"THIS ARTICLE IDENTIFIES A CRIMINAL JUSTICE CRISIS AND BEGINS A CONVERSATION ABOUT ITS PROPER RESOLUTION. THE CONCEPTUAL IMPLICATIONS OF THE INQUIRY - FOR SCIENTIFIC ENGAGEMENT IN LAW'S SHADOW, FOR FUTURE SYSTEMIC REFORM, AND FOR THE NOTION OF INNOCENCE IN A POST-DNA WORLD - SHOULD ASSIST IN THE TASK OF RIGHTING PAST WRONGS AND AVERTING FURTHER INJUSTICE."
PROFESSOR DEBORAH TUERKHEIMER;
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Professor Deborah Tuerkheimer,of the University of Maine School of Law, has written a definitive article on Shaken Baby Syndrome for the Washington University Law Review; (March 6, 2009: Vol. 87, 2009;)
The article is aptly titled: "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts."
An abstract of the article reads:
Every year in this country, (The U.S.A) hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant's death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course. This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry - for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world - should assist in the task of righting past wrongs and averting further injustice.;
This article is so refreshing, insightful and compelling that I have chosen to run it in its entirety in seven installments - beginning today with Part One: The introduction. (I have chosen to run the article without the incredibly useful footnotes. Readers who wish to consult them will find the entire article on line with footnotes at: http://ssrn.com/abstract=135465;
PART ONE: INTRODUCTION:
IV. SBS AND THE LAW:
Given the scientific developments described, we may surmise that a sizeable
portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent.
Even more certainly, a far greater number of defendants among this group were wrongfully convicted.
The distinction is an important one: In SBS cases, identifying the factually innocent is complicated by two related propositions.
First, no crime whatsoever may have occurred, thus eliminating the opportunity to establish someone else’s culpability.130
Second, at least to date, science has not definitively established an alternative explanation for the injuries associated with SBS.131
What this means is that a significant number of people convicted in triad-only
prosecutions132 are likely innocent of wrongdoing, but others are not, and we have no
way of differentiating between these groups.133 Accordingly, we may rightly be troubled by the convictions of those whose factual innocence is unproven.
The criminal justice implications of all of this are staggering.134
To put the scope of the problem in a more familiar framework, it is helpful to consider the number of known exonerations in the United States over the past thirty years.
From 1989 through 2007, there were 210 DNA exonerations, mostly for rape.135
It is reasonable to suspect that this number of SBS-based convictions after trial occurred in the past year alone.136
Additional (non-DNA) exonerations include those of 111 inmates on death row; 135
other individuals; and perhaps another 200 or so defendants whose convictions were
overturned based on a “mass” scandal implicating widespread systemic corruption.137
Unlike SBS cases, none of these exonerations involve a set of paradigmatic facts later determined to be a faulty basis for prosecution.138
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.
Its failure to do so stands in marked contrast to other nations’ recognition of the problematic nature of pure triad prosecutions.
The emphatic institutional responses of the United Kingdom140 and Canada141 are particularly instructive.
Just as our criminal justice system has seemed to operate within a time bubble, largely untouched by scientific evolution, so, too, it remains insulated from unmistakable signs that, elsewhere in the world,142 other legal systems are assimilating new scientific understandings and adapting accordingly.
When viewed in global perspective, our continued adherence to a prosecution template
that rests on discredited science is particularly jarring.
What follows is an account of how we have arrived at this place;
A. Investigation and Prosecution:
In the United States, unlike the United Kingdom and Canada, the SBS prosecution paradigm that ascended in the 1990s has remained largely untouched by scientific developments of the past decade.143
This systemic failure should not be equated with the prosecutorial pursuit of charges against defendants believed to be innocent of wrongdoing.144
Rather, SBS cases are going forward because law enforcement officers genuinely believe in the validity of the diagnostic triad that has fallen from scientific
grace.145
But this explanation, while more benign than its alternative, begs the question of why the triad continues to exert an almost talismanic effect.146
It is worth noting the considerable deference given to child abuse doctors147 – who, as a general rule, remain believers in the diagnosis.148
Accordingly, prosecutors may exhibit a disinclination to interrogate the science upon which these physicians’ opinions rest.
There is nothing novel about the observation that prosecutors tend to defer to their
experts; but, in this context, the relationship between the prosecutor and the allied
medical professionals is a particularly close one.149
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.150
Doctors identify both the occurrence of a crime and its perpetrator, and their assurance regarding each is essential for a conviction.151
These dynamics may well contribute to a prosecutorial reluctance to challenge the validity of an SBS diagnosis.
But they do not fully explain a continued willingness to pursue charges in cases built entirely on contested expert testimony.
To complete the account, it is helpful to consider first, how prosecutors are
trained in the science of SBS; second, how prosecutors perceive the accounts of those
suspected of abuse; and, third, how prosecutors are influenced by the systemic nature of SBS convictions.
Prosecutorial Training:
Training is especially critical in this area, where a complex and evolving body of
science is outcome determinative.153
As one prominent instructor recently urged, “investigators and prosecutors should obtain a basic education on medical issues common to all of these cases.”154
Since most prosecutors encounter SBS cases infrequently, few become experts in the issues they raise.155
It is unsurprising, then, that a nationwide training apparatus has developed to disseminate information about the basic structure of an SBS prosecution.
For instance, the American Prosecutors Research Institute of the National District Attorney’s Association156 transmits newsletters,157 organizes conferences,158 and provides other support for prosecuting the SBS case.159
The National Center on Shaken Baby Syndrome, an organization dedicated in part to training law who have become leaders in the field have published book chapters with instruction in handling SBS cases from investigation through trial.162
These training materials present a view of the science refracted through an advocate’s lens.
For instance, a 2001 publication asserts: “the [prosecution] expert can testify that the forces the child experiences are the equivalent of a 50-60 m.p.h. unrestrained motor vehicle accident, or a fall from 3-4 stories on a hard surface;”163 and
“current research and professional consensus within the medical literature clearly
supports the conclusion that … there is no lucid interval.”164
Similarly, from a chapter published in 2006: “there is emerging consensus among credible medical experts that when children have suffered serious or potentially fatal head injuries, they will start to experience symptoms almost immediately after injury;”165 “[t]he 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;”166 and “the medical field has reached substantial consensus concerning many of the issues pertinent to criminal [SBS] cases.”167
While it should be expected that materials used to educate prosecutors would be
strategically focused with respect to trial, this same orientation with respect to case investigation is more problematic.
And while we might also anticipate that the most “extreme” critiques of the science underlying SBS convictions would be soundly - and passionately – attacked, many of these materials fail to acknowledge the shifting of the center.
In defending the science of old,168 the authors tend to obscure the changed consensus around fundamental aspects of the SBS diagnosis.169
At the same time, significant challenges to the conventional medical wisdom are ignored.170
Nomenclature aside,171 few concessions to developments in research have been made.
The digested science describes a diagnosis upon which prosecutors can securely rely.
Caregiver Accounts:
Prosecutorial confidence in guilt is augmented by statements on the part of SBS suspects – statements which are inevitably perceived as incriminatory.
The three accounts most often offered to explain an infant’s loss of consciousness or other obviously severe neurological symptoms are that: (i) their onset was unprovoked/without explanation; (ii) the infant fell from a short distance; and iii) the infant was shaken playfully or in the course of revival efforts.172
Research over the past decade has made each of these explanations newly plausible.173
But because law enforcement officers interrogating the SBS suspect “know” that the infant’s injuries were caused by violent shaking – the science is believed to prove this definitively – the narratives are all perceived as false and, therefore, incriminating.174
Moreover, if the suspect’s story changes in response to familiar interrogation
techniques,175 this fact itself is used to support a SBS diagnosis.176
The ensuing 171 interrogation confirms the suspect’s guilt, as this veteran SBS prosecutor’s characterization suggests:
Each of the 3 most common histories, and others, may be combined in patterns of
changing histories as guilty adults attempt to fabricate new explanations to respond to the probing or suggestive questions of one or multiple interviews.177
But even if the caregiver’s story remains constant, it too may be used as evidence of guilt.178
The “discrepant history” - “when the history does not match the physical condition in front of you” – is also seen as proof that the infant was shaken.179
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.”180
The suspect cannot avoid self-incrimination; the investigator’s certainty of guilt can only be reinforced.181
Reification:
Finally, prosecutorial thinking about these cases is pervaded by an echo of the
methodological fallacy of the early SBS literature.182
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 pursued with supreme confidence.
In this manner, the triad-based crime constructed by the medical establishment183 has been reified – its existence affirmed - by the systematic conviction of its apparent perpetrators.184
Next portion: Shaken Baby Syndrome and the law; 4B: Evidentiary challenges;;
Harold Levy...hlevy15@gmail.com;
