"WITHOUT ADDITIONAL DATA, WE CANNOT REASONABLY SPECULATE ABOUT THE NUMBER OF DEFENDANTS WHO PLEAD GUILTY TO THIS TYPE OF CRIME, ALTHOUGH THE ESTIMATED 1500 SBS DIAGNOSES A YEAR MAY PROVIDE AN OUTSIDE PARAMETER.
WHEN PLACED AGAINST THE BACKDROP OF RECENT SCIENTIFIC DEVELOPMENTS, THESE NUMBERS REFLECT A CRISIS IN THE CRIMINAL JUSTICE SYSTEM."
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: 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 TWO: THE AGE OF SHAKEN BABY SYNDROME;
II. THE AGE OF SBS
The first appeal of an SBS-related conviction was reported in 1984.40 Based on the presence of bilateral retinal hemorrhages and subdural hematoma, the prosecution’s expert concluded that a four-month-old infant had been shaken to death,41 and the appellate court affirmed the sufficiency of the evidence to convict.42
Over the next five years, less than fifteen appeals of convictions based on an SBS diagnosis were reported.43
Beginning in 1990, however, the number of appeals grew dramatically.
In five year increments, published appellate decisions increased from 74 (January 1, 1990 -December 31, 1995), to 160 (January 1, 1995 - December 31, 1999), to 315 (January 1, 2000 – December 31, 2004).44
The numbers from the first half of the current five-year period suggest that this trend toward rising SBS appeals is continuing: from January 1, 2005 to June 30, 2008, 259 written opinions in this category were issued.45
Appellate case law is admittedly an inadequate measure of prosecutions, both because most convictions do not result in a written appellate decision46, and because not all prosecutions result in conviction. Notwithstanding these limitations, the appellate case law can suggest, as it does in this instance, that the total volume of prosecutions has been on a sharply upward trajectory since 1990.
Ascertaining the absolute number of SBS prosecutions is of course far more
difficult.47
Approximately 1500 babies are diagnosed with SBS in the U.S. each year.48
How many of these cases result in prosecution and conviction is unknown, however, since no comprehensive data on SBS cases has ever been collected.49
That said, there are a number of ways of estimating the magnitude of defendants potentially impacted by recent scientific developments.50
One might conservatively assume that the approximately eight hundred cases reported since 1990 reflect about 1500 convictions after trial.51
To focus on more recent figures only, it seems fair to conclude that around two hundred defendants a year are being convicted of SBS prosecutions.52
Without additional data, we cannot reasonably speculate about the number of defendants who plead guilty to this type of crime,53 although the estimated 1500 SBS diagnoses a year may provide an outside parameter.
When placed against the backdrop of recent scientific developments, these numbers reflect a crisis in the criminal justice system.
Next part: Part three: "Scientific Evolution;"
Harold levy...hlevy15@gmail.com;
