Shaken Baby Is A Myth Forensic Science
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Shaken Baby Is A Myth Forensic Science

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Shaken Baby Is A Myth Forensic Science Shaken Baby Is A Myth Forensic Science Document Transcript

  • 5/12/2010 FOEENSIC SCIENCE: "SHAKEN BABY" CASES For: National Seminar for Federal Defenders, Seattle, Washington, June 2, 2010 J a n e McCIellan, AFPD, District of Arizona (based on previous presentation with AFPD Doug Passon) © WHAT IS SBS? Video Clip: Shaken Baby Syndrome ("SBS") Explanation WHEN WILL YOU SEE ACCUSATIONS INVOLVING SBS?o Retinal Hemorrhages • Bleeding: behind the retina that can range from a few scattered spots to extensive involvement of multiple layers ofthe retinao Subdural Hematoma • A collection of blood between the surface ofthe brain and the dura (tough, fibrous outer membrane surrounding the brain).o If you have these two things, there will be trouble! Oil
  • 5/12/2010 SBS Is A MYTHo ShaMng alone of an otherwise healthy infant cannot cause the constellation of injuries associated with SBS 0 SBS Is A MYTH Video Clip: Shaking Can Cause Injury e SBS is A MYTH Video Clip: Shaking Cnnnot Cause Injury o
  • 5/12/2010 SBS Is A MYTHo Shaking alone of an otherwise healthy infant cannot cause the constellation of injuries associated with SBS o Duhaime, A.C. et al. The Shaken Baby Syndrome: A clinical pathological, and biometrical study. Journal of Neurosurgery.o At least three organizations have abandoned their belief in SBS: o American Academy of Pediatrics o American Academy of Opthamology o National Association of Medical Examiners. o OTHER INJURIES MUST BE PRESENT TO PROVE BABY WAS SHAKEN Video Clip: No Other Injuries 0 OTHER INJURIES MUST BE PRESENT TO PROVE BABY WAS SHAKENo Neck/Spine injurieso ShaMng Marks o Finger marks o Bruises o Nail marks o
  • 5/12/2010 MANY THINGS CAN CAUSE SUBDURAL HEMATOMAS Video Clip: Short Falls Can Kill MANY THINGS CAN CAUSE SUBDURAL HEMATOMASo Accidental injuries in children can lead to subdural hemorrhages and even death. o Short falls.o A history of eougMng, vomiting, or choking can account for RH and subdural bleeding in otherwise healthy infants,o When a baby stops breathing, a lack of oxygen causes brain to swell and vessels to rupture. 0 MANY THINGS CAUSE RETINAL HEMORRHAGES Video Clip: Retinal Hemorrhages ©
  • 5/12/2010 MANY THINGS CAUSE RETINAL HEMORRHAGESo The number and location of retinal hemorrhages arent 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,_ no of / V iloli v ery cnn l_Hu.nc.}(„!_ther study looked nl 230 infants wllhln n lowdays of ___/ birth _3/l_.5K)M_ healthy infante- 1-/21.7K) MANY THINGS CAUSE BROKEN BONES AND BRUISING 1o Vitamin C depletion in infants can lead to bone fragility.o Corner Fractures are considered evidence of abuse. 1 1 o Metabolic disease ofthe premature o Osteogenesis imperfecta and other genetic 1 bone disorders 1 1 o Hyperparathyroidism o Vit. D deficiency and IdiopatMc juvenile 1 1 1 osteoporosis 0 MANY THINGS CAUSE BROKEN BONES AND BRUISINGo Thrombocytopenia (low blood platelet count) - platelets play a role in blood clotting = bruising.o Henoch-Schonlein P u r p u r a (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 i n 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 SBSo Goal: To block testimony about SBS, and to preclude govts 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 SBSo Forensic Pathologisto Biomechanicso Radiologisto Pediatric NeurologistoEtc.o Dr. Posey (800-620-4644)o National Child Abuse Defense & Resource Center http://www.falseallegation.org/ DISCOVERY & INVESTIGATIONo Pre-natal recordso Birth recordso Post-birth health recordso Hospital policy records 1o Ambulance emergency records 1o False confession issueso Child suggestibility issues o
  • 5/12/2010 ASSIMILATIVE CRIMESo 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 ExpertsBill Massello (Bismark) Cannot review any cases at this time, due to his current position701-328-6154 Avsncinfp Mpdical Kxaminpr in Miami-Dade dountv MK Dent1865 NE 214 Terrace • Interested in reviewing case at NO CHARGEMiami, FL 33179 • If needed for testimony will chargePHONE: 305-527-9535 • CV availableMshumanmd(o),netzero. netGeorge Nichols (Louisville) Number has been disconnected-no longer in service502-499-0077 • Currently researching Internet for a valid numberEd Willey Private Practice of forensic medical and pathological evaluation6727 1st Ave. South • Interested and available to review caseSuite 204 • When informed of injuries sustained by V, stated that these injuriesSt. Petersberg, FL 33707 are not necessarily caused by shakingPHONE: 727-345-2907 • Charges $250/hour • CV availableShaku Teas (Chicago) Not available to review case until July or August - backlogged with708-366-4389 other casescell: 708-415-8074 • Charges $325/hour to review and consult with attorney • $375/hour to testify; and $3,500.00 if involves overnight stay • Will forward CV for future purposesDr. Patrick Barnes Pediatric Neuro-radiologistDept. of RadiologyLucile Salter Packard ChildrensHospitalStanford Univ. Med. Ctr.725 Welch RoadPalo Alto, CA 94304PHONE: 650-407-8601David M. Posey, M.D. Forensic and neuropathologistGlenoaks Pathology MedicalGroup, Inc.2222 Foothill BoulevardSuite E-565La Canada, CA 91011PHONE: 818-249-1911posev(3),vel.net
  • Shaken Baby ExpertsChris Van Ee, Ph.D. Injury biomechanics expertSenior Biomechanical Engineer Highly recommended by several lawyers, the National Child AbuseDesign Research Engineering Defense Resource Center, and Dr. Posey, internationally renowned46475 DeSoto Ct. expert (we have copy of CV) and has a substantial lab to do state ofNovi, MI 48377 the art testing using crash test dummies.PHONE: 248-668-5533chrisv(2),dreng.comJohn Jerome Plunkett, M.D. He is a pathologist and an expert on head injuries.13013 Welch TrailWelch, Minnesota 55089PHONE: 507-263-4022
  • COMMONWEALTH OF KENTUCKY GREENUP CIRCUIT COURT CASE NO. 04-CR-205COMMONWEALTH OF KENTUCKY PLAINTIFFVS. ORDER AND OPINION ME: DAUBERT HEARINGCHRISTOPHER A. DAVIS DEFENDANT ^^i^^*_!t^.^_^^*^*^>J_^^_|-^^^tJi^>j$^^_fe_4<**%^**sS:ij!4:*****^^****H!*>!!**_:. On September 19,2005, the Defendant, by and through counsel, filed a motionfor a Daubert hearing pursuant to KRE 104 and Daubert vs. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993). In his motion the Defendant moved theCourt to determine: 1. The admissibility of proposed medical and scientific evidence that manual shaking can cause subdural hematomas and retinal hemorrhaging in infants. 2. Whether shaken baby syndrome meets the Daubert criteria for admissibility as a scientific theory to explain the injuries to the victim in this case. 3. The admissibility of proposed medical and scientific evidence that subdural hematomas and retinal hemorrhaging in infants can only be cause by manual shaking. 4. The admissibility of proposed medical and scientific evidence that the symptoms of subdural hematomas and retinal hemorrhaging would necessarily be immediately apparent.
  • 5. The admissibility of proposed expert medical and scientific opinions that the injuries of the victim are consistent with shaken baby syndrome. A Greenup Grand Jury indicted the Defendant of first-degree criminal abuse by-violently shaking achild-vrit__th_-initial______________> childs 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 Commonwealths 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 childs 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, AlbertEinstein University College of Medicine, inNew York from 1968 to 1969. Heperformed his residency in neurological surgery, Georgetown University andaffiliated-Hospital from 1971-to-_9_7_5.__- — Dr. Uscinskis experience included serving as a Medical Officer in the U.S. Navyat Parris Island, South Carolina, and aboard the U.S. S. Thomas A. Edison (SSNB610-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 babysyndrome including locations at Washington, D.C, London, England, andNara,Japan. See Dr. Uscinski Curriculum Vitae, Defendants Exhibit #1. Dr. Uscinski testified that as a practicing neurosurgeon he became interested inthe subject of SBS because it directly affected his medical practice. As a result of hisinterest, he began to survey the different medical publications that existed on thesubject of SBS. His study of the subject combined with his clinical practice led him tothe conclusion that based upon his training, education, and experience, and within areasonable degree of medical probability, there is insufficient proof in the medicalcommunity that human beings can generate the required rotational acceleration bymanual 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 retinalhemorrhaging, 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 hesuggested that manual whiplash shaking of infants is a common primary type oftrauma in the so called battered infant syndrome. It appears to be the major cause inthese 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. Caffeys 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. (Defendants Exhibit # 8) Dr. Uscinski pointed out that the Ommaya experiment study produced injury to 19out of 50 monkeys by seating them in a chair that accelerated whipping the monkeyshead back and forth. However, the experiment was preformed on monkeys instead ofhumans 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. Itwas suppose to illustrate that injuries could occur to primates through sheer accelerationforces without any impact to the monkeys head. Researchers in the Ommaya study produced an impact curve that predicted atwhat level of acceleration the monkeys would start to experience brain injuries from thesheer acceleration forces without any impact on the head. The researchers prepared animpact curve and from it were able to tell at what levei of acceleration they observedbrain 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 thisdetermination. Second, the researchers failed to take into account that in some cases themonkeys hit their heads on the back of the "monkey seat" during the accelerationprocess. Dr. Uscinski also pointed out whipping a head back due to acceleration forcesone time in an acceleration chair is a different kind of motion than shaking a childrepeatedly by holding onto the childs 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. (Defendants 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 Guthkelchs work was based on several case studies andnot a scientific examination using controlled experiments. In fact Dr. Guthkelch did notdo any experiments himself, he merely commented on, and suggested a possibleexplanationfor the-case-studies-he c i t e d J & i _ _ i _ ^ ^of Dr. Guthkelchs hypothesis was based on the flawed work of Dr. Ommaya. Dr.Guthkelchs 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. (Defendants 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 ahuman cannot generate the forces necessary to cause injury to the brain. The study wenton 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 arenot likely to occur from the shaking that occurs during play, feeding, or in a swing, oreven from the more vigorous shaking given by a caretaker as a means of discipline.7Duhaime, supra. A second biomechanics study was conducted by Faris A. Bandak in 2004 andreported in 2005 in the professional magazine Forensic Science International, Shaken baby syndrome: A biomechanics analysis of injury mechanism. (Defendants 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 dealof 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 Badaks neck force estimations, we question the resolute tenor of Bandaks 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. (Defendants 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. (Defendants Exhibit # 14) 10
  • After discussing his review of the different reported studies on SBS, Dr. Uscinskitestified that considering the latest evidence, we must look at the "unexplained headinjury" in a different light. Dr. Uscinski testified that trivial head impact after a fail of aslittle as 3 feet results in the same impact as hitting a hard surface at 9 miles per hourwhich is more than twice that necessary to fracture the skull of an infant. His point wasthat what seems like trivial head impacts for an infant, like falling off of a bed or out of achair, may result in a chronic subdural hematoma manifesting itself much later. Hepointed out that we should not jump to the conclusion that there has been parentalshaking. 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. (Defendants Exhibit # 4) He concluded that, "some 32 years of cumulative 11
  • material yielded inadequate scientific evidence to establish afirmconclusion on mostaspects of causation, diagnosis, treatment, or any other matters pertaining to shaken babysyndrome." Uscinski, supra. He also stated," it was impossible to determine withscientific rigor what role shaking may have played in abusive head injury in thesereported cases. Finally, it was not possible from the case analyses to infer that anyparticular 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 tothe head and body." Uscinski, supra. The Commonwealth called Dr. Betty S. Spivack, MD to the stand to testify. She isa forensic pediatrician with the Office of the Chief Medical Examiner located inLouisville, 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 Childrens Hospital of Buffalo from July 1979 to June 1982. She received a fellowship in pediatric critical care at Childrens Hospital of Buffalo from July 1982 to June 1984; and a fellowship in forensic pediatrics from the Child Protection Program, Hasbro Childrens 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 bySusan S. Margulies, PhD, and Betty S. Spivack, MD. (Commonwealths Exhibit # 11) Dr. Spivack testified in the form of a PowerPoint presentation. (CommonwealthsExhibit #10) She entitled her presentation "The Biomechanics of Abusive HeadTrauma" and outlined the history of research in the area of Shaken Baby Syndrome. Shethen 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 notconsistently 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 tissues 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 wascurrently ongoing in the area of SBS. Dr. Spiveck also testified that history plays a significant role in assisting a doctordiagnose 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 Commonwealths 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 experts opinion or inference. The "preliminary assessment" that a trial judge must make is a "a flexibleone" that requires the judge to focus "solely on principles and methodology, and not onthe conclusions that they generate." The Kentucky Evidence Law Handbook/A Edition),Lawson, Robert G., (LexisNexis, Matthew Bender, 2003). The assessment the court mustmake 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 incompleteand largely circumstantial." Caffey, supra. In 1968 Ommaya conducted studies upon rhesus monkeys for the purposeof trying to assess injuries for whiplash for humans in automobile collisions.Ommaya concluded that when the monkey was placed in an acceleration chairthat injury to 19 of 50 monkeys sustained head and neck injuries withoutsignificant 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 SBHs (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 thandirect violence is the cause of the haemorrhage, the infant having been shakenrather than struck by its parent. Such an hypothesis might also explain theremarkable frequency of the finding of subdural haemorrhage in battered childrenas 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 Guthkelchs work was based on several case studies and not a scientific examination using controlled experiments. Furthermore, Guthkelch leaned heavily on Ommayas 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 orother injury. Further research must be conducted in the area of biomechanics ofbabies. _ 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 oneevent occurs, then, another event will follow. A positive correlation means thatwhen 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 thatanother 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 teachers salaries, we must increase beer drinking? Certainly not! Teachers 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 byresearchers, however, their conclusions tend to point to shaking alone withoutimpact does not cause the subdural hematoma or retina bleeding. The research isnot yet completed and no definitive conclusions have been reached. The physicians, on the other hand, use a subdural hematoma and bilateralretinal bleeding as criteria for diagnosing abuse in the form of SBS. Dr. Spivackmade it clear that physicians currently use this diagnostic criterion. Theseclassical markers of diagnosing an infant brain are certainly in the realm ofphysicians 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 injuriessuch as bruising and broken bones. There is no known or potential rate of error in the studies that have beencompleted. Some studies have been conducted in accordance with establishedscientific protocols rending their conclusions useful in the area of SBS. However,other studies are merely educated guesses as to the cause of SBS based uponempirical studies, anecdotal cases, and advise to the public based on commonsense. The existence and maintenance of standards controlling the study of SBScertainly 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. Toallow a physician to diagnose SBS with only the two classical markers, and noother evidence of manifest injuries, is to allow a physician to diagnose a legalconclusion. If the physician has the two classical markers (subdural hematomaand bilateral ocular bleeding) coupled with other manifest injuries, then thediagnosis arises to more than a legal conclusion—it becomes a medical opinion. The Court can only conclude that SBS has not gained wide or generalacceptance 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 childs 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 witaessto offer an expert opinion that a baby has received injuries as a result of beingshaken, unless there exists clinical evidence of at lease one subdural hematoma,bilateral ocular bleeding, and any other indicia of abuse present such as long-boneinjuries, a fractured skull, bruising, or other indications that abuse has actuallyoccurred. Entered this the / TiA day of April , 2006. LEWIS D. NICHOLLS CIRCUIT JUDGE 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 y (X.J-A<A D.C. 24
  • A Critical Look at the By Roger H. Kelly and Zachary M. BravosShaken Baby SyndromeRecent research shows that factors other than abuse may be the causeof damage thought to result from shaking, these defense lawyers argue. A pproximately 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 ac- cused 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 trau- ma, bruising, or other indications or evi- dence 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 Inju- ries in America: Public Health in Action, http://wwv. cdc.go_ncipe/fa_-_book/l > revcndng%20_njuries%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 Unit- ed States. Mr. Bravos is legal editor of the journal Issues in Child Abuse Accusations.
  • the theory be scrutinized and its validity Similarly, in late 2001, the supreme en infant Syndrome." He drew upon the tested. court of the Australian Capital Terri- Guthkelch article, a Newsweek magazine Though shaken baby syfidrpme is still tory reviewed the science behind an ac- article, and the work of Ommaya. embraced by the medical establishment, cusation of shaking based upon subdural However, in 2002 Ommaya ques- some forensic scientists sharply criticize hemorrhages and bilateral retinal bleed- tioned the applicability of his research the theory as rooted in anecdote, bad ing in the absence of other injuries.7 The to support the shaken baby syndrome study, arid speculation. Some biomechan- Crowns theory was that the "constel- theory, commenting as follows:_ical_experts,_pathophysiologists,-physi-- lation— of- injuries-was-caused-by-shak— _[0]utexperimental results-were referenced- cians, medical specialists, and medical ing.. Seven Crown experts testified, over as providing the experimental basis of the researchers have tested elements of the objection, in support of the theory. Nev- "shaken baby syndrome" (SBS) by Caffey, theory .and have established a growing ertheless, the court found "The evidence GulthkeWh and others by analogy not re- revealed a paucity of empirical research alizing that the energy level of acceleration body of .evidence challenging many of its on potentially critical issues."8 The high in our work related to speeds at motor ve- assumptions. court ruled as follows: hicle crashes at 30 mph.14 This article briefly discusses this sci- In suggesting that the associated find- entific evidence. But first it looks at court Ifindthat the evidence .was not admissible ings of subdural hematoma and retinal rulings that have critically examined the to.the effect that the injuries were caused hemorrhages could be sufficient diag- foundations of the shaken baby syn- in that manner [shaking], whether by the nostic criteria to determine abuse, Caffey drome. accused or otherwise, or that they could acknowledged that die evidence support- only have been caused in that manner. ing his theory was contrary to medical Some courts question The evidence suggests that such opinions expectations. the syndrome would not be based wholly or even sub- stantially on the experts specialized body The most characteristic pattern of physi- Recent challenges have been success- of knowledge as a pediatrician but [ ] on a calfindingsin the whiplashed infant is the ful at the trial court level in Frye and combination of speculation, inference, and absence of external signs of trauma to the Daubert hearings.3 In April 2006, a a process of reasoning beyond the relevant head and the soft tissues of the face and Kentucky circuit court ruled that in the field of expertise. neck, and of the facial bones and calvaria, absence of other evidence of abuse, the 1 Empirical research is now being con- in the presence of massive traumatic in- ducted that examines the basic hypothe- tracranial and intraocular bleedings. This sis behind the theory that is an extraordinary diagnostic contradic- shaking can and does cause tion." the injuries observed. 3. Florida (Johnson v Florida, 933 So2d 568 (Fla Recent challenges to the History of the theory 2006)j and Florida v Sanidad, 00-524 CFEA (Cir Ct Flager Cty 2006)j Oklahoma {Oklahoma . Watts, theory have been successful In 1971, Dr. A. Norman CF-2001-43 (D Ct Woods Cty, Okla 2002)). Missouri {Missouri v Hyatt, 06 M7-CROD016-02 (Cir Ct Shelby Guthkelch suggested that Cty, MO), Order dated November 6, 2007): Tennessee at the trial court level in Frye repeated shaking could {People v Maze, M2000-0224.-CCA-R3-CD (Tenn Ct . cause subdural hematoma App Davidson Cty Tenn 2002); and Ohio {Ohio v Mills, and Daubert hearings. even in the absence of evi- 2006 CR 100315 (Ct Com Pleas, Tuscarawas Cty, Ohio 2006)). dence of external injury to 4. Commonwealth Of Kentucky v Davis, 04 CR • the head.10 To support his 205. Trial Court Opinion April 17, 2006 (Greenup Circuit Court), http://www.aap_nline.org/sbs/daubert. suggestion, Guthkelch ref- pdf. . erenced a series of 23 chil- 5. State . Edmonds, 308 Wis 2d 374, 746 NW2d 590 (2008).theory of shaken baby syndrome could dren of "proved or strongly suspected 6. Shaken baby convictions overturned, „ttp_www.not be introduced,4 The Wisconsin Ap- parental assault." He did not disclose guardian.co.uk/society/2005/ju_21/childrensservic_.pellate Court recently acknowledged the how these assault determinations were childprotection, 7. The Queen v Stuart lee, SCC 69 of-2000 (Supcontroversy regarding the shaken baby made. Ct Australian Capital Territory, Canberra), 2002 WLsyndrome theory by granting a new trial Of this group, five children had sub- 14350. dural hematoma with no evidence of 8. Id at para. 46.to a convicted babysitter who had been 9. Id at para. 52.imprisoned for over 10 years.3 direct trauma to the head. Guthkelch 10. A, N. Guthkelch, Infantile Subdural Haematoma Overseas courts have also ruled theorized that repeated. shaking rather and its Relationship lo Whiplash Injuries, British Medi- cal-Journal 2,430-31 (1971).against the admissibility of the theory. In than direct impact was the cause of 11. A. Ommaya, F. Faas, P. Yamell, Whiplash. Injury2005, the court of appeals in the United these Hematomas. He compared such and Brain Damage, JAMA, 204(4) 285-89 (1968).Kingdom overturned two convictions shaking to two cases of adults suffering 12. J. Caffey, On the Theory and Practice of Shaking Infants, American Journal of the Disease of Childrenfor murder and reduced the charges on subdural hematoma as a result of auto- 124,161-69 (1972).a third, all of which were based upon the mobile whiplash injury in rear-end col-, 13. J. Caffey, The Whiplash Shaken Baby Syndrome: Manual Shaking by the Extremities With Whiplash-theory of shaken baby syndrome.4 In each lisions published by Dr, Ayub Ommaya Induced Intracranial and Intraocular Bleedings, Linkedcase, there was no other evidence about in 1968." With Residual Permanent Brain Damage and Mentalwhat happened and no evidence of earlier Retardation, Pediatrics 54,396-403 (1974). The shaken baby syndrome theory 14. A. Ommaya, W. Goldsmith, L. Thibault, Bio-ill treatment. The court rejected the claim was brought further attention by Dr. mechanics and Neuropathology of Adult and Pedi-that subdural hematoma and retinal hem- John Caffey in his 1972 article On the atric Head Injury, British Journal of Neurosurgery, 16(3):220-42 (2002). •orriiaging automatically lead to a conclu- Theory and Practice of Shaking Infants1 15. Caffrey, The Whiplash Shaken Baby Syndrome atsion of unlawful killing or injury. and his 1974 paper The Whiplash Shak- 403 (cited in note U). VOL. 97 | APRIL 2009 | ILLINOIS BAR JOURNAL I 201
  • SHAKEN BABY SYNDROME I Continued This "extraordinary diagnostic con- reasonable person would expect injury. It results. Shaking, even with impact on tradiction" remains unresolved. Indeed, is extremely violent and clearly abusive. foam, could not produce enough force the lack of external evidence of trauma is A defendants claim of innocence often to cause brain injury, including subdural the most troubling aspect of the shaken fails in the face of the expert testimony hematoma." baby syndrome theory because it raises that the only way subdural hematoma Even Dr. Ommaya,. whose primate the obvious question: can an infant be and retinal hemorrhages can be caused studies were used by Caffey and Guth- shaken with sufficient force to cause (other than some extremely rare genetic kelch, confirms that shaking alone pro--brain-injury^ and4eave-no~externahevi" conditions) is _hroughrviolent shaking;— duces maximum—angular-acceleration^ dence of trauma? However, obvious questions arise. "well below thresholds for cerebral con _ Many articles and papers advanced Why is there no evidence of external cussion,(SDH (subdural hematoma), sub- in support of the shaken baby syndrome trauma? Why are there no grab marks on arachnoid haemorrhage, deep brain hae- the body? Why are there.no morrhages and cortical contusions."20 injuries to the infant neck, a structure that seems so Other causes of subdural weak and vulnerable? This hematoma Though shaken baby syndrome is Caffeys "extraordinary A variety of conditions known and is still embraced by the medical diagnostic contradiction." unknown can cause subdural hemato- Can an infant be shak- mas. For example, subdural hematomas establishment, some forensic en so violently as to cause are a known complication of childbirth.21 scientists sharply criticize the the shaken baby markers They can occur with no history of birth without any sign of. exter-. trauma and have even been described theory as rooted in anecdote, nal injury? The science of prenataly.22 Hemorrhages have been bad study, and speculation. biomechanics, the applica- found in 70 percent of infants who died tion of mechanical princi- from non-traumatic causes, some with pals to living organisms,. bleeding identical to cases presented as —: has studied this question, classic "Shaken Baby Syndrome."23 Experiments have called In a recent survey of asymptomatic• theory are based on anecdote and experi- into question the shaken baby syndrome newborns, 16 percent had subdural he- ence, The quality of such papers and ar- theory. matomas. Fully 26 percent had some ticles have been criticized in peer reviews In 1987 Ann-Christine Duhaime, form of intracranial bleed.24 There is and subsequent articles," Indeed, some et al" sought to quantify.the forces in- no suggestion that these children were research appears to refute basic princi- volved in manual shaking of an infant. abused. ples behind the theory, As a result, some Model dolls were constructed,fittedwith Older infants with external hydro- scientists and medical practitioners now accelerometers, and then shaken. cephalus commonly suffer subdural question the very existence of shaken The results demonstrated that shak- hemorrhages." Children with external baby syndrome. ing alone.could only generate about 25 16. M, Donohoe, Evidence-Based Medicine and percent of the angular acceleration need- Shaken Baby Syndrome Part I: Literature Review, Biomechanics ed to cause brain concussion and only 1966-1998, American Journal of Porensic Medicine and Pathology 24(3), 239-42 (2003). A demonstration of the force claimed about 7 percent of the angular accelera- 17. A. C. Duhaime, T. Gcnnarelli, L. Thibault,.D. to cause shaken baby syndrome has a tion required to cause subdural hema- Bruce, S. Margulies, R; Wiser; The Shaken Baby Syn- powerful effect. Imagine a full-grown toma. The authors concluded that "the drome, A clinical, pathological, and biomechanical study, Journal of Neurosurgery 66; 409-15 (1987). man shaking an infant back and forth angular acceleration and velocity associ- 18. Id at 414. with all of his might and as rapidly as ated with shaking occurs well below the 19. M, Prange, B. Coats, A. C. Duhaime, S. Margu- he can. The head flops back and forth injury range."" lies, Anthropomorphic simulations of falls, shakes, and inflicted impacts in infants, Journal of Neurosurgery 99, violently as the arms, legs, and torso are This result has since been replicated. 143-50 (2003). shaken like a rag doll. In 2003, Grange, et al, used more real-. 20. A. Ommaya, W. Goldsmith, L. Thibault, Biome- chanics and neuropathology of adult and pediatric head The force involved is such that any istic baby models and obtained similar 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! haemor- rhage in non-traumatic infant deaths: does it explain the The lay science magazine Discover took up tie syndrome last December in its bleeding in shaken baby syndrome?, Neuropathology article Do$s t/ie Shaken Baby Syndrome Really Exist7 In addition to reviewing and Applied Neurobiology 29,14-22 (2003). 24. C. Looney, et al, Intracranial Hemorrhage in As- the scientific debate, it discusses a Rantoul case in which charges against a parent ymptomatic Neonates: Prevalence on MR Images and Were ultimately dropped and includes quotes from Urbana lawyer and ISBA Relationship to Obstetric and Neonatal Risk Factors, member K.ris;ten Fischer Radiology, 242(2) 5 3 5 ^ 1 (2007). 25. P. McNeely, J. Atkinson, G. Saigal, A.. OGorman, The articlejs pp the Web at ^tpZ/discpvei nnagazine,corn/.2008/de c/02- J. Farmer, Subdural Hematomas in Infants with Benign does-shaken-baby-syhdrome-really-exist ,, . , " 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 spontane- retinal hemorrhages may be correlated chanicsBritish Journal of Neurosurgery, pediatric head injury, and neuropathology of adult and 16(3):220-42 ous subdural hematoma at a rate of up by a third factor - increased intracranial (2002). to 11 percent.26 pressure - not presumed shaking. 28. A. C. Duhaime, C. Christian, L. Rorke, R. Zim- To conclude that manual .shaking merman, Nonaccldental Head Injury England Journal "Shaken-Baby Syndrome," The New in Infants - The Other causes of retinal causes both subdural hematoma and of Medicine, 338(25):1822 - 1829 (1998). J. Geddes, hemorrhages retinal hemorrhage because they occur G. Tolberr, Paroxysmal coughing, subdural and retinal bleeding: a computer modeling approach, Neuropa- Proponents of shaken baby syn- together in instances where it is theorized thology and Applied Neurobiology 32, 625-34 (2006)._ d___n_"argue~that~ret_mHiemo_r_ages~ -that-manual-shaking Tiasoccurred-is-to- —29-_-MullerrJ—De-kj-Intraoculai^and-oplic-nerve— sheath hemorrhage in cases of sudden intracranial hy- are caused by mechanical traction on construct a circular argument that fails pertension, Journal of Neurosurgery 41,160-66 (1974). the optic nerve and retina during shak- in its proof because the truth of what it A. Ommaya, W.,Goldsmith, L. Thibauit, Biomechanics ing.27 However, the exact cause of retinal seeks to prove is assumed. and neuropathology of adult and pediatric head injury, British Journal of Neurosurgery, 16(3):220-42 (2002). 28 hemorrhages remains unknown. There R. Uscinski, Shaken Baby Syndrome: fundamental appears to be a relationship to increased Biomechanics and the neck questions, British Journal of Neurosurgery, 16(3): 217- 19 (2002). intracranial pressure, which has been If an act of manual shaking is suffi- 30. J. Piatt, A pitfall in the diagnosis of child abuse: 2 known for decades. Extensive, bilateral. ciently violent to cause subdural hemato- external hydrocephalus, subdural hematoma, and reti-. retinal hemorrhages that in other con- ma and retinal hemorrhaging, how then rial hemorrhages, Neurosurgical Focus, 7(4): Article 4, (1999). texts could lead to diagnoses of shaken does the violently shaken infant escape 31. J. Baum, C. Bulpitt, Retinal and Conjunctival baby syndrome have been described in serious neck injury? Haemorrhage in the Newborn, Archives of Disease in cases of external hydrocephalus.30 The mechanical limitations of the in- Childhood 45,344-49 (1970). in Imaging Nonacclden- 32. P. Barnes, Ethical Issues Retinal hemorrhages are common. fant neck can be determined. In 2005, tal Injury: Child Abuse, Topics in Magnetic Resonance Approximately 30 percent of children are Dr. Faris Bandak performed biomechani- Imaging 13(2), 86-93 (2002), H. Gardner, A Witnessed born with them.3 Since children are not cal research on infant shaking and its Short Fall Mimicking Presumed Shaken Baby Syn- drome (Inflicted Childhood Neurotrnuma), Pediatric routinely screened for retinal hemorrhage, consequences dn the head-neck-to deter- Neurosurgery 43, ,433-35 (2007). Geddes and Talberr, there is no good data regarding their rate mine if it is possible for the infant neck Paroxysmal coughing at 625-34 (2006) (cited in note 24). M, Goetting, B. Sowa, Retinal Hemorrhage after of occurrence for older infants. However, , to withstand Shaken Baby Syndrome der Cardiopulmonary Resuscitation in Children: An Etio- the fact that they are common and relat- fined levels of head accelerations without logic Reevaluation, Pediatrics 85(4), 585-88 (1990). ed to many other conditions, known and injury.36 The study concluded that cervi- P, Lantz, Researchers Say Criterion for Diagnosing Child Abuse Not Always Accurate, Science Daily, 02- unknown is well documented.32 cal spine or brain stem injuries, perhaps 26-2006. P. Lantz, S, Sinai, C. Stanton, R. Weaver, Evi- even lethal injuries, would occur "at dence based case report, Perimacuiar retinal folds from Concurrence of subdural levels well below those reported for the childhood head trauma, British Medical Journal 328, 754-56 (2004). hematoma and retinal Shaking Baby Syndrome."37 Peer review 33. Duhaime, et al, Nonaccldental Head Injury at 38 hemorrhage of this work is supportive. 1822-29 (cited in note 24). 34. Muiler and Deck, Intraocular and optic nerve at Retinal hemorrhage and subdural he- 160-66 (cited in note 25). . matoma are found together, at reported Conclusion 35. Uscinski, Shaken Baby Syndrome at 217-19 (cit- ed in note 25), rates of 65-95 percent,33 However, the No one would disagree that the pro- 36. E Bandak, Shaken baby syndrome: a biomechan- relation, if any, between these two condi- tection of innocent children is a laudable ics analysis of injury mechanisms, Forensic Science In- tions remains unproven. goal. However, this protection must be ternational, 151(1): 71-79 (2005). 37. Id. Proponents of shaken baby syndrome grounded in reproducible scientific con- 38. Geddes and Talbcrt, Paroxysmal coughing at assert that manual shaking causes these cepts. We have an obligation to put sci- 625-34 (2006) (cited in note 24). R. Uscinski, Shaken Baby Syndrome: An Odyssey, Neural Med Chir (To- conditions. However, the cause(s) of reti- ence to the test lest the innocent become kyo) 46,57-61 (2006). nal hemorrhages, as already noted, is un- victims themselves. known, with several theories postulated The history of medicine isfilledwith but none proven. unwise and unfortunate diagnostic ap- Both subdural hematoma and retinal proaches and failed theories .of causa- hemorrhage can appear at birth or from tion, healing, and disease. Until we learn multiple non-traumatic causes. To argue all that there is no know about all aspects that they are causally related to manual of medical science, such failures are to be shaking goes beyond the evidence. They expected and represent a normal course may be related as a result of a third or of learning. even multiple different causes as yet un- As attorneys we are not only advo- determined. cates, we are an integral part of the le- For example, there is a body of re- gal system, a system engaged in the truth search that asserts that retinal hemor- seeking process. Justice is served when we rhages are caused by increased intracra- are open to considering well-grounded www.cafepress.com/isbawebboutique nial pressure.31 Further, subdural hema- research, even when it challenges long- toma is a competent medical cause for established theories, • increased intracranial pressure.35 Therefore, it follows that subdural he- 26. J, Piatt, A pitfall in ihe diagnosis of child abuse: external hydrocephalus, subdural hematoma, and reti- matoma, from whatever cause, may also nal hemorrhages, Neurosurgical Focus 7 (4): Article 4, ipjfjMcHasi^liyj^^lJjnS^ be associated with retinal hemorrhage. .(1999). l___r_Eern!^|J$ei^|^[Ti9i|i0$j In other words, subdural hematoma and 27, A. Ommaya, W. Goldsmith, L. Thibauit, Siome- VOL. 97 I APRIL 2009 | ILLINOIS BAR JOURNAL | 203
  • Page 2 of 55Westlaw.87 WAULR 1 Page 187 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 pro-secution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the de-fendant caused the infants death by shaking, and that the shaking was sufficiently forceful to constitute depraved indif-ference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely onthe 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 foundationsof thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluationsof 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 con-tinue 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 concep-tual implications of the inquiry-for scientific engagement in laws shadow, for future systemic reform, and for our under-standing 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 i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs^ 5/11/2010
  • Page 3 of 5587 WAULR 1 Page 287 Wash. U. L. Rev. 1 2. Lucid Intervals 18 3. Removing the Shaking from the 19 Syndrome IV. SBS and the Law 22 A. Investigation and Prosecution 26 1. Prosecutorial Training 28 2. Caregiver Accounts 30 3. Reification 32 B. Evidentiary Challenges 32 C. Jury Verdicts 37 D. Insufficiency Claims 41 E. Post-Conviction Proceedings 48 I.Edmunds 48 2. Beyond Edmunds 51 V. Conclusion 56 I. Introduction Natalie Beard died on October 16, 1995. [FN1] That morning, her mother had brought the seven-month-old to thehome of her day care provider, Audrey Edmunds. [FN2] The baby was by all accounts fussy. [FN3] According to thecaregivers 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-immediatelycalled 911 to report that Natalie appeared to have choked and was unresponsive. [FN6] Rescue workers respondedminutes 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 wit-ness claimed to have seen the defendant shake the baby. [FN9] There were no apparent indicia of trauma. [FN 10] Ed- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http ://web2 .westlaw. com/print/printstream. aspx?rs=WLWl 0.04&destination=atp&prft=H... 5/11/2010
  • Page 4 of55 87 WAULR 1 Page 3 87 Wash. U. L. Rev. 1 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 pris- on. [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 childs 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 pathognom- ic—or exclusively characteristic—of SBS. At trial, the prosecutions experts testified that "only shaking, possibly accompanied by impact" could explain the in-juries. [FN 19] Regarding the force necessaiy to cause these injuries, jurors heard the explanation typically offered inthese 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 prosecutions experts concluded that the shaking necessarily occurred while thebaby was in the defendants 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 Edmundss trial, themedical 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 in- cludes 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 perpetrators 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 defendants 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 defendants 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 re- sponds 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. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2 .westlaw. com/print/printstream. aspx?rs=WLWl 0.04&destination=atp&prft=H... 5/11/2010
  • Page 5 of 5587 WAULR 1 Page 487 Wash. U. L. Rev. 1There 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 contro-versy around aspects of the diagnosis, Part III identifies a number of key areas where the framework for debate itself hasbeen significantly altered. This discussion reveals that the new SBS is different enough from what came before to raiseserious challenges to a substantial number of criminal convictions. Specifically, these scientific developments have cast into doubt the guilt of an entire categoiy of defendants: thoseconvicted 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 systems treatment of the changing science. I do so by surveying the variousstages in the criminal process where actors make decisions with the potential to account for-or overlook-scientific de-velopments of the past decade. Police and prosecutors investigate cases and prosecutors decide whether to pursuecharges. [FN34] Defendants and prosecutors make Daubert and Frye challenges to the admissibility of scientific evid-ence. [FN35] Jurors determine whether guilt has been proven beyond a reasonable doubt. [FN36] Defendants appeal andcollaterally attack their convictions based on insufficiency of the evidence. [FN37] And defendants make motions forpost-conviction relief because new evidence has been discovered. [FN38] This procedural approach to understanding how the law integrates new scientific knowledge uncovers a response thatis halting and inconsistent. I focus my critique on the systems treatment of cases in which SBS diagnoses rest on out-moded medical dogma. What can be discerned about the status quo is alamiing. Guilt is being assigned where the bestavailable science creates, at the very least, reasonable doubt. When an outcome reflecting the best available science isgenerated, it is not because the factual predicate for the prosecution diverges from the typical case but, rather, becausethe defendant is able to mount an aggressive attack-one that requires resources~on a body of science whose vulnerabil-ity is, in theoiy, equally exposed to all. In short, prosecutors and courts are differentially absorbing scientific developments, resulting in an arbitrary distribu-tion of justice. [FN39] Since *8 January 31, 2008, when Edmundss new trial motion was granted, dozens of convictionsbased on SBS have been upheld, either on direct appeal or collateral attack. An unknown number of prosecutions havebeen initiated and an unknown number resulted in convictions. [FN40] While a portion of these cases rely on corroborat-ing medical evidence of injury beyond the triad, [FN41] many do not. The stoiy of our legal systems response to SBS speaks to how crime is constructed and reified. It tells of institutionalinertia and a quest for finality [FN42] that sit uneasily with our commitment to justice. And it demands consideration ofwhere we go from here. By identifying a problem of tragic dimensions, I hope to begin a conversation that seeks solu-tions and situates itself in the emerging discourse on innocence. [FN43] The conceptual implications of this inquiry-forscientific engagement in laws 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 retinalhemorrhages and subdural hematoma, the prosecutions expert concluded that a four-month-old infant had been shaken todeath, [FN45] and the appellate court affirmed the sufficiency of the evidence to convict. [FN46] Over the next fiveyears, less than fifteen appeals of convictions based on an SBS diagnosis were reported. [FN47] 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 6 of 5587 WAULR 1 Page 587 Wash. U. L. Rev. 1 Beginning in 1990, however, the number of appeals grew dramatically. In five-year increments, published appellatedecisions 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 suggestthat this trend toward rising SBS appeals is continuing: from January 1, 2005 to June 30, 2008, 259 written opinions inthis category were issued. [FN49] Appellate case law is admittedly an inadequate measure of prosecutions, both because most convictions do not resultin a written appellate decision, [FN50] and because not all prosecutions result in conviction. Notwithstanding these limit-ations, the appellate case law can suggest, as it does in this instance, that the total volume of prosecutions has been on asharply upward trajectory since 1990. Ascertaining the absolute number of SBS prosecutions is of course far more difficult. [FN51] Approximately 1500babies are diagnosed with SBS in *10 the United States each year. [FN52] How many of these cases result in prosecutionand conviction is unknown, however, since no comprehensive data on SBS cases has ever been collected. [FN53] Thatsaid, there are a number of ways to estimate the magnitude of defendants potentially impacted by recent scientific devel-opments. [FN54] One might conservatively assume that the approximately 800 appeals reported since 1990 reflect about1500 convictions after trial. [FN55] To focus on more recent figures only, it seems fair to conclude that around 200 de-fendants a year are being convicted of SBS. [FN56] Without additional data, we cannot reasonably speculate about thenumber of defendants who plead guilty to this type of crime, [FN57] although the estimated 1500 SBS diagnoses a yearmay provide an outside parameter. When placed against the backdrop of recent scientific developments, these numbers reflect a crisis in the criminaljustice 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 tri-ad-only cases [FN58]~cases *11 which represent a significant number of SBS prosecutions. Put simply, here "changehas 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 meanthat a baby had been shaken hard enough to produce what were conceptualized as whiplash forces. [FN60] According tothe conventional understanding of SBS, [FN61] "[t]he application of rotational acceleration and deceleration forces to theinfants head causes the brain to rotate in the skull. Abrupt deceleration allows continuing brain rotation until bridgingveins are stretched and ruptured, causing a thin layer of subdural haemorrhage on the surface of the brain." [FN62] Ret-inal hemorrhages were thought to result from a similar causal mechanism. [FN63] Most significantly, the triad of symp-toms 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 thepast decade [FN65] as the medical establishment has deliberately discarded a diagnosis defined by shaking. [FN66] Al-though no single nomenclature has emerged in its place, [FN67] doctors are now in widespread agreement that SBS is anunhelpful characterization, [FN68] *12 and that the presence of retinal hemorrhages and subdural hematoma cannot con-clusively 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 morecomplex; an object lesson in scientific overreaching and the challenge of correction. > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.co__/print/printstream.aspx?rs=WLW10.04&destination=atp&prf.=H... 5/11/2010
  • Page 7 of 5587 WAULR 1 Page 687 Wash. U. L. Rev. 1A. Flawed Science A number of forces coalesced to transform SBS from a certain diagnosis into its current state of flux. Most import-antly, in the mid- to late-1990s, [FN70] medical research, including the SBS literature, became subject to a heightenedlevel of scrutiny. The new "evidence-based medicine" standards required doctors to derive their research from methodsth_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: themedical literature published prior to 1998 contained "inadequate scientific evidence to come to a firm conclusion on mostaspects of causation, diagnosis, treatment, or any other matters pertaining to SBS." [FN74] More specifically, "[sjeriousdata gaps, flaws of logic, [and] inconsistency of case definition" meant that "the commonly held opinion that the findingof SDH [subdural hematoma] and RH [retinal *13 hemorrhage] in an infant was strong evidence of SBS was unsustain-able." [FN75] A logical fallacy of profound importance was uncovered by a close examination of the pre-1999 SBS literature: re-searchers had chosen subjects for study based on the presence of subdural hematomas and retinal hemorrhages and, withlittle 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 fromshaking. [FN77] Put differently, researchers "selected] cases by the presence of the very clinical findings and test resultsthey [sought] to validate as diagnostic. Not surprisingly, such studies tend[ed] to find their own case selection criteriapathognomonic 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 mechan-ism of injury. Here, too, a number of problems undermined the validity of the research. [FN80] Putting aside momentar-ily the possibility that a suspected abuser would be less than candid with doctors and investigators, [FN81] the classifica-tion 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 theyshook the baby, and did the babys 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 abuseliterature to the expertise of neurosurgeons, biomechanical engineers, [FN83] and pathologists. [FN84] Knowledgegained from these disciplines further eroded confidence in the existence of a pathognomonic relationship between shak-ing and the SBS triad. [FN85] Around the same time, magnetic resonance imaging (MRI) revolutionized the field of radiology and significantlyaltered the diagnostic universe. [FN86] Compared to its precursor, computed tomography (CT), MRI enabled a far moredetailed assessment of the "pattern, extent, and timing" of central nervous system injuries. [FN87] New radiological find-ings 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 scientificmethodology 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 in1997 brought shaken baby syndrome into the international spotlight. [FN91] The case was widely perceived as "one ofthe more intriguing legal dramas of the age-one that [left] unresolved a mysteiy of sickening fascination to parentseverywhere." [FN92] In its wake, an already divided scientific community became even more polarized. Physicians felt ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.cor__/print/printstream.aspx?rs=WLW10.04&destination=atp&prf_=H... 5/11/2010
  • Page 8 of5587 WAULR 1 Page 787 Wash. U. L. Rev. 1"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 irrefut-able scientific evidence presented by the defense that the infants 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 worlds 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. Mean-while, rather than abandon it altogether, defenders of the *16 validity of the diagnosis have adapted it in subtle but im-portant 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 out-side of the medical community, universally held tenets have been undermined, leading a segment of the scientific estab-lishment-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 remark-ably polarized. [FN96] Scientists on each side of the controversy espouse their respective views with a passion and cer-tainty 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 hasdeveloped around the invalidity of previously accepted dogma. Doctors who defend the legitimacy of SBS and dismissmany of its critics attacks are willing to concede that the science has evolved~and that even mainstream thinking haschanged 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 unre-solved differences; [FN99] but in the criminal justice *17 setting, the new common ground should be of critical import-ance. 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 exclus-ively diagnostic of abuse. [FN100] No longer are physicians willing to state with certainty that the constellation of symp-toms that once characterized SBS individually [FNlOl] and collectively [FN102] must in eveiy case indicate that a childwas abused. [FN103] In particular, as scientific study has generated new explanations for the presence of subdural hem-atomas [FN104] and retinal hemorrhages, [FN105] doctors have become increasingly reluctant to use the wordpathognomonic when discussing these symptoms. [FN106] While many disagree vehemently with the contention thatshaking alone cannot possibly cause the diagnostic triad, [FN 107] they have conceded that the triad is not necessarily in-duced by shaking, *18 and that a differential diagnosis must be considered. [FN 108] This represents a dramatic evolutionin mainstream scientific thinking. Critics of the new research argue that shaking is still the most likely explanation for retinal hemorrhaging and sub-dural hematoma. [FN 109] Nevertheless, given that the diagnostic paradigm rests fully on the triad, the move away frompathognomony inevitably reframes ongoing debate. 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prf.=H... 5/11/2010
  • Page 9 of55 87 WAULR 1 Page 8 87 Wash. U. L. Rev. 1 2. Lucid Intervals 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 infants 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 possibil- ity." [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 asso- ciated with SBS. Those who believe it cannot point to a number of biomechanical studies, as well as research using an- imal and computer models. [FN 120] Many of these scientists assume arguendo that rotational acceleration-deceleration forces can, in theory, cause retinal hemonhage 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 differenti- ated. Thus, the most committed defenders of the validity of the SBS diagnosis now allow that impact cannot be elimin- ated as a potential causal mechanism. Once this fact is acknowledged, the question of how much force is required to generate the types of injury associatedwith SBS becomes critical to whether trauma was inflicted, accidental, or undeterminable. *21 The latest thinking aboutforce thresholds complicates this inquiry. New research shows that relatively short-distance falls may cause fatal head in-jury that looks much like the injury previously diagnosed as SBS. [FN126] Moreover, these signs and symptoms may notappear 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 12010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 10 of 5587 WAULR 1 . Page 987 Wash. U. L. Rev. 1would previously have been certain that an infant was shaken, in many cases [FN131] a fall must now be entertained asan explanation for injuries. [FN132] Once the threshold of force sufficient to cause the injuries at issue has been cast intodoubt, 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 bepathognomonic 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 dif-ferential diagnosis for symptoms previously associated exclusively with SBS now contemplates a wide range of nontrau-matic 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 thebrain). [FN136] Notwithstanding these rather seismic shifts in medical thinking, the criminal justice system has-with only rare andrecent 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 defendantsconvicted of SBS-based crimes is, in all likelihood, factually innocent. Even more certainly, a far greater number of de-fendants 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 ex- pression 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 whatso-ever may have occurred, thus eliminating the opportunity to establish someone elses culpability. [FN 139] Second, atleast 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 likelyinnocent of wrongdoing, but others are not, and we have no way of differentiating between these groups. [FN 142] Ac-cordingly, 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 fa-miliar framework, it is helpful to *24 consider the number of known exonerations in the United States over the past thirtyyears. From 1989 through 2007, there were 210 DNA exonerations, mostly for rape. [FN144] It is reasonable to suspectthat this number of SBS-based convictions after trial occurred in the past year alone. [FN 145] Additional (non-DNA) ex-onerations include those of 111 inmates on death row, 135 other individuals, and perhaps another 200 or so defendantswhose convictions were overturned based on a "mass" scandal implicating widespread systemic corruption. [FN 146] Un-like SBS cases, none of these exonerations involve a set of paradigmatic facts later determined to be a faulty basis forprosecution. [FN 147] 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http ://web2. westlaw.com/print/printstream. aspx?rs=WLWl 0.04&destination=atp&pr_t=H... 5/11/2010
  • Page 11 of 55 87 WAULR 1 Page 10 87 Wash. U. L. Rev. 1 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 re- cognition of the problematic nature of pure-triad prosecutions. The emphatic institutional responses of the United King- dom [FN 149] and *25 Canada [FN 150] are particularly instructive. Just as our criminal justice system has seemed to op- erate 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 the1990s has remained largely untouched by scientific developments of the past decade. [FN152] This systemic failureshould not be equated with the prosecutorial pursuit of charges against defendants believed to be innocent of wrongdo-ing. [FN 153] Rather, SBS cases are going forward because law enforcement officers genuinely believe in the validity ofthe diagnostic triad that has fallen from scientific grace. [FN 154] But this explanation, while more benign than its altern-ative, 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, re-main believers in the diagnosis. [FN 157] Accordingly, prosecutors may exhibit a disinclination to interrogate the scienceupon which these physicians opinions rest. There is nothing novel about the observation that prosecutors tend to defer totheir experts; but, in this context, the relationship between the prosecutor and the allied medical professionals is a partic-ularly 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 oc-currence of a crime and its perpetrator, and their assurance regarding each is essential for a conviction. [FN 160] Thesedynamics may well contribute to a prosecutorial reluctance to challenge the validity of an SBS diagnosis. But they do notfully 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 bythe 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 onmedical issues common to all of these cases." [FN163] Since most prosecutors encounter SBS cases infrequently, fewbecome experts in the issues they raise. [FN 164] It is unsurprising, then, that a nationwide training apparatus has de-veloped to disseminate information about the basic structure of an SBS prosecution. For instance, the American Prosec-utors Research Institute of the National District Attorneys Association [FN 165] transmits newsletters, [FN 166] organizesconferences, [FN167] and *29 provides other support for prosecuting the SBS case. [FN168] The National Center onShaken Baby Syndrome, an organization dedicated in part to training law enforcement officers, [FN 169] has hosted andcollaborated on nine conferences since 2000. [FN 170] And prosecutors who have become leaders in the field have pub-lished book chapters with instruction in handling SBS cases from investigation through trial. [FN171] i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 12 of 55 87WAULR1 Page 11 87 Wash. U. L. Rev. 1 These training materials present a view of the science refracted through an advocates lens. For instance, a 2001 pub- lication 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 inter- val." [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 con- cerning 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 totrial, this same orientation with respect to case investigation is more problematic. And while we might also anticipatethat 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] theauthors tend to obscure the changed consensus around fundamental aspects of the SBS diagnosis. [FN 178] At the sametime, significant challenges to the conventional medical wisdom are ignored. [FN 179] Nomenclature aside, [FN 180] fewconcessions to developments in research have been made. The digested science describes a diagnosis upon which prosec-utors can securely rely. 2. Caregiver Accounts Prosecutorial confidence in guilt is augmented by statements on the part of SBS suspects-statements which are inev-itably perceived as incriminatory. The three accounts most often offered to explain an infants loss of consciousness orother obviously severe neurological symptoms are that: (i) their onset was unprovoked/without explanation, (ii) the infantfell from a short distance, and (iii) the infant was shaken playfully or in the course of revival efforts. [FN181] Researchover the past decade has made each of these explanations newly plausible. [FN182] But because law enforcement of-ficers interrogating the SBS suspect "know" that the infants injuries were caused by violent shaking—the science is be-lieved to prove this definitively-the narratives are all perceived as false and, therefore, incriminating. [FN 183] Moreover, if the suspects story changes in response to familiar interrogation techniques, [FN 184] this fact itself isused to support an SBS *31 diagnosis. [FN185] The ensuing interrogation confirms the suspects guilt, as this veteranSBS prosecutors characterization suggests: Each of the three most common histories, and others, may be combined inpatterns of changing histories as guilty adults attempt to fabricate new explanations to respond to the probing or suggest-ive questions of one or multiple interviews. [FN186] But even if the caregivers story remains constant, it too may be used as evidence of guilt. [FN 187] The "discrepanthistory"~"when the history does not match the physical condition in front of you"-is also seen as proof that the infantwas 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 investigators 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 i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&pr_t=H... 5/11/2010
  • Page 13 of 5587 WAULR 1 Page 1287 Wash. U. L. Rev. 1 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 tri- ad-based crime constructed by the medical establishment [FN 192] has been reified—its existence affirmed—by the sys--tematic-eonvietion-of^its-apparent-perpetratorsT-pNWS]B. Evidentiary Challenges 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 fa-cilitated by its once-uncontroversial nature. Even recently, and in cases involving triad symptoms alone, courts in bothDaubert and *33 Frye jurisdictions [FN195] have rejected arguments that SBS is not generally accepted in the medicalcommunity [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—evenin Daubert jurisdictions, where it is not dispositive~the consensus among pediatricians has been given particular emphas-is by admitting trial judges. [FN 198] In the absence of legally binding precedent, judges are well aware that "for sometime, courts in other states have found shaken baby syndrome to be a generally accepted diagnosis in the medical com-munity." [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 atleast 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 theoret-ical framework—even despite serious doubts about the validity of underlying methodologies. Perhaps judicial reluctanceto keep testimony regarding SBS from the jury derives from faulty evaluations of the science, or from an overly deferen-tial respect for the establishment that recommends it. But it is also quite likely that judges are allowing this type of testi-mony because our justice system is structured in a way that makes its admission the default. "[T]he standard for admiss-ibility 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 ap-propriate means of attacking shaky but admissible evidence." [FN203] Courts often justify the admission of SBS testi-mony by reference to this foundational principle. For instance: "The gate-keeping function of the court was never meantto supplant the adversarial trial process. The fact that experts disagree as to methodologies and conclusions is notgrounds for excluding relevant testimony;" [FN204] "[a] party confronted with an adverse expert witness who has suf-ficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weak-nesses through effective cross-examination." [FN205] Admissibility determinations are also grounded in the proper allocation of decision-making authority between judgeand juror. In a recent reversal on interlocutory appeal of a trial judges order excluding the prosecutions *35 SBS testi-mony, this consideration was explicitly invoked: [FN206] "The gatekeeping function of the trial court is restricted tokeeping out unreliable expert testimony, not to assessing the weight of the testimony. This latter role is assigned to thejury." [FN207] Even more emphatically, "[f]he court is only a gatekeeper, and a gatekeeper alone does not protect the > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.co__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 14 of 5587 WAULR 1 Page 1387 Wash. U. L. Rev. 1castle . . . ." [FN208] 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, testi- mony 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 physi- cian to diagnose a legal conclusion." [FN213] Accordingly, the judge precluded the state from presenting expert testi- mony 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 andsubdural hematoma. [FN217] After hearing testimony from experts on both sides, the Missouri trial judge determinedthat the SBS diagnosis "appears to have gained considerable acceptance . . . among pediatricians. However, there is sub-stantial, persistent and continuing criticism of this diagnosis among many in the medical and scientific research com-munities." [FN218] In its unpublished order, the court concluded that the state had failed to meet its burden of establish-ing that SBS is generally accepted in the scientific and medical communities. [FN219] The state was thus precluded fromoffering testimony that the infant was a victim of violent shaking based on the diagnostic triad alone. [FN220] This ifil-ing was not appealed. [FN221] Although the two trial court decisions to exclude testimony about SBS are outliers, they foretell more aggressive de-fense challenges to the *37 admissibility of the science, as well as greater pressure on judges to restrict the scope of ex-pert testimony. If research in this area continues to erode the foundations of the diagnosis, evidentiary rulings will evolveaccordingly-but only after a lag guaranteed by judicial deference to precedent, to physicians, and to the workings of theadversaiy system. For now, with few exceptions, if an SBS case goes to trial, juries will decide the worth of the scienceand 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 assiststhe defense in this area has estimated a conviction rate of 95%; [FN223] a prosecutor widely recognized as a national au-thority on SBS has suggested that the figure is closer to 50%; [FN224] and a forensic pathologist who has consulted onmany hundreds of cases for the defense places the figure somewhere between the two. [FN225] In the absence of mean-ingful 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 onmedical testimony about the triad of symptoms. [FN227] They are, however, acquitting more frequently today than everbefore. [FN228] Although the most important predictor of an *38 acquittal is the defense presentation of nationallyprominent experts who challenge the science, [FN229] the presentation of this type of evidence still results in convictionmore often than acquittal. [FN230] Therefore, while an increasing reliance on defense experts [FN231] and a growingpopulation of such experts for defendants to draw on [FN232] should be expected to result in a greater number of acquit-tals 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- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prf_=H... 5/11/2010
  • Page 15 of 5587 WAULR 1 Page 1487 Wash. U. L. Rev. 1entific debate as to each of these elements be convinced of guilt beyond a reasonable doubt? To make sense of this ques-tion, consider how the prosecutions 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 wayof thinking about what happened. But the differential diagnosis is also dangerous, as it tends to functionally shift the pro-secutors burden of proving its theory of the case onto the defense. [FN234] The states winning argument to juries is this: the defendant has not established what caused the childs death whilethe prosecution experts are in full agreement regarding their diagnosis. They told you what the three presenting symp-toms mean-how they are caused, how much force is *39 required, and how soon after the trauma the baby would havelost consciousness. The defense experts gave you a list of various possibilities, but admitted that they could not be sureabout what happened here. And, indeed, they did not even agree amongst themselves regarding this childs death. [FN235] In the Edmunds post-conviction hearing, where the determination for a judge was whether new scientific researchwould probably result in a different outcome at trial, [FN236] the prosecutor made this appeal: "The primary flaw [in thedefendants theory of post-conviction relief] is the fact-and its not an opinion; it is a fact-that no one on this defenseteam could agree on the cause of death in this case." [FN237] Indeed, no defense expert testified to certainty regardingany 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 commonlyproffered" 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 accusedin an SBS case, testimony regarding other plausible diagnoses is important not because it definitively establishes the oc-currence of a scenario other than the one *40 hypothesized by the prosecution, but because it casts doubt on the claimthat 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 forjury decision making. It is widely recognized that "fact finders look for stories, not just discrete nuggets of fact to fit intoa set of legal rules." [FN243] Burdens of proof notwithstanding, a consensus that identifies a single narrative will almostinvariably trump an amalgam of possibilities that challenge it. [FN244] In SBS cases, what the defense asks the jury todo 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 atypical SBS case, as a matter of law, the prosecution must establish that the presence of retinal hemorrhages, subduralhematoma, and cerebral edema proves beyond a reasonable doubt that the defendant on frial shook the baby to death. Ifthe science cannot bear this burden, the jury must acquit-even in the absence of a known cause. [FN246] The reality isquite different on the ground, where, to prevail at frial, a defendant must disprove the validity of a medical diagnosis withimpressive establishment bona fides. Until only recently, SBS had been embraced nearly unanimously by the scientific community, and it still commandsthe faithful adherence of a majority of physicians. To the general public, the diagnosis has come to be understood as a > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 16 of 5587 WAULR 1 Page 1587 Wash. U. L. Rev. 1meaningful marker of criminality. Substance aside, these measures of acceptance serve as powerful proxies for truth, en-abling 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 ar-guably deficient proof: mens rea, [FN248] and causation/identity. [FN249] While many prosecutions involve physicalevidence of other abuse (i.e., beyond shaking) apart from the triad, [FN250] a substantial number rests solely on the pres-ence of retinal hemorrhaging and subdural hematoma. [FN251] Even in this latter subcategory, courts are invariably af-firming convictions. [FN252] *42 Deference to the fact-finding functions of juries translates into a legal regime generally hostile to insufficiencyarguments. [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 re-turned its guilty verdict. [FN254] The governing standard on appeal is "whether, considering the evidence in a light mostfavorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged bey-ond a reasonable doubt." [FN255] It is thus to be expected that defendants rarely persuade courts to overturn SBS-basedconvictions on sufficiency grounds. [FN256] *43 Shirley Ree Smith may be the only defendant to succeed in doing so. [FN257] Her case is extraordinary, particu-larly because the procedural context in which the claim arose~an appeal of a denial of Smiths 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 childsgrandmother. [FN258] The medical evidence showed an absence of retinal bleeding. [FN259] Most significantly, patho-logists 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 onthe 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 expertstestimony was "absolutely critical to its case." [FN264] Even under the highly deferential standard mandated on federal habeas review, [FN265] a three-judge panel of theNinth Circuit concluded that this evidence was insufficient to sustain a guilty verdict: "There was simply no *44 demon-strable support for shaking as the cause of death . . . . [Tjhere has very likely been a miscarriage of justice in this case."[FN266] The courts 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 viol- ent shaking had torn or sheared the brain stem in an undetectable way[ [FN267]] . . . . [A]nd they reached this con- clusion because there was no evidence in the brain itself of the cause of death. Thus . . . the tearing might have oc- curred 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 jurys in this manner-and 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.cor__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 17 of 55 87WAULR1 Page 16 87 Wash. U. L. Rev. 1 of that ruling being left intact- is indicated by Smiths highly unusual procedural path. The defendants conviction was affirmed by the state appellate court. [FN269] The California Supreme Court denied review. [FN270] The federal magis- trate 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 peti- tion 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 af- firmed 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 defendants ac- count-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 babys 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 ex- perts is rejected, that rejection must be afforded deference by the appeals court. Provided that the prosecution ex- perts 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 lim- itations 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 ten- sions 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 experts 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 i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 18 of 5587 WAULR 1 Page 1787 Wash. U. L. Rev. 1of 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, judgeswilling to assess the value of the states evidence, as the court did in Smith, may conclude that an absence of evidencehas convicted others.E. Post-Conviction Proceedings 1. Edmunds In early 2007, the judge who presided over Audrey Edmundss trial over a decade earlier conducted a five-day evid-entiary 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, cre-ating substantial challenges to matters that were nearly universally accepted in the medical community at the time of Ed-mundss trial." [FN298] According to the defense experts, a still-emerging body of literature had cast new doubt on previously accepted med-ical 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 con-siderable 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 dam-age inevitably causes immediate unconsciousness. [FN304] The defense experts testified that "in 1996 they themselves would have testified as the States experts had at Ed-mundss trial," [FN305] but the evolving science had changed their opinions as to the likely cause of death. [FN306] Inshort, the scientific foundation for concluding beyond a reasonable doubt that Edmunds had shaken Natalie Beard todeath was no longer intact. [FN307] The near unanimity that once characterized the medical establishments understand-ing of SBS had been shattered. [FN308] Yet no new medical accord had been reconstituted in its place. [FN309] Againstthis disquieting backdrop, Audrey Edmundss new trial motion was decided. *50 While expressly acknowledging that "[s]tanding alone and unchallenged, the defense witnesses provide[d] a suf-ficient evidentiary basis to order a new trial based upon newly discovered medical evidence," [FN310] the trial judgedenied the motion. But an appellate court reversed this decision and concluded that there was a reasonable likelihood thata 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 sincethe time of Edmundss trial." [FN312] While there were "now competing medical opinions as to how Natalies injuriesarose and . . . the new evidence does not completely dispel the old evidence," [FN313] the court was persuaded that "theemergence of a legitimate and significant dispute within the medical community as to the cause of those injuries thatconstitutes newly discovered evidence." [FN314] According to the appeals court, [at trial,] the State was able to easily overcome Edmundss argument that she did not cause Natalies injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmundss guilt. Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmundss 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 ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con__/print/printstream.aspx?rs=WLW10.04&destination=atp&prf.=H... 5/11/2010
  • Page 19 of 5587WAULR1 Page 1887 Wash. U. L. Rev. 1 have a reasonable doubt as to Edmundss 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 defendants burden ofproof. Put simply, there are tensions between the governing framework for collateral relief and the issues presented bySBS cases. [FN319] These strains were nicely illustrated by the states 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 defensecould offer no "bone test . . . [that] would tell us whether that infant was . . . the subject of [shaking-inflicted] brain in-jury." [FN323] Instead, the evidence was described as "an academic debate among medical experts," [FN324] and onethe prosecution characterized as ongoing at the time of the trial in order to negate a showing of "newness." [FN325] Forinstance, 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 thecourt rejected this characterization, [FN330] future defendants collaterally attacking their convictions may have greaterdifficulty satisfying the "newly discovered" requirement if the evidence offered as "new" at the post-conviction stagewas 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 Ed-munds asserted that the "academic debate" about SBS was "beside the point": [FN333] theoretical disagreements aboutwhether shaking alone could cause death and whether the triad alone was pathognomonic of abuse were irrelevant to Ed-mundss conviction, given the severity of the infants injuries. [FN334] The court could dispense with this argument inshort order, [FN335] given that the prosecution fell squarely within the SBS paradigm-the cause of death was said to beforceful shaking, the diagnosis was made on the basis of the classic triad, [FN336] and the perpetrator was identifiedbased on the impossibility of a lucid interval. [FN337] But given the current state of scientific research, which (unlikeDNA [FN338]) cannot conclusively establish a defendants innocence, deviations from this prototypical fact pattern willtend to undermine the defendants materiality claim. Finally, the evidence must probably have resulted in a different verdict at trial. [FN339] This is the most difficultburden for the defense, [FN340] and was predictably the greatest area of contention in the Edmunds post-conviction re-lief 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 immedi- ate 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 DNAexonerations. Unlike the new debate offered by the defense, DNA was "real science" that established innocence "to anastronomical degree of science (sic) or statistical probability." [FN343] DNA did not "dispute a theory or demonstrate arift or a contention in the scientific community. It didnt provide for alternative hypotheses." [FN344] In contrast to de- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 20 of 55 87 WAULR 1 Page 19 87 Wash. U. L. Rev. 1fense evidence substantiating the existence of lucid intervals, DNA samples "exclude[dj the defendant from the world ofpossible perpetrators." [FN345] And unlike testimony regarding possible alternative causes of death in Edmunds, DNAprovided definitive answers. [FN346] As the Edmunds arguments show, DNA has implicitly been positioned as the paradigm of newly discovered evid-ence—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 jurys deliberations [FN351] means that the lit- igation of post-conviction relief motions will continue to take place in the shadow of DNA. Given these formidable obstacles, the trial courts denial of Edmundss motion [FN352] was to be expected. In the de-cision, we may rightly discern that similarly situated defendants will have difficulty prevailing in the future. [FN353]Perhaps more surprising is that the trial courts decision was overturned on appeal. [FN354] This development portendshope for those seeking new trials in SBS cases. Even so, the promise of Edmunds is closely circumscribed by its limited precedential effect. [FN355] Beyond oner-ous post-conviction relief standards, [FN356] defendants seeking collateral relief in SBS cases confront the likelihoodthat, in coming years, the current scientific controversy will be suspended in a kind of equilibrium. At some point, unlessa revolutionary breakthrough fatally undermines SBS, defendants convicted in this era of uncertainty will be hard-pressed to claim that evidence of the diagnosiss *56 invalidity is new. Newly discovered evidence motions will be ef-fectively 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 cer- tainly 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, on- going research could ultimately answer the open questions. [FN359] New technological developments *57 would facilit- ate 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 <2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2. westlaw.com/print/printstream. aspx?rs=WLWl 0.04&destination=atp&prft=H... 5/11/2010
  • Page 21 of 5587 WAULR 1 Page 2087 Wash. U. L. Rev. 1SBS 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 oftheir 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 solu-tions 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 pro-secution paradigm became entrenched, the crime became reified. Deferential review standards and a quest for finalityperpetuated the systems course. How expeditiously, and how deliberately, this course is righted will inform the meaningof justice. [FN364] Complicating the endeavor, SBS prosecutions raise discomfiting possibilities that diverge from those presented bythe 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: prosecutorsand scientists may each legitimately point fingers. Most fundamentally, scientific developments have cast new doubtwithout yet creating certainty in its place. The stoiy of SBS thus challenges current notions of wrongful convictions. Un-derlying conceptual frameworks must evolve accordingly. For now, we find ourselves situated in an extraordinary moment; one which tests our commitment to innocence thatis not proven, but presumed.[FNalJ. Professor of Law, DePaul University College of Law; A.B. (1992), Harvard College; J.D. (1996), Yale LawSchool. Susan Bandes, Keith Findley, Samuel Gross, Christopher Knott, Robert Mosteller, Frank Tuerkheimer, and parti-cipants at a DePaul University College of Law faculty workshop provided invaluable comments on an earlier draft. I amalso grateful to Patiick Barnes, Toni Blake, Thomas Bohan, Stephen Boos, Keith Findley, Christopher Knott, PatrickLantz, Tina Nadeau, John Plunkett, Maurice Possley, Lawrence Ricci, Jennifer Wriggins, and Kirk Zwink for their help-ful assistance during the research phase of this project. Finally, I wish to acknowledge the generous support of DeanPeter 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. ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 22 of 5 587 WAULR 1 Page 2187 Wash. U. L. Rev. 1[FN7J. State v. Edmunds, 598 N.W.2d at 293.[FN8J. Edmunds was charged with reckless homicide in the first degree, id., which required the prosecution to prove thatshe 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 anaccident, rather than intentional, forceful conduct, directed specifically at Natalie," the appellate court affirmed Ed-mundss conviction. Id. at 294. After exhausting her state remedies, Edmunds petitioned for federal habeas corpus re-view, 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 tothree-years-old have been diagnosed. Stephen C. Boos, Abusive Head Trauma as a Medical Diagnosis, in Abusive HeadTrauma 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 res-piratory iixegularities or seizure. The given history suggests sudden and unprovoked symptoms...[bjut there is no externalevidence 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 childabuse generally, "[yjoung unmarried parents, lack of education, low socioeconomic status, minority status, and manyother risk factors have been shown to predict increased child abuse rates. However ... [ajpplying population variables toindividual 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 ChildAbuse and Neglect, Am. Acad, of Pediatrics, Shaken Baby Syndrome: Rotational Cranial Injuries- Technical Report,108 Pediatrics 206 (2001); Mary E. Case et al., The Natl Assn of Med. Examrs Ad Hoc Comm. on Shaken Baby Syn-drome, Position Paper on Fatal Abusive Head Injuries in Infants and Young Children, 22 Am. J. Forensic Med. & Patho-logy 112 (2001). See also Part III.B.l, infra notes 60-64 and accompanying text (elaborating on significance of diagnost-ic triad).[FN 19]. Brief of Defendant, supra note 4, at 6. See infra notes 60-64 and accompanying text (discussing how shaking isthought to cause triad of symptoms).[FN20]. Brief of Defendant, supra note 4, at 7. According to the American Academy of Pediatrics, "[tjhe act of shakingleading to shaken baby syndrome is so violent that individuals observing it would recognize it as dangerous and likely tokill the child." Am. Acad, of Pediatrics, supra note 18, at 206. Prosecution experts have often amplified this type of testi- i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.cor__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 23 of 55 87 WAULR 1 Page 22 87 Wash. U. L. Rev. 1 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 al- lowing prosecutions 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 States witnesses that Natalie was violentlyshaken before her death but who opined that the injury occurred before Natalie was brought to Edmundss home." Statev. Edmunds, 2008 Wl App 33, P 3, 746 N.W.2d 590, P 3. Edmundss theory was that one or both of the parents hadshaken Natalie the night before her death. Edmunds v. Deppisch, 313 F.3d 997, 998 (7th Cir. 2002). This (failure toidentify the correct perpetrator) has been a common defense in shaken baby prosecutions, as has the argument that, if thedefendant shook the baby, the shaking did not achieve the level of force necessaiy to sustain a murder conviction. See in-fra 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 largelyconsistent and unchallenged."). See Brief of Defendant, supra note 4, at 9 (discussing unanimity of medical opinions andstates reliance on this in argument to jury).[FN24J. Once a child protection team has made an SBS diagnosis, suspected perpetrators—those with the child whensymptoms appeared—are aggressively prosecuted. Each year, an estimated thousand plus defendants are convicted, mostof murder, annually. Toni Blake, Jury Consultant, Address at the Forensic Truth Foundation: When Hypothesis and DataConflict: An Analysis of an Infant Injury Database (May 12-15, 2007) (estimating that 95% of defendants prosecuted inSBS 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 InfantCase, in The Shaken Baby Syndrome: A Multidisciplinary Approach 275, 307 (Stephen Lazoritz & Vincent J. Paluscieds., 2001). As the prosecutor in Edmunds argued on summation, "one can only imagine the anger and the intensity ofthe shaking that goes on and the impact that goes on in these cases." Brief of Defendant, supra note 4, at 8. Evidence offorce 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 systems treatment of SBS. It should be noted that SBSs 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 SBSin science and law. This project has been given new urgency by mounting challenges to the validity of the science uponwhich these cases rest. At this moment, when new perspectives on old science are only just beginning to penetrate the 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 24 of 5587 WAULR 1 Page 2387 Wash. U. L. Rev. 1criminal 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 experiencesprosecuting child abuse cases as an Assistant District Attorney in the Family Violence Bureau of the New York CountyDistrict Attorneys 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 AnneMitchell, 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 thepresence of the classic friad of symptoms (again, subdural hemorrhaging, brain swelling, and retinal hemorrhages)--thesame friad that convicted Audrey Edmunds. Id. at *5-6. In terms of the medical findings and the prosecutions legal the-ory, the cases are remarkably similar. Yet the very week that Audrey Edmunds was awarded a new trial, leading prosec-utors in Wisconsin ultimately to dismiss the charges against her, Samantha Anne Mitchells murder conviction was af-firmed. Id. at * 10.[FN40J. See, e.g., Shane Anthony, Nanny Should Get 7 Years in Prison, Jury Says Woman, 22, was Convicted of As-saulting 4-Month-Old Boy, St. Louis Post-Dispatch, July 30, 2008, at Bl; Rebecca Baker, Greenburgh Nanny PleadsGuilty 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 In-fants 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 InfantDaughters Killing, Anchorage Daily News, Aug. 11, 2008; Molly Montag, Daycare Provider Faces Charges for InjuredInfant, 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. ONeal, Man Charged with Felony inBabys Injury, Longview News-Journal (Tex.), Aug. 12, 2008, at IB; Mona Ridder, Grand Jury: Neglect Results inChilds 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 Re-leased on Bond, Ark. Democrat Gazette, Aug. 13, 2008.[FN41J. By one nationally prominent defense experts 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 JohnPlunkett, Retired Pathologist (June 20, 2008). 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.co__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 25 of 5587 WAULR 1 Page 2487 Wash. U. L. Rev. 1[FN42J. This quest is nicely evidenced by a Connecticut frial courts expression of concern in the wake of Edmunds: "theEdmunds case presents a potential quagmire of epic proportions: the strong likelihood of constant renewed prosecutionand 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 over-view 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 scient-ists 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 theair when they are small infants, the reason infants are very risky incidences, they have very small bodies and large headsso the head tends to flop back and forth. Many people play with their children and throw up and down in the air and thereare several experts suggesting that that definitely should not occur because it can cause small areas of brain damage andtherefore injure your child. There really is no real documentation of whether or not a tremendous amount of force or sev-eral 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, inthis context, there are at least twice as many trial convictions as appeals, which would represent a higher incidence of ap-peals 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 thenumber of SBS diagnoses made each year, see text accompanying infra note 52, this comes as no surprise.[FN52J. Blake, supra note 24. See also Natl 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 occureach 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 convic- tions 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. ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 26 of 5587 WAULR 1 Page 2587 Wash. U. L. Rev. 1[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 Grosss conservative assumption],[FN57], According to Andrea Lyon, a law professor with experience representing clients in SBS cases, pleas in this typeof 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 pub-lic defender, who articulated the dilemma faced by his SBS client: "if he went to frial and lost, [the sentence] was either20 to 50 years, 20 years to life, or life without parole. Agreeing to confess to shaking the child ... would considerably re-duce any sentence." Anderson, supra note 55. See infra note 150 (noting Ontarios Goudge Commission recommenda-tions regarding review of guilty pleas).[FN58]. By this, I mean those whose convictions rest exclusively on the presence of retinal hemorrhage and/or subduralhematomas. In contrast, a sizeable number of SBS prosecutions rely on corroborative evidence beyond the friad; convic-tions which result in these cases are therefore less dramatically undermined by recent scientific developments. See infranote 143. It should be noted that what constitutes real, as opposed to apparent, "corroboration" in SBS cases is often adifficult question. See infra notes 80-82, 181-90 and accompanying text (challenging validity of perpetrator"confessions"); infra note 146 (critiquing United Kingdom Attorney Generals definition of corroboration). See also Steinv. Eberlin, No. L07CV3696, 2009 WL 650363 (N.D. Ohio Mar. 10, 2009) (defense expert opined that "parietal cranialirregularities in the victims skull likely represent suture variants rather than fractures"); P. Weir et al. Normal Skull Su-ture Variant Mimicking Intentional Injury, 332 Brit. Med. J. 1020 (2006). Nevertheless, this Article focuses on thosecases 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 Atty 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 Problemsof 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 keyconcession to the limits of medical science. Telephone Interview with Stephen Boos, Dept of Pediatrics, Aimed ForcesCtr. for Child Prot, Natl 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 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http ://web2.westlaw.com/print/printstream.aspx?rs=WLWl 0.04&destination=atp&prft=H... 5/11/2010
  • Page 27 of 5587 WAULR 1 Page 2687 Wash. U. L. Rev. 1neurotrauma; 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 Pediat-rics (AAP) recently recommended that "[pjediatricians should use the term abusive head trauma rather than a term thatimplies a single injury mechanism, such as shaken baby syndrome." Cindy Christian et al. Abusive Head Trauma in In-fants and Children, 123 Pediatrics 1409, 1411 (2009). Notwithstanding this proliferation of alternative diagnostic labelsand 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, 746N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 DF 555) [hereinafter Barnes testimony, Evidentiaiy Hearing (Day One)]. SeeDonohoe, supra note 70, at 239 ("In recent years, there has been a clear move toward basing medical practice and opin-ions 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 experi-ments 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 whowould indict and convict based on one or two talismanic findings of shaken baby syndrome is that the justification fortheir 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 Stanfords ChildrensHospital and a leading national expert in this area, has explained, "we as a group that wrote those papers assumed whatwe were concluding." Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 27-28. According to Dr.Barness 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, In-cluding the Mimics, 18 Topics Magnetic Resonance Imaging 53, 55 (2007). "The evidence for SBS appears analogous toan inverted pyramid, with a small database (most of it poor-quality original research, refrospective in nature, and withoutappropriate 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. ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 28 of 5 587 WAULR 1 Page 2787 Wash. U. L. Rev. 1Am. Physicians & Surgeons 14 (2006).[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 notsurprising^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 dois you jiggle or shake them and see if they will respond." Id. See also infra notes 181-90 and accompanying text [same asabove]. 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 onher 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 appliedby 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 ResonanceImaging 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 playin social epidemics," see Power of Context (Part Two), in Malcolm Gladwell, The Tipping Point: How Little Things CanMake 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 Rosen-berg & Evan Thomas, I Didnt 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 hemor-rhage, 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 SBScases, rested almost entirely on medical evidence. Experts testified that "there was no doubt ... that this infant was a vic-tim 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. Seeid. (describing "clash of the medical men" in which "[b]oth teams produced the worlds leading experts to make theirown case"). Woodward was represented by Barry Scheck, one of the nations preeminent defense attorneys, whose ad-vocacy proved the difference that resources can make. See Rosenberg & Thomas, supra ("Scheck and his team hiredmedical experts (at the cost of thousands of dollars a day) who testified that Matthews skull fracture had occurred aboutthree weeks before he died, and that the fatal bleeding could have been unleashed by just a slight jar."). The defense * 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.corri/prmt/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 29 of 55 87 WAULR 1 Page 28 87 Wash. U. L. Rev. 1 presented a number of experts to testify to an alternative theoiy of Matthews 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 man- slaughter 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 Pe-diatrics 321, 321 (1998).[FN94], Defenders of the new SBS adhere to the view that the cluster of triad symptoms, while not pathognomonic of ab-use, 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 inits entirety, many physicians have revised their thinking about the original or "strong" version of SBS— i.e, the syn-drome 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. Ed-munds, 746 N.W.2d 590 (2008) (No. 96 CF 555); Testimony of Betty Spivak in Transcript of Evidentiary Hearing (DayThree) at 12-14, State v. Edmunds, 746 N.W.2d 590 (2008) (No. 96 CF 555) [hereinafter Spivak testimony, EvidentiaryHearing (Day Three)].[FN99]. Evaluating this claim is complicated, given that the notion of "pure science" in the domain of SBS may well be afiction.[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 dia-gnosis. 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 (lastvisited 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 Hemor-rhage in the Perinatal and Neonatal Period in the Context of Hypoxic Ischemic Encephalopathy, 12 Pediatric Develop-mental Pathology 169 (2009); Julie Mack et al. Anatomy and Development of the Meninges: Implications for SubduralCollections and CSF Circulation, 39 Pediatric Radiology 200 (2009) (on file with author); Eva Lai Wah Fung et al, Un- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW 10.04&destination=atp&prft=H... 5/11/2010
  • Page 30 of 5587 WAULR 1 Page 2987 Wash. U. L. Rev. 1explained Subdural Hematoma in Young Children: Is it Always Child Abuse?, 44 Pediatrics Intl 37 (2002); V.J. Rookset al. Prevalence and Evolution of Intracranial Hemorrhage in Asympotomatic Term Infants, 29 Am. J. Neuroradiology1082 (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^^lrrTeiinaeula^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 pathognomonicassociation 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-fulfillingprophecy"). This concession has been articulated by even those physicians who maintain the validity of the diagnosis. In-terview with Lawrence Ricci, Dir, Spurwink Child Abuse Program, in Portland, Me. (June 12, 2008); Telephone Inter-view with Stephen Boos, supra note 66. See also C. Smith & J. Bell, Shaken Baby Syndrome: Evidence and Experts, 50Developmental 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 infants symptoms. It results from amethodology that seeks to eliminate those factors that cannot have contributed to the injuries. Barnes testimony, Eviden-tiary Hearing (Day One), supra note 71, at 12, 32. For further discussion of the differential diagnosis, see infra notes134-36 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 HeadTrauma in Infants and Young Children, 43 J. Forensic Sei. 723 (1998); Kristy B. Arbogast et al. In Reply to Letter toEditor, Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116Pediatrics 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, 746N.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 patholo- gist 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 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 31 of 55 87 WAULR 1 Page 30 87 Wash. U. L. Rev. 1 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. Thats whats signi- ficant 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 pur- poses 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) (citingdata presented at Annual Meeting of the National Association of Medical Examiners indicating 0% incidence of neck in-juries 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. Intl 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 model- ing, 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 ex- treme 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. > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2. westlaw.com/print/printstream. aspx?rs=WLW 10.04 & destination=atp&prft=H... 5/11/2010
  • Page 32 of 5587WAULR1 Page 3187 Wash. U. L. Rev. 1[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. Seealso Duhaime, supra note 120. ^6]7^The"injuryTnay be associated witlrlrikteral retinal hemorrhage, and an associated-subdural hematomaPlunkett, 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 Re-view 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 from106 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. Ed-munds, 746 N.W.2d 590 (2008) (No. 96 CF 555). Other physicians, even those who generally testify on behalf of theprosecution in SBS cases, have conceded the importance of the short-falls findings. See, e.g., Testimony of Alex Levin inTranscript of Evidentiaiy Hearing (Day Four) at 133, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 CF555) (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 deathrow inmate, Cathy Lynn Henderson, was recently granted a stay of execution and a hearing on her habeas motion basedon 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 theinfant from her arms~a contention effectively rebutted by the testimony of prosecution experts, who unanimously con-cluded that the infants extensive brain injuries must necessarily have been caused by intentionally slamming of the headagainst a hard surface. Id. at 691. The certainty attending this conclusion has since been undermined by the short-fall lit-erature, 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 conclusiveopinion" 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 accom-panying text (discussing natural causes). Depending on the case-in particular, the available physical/forensic evidence(or lack thereof) and the caregivers 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; babiesare accidentally dropped. "A history by the caretaker that the child may have fallen cannot be dismissed." Plunkett, supranote 126, at 10. Given the frequency with which caregivers offer a fall as explanation for the childs injuries, see infranote 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 withthe 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 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 33 of 5587 WAULR 1 Page 3287 Wash. U. L. Rev. 1and 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 HeadTrauma: Addressing the Forensic Controversies, 7 Child Maltreatment 329 (2002); Barnes, supra note 87; see also supranotes 104-05.[FN137]. Cases in which "flawed expert evidence was relied on to secure conviction" are specifically referenced. Infranote 138.[FN 13 8]. This passage is taken from a speech of Lord Bingham, the senior law lord in the United Kingdom until his re-tirement, in R (on the application of Mullen) v. Secretary of State for the Home Department [2005] 1 AC 1, 4, cited inStephanie Roberts & Lynne Weathered, Assisting the Factually Innocent: The Contradictions and Compatibility of Inno-cence 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 exonera-tion, 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 dia-gnosis).[FN141]. See supra note 58 (defining term). For the moment, I put aside cases in which a suspects seemingly incriminat-ory account was used—in retrospect, incorrectly—to corroborate the prosecutors case. See infra notes 183-90 and accom-panying 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 MaineSchool 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 includesthose where injury is clearly inflicted, in all likelihood, by impact. Although, in this group, the causal mechanism maynot be shaking, medical evidence apart from the triad indicates to a reasonable degree of scientific certainty that the babywas abused. In these cases, a finding of guilt seems just. The three remaining groups of cases involve evidence that, froma criminal justice stance, tends to negate proof beyond a reasonable doubt of a defendants guilt: evidence of natural dis-ease, the presence of chronic hematomas, and those in which no likely mechanism presents itself. Telephone Interviewwith 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 innocentperson was convicted. For a comprehensive examination of what is known—and all that we have yet to learn— about falseconvictions 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-tri-al 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 develop-ments must also contemplate the possibility that some defendants who pleaded guilty before frial were innocent. Seesupra note 57; Gross, supra note 139, at 180-81 (generally discussing the difficulty of assessing how many innocent de- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&pr_;=H... 5/11/2010
  • Page 34 of 5587 WAULR 1 Page 3387 Wash. U. L. Rev. 1fendants plead guilty). Moreover, any inquiry aimed at quantitative measure should also acknowledge that triad-only pro-secutions continue to this day; therefore, a ti_ie reckoning of the magnitude of injustice implicates a somewhat prospect-ive 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 theproblem that I am describing. Telephone Interview with Samuel Gross, supra note 50. In 1992, the National Fire Protec-tion Association "issued new guidelines that for the first time applied scientific principles to the analysis of the remainsof suspicious fires, and revealed that the expert evidence of arson in [one death row inmates] case, and many others, hadno 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 notrespond to extra-legal developments in a monolithic manner. Our system is atomized by its federalist, multi-state natureand by the multiplicity of actors involved in decision making throughout the criminal process. To explicate how scientif-ic developments around SBS have penetrated the justice system, is, therefore, a formidable challenge. This difficulty iscompounded by the extent to which SBS prosecutions, as a phenomenon of increasing importance, have gone largely un-noticed and data related to them correspondingly uncollected. Despite this, a procedural analysis of the various stages atwhich legal standards guide the exercise of discretion follows. It provides a holistic perspective on a system that has notwidely absorbed new scientific realities.[FN149]. In 2005-2006, the Attorney General, Lord Goldsmith, conducted a seven-month review of eighty-eight SBScases, including guilty verdicts and pleas. (SBS convictions are significantly less commonplace in the United Kingdomthan in the States.) Lord Goldsmiths investigation was triggered by a 2005 Court of Appeal decision, now the governingcase law, which concluded that "[i]n cases where the triad alone is present ... the triad alone cannot automatically or ne-cessarily lead to a conclusion that the infant has been shaken." The Rt Hon The Lord Goldsmith QC, The Review of In-fant Death Cases: Addendum to Report Shaken Baby Syndrome at 9-10 (2006). The Attorney Generals review methodo-logy is vulnerable to criticism, particularly because among the evidence considered "to support the finding of SBS" was adefendants "[a]dmissions to shaking" and the presence of chronic subdural hematomas, id. at 12, each of which may beof limited corroborative value, see infra notes 104, 183-90 and accompanying text. This may explain why only three ofthe cases reviewed—a not insubstantial false conviction rate of 3.4%, but fewer than what many had expected—were iden-tified as "giving rise to concern" and referred to the Criminal Court of Appeal. Goldsmith, supra, at 14. Irrespective ofmethodological shortcomings, however, Lord Goldsmiths systemic review and the Court of Appeal decision that pre-ceded it have appreciably altered the course of SBS prosecutions. As one commentator has suggested, "in [the] futurethere will be demands for each case to be assessed individually, on the evidence available, rather than on a formulawhich 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 appoin-ted Justice Stephen Goudge of the Court of Appeal its Commissioner. Seventeen months and $8.3 million later, JusticeGoudge issued a 1000 page report which told what he called a "tragic story of pediatric forensic pathology in Ontariofrom 1981 to 2001...." Commissioners Statement on Release of the Report, Oct. 1, 2008. Many of the Commissionsfindings related specifically to the mistakes of one particular forensic pathologist and a failed oversight mechanism. Butapart from the work of any individual, the report expressed deep concerns about the legitimacy of triad-based SBS pro-secutions, 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 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 35 of 5587 WAULR 1 Page 3487 Wash. U. L. Rev. 1as one where change has raised the real possibility of past error."). In light of his doubts regarding "convictions based onthe pure triad, where no other pathology evidence is identified, and possibly in other SBS cases," id. at 528, JusticeGoudge recommended that a review be conducted with the objective of "identifying] those cases in which the pathologyopinion can be said to be unreasonable in light of the understandings of today and in which the pathologists opinionswere 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, includingthe serious consequences of potentially being convicted of murder charges and the acknowledged difficulties in challen-ging [the states forensic pathologists] opinions," the report emphasized that "cases should not be excluded from reviewonly because an accused pleaded guilty." Id. at 532-33. Justice Goudges findings and conclusions are detailed extens-ively in his full report, supra note 59. Upon issuance of the Goudge Commission Report, the Ontario coroners office quickly identified 220 cases where adetermination was made that an infant died after being shaken. Antonella Artuso, Shaken Baby Doubts Surface, OttawaSun, Oct. 2, 2008, at 7. Under the auspices of the Attorney General, 142 of these cases are being reviewed by a teamwhich includes the provinces 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 tohave a case dismissed based on the Attorney Generals review. She had been charged with murder for the death of herthree-month-old daughter. Mom of Dead Baby Walks Free After Charges Against Her Withdrawn in Court, Toronto CityNews, 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 not-ing that Australias criminal justice system has also begun to absorb new scientific understandings. In 2003, the SupremeCourt of Western Australia issued an important decision in an SBS case. R. v. Court (2003) 308 WASCA 1. At a benchfrial for murder, the defendant was acquitted by a judge of all charges in a prosecution based on the presence of retinalhemorrhages and subdural hematoma, as well as spinal injury. Id. PP1, 9. Central to the verdict was the courts relianceon the testimony of a prominent forensic pathologist, who testified that it was "not tenable" that the only possible causeof death was violent shaking. Id. P 5. According to the trial judge, [a]s I understand [the defense experts] evidence, he was suggesting that unless a witness had seen the deceasedbeing shaken or unless there was some medical evidence consistent with the child having been shaken, such as braisingor other external injury, or acceptable admissions, then to conclude that the deceased had died by being shaken in a pro-longed 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 supportsthis proposition. Telephone Interview with Toni Blake, Jury Consultant, 2nd Chair Servs. (June 17, 2008); Telephone In-terview 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 theguilty responsible for their actions. Many child abuse prosecutors seem almost missionary about their task, but this maycome with the territory.[FN154], According to the database maintained by Toni Blake, see supra note 24, the vast majority of prosecutions goforward based solely on the presence of one or more triad symptoms. Telephone Interview with Toni Blake, supra note 152. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.co__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 36 of 5587 WAULR 1 Page 3587 Wash. U. L. Rev. 1[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 criminalprocess. 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, Distin-guished 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 pe-diatrics." Kent P. Hymel & Karen Seaver Hill, Child Advocacy: New Board Specialty Signals Positive Change in ChildAbuse Pediatrics, Childrens 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 inthe fall of 2009. Id.[FN 157], See Robert Parrish, Prosecuting a Case, in Abusive Head Trauma: A Medical, Legal, and Forensic Reference393, 396-97 (Lori Frasier et al. eds, 2006) (noting that American Prosecutors Research Institute and other prosecutorsare 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 de-scribed by one leading expert on nationwide prosecutorial practices: Many local prosecutors across the country haveformed or participate in interdisciplinary teams intended to bring together child protective service (CPS) workers, lawenforcement investigators, medical professionals, mental health providers, educators, and others who play a role in en-suring 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 andfrustration generated by a babys ciying or irritability ...." Am. Acad, of Pediatrics, supra note 18, at 206. See alsoHolmgren, 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 caretakers conduct. Rather, they must reorient jurors to think about motive ina unique context-one that does not reflect a purposeful mental state but instead a risk factor, stressor or catalyst thatprompts the caretakers reactive and abusive conduct .... The most common motive in SBS cases is anger or frustrationresulting from the infants crying.").[FN160]. The dominance of the "team approach to investigation," erodes a shaip differentiation between the roles of pro-secutor and physician. Parrish, supra note 157, at 395-96. I found this to be true when, as a prosecutor, I participated in amedical 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 chil-dren is absolutely essential to a prosecutors success in refuting commonly offered defenses, clarifying and dispellingmyths 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." 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 37 of 5587 WAULR 1 Page 3687 Wash. U. L. Rev. 1Id. at 396. Even those prosecutors who do develop an expertise in this type of case "must be ever mindful that science isan ongoing process and medical research can quickly become dated .... Without a full understanding of the medical re-search that underlies an experts opinion, the prosecutor can neither make full use of the physicians expertise, nor ad-equately 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 as- sistance, 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 OKeefe, Shaken Baby Syndrome: Overcoming Untrue Defenses, 10 Update 11 (1997), availableat http:// www.ndaa.org/publications/newsletters/update_index.html; Devon Lee et al. Tips for Investigating Child Fatal-ities, 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 HeadTrauma. 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 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 38 of 5587 WAULR 1 Page 3787 Wash. U. L. Rev. 1stories on a hard surface" and cites evidence from the records of cases ranging from 1986-1994. Holmgren, supra note25, at 307. In the same publication, the claim that "the onset of symptoms is virtually contemporaneous with the abusiveact" 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, pathognomonyas the defining feature of SBS has been supplanted by the more ambiguous claim that "retinal hemorrhages, bilateral sub-dural 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 ofabuse cases and frequently evolves or changes over time as the caretaker is confronted with medical findings.") (citationsto scientific literature omitted).[FN184], See Leestma, supra note 80, at 14 (noting that the "interrogator may communicate to the accused that if youcould tell us exactly what happened and if you shook the baby, we could do something for the baby and maybe save itslife."). While the particular tactics employed in the SBS context may be unique, the underlying techniques are not. SeeRichard 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]hehistory does not match the physical condition in front of you .... Does the history fit what you see? If it does not, thenyou must question how such an injury could have occurred."). See also Anderson, supra note 55 (citing a nationallyprominent pediafricians observation, based on his consulting experience, that "[i]f a parent does not know exactlywhats happening, veiy frequently the first conclusion is that theyre frying to hide something. And sometimes parents areracking their brains, coming up with one or two possibilities. Then it looks like theyre changing their stories. That can beused 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 med-ical reports, medical personnel, or investigators?"); Parrish, supra note 157, at 416.[FN187], A model prosecutorial summation makes this point as follows: "it just couldnt happen the way the defendantsays-not unless the laws of physics and gravity are different in the defendants house. These doctors tell us that the de-fendant is a liar .... A defendant who lies to protect himself points the finger of guilt upon himself." Holmgren, supra note25, at 325.[FN188], Reece, supra note 61, at 610. Put differently, "[t]he false histories help identify the likely individual whocaused the childs injuries by providing compelling evidence of the abusers consciousness of guilt." Holmgren, supranote 25, at 277. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 39 of 5587 WAULR 1 Page 3887 Wash. U. L. Rev. 1[FN189]. Holmgren, supra note 25, at 277. [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 caregivers initial account, after leav- ing 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 babys injuries; that "anyone could have been pushed over the top by all of the children in Rogerss 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 oc- curred 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 Rogerss 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 defendants conviction due to a violation of her Fifth Amendment right against self-incrimination. Specifically, the court held that Rogers had invoked her right to si- lence, and that this invocation was not scrupulously honored by the police. The case will be fried later this year. Tele- phone Interview with Tim Bums, Douglas County Pub. Defenders Office (June 10, 2009).[FN191], The cognitive dissonance resulting from having prosecuted people whose guilt has now been scientifically un-dermined 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. Seesupra 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 expertschallenging the basis for an SBS diagnosis was excluded on Daubert or Fiye grounds. See infra note 195 for a summaryof the Daubert and Frye standards. Prosecutors are either declining to make these challenges or are making them unsuc-cessfully. See Holmgren, supra note 25, at 316 ("There is no scientific research which supports the re-bleed theory ofcausation in very young children.... Accordingly, the application of this theory to infants should be challenged on Fiyeand 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 theprinciples or techniques on which the expert relies are capable of producing accurate infonnation and conclusions. Underthe latter standard, general acceptance remains an important consideration, but the court must consider other factors todecide for itself whether the experts 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 "ShakenBaby Syndrome is not a condition or theory that is generally accepted in the medical community"). ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 40 of 5587 WAULR 1 Page 3987 Wash. U. L. Rev. 1[FN197], See, e.g., State v. Leibhart, 662 N.W.2d 618, 623 (Neb. 2003) (defendant argued "that the theory of shakenbaby 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 nn.inr.^ln-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 matthe reasoning or methodology underlying testimony regarding shaken baby syndrome was valid, and with respect to spe-cific causation, the district court did not abuse its discretion in concluding that such reasoning or methodology properlycould 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); Inre 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 beenaccepted in Delaware and just about every other jurisdiction."). See Holmgren, supra note 25, at 306 ("Expert testimonyinvolving a diagnosis of SBS is well recognized and does not need to satisfy the Daubert or Frye Standards governing theadmissibility 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 pos-itives (i.e, cases incorrectly diagnosed as abuse) was admittedly unknown, the frial judge noted that "no suggestion wasmade about how to structure [a more rigorous] analysis." Id. at *16. In Leibhart, the court made a similar observation re-garding 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 judges order was an abuse of discretion, because it was founded on the unsupported legal conclusion that because there wasdispute amongst the experts as to the possible cause of the infants injuries, it was the courts role to choose the side itfound 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). 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 41 of 55 87 WAULR 1 Page 40 87 Wash. U. L. Rev. 1 [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 in- stance, 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 Refer- ence 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 toprint. 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 wasbeing cared for by the defendant was released from the hospital without lasting injury. The caregiver has been chargedwith abuse of a child for "knowingly inflictfing] crael and inhuman punishment upon [the baby] by shaking her, and inthe 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 bleed- ing 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 childs 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 hem- atoma 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 > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 42 of 5 587WAULR1 Page 4187 Wash. U. L. Rev. 1Zwink Law Office (July 21, 2008). According to Kirk Zwink, who represented Kathy Hyatt, the states evidence at trialincluded claimed inconsistencies in the defendants account, as well as the expert testimony of two pediatricians. Id. Thedefendant testified and presented an expert pathologist on her behalf. After a three-day frial in January 2009, the jury re-turned its verdict within a half hour: not guilty. Id. ^pically, a jury verdreHno-a-erimmal-ease-is^nsenrtabler^e-jui^^ funetion-as factfinder shrouded in secrecy, and it is impossible to say why or how the jury convicted or acquitted in any given case." Ju-lie A. Seaman, Black Boxes, 58 Emory LJ. 427, 432 (2008). For reasons already discussed, the "black box" nature of thejury may well be compounded in the SBS context. See supra note 148 (observing that ascendance of the prosecutionparadigm 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 overallconviction rates, see Andrew D. Leipold, Why are Federal Judges so Acquittal Prone?, 83 Wash. U. L.Q. 151 (2005). Seealso 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 organizationtracks prosecutions. The largest database containing this type of information belongs to Toni Blake, the leading trial con-sultant in this area. Blakes database contains over 500 SBS cases from 1997-2007, Telephone Interview with ToniBlake, supra note 152.[FN227]. Where there is medical corroboration of abuse beyond the triad - e.g., rib fractures, grip marks, long bone frac-tures, and evidence of injuries in various stages of healing-the case is often resolved by a guilty plea before trial. Seesupra note 41.[FN228], Telephone Interview with Toni Blake, supra note 152; Telephone Interview with Brian Holmgren, supra note152; 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 ToniBlake, supra note 152.[FN230]. Id.; Telephone Interview with Brian Holmgren, supra note 152; Telephone Interview with John Plunkett, supranote 41.[FN231], As noted by the expert who is widely credited (or, depending on perspective, maligned) for spearheading themovement of SBS skeptics, the more doctors a defendant can afford, the greater the likelihood of an acquittal. TelephoneInterview with John Plunkett, supra note 41. While the equity concerns raised by SBS cases are not unique to this con-text, 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 note71, at 70; Testimony of George R. Nichols in Transcript of Evidentiary Hearing (Day One) at 170, State v. Edmunds, 746N.W.2d 590 (Wis. Cir. Ct. 2008) (No. 96 CF 555); Telephone Interview with John Plunkett, supra note 41; Interviewwith Thomas Bohan, supra note 78. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 43 of 5 5 87 WAULR 1 Page 42 87 Wash. U. L. Rev. 1 [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 prosecutions burden of proof. I IH _ I f A ^ I _ _. __•** f* *_*__•_- I _. •___*__ ._»_"»Tif_r_V"t-l f* 1 __ o _ T_ rr _ _ n_ _ ___ _* t_ ^ . _ * _ _ _. _/ r* o . .* > . r* _-* I I /_ 1 w_ _rjt*_"*t_ — rntM . t_ __"0"_"* /^ n^" T ^ _ l rt ^.r^r* olrA A_-^ T I N Z O J J . J r t J i c r a l l i p i c p_OaCUUl_)Ilal (_lt_ a l l l g aigUIIlCIlL 111 __£___ UaSC, SCC £1U i l l l g l c l l j S U p i a lit. l c 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 thats 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 hemat- oma, retinal hemonhage and edema, but chooses to ignore this constellation of findings in favor of an alternative hypo- thesis will appear foolish."); id. at 312-19 (discussion of "meeting untrue defenses and cross-examination of defense ex- perts"). [FN241], See Parrish, supra note 157, at 410 (suggesting prosecutorial strategy for dealing with defense experts testi- mony 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 dont 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 Victims 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 prosecutions version of events has not been ad- equately established, a speculative verdict is completely appropriate, and indeed dictated by the presumption of inno- cence. Put differently, SBS defendants who challenge the science do not advance any particular explanation as the defin- itive 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 exist- ence of alternatives negates proof of inflicted injury beyond a reasonable doubt. < 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&pr_:=H... 5/11/2010
  • Page 44 of 5587 WAULR 1 Page 4387 Wash. U. L. Rev. 1[FN246]. As Edmundss attorney argued in her post-conviction relief hearing, the "evidence is now there that underminesthe states 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 verdictmotion is given considerable deference, but is reviewable on direct appeal or on collateral attack. While the applicablelegal standards differ, claims that a conviction rests on insufficient evidence raise similar issues across jurisdictional andprocedural contexts.[FN248], See Charles A. Phipps, Responding to Child Homicide: A Statutory Proposal, 89 J. Crim. L. & Criminology535, 551-74 (1999) (discussing mental states associated with traditional homicide statutes used to prosecute defendantsunder SBS theory). For a sampling of cases from just this past year, see, e.g., Mitchell v. State, No. CACR 07-472, 2008Ark. 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 in-fra 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); Common-wealth 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 in-volving 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 onright temple). Moreover, even where the physical evidence clearly indicates abuse, the identity of the perpetrator may bedisputed. See, e.g., People v. Garcia, No. H023327, 2003 Cai. App. Unpub. LEXIS 3479 (Cai. Ct. App. Apr. 7, 2003). InGarcia, 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 wasimpossible to detennine with medical certainty whether the injuries that caused his death occuned shortly before the timeof death or whether death resulted from complications from earlier patterns of injuries." Id. Finally, reliance on perpetrat-or "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 effectiveassistance of counsel. In Schoonmaker, the New Mexico Supreme Court noted that "[e]xpert testimony was critical to thedefense to call into question the States expert opinions that [the childs] injuries could only have been caused by shakingof a violent nature." State v. Schoonmaker, 176 P.3d 1105, 1113 (N.M. 2008). Based on the testimony of defense expertsin other cases and published scientific research, the court found that "disagreement exists in the medical community as to 12010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.cor__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 45 of 5587 WAULR 1 Page 4487 Wash. U. L. Rev. 1the amount of time between when injuries occur and when the child becomes symptomatic, and whether injuries like [thechilds] can be caused by short-distance falls...." Id. at 1114. It was clear, therefore, that the defendants failure to call ex-perts to testify on his behalf was due not to the absence of supporting science, but to poverty. Id. at 1113-16. In a remark-able opinion, the court concluded that because of the frial courts role in "deny[ing] counsel access to the necessary fund-ing," 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 counsels failure to retain a qualified expert to examine CT scans of the infants 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, Ac-cording to the States expert, these injuries could only have been caused by violent shaking which would have caused im-mediate unconsciousness with no possibility of a lucid interval. Id. at 329. In support of his motion, the defendant sub-mitted the affidavit of a pediatric neuroradiologist stating that, based upon his (post-conviction) review of the CT scan, itwould have been impossible for trauma to have occuned during the time period in which the defendant was with thebaby. Id. In response to the courts ruling, the state determined that there was insufficient evidence to proceed with fur-ther 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 thejury as frier of fact. The legal sufficiency of evidence is, technically, a question of law, but it looks and sounds like ajudgment 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 Didnt 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 babydoll); 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 leaderson 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 a14-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 inthe absence of retinal hemonhages are routinely affirmed on appeal. See, e.g., People v. Jackson, No. D049865, 2007Cai. 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). ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 46 of 5 5 87 WAULR 1 Page 45 87 Wash. U. L. Rev. 1 [FN260]. Smith, 437 F.3d at 887.[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 favor- able to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reason- able 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 courts adjudication of a Jackson claim is objectively unreasonable." Smith v. Mitchell, 453 F.3d 1203, 1203-06 (9th Cir. 2006) (Bea, J, dissent- ing) (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 childs] 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 ex-perts view of what physical evidence is necessary to support a valid diagnosis of shaken baby syndrome." Smith, 453F.3d at 1207 (Bea, J, dissenting). The judges who would have affinned Smiths conviction had a very different view ofthe evidence against her: The physicians called by the prosecution reached their conclusion despite the lack of visible shearing, not be-cause of it, and explained why. Indeed, what provided the basis for the doctors opinions was the evidence of recenttrauma to [the childs] brain: (1) the subdural hemorrhaging; (2) the subarachnoid hemonhaging; (3) the hemoirhagingaround the optic nerves; (4) the blood clot between the hemispheres of [the childs] brain; and (5) the braise and abrasionat the lower back of [the childs] head. The prosecutions experts considered and rejected other causes of [the childs]death .... Since none of these alternate theories explained [the childs] death, the prosecutions 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 courts approach, a federal court of appeals may, effectively, set aside an expert opinion where it conflicts with the views of the other sides experts."). ) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2 .westlaw. com/print/printstream. aspx?rs=WLW 10.04&destination=atp&prft=H... 5/11/2010
  • Page 47 of 5587 WAULR 1 Page 4687 Wash. U. L. Rev. 1[FN273], Patrick v. Smith, 550 U.S. 915 (2007).[FN274], Carey v. Musladin, 549 U.S. 70 (2006).[FN275]. Smith v. Patrick, 508 F.3d 1256 (9th Cir. 2007). The courts rationale for reinstating the opinion is emphatic: Nothing-in^he-StateVofailnre-of-evidenceriakes-this case out of the class of cases-subject to the-tesUnlike Musladin ... this case presents merely one more instance where the evidence presented by a state is wholly insuf-ficient to permit a constitutional conviction. Jackson makes clear that such cases cannot constitutionally stand if the evid-ence was insufficient "to convince a frier of fact beyond a reasonable doubt of the existence of eveiy element of the of-fense." ... Jackson makes clear that a conviction is unconstitutional even if there is some evidence of guilt when all of theevidence, viewed in the light most favorable to the prosecution, does not permit any rational fact-finder to find guilt bey-ond a reasonable doubt. Smiths case accordingly falls squarely within Jackson. Moreover, the prosecutions evidencefalls 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 ad-vanced 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, ex-pert and otherwise, was constitutionally sufficient to establish beyond a reasonable doubt that a defendant had shaken aninfant to death. But there are an infinite number of potential factual scenarios in which the evidence may be insufficientto meet constitutional standards. Each scenario theoretically could be constraed artfully to constitute a class of one. Ifthere 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 beforehabeas can be granted on the ground of umeasonable application of Supreme Court precedent. The Supreme Court doesnot 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., Peoplev. Collier, No. A120808, 2009 WL 389721 (Cai. Ct. App. Feb. 18, 2009) (affirming conviction). Prosecutors have alsoproceeded 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. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 48 of 5587 WAULR 1 Page 4787 Wash. U. L. Rev. 1 [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 evid- ence 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 facts 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 babysyndrome and, consequently, the diagnosis of the States witnesses .... Once admitted, this conflicting evidence presentsan 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 themanifest weight of the evidence solely because the jury heard inconsistent testimony.") (internal quotations omitted). InHumphiies, the court affirmed the child endangerment conviction of Latasha Humphiies for the death of her child, whoseSBS diagnosis was based on subdural hematoma and cerebral edema alone. Id. at *12. Humphries was identified as theperpetrator based on a perceived impossibility of a lucid interval, as well as the defendants "fail[ure] to provide a reason-able explanation for [the childs] 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 defendants status as an unmanied mother, and the impoverished environ-ment in which the child was being raised (e.g., "dingy one piece pajamas," crib missing one side, id. at *9-10)-factorswhich 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 Stanfords Childrens Hospital; the former Chief Medical Examiner for Kentucky; a forensic pathologist; a pediatrician; an ophthal- 12010 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 49 of 5 587 WAULR 1 Page 4887 Wash. U. L. Rev. 1mologist; and the autopsy pathologist who testified at Edmundss frial as a prosecution witness. Transcript of EvidentiaryHearing (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 Natalies death, the defense experts testified that the evidence uponwhich Edmunds was convicted had been undermined by a number of scientific developments: studies using biomechanic-al models, animal models, and computer simulations suggested that Natalies brain injuries could not have been causedby shaking alone; even if Natalies death were caused by trauma (i.e, impact), considerably less force than previouslysuspected could have caused her injuries; new research had uncovered a number of causes of the retinal hemonhageswhich, at trial, were said to conclusively prove that Natalie had been shaken; emerging science revealed that chronic sub-dural hematomas—like the one discovered at Natalies autopsy—may re-bleed with little precipitation, causing furtherbrain injuiy; the differential diagnosis (a range of possible explanations for Natalies injuries other than abusive headtrauma) had evolved considerably in recent years; and, finally, the evidence thought to be dispositive on the timing of in-juries was contradicted by a number of "lucid interval" studies, undermining past certainty that Natalie was injured dur-ing 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 medicaltestimony, that a significant and legitimate debate in the medical community has developed in the past ten years overwhether infants can be fatally injured through shaking alone, whether an infant may suffer head trauma and yet experi-ence a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally viewedas 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 theemergence of the defense theory as a legitimate position in the medical community, only emerged in the ten years fol-lowing her frial. State v. Edmunds, 2008 Wl App 33, P 15, 746 N.W.2d 590, P 15.[FN308]. Even the states experts acknowledged, to varying degrees, that scientific consensus about SBS had changedsince the mid-1990s. See State v. Edmunds, No. 96 CF 555, slip op. at 7 (Wis. Cir. Ct. Mar. 29, 2007) ("Expert witnesseson both sides now indicate that research about Shaken Baby Syndrome has evolved ...."); supra Part III.B.[FN309]. The defense experts maintained that Natalies death was caused by some combination of violent shaking andimpact, and that this trauma could only have been inflicted immediately prior to the onset of unmistakable and severe 1 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.cor__/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 50 of 5587 WAULR 1 Page 4987 Wash. U. L. Rev. 1neurological damage. Brief Plaintiff-Respondent at 35-37, State v. Edmunds, 746 N.W. 2d 590 (Wis. Ct. App. 2008) (No.2007AP000933) [hereinafter "States brief ].[FN310], Edmunds, No. 96 CF 555, slip op. at 6 (Wis. Cir. Ct. Mar. 29, 2007). Nevertheless, the court engaged in a de-liberate balancing of the defense evidence against the evidence offered by the state in rebuttal. After having "lookfed] atall the-evidenee from the frial as-well as the-evidence presented by both sides on defendants motion for-a-_iew-triconcluded that "[t]he newly discovered evidence presented by the defense is significantly outweighed by the evidencepresented 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 anabuse of discretion: After determining that both parties presented credible evidence, it was not the courts role to weigh the evidence.Instead, once the circuit court found that Edmundss newly discovered medical evidence was credible, it was required todetermine whether there was a reasonable probability that a jury, hearing all the medical evidence, would have a reason-able doubt as to Edmundss guilt. This question is not answered by a determination that the States evidence wasstronger.... [A] jury could have a reasonable doubt as to a defendants guilt even if the States 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 credibilitydeterminations, the appeals court proceeded to apply the correct legal standard itself rather than remand the case. Id. P19. 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 forensicpathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatri-cians, who largely adhere to the science as presented at Edmundss 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, CitingWishes of Babys Parents, Prosecutors Wont 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 giventhe trajectory of the underlying science. "[E]very state cunently permits at least some form of post-trial relief on thebasis of newly discovered evidence." Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners andNewly 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 theform of a new trial motion based on newly discovered evidence). Newly discovered evidence "represents a ground for re-lief 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, murdercharges were ultimately dismissed, albeit on somewhat different grounds. One defendants conviction was overturned in2004 based on the discoveiy of flaws in the autopsy. Dad Freed from Life Sentence in Sons Death, Orlando Sentinel(Fla.), Aug. 28, 2004, at Al, available at http:// articles.mercola.com/sites/articles/archive/2004/09/18/yurko-case.aspx. i 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http ://web2 .westlaw. com/print/printstream. aspx?rs=WLW 10.04&destination=atp&prft=H... 5/11/2010
  • Page 51 of 5587 WAULR 1 Page 5087 Wash. U. L. Rev. 1That same year, charges against another defendant were dismissed by a newly elected District Attorney after an extensivereview 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, allowinginnocence claims to be heard by a new judge, and creating a de novo standard of appellate review for summary dis-missals 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 defendantsfailure 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 situatedagainst the backdrop of DNA exonerations. See infra notes 343-50 and accompanying text (DNA as paradigm of newlydiscovered evidence).[FN323], Attorney for State in Transcript of Oral Arguments, supra note 321, at 69.[FN324]. States brief, supra note 309, at 17. Compare id. at 17 ("Edmunds newly discovered evidence claim is anon-starter because, despite two days of expert testimony, she failed to present clear and convincing evidence of any-thing new here.") with Defendants brief, supra note 4, at 35-36 ("The new evidence demonstrates that the scientificbasis for SBS theory is under serious challenge.").[FN325]. States brief, supra note 306, at 18-22.[FN326]. Barnes testimony, Evidentiary Hearing (Day One), supra note 71, at 97 (referencing Duhaime study, supra note120).[FN327], Duhaime, supra note 120.[FN328]. At least one physician, Dr. John Plunkett, has been doing so for decades. Telephone Interview with John Plun-kett, supra note 41; Interview with Thomas Bohan, supra note 78.[FN329]. States 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 indic-ated they would have agreed with the prosecutions theoiy if they had been testifying in 1996." State v. Edmunds, No. 96CF 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 theautopsy pathologist retracted important portions of his trial testimony. See Defendants brief, supra note 4, at 24 > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 52 of 5587WAULR1 Page 5187 Wash. U. L. Rev. 1("Perhaps most significantly, Dr. Huntingon refracted key parts of his 1996 testimony—both on the certainty that Nataliewas shaken, and the assessment that there could have been no significant lucid interval."); supra note 115 (explainingbasis for Huntingtons conversion).[FN332], Edmunds, 2008 Wl App 33, P 13, 746 N.W.2d 590, P 13.[FN333]. States 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 didNatalie 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 Natalies injur-ies, and the new medical testimony presents an alternate theory for the source of those injuries." Edmunds, 2008 Wl App33, P 15, 746N.W.2d590,P15.[FN336]. According to prosecution experts, differences between retinal hemonhages—in terms of extent, location, andpattern—are significant. See, e.g., Testimony of Alex Levin in Transcript of Evidentiaiy Hearing (Day Four), supra note129, at 99-101.[FN337]. Defendants brief, supra note 4, at 40 ("[T]he science was the whole case, and new research seriously chal-lenges 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 States brief, supra note 309, at 16 ("[T]he hardest requirement to meet is that the offered evidence in viewof 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 estab-lishes 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 ofthis 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. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLWl 0.04&destination=atp&prft=H... 5/11/2010
  • Page 53 of 5587 WAULR 1 Page 5287 Wash. U. L. Rev. 1[FN349], An emerging scholarly literature explores the post-DNA meanings of "actual innocence" and "wrongful con-viction" and considers the conceptual, strategic, and practical implications that follow. See generally Gross, supra note139; Susan A. Bandes, Framing Wrongful Convictions, 2008 Utah L. Rev. 5 (2008); Richard A. Rosen, Reflections onInnocence, 2006 Wis. L. Rev. 237 (2006); Carol S. Steiker & Jordan M. Steiker, The Seduction of Innocence: The At-traction 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 Wrongsful Convictions Scholarship and Advocacy, 42 Am. Crim. L. Rev. 1219 (2005); Margaret Raymond, The Problem WithInnocence, 49 Clev. St. L. Rev. 449 (2001).[FN350], Edmundss attorney emphasized this: Yes, the DNA evidence can absolutely prove that somebody did not commit a crime and can absolutely provesomebody else did commit the crime, but that is not to say that thats what you have to have in order to create a reason-able probability of a different outcome. Thats a real red herring here. Thats a much higher standard than the clearly es-tablished 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 mostforms of new evidence and the absence of a method to prove innocence to a scientific certainty. This inherent difficultyin litigating innocence claims predicated on newly discovered non-DNA evidence is exacerbated by the structural designof 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 programof 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, hasmore resources, greater access to experts, and more extensive research capabilities than what is available to most defend-ants seeking post-conviction relief.[FN354], See supra notes 311-16 and accompanying text. Although he denied the defendants motion, the trial judgesfactual 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 im-pact may prove significant. See Shaken-Baby Ruling Worries Prosecutor, Wis. State J, Feb. 29, 2008, at C3 ("[A] pro-secutor says it will be virtually impossible to convict anyone who shakes a baby to death in Wisconsin if a recent courtrating stands.").[FN356]. One response to these realities is resort to a review commission, which may be the most efficient way of deal-ing with the systemic nature of triad-based SBS convictions and their potential failings. See supra notes 149-50 and ac-companying text (describing approaches of United Kingdom and Canada).[FN357]. As the evolutionary trajectory of the science progresses and newly discovered evidence motions become obsol-ete, defendants whose trial lawyers failed to mount a substantial challenge to now-suspect medical orthodoxy will assertthat their representation was ineffective. Keith Findley has articulated this point as follows: © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.con_/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 54 of 55 87 WAULR 1 Page 53 87 Wash. U. L. Rev. 1 where the medical evidence is new in the ordinary sense-that is, the jury at frial never heard the medical evid- ence—but not new in the legal sense—it existed and could have been presented at frial—the defendants claim will likely shift to a claim of ineffective assistance of counsel based on counsels failure to marshal the available scientific evidence. E-mail from Keith Findley, Clinical Professor and Co-Director, Wisconsin Innocence Project, University of Wiscon- sin 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 andnothing but the truth, are you swearing to speak only the truth, or to convey only the truth. Lets assume you believe youknow the truth in the first place. You can only communicate in court through the artifices of the court by answering law-yers questions that are purposely configured to structure and manipulate the truth. Within this venue, how do you deliverthe "proper" concept into the minds of the jury, to whom you are trying to convey the truth. Some would assert that youshould not reflect on uncertainties that you feel do not influence your ultimate opinion. You need to polarize your posi-tion, 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 in-crease^] when you are facing opposing expert opinion, which you consider to be hyper-polarized, incompletely reflect-ive 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 believethat 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 thedebate. Defenders of the diagnosis point to better modeling and the possibility of capturing a shaking episode on film asthe 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 inthe classic SBS symptoms is recorded on video, this may tend to establish that shaking alone can cause the friad, but itwill not prove a pathognomic relationship between shaking and the triad. Put differently, proof that A can cause B doesnot 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 ofthe basis for SBS. See, e.g., Bohan, supra note 76 (calling this "long past the time that persons capable of scientificallyexamining [the controversy sunounding the diagnosis] be called on to do so as part of an independent broad-based teamunder the auspices of the National Academies of Science;" Interview with Thomas Bohan, supra note 78. Even outsidethe SBS context, one commentator has recently argued that greater "institutionalized oversight of forensic sciences, byscientists, 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 andcredible because of the Institutions reputation for providing independent, objective, and non-partisan advice with highstandards 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, thisseems to be a generally accepted characterization. A NAS study requires a federal agency as its primary financial spon-sor, implicating the willingness of Congress to authorize funds for the endeavor. Id. > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.http://web2.westlaw.com/print/printstream.aspx?rs=WLW10.04&destination=atp&prft=H... 5/11/2010
  • Page 55 of 5587 WAULR 1 Page 5487 Wash. U. L. Rev. 1[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, itdid catalogue a wide range of ways in which "substantive information and testimony based on faulty forensic scienceanalyses may have contributed to wrongful convictions of innocent people." Id. at S-3. Perhaps most importantly, the Re-r, o r ip ~r± reCOmiriCIlUCa CICailOIl Ol a_n nrM.. m a C p C I l t t C I l l _ _ _ _ _ ! U g .frfr.. y ^ r i . f n t n m f t i _ r~( rMr* o t i r,-*. n~_ e w inr_r»r_<~.nrir.tit •fr.firM".! C l l C .. t i l . "NT_tn_r.nl T t " _ tl 1 tp. _ r * _ _ _ a l 11. N ^ i p n f p tllC ___t±t__t± ± _l _ 11_ _ _ c r t r_T _ T^f-VEM.*b OL.1C11V.C ^nntrT F V . f N T £)},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 medi-cine." Id. at S-14.[FN364]. I pursue the question of reform in a future Article.87 Wash. U. L. Rev. 1END OF DOCUMENT > 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2. westlaw.com/print/printstream. aspx?rs=WLW 10.04&destination=atp&prft=H... 5/11/2010
  • Volume 188 Summer 2006 A NUTS AND BOLTS APPROACH TO LITIGATING THE SHAKEN BABY OR SHAKEN IMPACT SYNBROME Lieutenant Colonel Matthew D. Ramsey* Ci Did 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 involvingan 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 theCommand Judge Advocate. Human Resources Command-St. Louis, St. Louis, Missouri.LL.M., 2006, The Judge Advocate Generals 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 StatesAttorney, 1992-1994). Admitted to practice before the Alabama bar. This article wassubmitted in partial completion of the Master of Laws requirements for the 54th JudgeAdvocate Officer Graduate Course.1 Barry Wilkins, Head Injury-Abuse or Accident?, 76 ARCHIVES OF DISEASES INCHILDHOOD 393 (1997).
  • 2 MILITARY LAW REVIEW [Vol. 188accidental shaking or shaking in connection with some form °f cranialimpact Often referred to as the "shaken baby syndrome (SBS) or"shaken impact syndrome"3 (SIS), these cases not only contain theemotional turmoil of a dead child, but must also be tried using evidencethat 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 counselwith a basic foundation for use when preparing to litigate a case whereSBS or SIS is alleged. A comprehensive guide covering everyconceivable 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 regardedby the medical and legal community, outline the medical t e r m i n gand definitions common to such cases, provide a framework forrequesting expert assistance and using and challenging expert teS^™onyat trial, and conclude with a discussion of several of the currentcontroversies 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 t a k e r , 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).
  • 2006] SHAKEN BABY IMPACT SYNDROME 3alleged abuse.5 Regardless of the alleged perpetrators gender, therelationship between a parent or caretaker and a child is private mnature.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 assistanceand medical expert testimony (e.g., forensic neuropathologist, etc.) toeither 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 termsassociated with these types of cases, the following hypothetical may alsohelp 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 defenses 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.
  • MILITARY LAW REVIEW [Vol. 188 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 childs 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 childs death, the childs 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 unpremeditatedmurder or involuntary manslaughter against the Soldier in this case? Theanswer requires a close look at the available evidence.111. Shaken Baby Syndrome/Shaken Impact Syndrome—What Is It? Guard well your babys precious head; Shake, jerk and slap it never; Lest you bruise his brain and twist his mind; Or whiplash him deadforever. Shaken Baby Syndrome/Shaken Impact Syndrome is generallydefined as traumatic brain injury consisting of "a combination ofsubdural hematoma (brain hemorrhage), retinal hemorrhage, and diffuseaxonal injury (diffuse injury of nerve cells in brain and/or spinal cord)"in infants and toddlers with little to no evidence of external cranialtrauma, the effects of which cause death or significant physical injury.Referred to within the medical community as the "triad of diagnosticcriteria,"12 medical practitioners who find at least two of these symptoms9 Caffey. Whiplash, supra note 2, at 403 (quoting a proposed national educationalcampaign poem used by Dr. Caffey to close the referenced article).10 Harold E. Buttram, Woodland Healing Research Center, Shaken Baby/ImpactSyndrome: 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 5often conclude that the child has suffered intentional abuse as opposed tosome form of accidental injury.13IV. Shaken Baby Syndrome/Shaken Impact Syndrome—The Clash ofthe 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 thedegree and type of force needed to cause the above-mentioned injuries.The majority view believes shaking alone is sufficient to cause traumaticbrain injury, whereas the minority view posits that shaking plus someform of cranial impact is required to cause traumatic brain injury.Military practitioners, however, should be aware that within the militaryjustice system, the terms associated with each are sometimes usedinterchangeably despite their different implications.17 Such an 13 Id 14 Jan Leestma, Case Analysis of Brain-Injured Admittedly Shaken Infants in 54 Cases, 196 9_2001,26 AM. J. FORENSIC MED. & PATHOLOGY 199 (Sept. 2005). 15 John Plunkett Letter to the Editor-Authors 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
  • MILITARY LAW REVIEW [Vol. 188oversimplification or generalization of an otherwise complex syndromeignores the critical nuances of each view—nuances that may welldetermine the guilt or innocence of an accused. 1. The Majority View—Shaking Alone The majority view holds that most adults possess sufficient strengthto shake an infant or toddler to the point of causing intracranial injuriesthat can ultimately cause death or grievous bodily harm without any formof cranial impact or blunt force trauma.18 This view first gained afoothold within the medical community in 1974 when Dr. John Caffeypostulated the "whiplash shaken baby syndrome" theory, stating thatshaking alone could produce the forces sufficient to cause both subduralhematomas and retinal hemorrhages in small children.19 Dr. Caffey thentook his theory one step further and opined that finding a subduralhematoma 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 1968biomechanical study conducted by Dr. Ayub Ommaya.22 In his study,Dr. Ommaya used primates strapped into a piston-activated rail chair tospecifically simulate rear-end collision whiplash (i.e., no head impact) too opined that CJs 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. Ommayas 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.).
  • 2006] SHAKEN BAJSY IMPACT SYNDROME 7injuries.23 Through this landmark study, Dr. Ommaya determined twothings. First, he determined that when the primates head was subjectedto sufficient angular or rotational acceleration (e.g., whiplash) force,traumatic brain injury would occur regardless of whether or not skullimpact occurred.24 Second, he determined that traumatic brain injuiy,subdural hematomas, or diffuse axonal injury did not occur until theprimate 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. Ommayas 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 285-86.2425 _i "The term g force or gee force refers to the symbol g, the force of acceleration due togravity at the earths surface" Wikipedia, The Free Encyclopedia, Acceleration Due toGravity, 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 ofacceleration defined as exactly 9.80665 m/s"* or 9.80665 m/s-2 (almost exactly 32.174i. _~2 ") Id. (Gravity due to the earth is experienced the same as being acceleratedupward with an acceleration of 1 g. The total g-force is found by vector addition of theopposite of the actual acceleration (in the sense of rate of change of velocity) and a vectorof 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. & PATHOLOGY89 91 (June 2004) (stating that Dr. Ommaya measured force m units of angularacceleration 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. INTL 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.
  • 8 MILITARY LAW REVIEW [Vol 188 For roughly the next fifteen years, Dr. Caffeys shaking-alone theorycirculated through both the medical and legal communities and wentvirtually unchecked without the benefit of any significant peer review.-As a result, Dr. Caffeys theory became firmly ingrained as an accepted 30medical syndrome. 2. The Minority View—Shaking Plus Impact It was not until approximately 1987 that the first skeptics beganquestioning the accuracy of Dr. Caffeys study and his theory. One ofthe first to question Dr. Caffeys theory was Dr. Ann-Christine Duhaimewho observed that "[wjhile the term shaken baby syndrome_ hasbecome well entrenched in the literature of child abuse, it ischaracteristic of the syndrome that a history of shaking in such cases islacking."32 As a result of her observation, Dr. Duhaime conducted abiomechanical 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 9infants.33 Using infant models, Dr. Duhaime and her team subjectedproportionately correct models to a series of shaking events, some ofwhich were followed by an impact.34 Using Dr. Ommayas 155 gs as thethreshold for when traumatic brain injuries (e.g., subdural hematoma,retinal hemorrhages, diffuse axonal injury) manifest themselves,^DrDuhaime 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.").
  • 10 MILITARY LAW REVIEW [Vol-188B. The Emerging View—Shaking Without a Corresponding Neck InjuryProves Shaking Plus Impact In recent years, numerous published medical studies have stronglysupported the minority position.39 In 2002, Dr. Ommaya published anarticle postulating that if it were possible for an infant to suffer traumaticbrain injury by shaking alone, the infant would also suffer a significantcorresponding neck injury.40 He further concluded that the "[ajbsence ofcervical spinal cord injury would indicate a component of impact in thepresence of hemorrhagic brain lesions."41 In February 2005, Dr. Bandak,using Dr. Ommayas injury threshold criteria, postulated that if an infantwas shaken hard enough to cause traumatic brain injury, the mfant wouldalmost certainly have some form of significant neck injury. 2 Or to put itplainly, absent a corresponding neck injury, the child was not shaken tothe point of traumatic brain injury.C. Why Practitioners Should Know the Divergent Views Practitioners should be aware of the minority and emerging views fortwo primary reasons. First, an understanding of the medical literature inthis area will assist practitioners in effectively questioning witnesses.Second, understanding the minority or emerging views may assistdefense counsel in making a motion to request expert assistance, todisqualify a proffered government witness from being considered anexpert, 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. _ 4x 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 44 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 11V. Types of Injuries Caused by SBS/SIS Experts differ regarding the degree and type of force (i.e., shakingalone or shaking plus impact) necessary to trigger traumatic braininjury.45 Regardless of their biases concerning injury thresholds,however, most experts agree on the types of injuries shaking or impactcan inflict. These injuries are generally broken down into the followingtwo categories: primary injuries and secondary injuries. Primary cranial injuries consist of subdural hematomas, epiduralhematomas, subarachnoid hemorrhage, retinal hemorrhages, and diffuseaxonal injury.47 In cases involving cranial impact, the following injuriesmay also be present: external scalp bruising under the point of impact,extravasted blood under the point of impact (i.e., blood within theepidural layer (scalp)), skull fracture(s), coup contusions (i.e., bruising orinjury beneath the site of impact), and contra-coup contusions (i.e.,bruising or injury directly opposite the impact).48 Secondary injuriesconsist of brain hypoxia (i.e., insufficient oxygen flow to the brain),brain ischemia (i.e., insufficient blood flow to the brain), and cerebraledema (i.e., swelling of the brain).49 With the exception of diffuseaxonal injury, the primary injuries listed above usually do not causedeath.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.
  • 12 MILITARY LAW REVIEW [Vol. 188injury. Consider the following example: Joe is punched in the face andhis jaw is broken. As a result, Joes mouth swells up and blocks hisairway. The broken jaw is the primary injury which, in turn, caused thesecondary injury of the blocked airway.VI. Why the Lesson in Primary and Secondary Injuries? The legal practitioner must be able to recognize and distinguishprimary versus secondary injuries for two important reasons. First,primary injuries can be linked to their biomechanical origins (i.e., theirdirect causes),53 whereas secondary injuries generally cannot.3 Thus,certain injuries are indicative of specific acts, such as an epiduralhemorrhage being specifically indicative of an impact.55 A secondaryinjury, however, may have many different causes and is not indicative ofany specific, telltale act, origin, or cause.56 For example, cerebral edemais a secondary injury. Cerebral edema can occur with blunt force trauma,with whiplash, because a large subdural hematoma displaces the braincutting off oxygen and causing it to swell, or from extended attachmentto 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 13 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 ofthe child? When the medical evidence is applied to the facts, perhapsnot. First, the child taken to the emergency room showed no currentsigns of cranial impact or neck injury. An expert subscribing to theminority or emerging view would likely state that the child was notshaken to the point of traumatic brain injury. One must also rememberthat several experts are of the opinion that prolonged use of a respiratorcan 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 childs 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 fathers 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 ("Its 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.
  • 14 MILITARY LAW REVIEW [Vol. 188hypothetical. For example, was the child displaying symptoms of aserious injury, such as lethargy or vomiting, after the drop in the tub?Based upon the above infoimation, the practitioner should now begenerally familiar with the signs to look for, questions to ask, evidence tocollect, and issues to resolve before charging the Soldier with murder. As can be seen from the hypothetical, understanding these nuances isessential to preparing a SBS/SIS case. Doing so allows the practitionerto critically review and challenge the purported experts conclusionsconcerning both the causation of an injury and its respective timing. Inaddition, appreciating the differences between primary and secondaryinjuries and their respective timing will aid either the defense counsel incorroborating his clients 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 partys c a £ 5 Further, because traumatic brain injuries can manifest themselves differently m c b U r a 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 15specialized experts as opposed to generalists.67 For example, counseshould consider using a forensic pediatrician instead of a generalpediatrician or using a pediatric-neuro radiologist in lieu of a generalradiologist.68 For defense counsel, however, acquiring a government-funded expertconsultant, much less a highly-specialized expert consultant, can bedifficult and burdensome. The defense is not entitled to a government-funded expert consultant by merely "noting that the prosecution hasemployed expert assistance to prepare its case."69 Rather, as held by theCourt of Military Appeals in United States v. Robinson, the "EqualProtection Clause, the Due Process Clause, and the Manual for Courts-Martial provide that servicemembers are entitled to expert assistancewhen 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 experts 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 childs 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). <
  • 16 MILITARY LAW REVIEW [Vol. 188expert assistant would be able to develop."72 When requesting expertassistance and in meeting this necessity test, counsel should, at aminimum, specifically address the following factors set forth by the courtin 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 governments ability to prove guilt, what the nature of the prosecutions 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 meetthe necessity test outlined above could, by way of example, argue thatexpert assistance is needed to understand or rebut an autopsy report, todetermine whether the medical evidence supports the medical examinersfindings and conclusions, or to adequately evaluate medical records thatthe defense has neither the experience nor the expertise to properlyassess. A defense request for government-funded expert assistance shouldfirst be submitted to the convening authority and, at a minimum, shouldinclude a "complete statement of reasons why employment of the expertis necessary."74 Rule for Courts-Martial 703(d) does not specificallyrequire the request to demonstrate how or why counsel feels the"necessity test" outlined in Gonzalez and Allen15 has been met. It is goodpractice, however, to draft any request as if it was going before the courtsince "a request denied by the convening authority may then be renewedbefore the military judge who shall determine whether the assistance ofthe expert is necessary and, if so, whether the Government has providedor 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)).
  • 2006] SHAKEN BABY IMPACT SYNDROME 17considerations notwithstanding, counsel should put forth his bestnecessity argument from the very beginning. Doing so should notjeopardize the defense theory of the case since communications betweena lawyer and any expert consultant assigned to assist counsel in bothpreparing for trial or during trial are considered protected.77B. The Dreaded "Adequate Substitute" Rule—Not So DreadedAnymore! A "request for the services of a consultant differs from a request thata specific expert witness be produced for the defense" because thedefense "has no right to demand that a particular individual bedesignated."78 That is, if the convening authority or court agrees thatexpert assistance is necessary for the defense, the Government may denythe specific requested expert "if [the government] provides an adequatesubstitute."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 andpurposes, selects the adequate substitute. This "absence of . . . parityopens the military justice system to abuse" by providing the governmentan opportunity to "obtain an expert vastly superior to the defenses." 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 Forces preeminent experts concerning shaken baby syndrome as its own witness."83 Both the convening authority and the military judge, however, denied the defenses 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 defendants 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.
  • 18 MILITARY LAW REVIEW [Vol. 188felt had the requisite qualifications.84 In his stead, the governmentproffered and the military judge appointed an alleged adequate substitutewho, according to the defense, had some knowledge of SBS, but vastlyinferior qualifications when compared to those of the governmentexpert.85 Agreeing with the defense, the CAAF found that the appointedadequate substitute was a "generalist with no apparent expertise" in thearea of SBS whereas the government had secured the "leading shakenbaby expertfor the prosecution team."86 The government, however,argued it had met its due process obligation of providing an adequatesubstitute, asserting that all it is required to provide the defense is acompetent, not "comparable," expert.87 Disagreeing with the government, the CAAF noted that while"[providing the defense with a competent expert satisfies theGovernments due process obligations . . .", doing so, however, "maynevertheless be insufficient to satisfy Article 46 if the Governmentsexpert concerning the same subject matter area has vastly supenorqualifications . . . ."88 Relying on the plain wording of Article 46 of theUniform Code of Military Justice (UCMJ),89 the court went on to hold"Article 46 requires that an adequate substitute . . . have qualificationsreasonably similar to those of the Governments 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 defenses. 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 19 requested expert have professional qualifications at least reasonably comparable to those of the Governments expert is a means to carry out that intent where the defense seeks an expert dealing with subject matter similar to a Government experts area of expertise and where the defense expert is otherwise adequate for the requested purpose. The CAAFs holding in Warner is a shot across the bow for any trialcounsel or military judge who attempts to leave the "defense without theadequate tools to analyze and possibly challenge or rebut the opinion" ofa government expert.92 Accordingly, when submitting a request forexpert assistance, defense counsel, in addition to addressing the Gonzaleznecessity test,93 should consider explaining why their requested experthas "reasonably comparable qualifications" when compared to thegovernment expert. Providing this explanation may secure the servicesof the requested expert instead of a government selected adequatesubstitute. At a minimum, by including a "reasonably comparablequalifications" argument in the initial request for expert assistance,counsel may convince either the convening authority or the militaryjudge 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).
  • 20 MILITARY LAW REVIEW [Vol-188A. Acquiring Expert Witnesses The methodology for requesting an expert witness is virtuallyidentical to requesting an expert consultant. There are, however, twocritical distinctions worth noting. First, as with an expert consultant, thegovernment has the opportunity to offer an "adequate substitute" for thedefense requested expert witness.95 In doing so, however, the proffered-adequate substitute" must not only have "similar professionalqualifications" as that of the requested expert, but must also be able "totestify 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 ( M . 18) (ii g C A 99 ctn . ^niSftr T ^ ^ S J . 4 4 « ? . M , M _ = 3, = 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).
  • 2006] SHAKEN BABY IMPACT SYNDROME 21 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 experts testimony and MRE 704 establishes the scope of the testimony. The thrust of any expert analysis, however, is the second orreliability prong of MRE 702. When determining if the profferedtestimony is the product of reliable scientific principles and methods,counsel must validate the experts qualifications by establishing thefollowing 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 experts 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 experts 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.
  • 22 MILITARY LAW REVIEW [Vol. 188relationship to the facts of the case."106 With regard to the fourth Houserfactor, "before expert testimony is admitted, the military judg^ mustdetermine that the evidence is relevant . . . to the case at hand." Inother words, the evidence "must have a connection to the theory of thecase."108 The fifth Houser factor requires the military judge to conduct areliability analysis to determine if the experts "testimony is the productof reliable principles and methods."109 The reliability analysis iscontingent on the type of expert proffered—nonscientific or scientific.The Supreme Court in United States v. Daubert provided the followingnonexclusive list of factors the judge should consider when evaluatingthe 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 techniques 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 Id. 107 Id. 108 Id. 109 MCM, supra note 44, R.C.M. 702. 110 Kumho Tire v. Carmichael, 526 U.S. 137 (1999). Dauberts general holding-setting forth the trial judges 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 testimonys reliability. But, as the Court stated m Daubert the test ot reliability is "flexible." and Dauberts 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 23conducting the reliability analysis and can generally use any factor thatwill help detennine the experts reliability.114 This broad discretion mayhelp those counsel seeking to introduce expert testimony, whilehindering those counsel seeking to exclude testimony. The sixth and last Houser factor states that "[l]ogically relevant andreliable expert testimony may be excluded if its probative value issubstantially outweighed by the danger of unfair prejudice, confusion ofthe issues, or misleading the members."115 A deceptively simpleargument, counsel seeking to exclude damaging expert testimony shouldnot dismiss or overlook this factor.X. Using MRE 702 and Daubert to Question the "Reliability" of theScientific 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.19 Consider, for example, the CAAFs recent assertion in United 114 See supra text accompanying note 110. ..,„-.__ 115 Untied States v. Houser, 36 MJ. 392, 400 (C.M.A. 1993) (citing MCM, supra note 44.MIL.R-EVID.403). ,_.„,, _, ... A__ T ns 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-childs injury due to SBS not a start fell); United States v. Stanley, 62 MJ. 622 (2004) (finding childs death due to
  • 24 MILITARY LAW REVIEW [Vol.188States v. Stanley: "[T]he specific diagnosis was shaken baby syndrome(SBS). This is an established medical diagnosis typically involving verysmall children who are violently shaken. According to experts whotestified at trial, SBS involves a constellation of injuries to the bones,eyes, and brain."120 In light of the published material that significantlyundermines the shaking alone theory,121 however, it is difficult toascertain why the SBS majority view still prevails to the exclusion ofother more current and sound medical theories. The persistence of the majority view as the prevailing view may beexplained by the militarys penchant for providing an adequatesubstitute, which typically translates into a military expert who is ageneralist instead of the requested civilian expert who typically is aspecialist.122 The continued reliance on generalist experts may limitpractitioners exposure to the minority and emerging views. Althoughthe holding in Warner will open the doors to equalizing this disparity,one can still argue that the use of adequate substitutes with lessexperience or exposure than specialists has resulted in the military courtsbeing slower to embrace the minority or emerging views of SBS/SIS. Asnoted by Dr. Plunkett, perhaps this is because "scientific theories dieslowly."124 Regardless of possible explanations, the military communitys 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 childs injuries). 120 Stanley, 62 MJ. at 622-23 (2004). 121 SeesupraptTV,§§A2,B. 122 United States v. Warner, 62 MJ. 114, 117-19 (2005). ,23 _/.atll9. 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 25a means to preclude a government expert who strictly adheres to themajority view of SBS. Recall that the first Daubert prong asks whether or not the preferredscientific theory has been tested.126 A review of the medical studiespresented herein calls into debate whether or not the majority view ofSBS actually meets this threshold. To the contrary, armed with thebiomechanical studies of the minority and emerging views, counselcould demonstrate that the underlying scientific basis or premise of theshaking alone theory (i.e., that humans have sufficient strength to shakean infant to the point of traumatic brain injury) is "falsifiable." -Remember, as demonstrated by Dr. Duhaime in her landmark study,when Dr. Caffeys theory was tested, it was falsified. The second Daubert prong asks whether or not the theoiy has beenpublished in peer-reviewed journals.130 The majority view, and morerecently the minority and emerging views, have all enjoyed moderate towidespread publication.131 Publication, however, belies two cnticapoints with regard to the majority view. First, "it is significant that in allfour previously cited original papers regarding the hypothesis of shakingboth Guthkelch and Caffey refer to a single paper by Ommaya publishedin 1968 as biomechanical justification for this concept." The implication, of course, is that the cornerstone upon which the majoritytheory 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 Serimeit 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 the 0I y: 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.
  • 26 MILITARY LAW REVIEW [Vol. 188contrary, "submission to the scrutiny of the scientific community is acomponent of good science in part because it increases the likelihoodthat substantive flaws in methodology will be detected." Arguably, thepresent situation is just the type of "scrutiny" the court in Daubertenvisioned, with the minority and emerging views pointing out andcritically 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 separatebiomechanical studies performed by Doctors Ommaya, Duhaime, -Goldsmith, Plunkett,139 and Bandak,140 which support the minority andemerging views, there are virtually no other quantifiable studies fromwhich to deduce an error rate. In an attempt to determine the quality ofthe science supporting SBS, Dr. Mark Donohoe conducted an exhaustivereview of the SBS literature from 1968 to 1998.141 Dr. Donohoe "foundthe 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.
  • SHAKEN BABY IMPACT SYNDROME 272006]emerging views have clearly undermined the scientific bgic of thepremise upon which the majority view of SBS is based.146 The morethese theories gain a foothold within the medical community the moreopportunities counsel have to argue that the majority view of SBS haslost its "general acceptance" within the medical community. Understanding the experts biases is critical. In this articleshypothetical, a government expert adhering to the majority view wou dlikely opine that it was the shaking that either caused or significantlyaggravated the subdural hematoma, which then caused the brain to swelland the child to die. Defense counsel, however, would want to contestthe experts opinion since such testimony would put his client at thescene 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 REVIEWor chronic subdural hematoma can re-bleed due to a subsequent orsecond impact. Some experts assert that traumatic brain injury cannot be caused byshort falls (e.g., fall out of a crib, fall off of a swing, fall off a kitchenstool, etc.).148 Rather, a repeated theme proffered by these experts is thattraumatic brain injury can only be caused by "significant force . . . suchas major motor vehicle crashes, falls from a second-story window, orinflicted severe blunt force trauma."149 Any expert subscribing to thistheory 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 authors 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.
  • 2006] SHAKEN BABY IMPACT SYNDROME 29lethal previous head injury may be exacerbated by a second, yet trivial,head injury, which leads to death.156 A practical application of thistheory would, for example, be a case where a child falls and suffers aminor subdural hematoma. Before the minor subdural hematoma eitherdissipates or is reabsorbed by the body, the child suffers another minorhead 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 fathers brief shaking of the child caused the original subdural hematoma to re-bleed. The question for the court then becomes whether or not the fathers 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 Jalon 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. ,-.,,, "> S b e r 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.
  • 30 MILITARY LAW REVIEW [Vol. 188 As has been demonstrated through the hypothetical, tiiere are noclear-cut answers in cases where SBS/SIS is alleged. As such,understanding these controversies may help counsel m shaping thetheory of their case, in challenging an opposing expert during a Dauberthearing, 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 definedbelow, practitioners should pay particular attention to die specificcausation element or triggering mechanism of each type of injury.Coup Contusiom: "Coup contusions occur beneath a site of cranialimpact. Skull imbending from cranial impact may cause direct injury tothe brain and its surface. Brain contusions may occur at multiple sitesremote from the point of cranial impact under some circumstances.Co_tr_-co_p Contusion: "Contra Coup injuries occur when there is aninjury to the opposite side of the head from the impact site. Contra coupinjuries are generally thought to be an indicator of a moving head hitt nga stationary; unyielding force or object."167 A contra-coup mjury is acontusion 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.169Edema (cerebral): "[Generalized swelling caused by changes in 170vascular permeability and autoregulation. "" 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 laymans terms, swelling of the brain can cause death by starving thebrain of oxygen or blood, or by herniating the brain by pushing it throughthe brain stem.172 (see "Herniation" for a description of the relationshipbetween edema and herniation).Epidural Hematoma: "Epidural hematoma is a traumatic accumulationof blood between the inner table of the skull and the stripped-off duralmembrane. The inciting event often is a focused blow to the head, suchas 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 http://www.biausa.org_>ages/types_of_brain_inj_ry.html (last vistted Sept. 14, 2006) [hereinafter BIAA]. 175 Plunkett Telephone Interview, supra note 55. ""
  • SHAKEN BABY IMPACT SYNDROME 332006]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 ___ _ * 178 ~f0 T7A BIAA, supra note 174. 179 Id.
  • MILITARY LAW REVIEW [Vol.188Second 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.180Subdural 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 Dura Arachnoid Vein Gray matter |s Virchow-Robin Space Penetrating vesselSubdural 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, 188Subarachnoid 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.184Retinal 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-R*6tr itffrd Wl»»_sad StotSw (__.<_»»H_> K»dF_>K>l_V» IKlow _ f t _ _ _ d A « * ! 9 _ _ n H?^__*Me*rfft*»MMi_t jn^wJB!j_w)Are-i«i«Bn:. IKSmall (rnjuet Contact A_i IJ . 0 -.US. N**. cM«w*«««J Imie^i^sPwtffciFtib- • (• •located Hrad D c[.n_!l_ j. J _ 5 S E « i S 3 S 5 n S ) * ^ r ] [l^dmten<H^ilB<_ll»__>t|- • Local Brain _____ f Gross B___oi_n Primary Head Injury Secondary Head Ini*. Primary Head Injury 3 •TS-ce. <Sary Hand Injury! Foes! Pocsi •Ccrcarai Edema Sooauta. Hemo rmagc f-lccafizw. Hypccaa ischemia ~e_.____rsal ScJ t Tnsuc injuiy i-tocaSifd Brain Swcttng -Ucnwrcci wnaTmaJHofrtofrnagw LocaWad BrahSwcJmg -Ski* Fmet. r e -E«_2dt._ H frroonttK). 3-^a.. Stem Injury -Cmjp G«fflu*C«. •tocaW.. Kvpow.• t*C*Wir_3 -Coup Hern i. rtviptts Diffuse Snjsi5n,c_iog -Co«f t Coop Cc-mwcw > -Ct-_._G__p H__wn__g__ •IncrcasnrilC. •hermffid _V .Hypo«a-iscJ__mi_ i-Hypn as iKcrwn.in -|f.ra_oreb-af W-SnwntSMJfl - Subdural HrniOT_i_g_ -pafVWvma) uccratcn -Pd.icnqpx) (.OC _?(_!___. DAJ -Tr-nmatv: Com.. SevHf. OAi • M _ravfft_a/_r tnjitfy 186 Fig. 1. Biomechanical classification of head injuries 186 Bandak, si/pra note 28, at 73.