CAAF) m United States v. Bresnahan stated:
An accused is entitled to an expert's assistance before trial to aid in the preparation of his defense upon a demonstration of necessity. But necessity requires more than the mere possibility of assistance from a requested expert. The accused must show that a reasonable^ probability exists both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.
As the court stated in Gonzalez, "There are three aspects to showing necessity. First, why the expert assistance is needed. Second wha would the expert assistance accomplish for the accused. Third why is the defense counsel unable to gather and present the evidence that the
.necific detailed training on neural imaging diagnostics in children and will be S S t a n S S a r i t e d t o interpreting an MRI or CT scan involving a child's bram or hpa_ .__ Plunkett Telephone Interview, supra note 55. ..r Vt, ,, « P 5 _ ; Unied Sites v. McAllister, 55 M.J. 270, 275 (2001) (noting thar- w],th he c o w * of" ensic-science techniques, it has become increasingly apparent.that complex ceases require more than generalized practitioners.^ see also H^7_r, 62 M.J. at 114 (discussing, among other things, the value of a specialist as opposed to a general.st), 68 Plunkett Telephone Interview, supra notes 55, 66. 69 United States v. Washington, 46 M.J. 477,480 ( W 70 United States v. Robinson, 39 M.J. 88, 89 (C.M.A. 1989). . ?< u S d States v. Bresnahan, 62 M.J. 137,143 (2005) (emphasis added).
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expert assistant would be able to develop."72 When requesting expert assistance and in meeting this necessity test, counsel should, at a minimum, specifically address the following factors set forth by the court in Allen:
In particular, the defense must show what it expects to find, how and why the defense counsel and staff cannot do it, how cross-examination will be less effective without the services of the expert, how the alleged information would affect the government's ability to prove guilt, what the nature of the prosecution's case is, including the nature of the crime and the evidence linking him to the crime, and how the requested expert would otherwise be useful.7^
Within the realm of SBS/SIS, a defense counsel attempting to meet the necessity test outlined above could, by way of example, argue that expert assistance is needed to understand or rebut an autopsy report, to determine whether the medical evidence supports the medical examiner's findings and conclusions, or to adequately evaluate medical records that the defense has neither the experience nor the expertise to properly assess.
A defense request for government-funded expert assistance should first be submitted to the convening authority and, at a minimum, should include a "complete statement of reasons why employment of the expert is necessary."74 Rule for Courts-Martial 703(d) does not specifically require the request to demonstrate how or why counsel feels the "necessity test" outlined in Gonzalez and Allen15 has been met. It is good practice, however, to draft any request as if it was going before the court since "a request denied by the convening authority may then be renewed before the military judge who shall determine whether the assistance of the expert is necessary and, if so, whether the Government has provided or will provide an adequate substitute."76 Accordingly, tactical
72 United States v. Gonzalez, 39 M.J. 459, 461 (1994) (citing Untied States v. Allen, 31 M.J. 572, 623 (N.M.C.M.R.), afd, 33 M.J. 209 (C.M.A. 1991)). 73 United States v. Allen, 31 MJ. 572, 623-24 (N.M.C.M.R.), affd, 33 M.J. 209 (C.M.A. 1991); MCM, supra note 44, R.C.M. 703(d). 74 MCM. supra note 44, R.C.M. 703(d). 75 Gonzalez, 39 M.J. at 461; Allen, 31 MJ. at 623-24. 76 United States v. Ndanyi, 45 MJ. 315, 320 (1996) (citing MCM, supra note 44, R.C.M 703(d)).
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considerations notwithstanding, counsel should put forth his best necessity argument from the very beginning. Doing so should not jeopardize the defense theory of the case since communications between a lawyer and any expert consultant assigned to assist counsel in both preparing for trial or during trial are considered protected.77
B. The Dreaded "Adequate Substitute" Rule—Not So Dreaded Anymore!
A "request for the services of a consultant differs from a request that a specific expert witness be produced for the defense" because the defense "has no right to demand that a particular individual be designated."78 That is, if the convening authority or court agrees that expert assistance is necessary for the defense, the Government may deny the specific requested expert "if [the government] provides an adequate substitute."79
The "Government in general, and . . . trial counsel in particular,. .^ play key roles" in selecting and proffering an adequate substitute. Thus, it is the government and not the defense who, for all intents and purposes, selects the adequate substitute. This "absence of . . . parity opens the military justice system to abuse" by providing the government an opportunity to "obtain an expert vastly superior to the defense's."
United States v. Warner, a recent SBS/SIS case, dealt directly with this disparity issue.82 In Warner, the government secured the assistance of "one of the Air Force's preeminent experts concerning shaken baby syndrome as its own witness."83 Both the convening authority and the military judge, however, denied the defense's request for the appointment of a specific civilian expert consultant whom the defense
77 MCM, supra note 44, MIL. R. EVID. 502; see infra pt. IX, § A. 78 United States v. Toraowski, 29 M.J. 578, 579 (A.F.C.M.R. 1989) (citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (holding a criminal defendant's right to a competent psychiatrist does not include "a constitutional right to choose a psychiatrist ot his own
personal liking")). . .,._,_,_._. „ , . _ : . 79 United States v. Warner, 62 M.J. 114, 118 (2005) (quoting United States v. Ford, 51 MJ. 445, 455 (1999) (citing MCM, supra note 44, R.C.M. 703(d)). 80 Id. at 120. 81 Id. 82 Id. at 114. 83 /rf. at 118.
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felt had the requisite qualifications.84 In his stead, the government proffered and the military judge appointed an alleged adequate substitute who, according to the defense, had some knowledge of SBS, but vastly inferior qualifications when compared to those of the government expert.85
Agreeing with the defense, the CAAF found that the appointed adequate substitute was a "generalist with no apparent expertise" in the area of SBS whereas the government had secured the "leading shaken baby expert'for the prosecution team."86 The government, however, argued it had met its due process obligation of providing an adequate substitute, asserting that all it is required to provide the defense is a competent, not "comparable," expert.87
Disagreeing with the government, the CAAF noted that while "[providing the defense with a 'competent' expert satisfies the Government's due process obligations . . .", doing so, however, "may nevertheless be insufficient to satisfy Article 46 if the Government's expert concerning the same subject matter area has vastly supenor qualifications . . . ."88 Relying on the plain wording of Article 46 of the Uniform Code of Military Justice (UCMJ),89 the court went on to hold "Article 46 requires that an 'adequate substitute' . . . have qualifications reasonably similar to those of the Government's expert
Although the court did not define what it meant by "reasonably similar" qualifications, it did offer some parameters counsel should consider when seeking a comparable expert. Specifically, the court noted:
Article 46 is a clear statement of congressional intent against Government exploitation of its opportunity to obtain an expert vastly superior to the defense's. Requiring that an "adequate substitute" for a defense
84 A/, at 117. 85 Id. 86 M a t 117-18. 87 Id. at U9.
" __ at 115 (citing UCMJ art. 46 (2005), which states in part "trial counsel, defense counsel and the court-mai-fid shall have equal opportunity to obtain witnesses and other evidence"). 90 Id. at 119.
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requested expert have professional qualifications at least reasonably comparable to those of the Government's expert is a means to carry out that intent where the defense seeks an expert dealing with subject matter similar to a Government expert's area of expertise and where the defense expert is otherwise adequate for the requested purpose.
The CAAF's holding in Warner is a shot across the bow for any trial counsel or military judge who attempts to leave the "defense without the adequate tools to analyze and possibly challenge or rebut the opinion" of a government expert.92 Accordingly, when submitting a request for expert assistance, defense counsel, in addition to addressing the Gonzalez necessity test,93 should consider explaining why their requested expert has "reasonably comparable qualifications" when compared to the government expert. Providing this explanation may secure the services of the requested expert instead of a government selected adequate substitute. At a minimum, by including a "reasonably comparable qualifications" argument in the initial request for expert assistance, counsel may convince either the convening authority or the military judge that only a specialist, as opposed to a generalist, will suffice as an adequate substitute.94
IX. Expert Witnesses
As this article has demonstrated, complex medical evidence is an indispensable part of litigating a SBS/SIS case. Accordingly, the use of an expert witness at trial may assist counsel in explaining or presenting these complexities to the fact-finder or, for the defense, in presenting an alternate theory of the case. When acquiring and using expert witnesses, counsel should consider the following two important issues: how to request an expert witness and how to introduce testimony from that expert witness.
91 Id. at 120. 92 ___;<_ at 123. , 93 United States v. Gonzalez, 39 MJ. 459, 461 (1994). 94 United States v. Warner, 62 MJ. 114.118-19 (2005).
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A. Acquiring Expert Witnesses
The methodology for requesting an expert witness is virtually identical to requesting an expert consultant. There are, however, two critical distinctions worth noting. First, as with an expert consultant, the government has the opportunity to offer an "adequate substitute" for the defense requested expert witness.95 In doing so, however, the proffered -adequate substitute" must not only have "similar professional qualifications" as that of the requested expert, but must also be able "to testify to the same conclusions and opinions" as the defense requested expert.96 "[WJhere there are divergent scientific views, the Government cannot select a witness whose views are very favorable to its position and then claim that this same witness is 'an adequate substitute' for a defense-requested expert of a different viewpoint." Second, unhkean expert consultant, there is no privileged or protected communication between counsel and their expert witness,98 meaning an expert witness is subject to interview and cross-examination by the opposing counsel.
B. Introducing the Testimony of Expert Witnesses
Prior to an expert being permitted to testify, the judge must be satisfied that the testimony is both relevant and reliable to die proceedings. There are numerous Military Rules of Evidence (MRE) to consider when determining relevance and reliability.
The primary rules governing the relevance and reliability of expert witnesses are Military Rules of Evidence (MRE) 104, 401, 402, 403, 702, 703, and 704. MRE 401 defines relevant evidence, MRE 402 states that relevant evidence is admissible, and MRE 403 establishes the test for balancing the probative value of
: ^ S ^ S ^ ^ S S ' S 2*«Z (CM.A. 1989) (citing ^niSftr T ^ ^ S J . 434, « ? . M , M _ = =
U n i t e d [ s t a t e s ' v V i n s o n , 24 MJ. 649. 652 (N.M.C.M.R 1987) and United States v Van Horn, 26 MJ. 434 (N.M.C.M.R 1988)). 98 United States v. True, 28 M.J. 487-88 (CM A. 1989). 99 Id at 488-89; see also United States v. McAllister, 55 MJ. 270, 27; (2001).
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evidence against its prejudicial impact. MRE 702 has three requirements for expert testimony: 1) the testimony must be based upon sufficient facts or data; 2) the testimony must be the product of reliable principles and methods; and 3) the expert must have applied the principles and methods reliably to the facts of the case. MRE 703 discusses the basis for an expert's testimony and MRE 704 establishes the scope of the testimony.
The thrust of any expert analysis, however, is the second or reliability prong of MRE 702. When determining if the proffered testimony is the product of reliable scientific principles and methods, counsel must validate the expert's qualifications by establishing the following six factors from United States v. Houser:
(1) die qualifications of the expert; (2) the subject matter of the expert testimony; (3) the basis for the expert testimony; (4) the legal relevance of the evidence; (5) the reliability of the evidence; and (6) that the probative value of the expert's testimony outweighs the other considerations outlined in M.R.E. 403.
Concerning the first Houser factor, MRE 702 specifically states that an expert may be qualified by his or her "knowledge, skill, experience training, or education,"102 allowing a person to qualify as an expert under numerous foundational bases (e.g., work experience, professional memberships, publications).103 The key to the second Houser fictor-the subject matter of the expert testimony-"* whether oi-notfte testimony would assist or be helpful to the fact finder. The tod Houser factor "concerns itself with the expert's methods as applied to the facts of the case."'05 That is, the expert must have an adequate basis . e o «is this the type of information that other experts in the field rely S ? ' e t c ) to render an opinion, as opposed to "just a bare opinion with no
i°^Maior Christopher Behan, Determining Admissibility of Expert Testimony (2005) ( w o r k p a p e r o7file with Criminal Law Department, The Judge Advocate General s
- y Z t ^ v . S g s , 61 MJ. 163, 166 (2005) (citing United States v. Houser, 36
MJ. 392,397-00 (C.M.A. 1993)). 102 MCM, supra note 44, Mit. R. Evm. 702. 103 See Behan, supra note 100. 104 Id.
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relationship to the facts of the case."106 With regard to the fourth Houser factor, "before expert testimony is admitted, the military judg^ must determine that the evidence is relevant . . . to the case at hand." In other words, the evidence "must have a connection to the theory of the
case."108
The fifth Houser factor requires the military judge to conduct a reliability analysis to determine if the expert's "testimony is the product of reliable principles and methods."109 The reliability analysis is contingent on the type of expert proffered—nonscientific or scientific. The Supreme Court in United States v. Daubert provided the following nonexclusive list of factors the judge should consider when evaluating the reliability of scientific evidence:111
(1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique's operation; and (4) whether the theory or technique has been generally accepted in the scientific field.
As noted these factors are nonexclusive.113 The military judge, as the "gatekeeper" of the evidence, has a great deal of discretion in
106
107
108
109
110
Id. Id. Id. MCM, supra note 44, R.C.M. 702. Kumho Tire v. Carmichael, 526 U.S. 137 (1999).
Daubert's general holding-setting forth the trial judge's general "gatekeeping" obligation-applies not only to testimony based on "scientific knowledge," but also to testimony based on "technical and "other specialized" knowledge. We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine lhat testimony's reliability. But, as the Court stated m Daubert the test ot reliability is "flexible." and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.
1 ' ' Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993). 112 United States v. Billings, 61 M.J. 163,168 (2005). 113 D_i_>erf,509U.S.at593.
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conducting the reliability analysis and can generally use any factor that will help detennine the expert's reliability.114 This broad discretion may help those counsel seeking to introduce expert testimony, while hindering those counsel seeking to exclude testimony.
The sixth and last Houser factor states that "[l]ogically relevant and reliable expert testimony 'may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members.'"115 A deceptively simple argument, counsel seeking to exclude damaging expert testimony should not dismiss or overlook this factor.
X. Using MRE 702 and Daubert to Question the "Reliability" of the Scientific Evidence Upon which SBS/SIS is Premised
If the law has made you a witness, remain a man of science. You have no victim to avenge, no guilty or innocent person to ruin or save. You must bear witness within the limits of science.
As amended, MRE 702 requires "expert testimony be the product of reliable principles and methods that are reliably applied to the facts of the case."117 To determine the reliability of the proffered testimony, the "[Cjourt in Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony." Thus, m an SBS case, the question for the court is whether or not the majority view of SBS is based upon reliable scientific principles and means.
Recent military caselaw seems to support the majority view of SBS.1'9 Consider, for example, the CAAF's recent assertion in United
114
115 See supra text accompanying note 110. . . , „ - . _ _ Untied States v. Houser, 36 MJ. 392, 400 (C.M.A. 1993) (citing MCM, supra note
44 .MIL.R-EVID.403) . , _ . „ , , _, ... A__ T n s ' John Plunkett, Shaken Baby Syndrome and the Death of Matthew Eappen,!^ AM. J. FORENSIC MED. & PATHOLOGY 17 (1999) (quoting Paul H. Broussard, Chair of Forensic
- d s t p H ^ AL. MH,TARY RULES OP EVIDENCE MANUAL 185 (4th ed. 1997 & Supp. 2002); see also supra notes 100-02. 118 SALTZBURG, supra note 117, at 181; see also supra notes 111-14 » ' See generally United States v. Westbrook, ACM 35615 200D CCA LEXIS 378 ( A * Ct Crim. App. Nov. 9, 2005) (unpublished) (finding-child's injury due to SBS not a start fell); United States v. Stanley, 62 MJ. 622 (2004) (finding child's death due to
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States v. Stanley: "[T]he specific diagnosis was shaken baby syndrome (SBS). This is an established medical diagnosis typically involving very small children who are violently shaken. According to experts who testified at trial, SBS involves a constellation of injuries to the bones, eyes, and brain."120 In light of the published material that significantly undermines the shaking alone theory,121 however, it is difficult to ascertain why the SBS majority view still prevails to the exclusion of other more current and sound medical theories.
The persistence of the majority view as the prevailing view may be explained by the military's penchant for providing an adequate substitute, which typically translates into a military expert who is a generalist instead of the requested civilian expert who typically is a specialist.122 The continued reliance on generalist experts may limit practitioners' exposure to the minority and emerging views. Although the holding in Warner will open the doors to equalizing this disparity, one can still argue that the use of adequate substitutes with less experience or exposure than specialists has resulted in the military courts being slower to embrace the minority or emerging views of SBS/SIS. As noted by Dr. Plunkett, perhaps this is because "scientific theories die slowly."124
Regardless of possible explanations, the military community's acceptance of the majority view can be problematic for the defense when attempting to introduce either the minority or emerging view as an alternate theory of the case. Counsel seeking to introduce the minority or emerging view of SBS/SIS, however, should recognize that MRE 702 and Daubert are as much tools for the defense as they are for the government. Under Daubert, the judge, as the gatekeeper, must conduct a "reliability assessment" in each case where counsel seeks to introduce expert scientific testimony.125 Thus, a defense counsel well versed in the minority and emerging Views may be able to use the Daubert hearing as
shaking as defined by SBS); United States v. Allen, 59 MJ. 515 (N.M.C.M.R. 2003) (noting how expert "indicated that shaken baby syndrome was the only reasonable explanation" for the child's injuries). 120 Stanley, 62 MJ. at 622-23 (2004). 121 SeesupraptTV,§§A2,B. 122 United States v. Warner, 62 MJ. 114, 117-19 (2005). , 2 3 _ / . a t l l 9 . 124 Plunkett Letter, supra note 30. 125 Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 594 (1993); see also supra notes 109-14 and accompanying text.
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a means to preclude a government expert who strictly adheres to the majority view of SBS.
Recall that the first Daubert prong asks whether or not the preferred scientific theory has been tested.126 A review of the medical studies presented herein calls into debate whether or not the majority view of SBS actually meets this threshold. To the contrary, armed with the biomechanical studies of the minority and emerging views, counsel could demonstrate that the underlying scientific basis or premise of the shaking alone theory (i.e., that humans have sufficient strength to shake an infant to the point of traumatic brain injury) is "falsifiable." -Remember, as demonstrated by Dr. Duhaime in her landmark study, when Dr. Caffey's theory was tested, it was falsified.
The second Daubert prong asks whether or not the theoiy has been published in peer-reviewed journals.130 The majority view, and more recently the minority and emerging views, have all enjoyed moderate to widespread publication.131 Publication, however, belies two cntica points with regard to the majority view. First, "it is significant that in all four previously cited original papers regarding the hypothesis of shaking both Guthkelch and Caffey refer to a single paper by Ommaya published in 1968 as biomechanical justification for this concept." ' The implication, of course, is that the cornerstone upon which the majority theory is premised is flawed. A theory built on a flawed premise is itself flawed regardless of the number of times it has been published. Second as noted by the court in Daubert, "publication is not the sine qua non of admissibility; it does not necessarily correlate with reliability." To the
126 £ta.&e.-r,509U.S.at593.
"» feZhyt^Shal^ faby Syndrome: A Questionable Scientific f^ome"nda Dangerous Lega Concept, 2003 UTAH-L. REV. 1109, 1115; see also Daubert, 509 U.S. at S ("The crilrion of the scientific status or theoiy is its falsifxability, or refottbd*j, or testabi iw ") Falsifiable is defined as capable of being tested (verified or fabified) by Se r ime i t or observation. WordReference.com, English Dictionary, hn?"^.wordreference.com/definition/ falsifiable (last v.s.ted Sept. 13, 2006). 129 Duhaime et al., supra note 3, at 409,414. 130 Boa&ert, 509 U.S." at 593. 131
132
the ge_.2Tof tlTe shaking alone the0Iy: Annan Guthkelch, hfantik'*^£%"°% and Its Relationship to Whiplash Injuries, 2 BRIT. MED J . 4 3 0 ^ > ^ 9 ^ ™ . Parent-infant Traumatic Stress Syndrome, 114 AM. J. ROENTGENOLOCB 217 (IV/Z), Caffey. Whiplash, supra note 2; Caffey, Theoiy and Practice, supra note 2). 133 Dffl_.e_.509U.S.at593.
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contrary, "submission to the scrutiny of the scientific community is a component of 'good science' in part because it increases the likelihood that substantive flaws in methodology will be detected." Arguably, the present situation is just the type of "scrutiny" the court in Daubert envisioned, with the minority and emerging views pointing out and critically addressing the "substantive flaws" in the majority view.
The third Daubert factor inquires as to the "potential rate of error" regarding a proffered scientific theoiy.136 Other than the separate biomechanical studies performed by Doctors Ommaya, Duhaime, -Goldsmith, Plunkett,139 and Bandak,140 which support the minority and emerging views, there are virtually no other quantifiable studies from which to deduce an error rate. In an attempt to determine the quality of the science supporting SBS, Dr. Mark Donohoe conducted an exhaustive review of the SBS literature from 1968 to 1998.141 Dr. Donohoe "found the scientific evidence to support a diagnosis of shaken baby syndrome to be much less reliable than generally thought."142 More precisely, Dr. Donohoe opined that "the evidence for shaken baby syndrome appears analogous to an inverted pyramid, with a very small database (most of it poor quality original research, retrospective in nature, and without appropriate control groups) spreading to a broad body of somewhat divergent opinions."143 As such, defense could argue that the lack of an error rate means that the majority view of SBS fails this Daubert prong.
The fourth Daubert prong asks if the proffered theory is generally accepted within the scientific field.144 Granted, the majority view of SBS is generally accepted; however, "respect for precedent does not require courts to ignore flaws in logic. The law must adapt when prior scientific theories are undermined by scientific logic."145 The minority and
134 Id.; Lyons, supra note 128, at 1129. 135 Lyons, supra note 128, at 1129. 136 Da_be_',509U.S.at594. 137 Ommaya, supra note 22. 138 Duhaime et al., supra note 3. 139 Goldsmith & Plunkett, supra note 26. 140 Bandak. supra note 28. 141 Geddes & Plunkett. supra note 8, at 719.
PATHOLOGY 239 (2003)). -594.1993. 144 Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 594 (1 yyj). 145 Lyons, supra note 128, at 1132.
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emerging views have clearly undermined the scientific bgic of the premise upon which the majority view of SBS is based.146 The more these theories gain a foothold within the medical community the more opportunities counsel have to argue that the majority view of SBS has lost its "general acceptance" within the medical community.
Understanding the experts' biases is critical. In this article's hypothetical, a government expert adhering to the majority view wou d likely opine that it was the shaking that either caused or significantly aggravated the subdural hematoma, which then caused the brain to swell and the child to die. Defense counsel, however, would want to contest the expert's opinion since such testimony would put his client at the scene of the crime at the time the government is likely to allege the incident causing the traumatic brain injury occurred. Faced with this challenge, counsel need not capitulate when confronted with a government expert who strictly adheres to the majority view of SBS to the exclusion of other sound theories. Instead, counsel can seek to disallow an expert who refuses to consider either the minority or emerging view by demonstrating how the majority view of SBS may fail each of the Daubert criteria and, consequently, the reliability prong of MRE 702.
XI. Current Controversies within the Realm of SBS
There are numerous sub-controversies within the realm of SBS that cannot be neatly pigeonholed into the majority, minority or emerging vkws! Such controversies include, but are not limited to the following: whether falls from short-distances can be fatal; whether diffuse axonal S t a y can be caused by events other than SBS/SIS (i.e. can being on a respirator for a prolonged period cause, mimic, or mask diffuse axonal injury); whether a preexisting, yet benign subdural hematoma, can re-bleed and turn fatal due to a subsequent, yet minor head injury; and whether certain vaccinations can mimic those injuries normally associated with SBS/SIS.147 Two of these sub-controversies merit further discussion- whether short falls can or do kill and whether a preexisting
•« SBSDefense.com. Forensic Truth Foundations, Shaken Baby Syndrome for Beginners: Shaken Baby Syndrome-Questions and Controversies, httpV/ ™bsmith.com/Questions%20and%20controvers1es.htm (last visited Sept. 14, 2006) [hereinafter SBSDefense.com Controversies].
28 MILITARY LAW REVIEW
or chronic subdural hematoma can re-bleed due to a subsequent or second impact.
Some experts assert that traumatic brain injury cannot be caused by short falls (e.g., fall out of a crib, fall off of a swing, fall off a kitchen stool, etc.).148 Rather, a repeated theme proffered by these experts is that traumatic brain injury can only be caused by "significant force . . . such as major motor vehicle crashes, falls from a second-story window, or inflicted severe blunt force trauma."149 Any expert subscribing to this theory would automatically dismiss or discredit any alternate theory of a case where the defendant is claiming the injury occurred because of some form of short fall. In recent years, however, several credible studies have been published that question the theory that traumatic brain injury cannot be caused by short falls.150 In one such study, "the author reviewed the January 1, 1988 through June 30, 1999 United States Consumer Product Safety Commission database for head injuries associated with the use of playground equipment."151 The author's stated objective was to determine if there were any "witnessed or investigated fatal short-distance falls that were concluded to be accidental." - The study noted eighteen head injury fatalities from falls off of playground equipment ranging in height from "0.6 to 3 meters (2-10 feet)." Of the eighteen fatal falls, twelve were "directly observed by a noncaretaker" witness.154 As a result, the author concluded "that an infant or child may suffer a fatal head injuiy from a fall of less than 3 meters (10 feet)."155 Armed with this information, traumatic brain injury resulting from a drop in the tub certainly seems more plausible than previously thought.
Another controversy surrounding SBS is the "re-bleed" or "second impact" theory. The re-bleed theory purports that an otherwise non-
148 Plunkett, supra note 6, at 1-2, tbl. 1. „ - . ,__ I . .nnv. 149 United States v. Buber, No. 20000777, at 8 (Army Ct. Crim. App. Jan 12, 2005) .unnSJhed) Goldsmith & Plunkett, supra note 26, at 95 (-There has been sworn e X o n y t a L r t s of law by expert witnesses who state that trauma caused by shakmg is
l o S e n t to a fall from a two-story (or higher) window on to the pavement. . . . This analosv of a "shaking" injury to atwo-story fall is not justifiable. ). ^» sfsDefensexom Controversies, supra note 147; Goldsmith & Plunkett, supra note 26, at 95-96. 151 Plunkett, supra note 6, at 1 152 Id. at 2.. 153 Id. 154 Id. 155 Id.
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lethal previous head injury may be exacerbated by a second, yet trivial, head injury, which leads to death.156 A practical application of this theory would, for example, be a case where a child falls and suffers a minor subdural hematoma. Before the minor subdural hematoma either dissipates or is reabsorbed by the body, the child suffers another minor head injury. This second injury aggravates the preexisting subdural hematoma causing it to re-bleed, resulting in a fatal secondary injury (e.g., cerebral edema).157 The crux of this theory is not whether re-bleeds occur, but what amount of force is needed to cause the re-bleed, * and whether the subsequent or second impact has to be proximate to the original subdural hematoma.159 That is, does the force have to be extreme, indicating violence or a non-accident, or can it be from something as simple as a parent and child bumping heads while playing a game of football?160 Several experts believe "there is no evidence to support the concept that re-bleeding of an older subdural hematoma can result from trivial injury and cause an infant to suddenly collapse and die "161 The emerging re-bleed theory, however, reasons that subsequent trauma does not have to be proximate to the original subdural hematoma162 and timt the amount of force required to initiate a re-bleed can be de minimus.163 Applying the re-bleed theory to the hypothetical, if the drop in the tub caused a subdural hematoma, then perhaps the father's brief shaking of the child caused the original subdural hematoma to re-bleed. The question for the court then becomes whether or not the father's actions were in any way criminally negligent. For example, did he shake the child forcefully and violently such that it could be considered an assault, or did he softly shake the child (e.g., playing or trying to wake child up, etc.) in such a manner that no reasonable person would have expected an injury to occur.
156 United States v. Buber, No. 20000777, at 9 (Army Ct. Crim. App. Jan. 12, 2005) (unpublished); SBSDefense.com Controversies, supra note 147. 157 See "edema" infra app. A. 158 SBSDefense.com Controversies, supra note 147. 159 Goldsmith & Plunkett, supra note 26, at 97. 160 Buber No 20000777, at 9 (noting that "testimony from the government experts tailed to exclude the reasonable possibility that Ja'lon might have accidentally suffered a S l u s head iniry during a Ml down the stairs, which was exacerbated by a second inhirv caused while playing football"). Id. , - . , , , "> Sber t M Reece & Robert H. Kirschner, Shaken Baby Syndrome/Shaken Impact Sy,3rfr0me,http://dontshake.com/Audience.aspx?categoiylD=9«_Page Name=SBS_SIS.htm (last visited Sept. 14, 2006). 162 Goldsmith & Plunkett, supra note 26, at 97. 163 SBSDefense Controversies, supra note 147.
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As has been demonstrated through the hypothetical, tiiere are no clear-cut answers in cases where SBS/SIS is alleged. As such, understanding these controversies may help counsel m shaping the theory of their case, in challenging an opposing expert during a Daubert hearing, or both.
XII. Conclusion
If the issues are much less certain than we have been taught to believe, then to admit uncertainty sometimes would be appropriate for experts. Doing so may make prosecution more difficult, but a natural desire to protect children should not lead anyone to proffer opinions unsupported by good quality science. We need to reconsider the diagnostic criteria, if not the existence, of shaken baby syndrome.m
Should one automatically conclude that a child who shows symptoms of traumatic brain injury without any form of external crania trauma is suffering from SBS? Does the average adult have sufficient strength to shake a child to the point of causing traumatic brain injuiy? Or Ire there other sound medical explanations for a child who has traumatic brain injuiy but no corresponding external cranial trauma? The answers to these questions are nebulous and, as demonstrated, have divided the best minds of the medical community. As; such it.is incumbent upon military practitioners faced with a potential SBS/SIS case to fully and independently educate themselves on the controversies surrounding SBS so as to ensure the administration of justice is based on fact and vetted scientific theories, instead of conjecture merely masked SsuTh As succinctly noted by Dr. Uscinski, "[W]hile the desire to pro ect children is laudable, it must be balanced against the effects of seriously harming those who are accused tf child abuse solely on the basis of what is, at best, unsettled science.'
164 Geddes & Plunkett, supra note 8, at 720. 165 Uscinski. supra note 22, at 77.
2006] SHAKENBABY IMPACT SYNDROME 31
ix A
When familiarizing themselves with the medical terms defined below, practitioners should pay particular attention to die specific causation element or triggering mechanism of each type of injury.
Coup Contusiom: "Coup contusions occur beneath a site of cranial impact. Skull imbending from cranial impact may cause direct injury to the brain and its surface. Brain contusions may occur at multiple sites remote from the point of cranial impact under some circumstances.'
Co_tr_-co_p Contusion: "Contra Coup injuries occur when there is an injury to the opposite side of the head from the impact site. Contra coup injuries are generally thought to be an indicator of a moving head hitt ng a stationary; unyielding force or object."167 A contra-coup mjury is a contusion directly opposite the impact.
Diffuse Axonal Injury:
rSlevere primary diffuse brain injury may manifest clinically as immediate loss of consciousness with prolonged traumatic coma without mass lesions. This clinical presentation is frequently associated with widespread structural damage to the axons - a condition know as diffuse axonal injuiy. Diffuse axonal injury is the result of deep acceleration strain within the brain parenchyma. Histological evidence of diffuse axonal injury includes axonal swelling and axonal retraction
balls168
|T>iffitse axonal injuiy] is a type of diffuse brain injury meaning that damage occurs over a more widespread area than in focal brain injury. Diffuse axonal injury, which refers to extensive lesions in white matter tracts is one of the major causes of unconsciousness and persistent vegetative state after head trauma (Wasserman, 2004). The major cause of damage in diffuse axonal injury is die tearing of axons, the neural
166 Hymel, supra note 46, at 119. . 167 SBSDefense.com, supra note 57. 168 Hymel, supra note 46, at 120.
32 MILITARY LAW REVIEW [Vol. 188
processes that allow one neuron to communicate with another.169
Edema (cerebral): "[Generalized swelling caused by changes in vascular permeability and autoregulation.' '"" 170
Cerebral edema is an increase in brain volume caused by an absolute increase in cerebral tissue water content. Diffuse cerebral edema may develop soon after head injury. Cerebral herniation may occur when increasing cranial volume and ICP overwhelms the natural compensatory capacities of the CNS. Increased ICP may be the result of posttraumatic brain swelling, edema
171
formation.
In layman's terms, swelling of the brain can cause death by starving the brain of oxygen or blood, or by herniating the brain by pushing it through the brain stem.172 (see "Herniation" for a description of the relationship between edema and herniation).
Epidural Hematoma: "Epidural hematoma is a traumatic accumulation of blood between the inner table of the skull and the stripped-off dural membrane. The inciting event often is a focused blow to the head, such as that produced by a hammer or baseball bat."
Extravasted Blood: "Bruising and/or free blood within the epidural layer (scalp)."174 Not as serious as an epidural hemorrhage; usually attributable to some form of impact (can occur from minor trauma).
169 Wikipedia. The Free Encyclopedia, Diffuse Axonal Injury, http://en.wikipedia.org/wikMDiffiise_axonal_injur. (last visited Sept. 14, 2006) 170 Mary E Case et al., Position Paper on Fatal Abusive Head Injuries in Jnfants and Young Children,22 AM. J. FORENSIC MED.& PATHOLOGY 112,118 (2001). 171 Library of the National Medical Society, Brain Edema and Cerebra Edema, http://www.medical-library.org/journals2a_5rain_edema.htm (Oct. 2, 2005). 172 Plunkett Telephone Interview, supra note 55. E u m i n v . 173 Daniel Price & Sharon Wilson, Epidural Hemorrhages, EMEDICINE, http7/www.emedicine.com/EMERG/topicl67.htm(Janl3,2004). ™ Brain Injury Association of America, Types_ _ of Brain Injuiy
[hereinafter BIAA]. "" Plunkett Telephone Interview, supra note 55. 175
2006] SHAKEN BABY IMPACT SYNDROME 33
Fractures (skull):
Skull fractures are caused by a deformation of the skull due to impact of some kind. The likelihood that a child will suffer a skull fracture depends on the force, location of the impact, age of the child, and biologic/mechanic characteristics/properties of the skull at the point ot impact. Children with open sutures and more flexible skulls are not as likely to fracture in short falls as^are older children with fully developed enclosed skulls.
Herniation:
A brain herniation is the displacement of bram tissue, cerebrospinal fluid, and blood vessels outside the compartments in the head that they normally occupy. A herniation can occur through a natural opening at the base of the skull (called the foramen occipitalis) or through surgical openings created by a craniotomy procedure. Herniation can also occur between compartments inside the skull, such as those separated by a rigid membrane called the 'tentorium A bran herniation occurs when pressure inside the skull (intracranial pressure) increases and displaces bram tissues This is commonly the result of bram swelling from a head injury. . . . Brain herniations are the most common secondary effect of expanding masses in the
brain 177
Hypoxia: "A hypoxic brain injuiy results when the brain receives some,
but not enough, oxygen.
ischemia: "Hypoxic ischemic brain injuiy, * " ^ * « * £ £ hvooxia or ischemic insult-brain injury occurs because of a Jack of Wood flow to the brain because of a critical reduction m blood flow or blood pressure."179
176 SBSDefense.com, supra note 57. Fn.vclooedia Brain Herniation, >77 University of Pennsylvania Health System Encyclopema era httpV/penrealTh.com/ency/article/001421 .htm (last varied Sept. 14.2006). i .«r___ _ * ~f0 T7A 178 BIAA, supra note 174. 179 Id.
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Second Impact Syndrome:
Second Impact Syndrome, also termed 'recurrent traumatic brain injury,' can occur when a person sustains a second traumatic brain injury before the symptoms of the first traumatic brain injury have healed. The second injury may occur from days to weeks following the first injury. Loss of consciousness is not required. The second impact is more likely to cause brain swelling and widespread damage. Because death can occur rapidly, emergency medical treatment is needed as soon as possible.180
Subdural Hematoma:
Is a collection of blood that pools under the dura. The dura is a relatively tough connective tissue (collagenous) membrane, about the thickness of parchment paper. It is firmly attached to the under surface of the skull and in the spinal canal it is separated from the bony structure by a layer of fatty tissue. The inner underside of the dura is applied to a much thinner, transparent membrane, the arachnoid, that overlies the brain and subarachnoid space. This interface is easily separated, forming the subdural space. The subdural space is referred to as a "potential space" because a space is not generally created unless a subdural hematoma or another space occupying mass is formed. When a subdural hematoma forms, it is generally an indicator of a broken vein on the underlying surface of the brain. If one or more of these veins that "bridge" the dura are injured, bleeding occurs into the subdural "space" causing a subdural hematoma (clot).181
180 Id. 181 SBSDefense.com, supra note 57.
2006] SHAKEN BABY IMPACT SYNDROME 35
Gray matter
Dura
Arachnoid
Vein
|s Virchow-Robin Space
Penetrating vessel
Subdural Hematomas, Types Of (acute, sub-acute, and chronic):
A subdural hematoma (SDH) is classified by the amount of time that has elapsed from the inciting event, if known, to the diagnosis. When the inciting event is unknown, the appearance of the hematoma on CT scan or MRI can help date the hematoma. Acute SDHs are less than 72 hours old and are hyper-dense compared to the brain on CT scan. Subacute SDHs are 3-20 days old and are isodense or hypodense compared to the brain. Chronic SDHs are older than 20 days and are hypodense compared to the brain.182
When the dura is cut and removed a subdural hematoma may be seen. This blood will appear bright red if it is "acute" and the color of port wine or "crank case oil" if it is older. The pathologist should note if the blood is red/black, brownish, yellowish-orange, 'machine oil' or straw colored (or combinations of all of these). The pathologist should weigh (volume), sample and photograph this blood. "Chronic" or old subdurals will be darker in color and may leave an iron stain on the dura the color of port wine, brown or yellow.
182 Sinson & Reiter, supra note 58 (emphasis added). 183 SBSDefense.com, supra note 57.
36 MILITARY LAW REVIEW [Vol, 188
Subarachnoid Hemorrhage:
Subarachnoid hemorrhage arises from tearing of arachnoid vessels at the same time bridging veins are torn, because the bridging veins are surrounded by an arachnoid sheath as they cross the subdural space to enter the inner dural layer and finally the dural sinuses. Tearing of bridging veins usually produces both subdural and subarachnoid hemorrhages.184
Retinal Hemorrhages:
Retinal Hemorrhages are small hemorrhages on the back of the eye. Most experts do not agree as to the pattern, number, location, or type of retinal hemorrhages that point to a diagnosis of SBS or other non-accidental trauma. The mechanism(s) behind retinal hemorrhages in infancy in the context of alleged head trauma are unknown. Most research points to a mechanism involving rapid increases in intracranial pressure, cerebral venous spasm or increased venous pressure, and possibly hypoxia. . . . Sometimes the retinal hemorrhages are accompanied by nerve sheath damage or bleeding in the subdural space of the optic nerve. This finding has been considered an indicator of a
185
greater degree of damage
IftSi ~^£il -.. . X XVX". X'-yf-'-
184 Case et al., supra note 170, at 116. 185 SBSDefense.com, supra note 57.
2006] SHAKEN BABY IMPACT SYNDROME 37
Appendix B
Head Loading
S_Uc Dynamic
Contact Head Loading __ fliftvCotrtjaS 'HssJ Lo__ig-
