"What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.
In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States." (Publisher's note: Ms. Tuerkheimer is referring to the Goudge Inquiry which reviewed many case of the disgraced pathologist Dr. Charles Randal Smith.")
DEBORAH TUERKHEIMER; OP-ED; NEW YORK TIMES; Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan."
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Background: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. Several of the cases involved the harm caused to innocent persons because of Smith's use of the so-called "shaken-child syndrome" to ground a finding of criminality. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, misstating evidence, chronic tardiness, and the catastrophic misinterpretation of findings. The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."
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"A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night," the New York Times Op-Ed piece by Deborah Tuerkheimer published on September 20, 2010 under the heading, "Anatomy of a Misdiagnosis," begins.
"Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death," the Op-Ed piece continues.
"More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”
Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.
For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.
But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.
What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.
Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.
The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.
Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.
Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.
What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.
In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.
For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken."
The Op-Ed piece can be found at:
http://www.nytimes.com/2010/09/21/opinion/21tuerkheimer.html
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
