"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."
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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:
"Natalie Beard died on October 16, 1995.2," the Introduction begins;
"That morning, her mother had brought the seven-month-old to the home of her day care provider, Audrey Edmunds,3 it continues;
The baby was by all accounts fussy.4 According to the caregiver’s account, shortly after the baby was delivered to her, Edmunds propped Natalie in her car seat with a bottle, left the room, and returned a half-hour later to discover her limp.5 Edmunds – herself a mother – immediately called 911 to report that Natalie appeared to have choked and was unresponsive.6 Rescue workers responded minutes later and flew the baby to the hospital, where she died that night.7
Prosecutors charged Edmunds with murder based on the theory that Natalie had
been shaken to death.8 No witness claimed to have seen the defendant shake the baby.
There were no apparent indicia of trauma. Edmunds maintained her innocence throughout. Yet a jury convicted on the sole basis of expert testimony that Natalie
suffered from Shaken Baby Syndrome (SBS). And a court sentenced Edmunds to eighteen years in prison.9
In important respects, this case falls squarely within the “shaken baby”
prosecution paradigm that developed in the early 1990s. The infant10 had no external
injuries suggestive of abuse.11 The accused12 was unable to provide an explanation for the child’s condition.13 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).14 The presence of these three signs was understood to be pathognomic – or exclusively characteristic – of shaken baby syndrome.
At trial, the prosecution’s experts testified that “only shaking, possibly
accompanied by impact” could explain the injuries.15 Regarding the force necessary to
cause these injuries, jurors heard the explanation typically offered in these cases: the force was equivalent to a fall from a second- or third-story window, or impact by a car moving at 25 to 30 miles an hour.16 The prosecution’s experts concluded that the shaking necessarily occurred while the baby was in the defendant’s care, since the trauma of the shaking would have caused immediate unconsciousness.17 The scientific basis for SBS was not challenged by the defense.18 And indeed, at the time of Edmunds’s trial, the medical consensus on this issue was overwhelming.19
All of this is standard fare for an SBS prosecution.20 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 (act and causation) – are proven by the science. Degree of force testimony not only establishes causation, but also the requisite state of mind.21 Unequivocal testimony regarding timing – i.e., that symptoms necessarily would appear instantaneously upon the infliction of injury – proves the perpetrator’s 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 shaken baby syndrome (SBS) concluded that it had become sufficiently eroded that a new jury
probably would have a reasonable doubt as to the defendant’s guilt.22 According to the court, a “shift in mainstream medical opinion”23 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 convictions like it,24 the science upon which the defendant’s conviction rested had advanced, raising the specter of innocence.
This Article explores what ensues when medical certainty underlying science based prosecutions dissipates.25 It asks: how does a scientific revolution penetrate the criminal justice system? And: does our legal system effectively respond to the inevitable consequences of science outpacing the law? The remarkable transformation of SBS provides a unique vehicle for probing these questions.
Part Two places SBS prosecution in historical context, exposing the recent and rapid ascendance of a paradigm that, until now, has gone largely unnoticed.26
Part Three 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.27 In recent decades, researchers have uncovered these failings, and the diagnosis has evolved accordingly. There is now general agreement among the medical community that the previous incarnation of SBS is invalid.28 The particulars of this evolution are striking – especially from a criminal justice standpoint. Despite continued controversy around aspects of the diagnosis, I identify a number of key areas where the framework for debate itself has been significantly altered. This discussion reveals that the new SBS is different enough from what came before to raise serious challenges to a substantial number of criminal convictions.
Specifically, these scientific developments have cast into doubt the guilt of an
entire category of defendants: those convicted 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 exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena.29
In Part Four, I chronicle the criminal justice system’s treatment of the changing
science. I do so by surveying the various stages in the criminal process where actors
make decisions with the potential to account for – or overlook – scientific developments of the past decade. Police and prosecutors investigate cases and prosecutors decide whether to pursue charges.30 Defendants and prosecutors make Daubert and Frye challenges to the admissibility of scientific evidence.31 Jurors determine whether guilt has been proven beyond a reasonable doubt.32 Defendants appeal and collaterally attack their convictions based on insufficiency of the evidence.33 And defendants make motions for post-conviction relief because new evidence has been discovered.34 This procedural approach to understanding how the law integrates new scientific knowledge uncovers a response that is halting and inconsistent. I focus my critique on the system’s treatment of cases in which SBS diagnoses rest on outmoded medical dogma. What can be discerned about the status quo is alarming. Guilt is being assigned where thebest available science creates, at the very least, reasonable doubt. When an outcome reflecting the best available science is generated, it is not because the factual predicate for the prosecution diverges from the typical case; but, rather, because the defendant is able to mount an aggressive attack – one that requires resources – on a body of science whose
vulnerability is in theory equally exposed to all.
In short, prosecutors and courts are differentially absorbing scientific developments, resulting in an arbitrary distribution of justice.35 Since January 31, 2008, when Edmunds’s new trial motion was granted, dozens of convictions based on SBS have been upheld, either on direct appeal or collateral attack. An unknown number of prosecutions have resulted in convictions and been initiated.36 While a portion of these cases rely on corroborating medical evidence of injury beyond the triad,37 many do not. The story of our legal system’s response to SBS speaks to how crime is constructed and reified. It tells of institutional inertia and a quest for finality38 that sit uneasily with our commitment to justice. And it demands consideration of where we go from here. By identifying a problem of tragic dimensions, I hope to begin a conversation that seeks solutions and situates itself in the emerging discourse on innocence.39 The conceptual implications of this 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."
Next post: The next Innocence Project: Shaken Baby Syndrome and the Criminal Courts: Part two: The Age of SBS;
Harold Levy...hlevy15@gmail.com;
