"ENORMOUS PROCEDURAL AND SUBSTANTIVE HURDLES CONFRONT DEFENDANTS AT THE POSTCONVICTION STAGE."
PROF. 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;
E. Post-Conviction Proceedings:
1. Edmunds:
In early 2007, the judge who presided over Audrey Edmunds’s trial over a decade earlier conducted a five day evidentiary hearing in support of her motion for a new trial based on newly discovered evidence.
The defense experts287 testified that, since the mid-1990s, “significant research has undermined the scientific foundations for SBS, creating substantial challenges to matters that were nearly universally accepted in the medical community at the time of Edmunds’s trial.”288
According to the defense experts,a still-emerging body of literature had cast new doubt on previously accepted medical dogma.289
Now in dispute: whether shaking alone can cause the constellation of injuries associated with SBS;290 whether a specific mechanism for the injuries (i.e., Shaking) can be accurately identified;291 whether considerable force, as opposed to a minor impact, is necessary to cause the injuries associated with the syndrome;292 whether previously unrecognized mimics of child abuse can cause the triad of symptoms said to be pathognomonic of abusive head trauma;293 and whether the occurrence of the type of head trauma leading to serious brain damage inevitably causes immediate unconsciousness.294
The defense experts testified that “in 1996 they themselves would have testified
as the State’s experts had at Edmunds’s trial,”295 but the evolving science had changed their opinions as to the likely cause of death.296
In short, the scientific foundation for concluding beyond a reasonable doubt that Edmunds had shaken Natalie Beard to death was no longer intact.297
The near unanimity that once characterized the medical establishment’s understanding of SBS had been shattered.298
Yet no new medical accord had been reconstituted in its place.299
Against this disquieting backdrop, Audrey Edmunds’s new trial motion was decided.
While expressly acknowledging that “[s]tanding along and unchallenged, the defense witnesses provide[d] a sufficient evidentiary basis to order a new trial based upon newly discovered medical evidence,”300 the trial judge denied the motion.
But an appellate court reversed this decision and concluded that there was a reasonable likelihood that a different result would be reached at a new trial.301
In a remarkable opinion without judicial precedent, the court noted the “shift in mainstream medical opinion since the time of Edmunds’s trial.”302
While there were “now competing medical opinions as to how Natalie's injuries arose and [ ] the new evidence does not completely dispel the old evidence,”303 the court was persuaded that “the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence.”304
According to the appeals court,[at trial] the State was able to easily overcome Edmunds’s argument that she did not cause Natalie's injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds’s guilt.
Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds’s guilt.
Thus, we conclude 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 have a reasonable doubt as to Edmunds’s guilt.305
Audrey Edmunds was granted a new trial.306 Months later, all charges against her were dismissed.307
2. Beyond Edmunds:
Enormous procedural and substantive hurdles confront defendants at the postconviction
stage.308
Although the law differs depending on jurisdiction, a number of generalizations can be made about the SBS defendant’s burden of proof.
Put simply, there are tensions between the governing framework for collateral relief and the issues presented by SBS cases.309 These strains were nicely illustrated by the state’s arguments against post-conviction relief in Edmunds.
First, the evidence presented at the post-conviction stage must be deemed new, or
“discovered” after the trial.310
One problem for the defense is that the proffered evidence is less definitive than past “scientific improvements”311 – DNA typing, primarily.312
In Edmunds, the prosecutor underscored this point: the defense could offer no “bone test … [that] would tell us whether that infant was … the subject of [shaking-inflicted] brain injury.”313
Instead, the evidence was described as “an academic debate among medical experts,”314 and one the prosecution characterized as ongoing at the time of the trial in
order to negate a showing of “newness.”
For instance, the article widely recognized as the “classic that really set this all in motion about doubting shaking,”315 was published in 1987,316 and a small number of scientists were already questioning the basis for SBS in the early 1990s.317
The state thus argued that “[t]he debate … was fully engaged” at the time of trial.
Although the court rejected this characterization,318 future defendants collaterally attacking their convictions may have greater difficulty satisfying the “newly discovered” requirement if the evidence offered as “new” at the post-conviction stage was more fully developed when the trial occurred.319
Second, the evidence must be material to the case and not merely cumulative.320
The prosecution in Edmunds asserted that the “academic debate” about SBS was “beside
the point:”321 theoretical disagreements about whether shaking alone could cause death and whether the triad alone was pathognomonic of abuse were irrelevant to Edmunds’s conviction, given the severity of the infant’s injuries.322
The court could dispense with this argument in short order,323 given that the prosecution fell squarely within the SBS paradigm – the cause of death was said to be forceful shaking, the diagnosis was made on the basis of the basis of the classic triad,324 and the perpetrator was identified based on the impossibility of a lucid interval.325
But given the current state of scientific research, which (unlike DNA326) cannot conclusively establish a defendant’s innocence, deviations from this prototypical fact pattern will tend to undermine the defendant’s materiality claim.
Finally, the evidence must “probably” have resulted in a different verdict at trial.
This is the most difficult burden for the defense,328 and was predictably the greatest area of contention in the Edmunds post-conviction relief proceedings.329
The defense argued to the court that, at trial, the jury never had any reason to doubt that diagnosis of shaking, with or without impact, and nearly immediate collapse was unassailable as medical evidence.
This is simply no longer true…. [T]his new evidence of evolving science that
rigorously challenges and refutes long-presumed hypotheses [ ] very well could
change the outcome.330
In refuting this notion, the prosecutor explicitly juxtaposed the scientific attacks
on SBS with the certainty of DNA exonerations.
Unlike the new debate offered by the defense, DNA was “real science” that established innocence “to an astronomical degree of science (sic) or statistical probability.”331
DNA did not “dispute a theory or demonstrate a rift or a contention in the Scientific community.
It didn’t provide for alternative hypotheses.”332
In contrast to defense evidence substantiating the existence of lucid intervals, DNA samples “exclude[d] the defendant from the world of possible perpetrators.”333
And unlike testimony regarding possible alternative causes of death in Edmunds, DNA provided definitive answers.334
As the Edmunds arguments show, DNA has implicitly been positioned as the paradigm of newly discovered evidence. Although the appeals court ultimately rejected the prosecutor’s arguments, DNA’s reign as the “poster child of newly discovered evidence” motions335 must be reckoned with.
The level of certitude DNA provides has become a de facto “benchmark,”336 and the actual innocence it establishes is a touchstone for post-conviction relief.337
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 benchmark338 and actual innocence is not the sine qua non of a new trial.
But the subjectivity inherent in predicting the effect of new evidence on a jury’s
deliberations339 means that the litigation of post-conviction relief motions will continue to take place in the shadow of DNA.
Given these formidable obstacles, the trial court’s denial of Edmunds’s motion
was perhaps to be expected.340
In the decision, we may rightly discern that similarly situated defendants will have difficulty prevailing in the future.341
Perhaps more surprising is that the trial court’s decision was overturned on appeal
This development portends hope for those seeking new trials in SBS cases.
Even so, the promise of Edmunds is closely circumscribed by its limited precedential effect.343
Beyond onerous post-conviction relief standards,344 defendants seeking collateral relief in SBS cases confront the likelihood that, in coming years, the current scientific controversy will be suspended in a kind of equilibrium.
At some point, unless a revolutionary breakthrough fatally undermines SBS, defendants convicted in this era of uncertainty will be hard-pressed to claim that evidence of the diagnosis’s invalidity is new.
Newly discovered evidence motions will be effectively foreclosed without ever having become truly viable.345
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.
Part Five: Conclusion:
Harold Levy...hlevy15@gmail.com
