Adam: Yeah. I mean, this is something we’ve talked about before when we talked about forensics, which is that it’s sort of too big to fail because the implications are so troubling that we sort of, you know, once you start pulling it one thread, the whole thing begins to unravel. It seems like many of these forensic sciences have just put so many people in jail that what you have is you have a kind of, to the extent to which there has been scientific re-investigation or re-interrogation, it’s almost like they’re kind of trying to limit the damage that they’re saying ‘Okay, go back and find me something that says there’s some validity to this, because if there’s no validity to this, that’s too troubling of a reality to face.’ In ten years if you had to sort of put on your prognostication cap, where do you view this as being in terms of scientific consensus in ten, fifteen years?
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Adam:
Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast
on criminal justice reform, abolition and everything in between.
Remember, you can always follow us at The Appeal magazine’s main
Facebook and Twitter page, and as always you can rate and subscribe to
us on Apple Podcast.
Shaken
Baby Syndrome, or SBS, has been the subject of countless new specials,
TV drama plots and shocking tabloid headlines. Horrific tales of child
abuse quickly met with the firm hand of justice by the state. But in
recent years, medical and legal reform experts have begun pushing back
against the conventional wisdom surrounding SBS questioning its
fundamental scientific basis. Today we are joined by Appeal staff writer
Elizabeth Weill-Greenberg to talk about efforts to reexamine many of
the faulty assumptions about how our legal system treats SBS and what if
anything can be done to free those wrongfully in prison.
Elizabeth Weill-Greenberg:
One of the trickiest things about Shaken Baby Syndrome cases and one of
the challenges in defending people is that it’s not just about the
identity of the perpetrator, it’s actually about was a crime committed
at all? And so what you have in these cases where exonerations have
occurred is you have medical experts saying ‘we don’t know what
happened’ and that should’ve been the diagnosis. We just don’t know.
[inaudible]
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Adam: Hi Elizabeth, thank you so much for joining us.
Elizabeth Weill-Greenberg: Thanks so much for having me on Adam.
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Adam:
So you wrote a piece recently about something that is sort of broadly
known as SBS or Shaken Baby Syndrome, which has been popular for some
time in terms of crime reporting and 60 Minute
specials, etcetera, etcetera. Can you tell us about the case of
Michelle Heale and what that says about the broader issue of SBS?
Elizabeth Weill-Greenberg:
Yeah, absolutely. So I kind of stumbled upon Michelle’s case in 2015
when she was on trial. I teach a class on wrongful convictions at
Rutgers in New Brunswick, New Jersey, and I was preparing for the unit
on Shaken Baby Syndrome and I was just doing quick Google searches to
sort of refresh myself on the issue. And I saw that someone was being
prosecuted for SBS not so far from my home. And I was pretty horrified
because it looked like a very sort of traditional SBS prosecution, which
I’ll explain in a moment. And so the case of Michelle, it follows a
pretty traditional trajectory when we look at Shaken Baby Syndrome
cases. In Michelle’s case, what you have is she’s a mom, she is watching
her friend’s baby, babysitting Mason Hess. She’s been doing this for
about a year while she also watches her own twins, who I think at the
time were about three and no history of violence, described by all as a
loving and patient caregiver and mom. So one day Mason is there and he
vomits at her home and seems to be coming down with something. The mom,
Kelly Hess, comes, picks up the baby, takes the baby to the
pediatrician’s office where Mason is diagnosed with an ear infection and
an upper respiratory infection. Baby is brought back to Michelle’s for
babysitting the next day and during this time, in the morning, suddenly
as Michelle is feeding him, he collapses. His body goes limp. She thinks
maybe he was choking. Calls 9-1-1. Ambulance comes, baby’s taken to the
hospital, never regained consciousness. At that point what happens is
the child abuse specialists from CHoP in Philadelphia tell the police
that this baby was shaken to death and from there the case is sort of
over for Michelle. What you see happen in these cases, and what happened
in Michelle’s case and why I wanted to focus on Michelle’s case, is
because it is such a typical prosecution. What you have is you have
child abuse specialists, specialists who are proponents of this
diagnosis. They brought in outside experts, the state did. And what you
have is, their testimony is ‘This baby was shaken to death. We can tell
you based on science is telling us that this is true. He has these sort
of — it’s called like basically the triad which are — it’s bleeding in
the eyes and bleeding in parts of the brain’ and they say that, you
know, ‘this means that the baby was shaken to death unless the baby was
dropped from a third floor window or unless the baby was in a car
accident.’ And so this is very, very persuasive testimony to a jury. And
in Michelle’s case, the jury ended up siding with the state’s experts
and she was convicted of manslaughter.
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Adam:
Right. So I think the first question people would have listening to
this is what is the current scientific consensus of Shaken Baby
Syndrome? How contested is this? You write that quote “between 1990 and
2000 there were more than 200 convictions based on Shaken Baby
Syndrome.” And then you say from 2001 to 2015 there were 1,600
convictions according to a study conducted by The Washington Post
and the Medill Justice Project. So it seems like there’s obviously been
an increase. This is now standard issue. What does the science
community say? Is there a consensus or is it kind of a 50/50 split?
Elizabeth Weill-Greenberg:
What we really saw in the nineties was this pretty extreme uptick in
prosecutions and convictions of people for Shaken Baby Syndrome. And
what would typically happen in these cases is that there was a consensus
that the baby was shaken and we can prove the baby was shaken based off
of these findings. You know, based on findings in the eyes, based on
findings in the brain, and you would actually have the state experts and
the defense all saying, ‘Yes, this is shaking. But maybe there’s some
question about who shook the baby.’ That was never very persuasive to a
jury because the state’s experts would say in case after case the
shaking was so severe that the baby would have immediately collapsed and
there could be nothing, what’s called sort of a lucid interval, meaning
that this traumatic event would happen, this abuse would happen and the
baby would be sort of rendered immediately unconscious. And so that’s
what we had really throughout the nineties very, very little
disagreement. These findings must mean that the baby was shaken to
death. Not only that, we can identify the perpetrator. So what you
really had is you had medical experts convicting people of murder and
child abuse because they’re establishing that this was severe shaking,
enough to cause death or severe injury, and it had to be the person last
with the baby. So you have these prosecutions going and there was
really not much of a defense to them. Being charged as sort of as good
as being convicted in the nineties. You start to see a break with that
and you start to see some challenges among the legal and scientific
community, of courts very slowly, attorneys, medical doctors, asking
questions and really saying ‘We don’t think this was ever actually
scientifically validated.’ And one of the best examples to show how the
consensus was finally broken is the case of Audrey Edmunds. Now, Audrey
isn’t the first person to be exonerated of Shaken Baby Syndrome, but the
opinion that was issued by the court I think is really instructive. So
Audrey’s case is almost identical to Michelle’s. I think it was in the
early nineties, caregiver in her home in Wisconsin, baby suddenly
collapses. Baby had been previously sort of fussy and crying and Audrey
is convicted of shaking the baby to death. The Wisconsin Innocence
Project takes on Audrey’s case in the, I think it’s the early two
thousands that they start representing her, the Wisconsin Innocence
Project. And what happens is that in 2006 what they show is that the
science has changed and that the medical community is no longer
unanimous in saying Shaken Baby Syndrome is always caused by these
different, I’ll say injuries, but by these different injuries implies
that someone actually committed it. But they’re saying that there’s,
with Audrey’s case what Keith Findley of the Wisconsin Innocence Project
said was that there’s no longer a consensus around Shaken Baby
Syndrome.
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Adam: So what is causing these deaths?
Elizabeth Weill-Greenberg:
One of the trickiest things about Shaken Baby Syndrome cases and one of
the challenges in defending people is that it’s not just about the
identity of the perpetrator, it’s actually about was a crime committed
at all? And so what you have in these cases, in Audrey’s case and in
many other cases where exonerations have occurred, is you have medical
experts saying ‘we don’t know what happened’ and that should have been
the diagnosis. We just don’t know. You know there is Sudden Infant Death
Syndrome, which we’ve accepted, right? That sometimes babies will die
suddenly and we don’t know the reason. And that is sometimes the most
responsible kind of cause of death that a doctor can provide is, ‘I
don’t know what happened.’ Other times it can be a head injury that was
thought to not be serious, but may have been sort of the triggering
effect for this catastrophic event. In Michelle’s case, and I don’t know
what caused Mason’s death, but what we have in the case of Mason is he
had fallen the week before. He had a little bruise on his forehead. This
was not, you know, he fell and he got up. He did have an ear and
respiratory infection the day before. He did vomit. So what we’re seeing
in Mason’s case and in some of these other cases where again, the baby
is exhibiting signs that something is not okay, is it could mean that
there’s been a bleed in the brain that was re-triggered by a simple
fall. It could mean that there were complications from a typical
infection. There’s a case I talk about in the story of Jennifer Del
Prete where it’s believed that the baby actually had a stroke and that
was the cause. That’s kind of what we’re seeing is it could be a range
of things and it could also be that we just don’t know.
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Adam:
So I guess the obvious followup to this is that if one accepts that SBS
is basically bullshit or at least is majority bullshit, there’s pretty
horrific implications to that, which is that there are hundreds if not
thousands of people in jail suffering a sort of compound injustice. The
original trauma of obviously losing your child or a child under your
charge and then spending twenty years in prison. So you know what that
16 people have been exonerated for assault or murder involving SBS
according to the National Registry of Exonerations. This to me seems
quite low. What is the pathway for those trying to get these people out
of jail?
Elizabeth Weill-Greenberg:
I mean the fact is is that despite very serious questions about the
validity of SBS as a diagnosis, these prosecutions are continuing and
people are staying in prison. SBS I think is particularly difficult to
challenge in court. Whether you’re at the trial level or after you’ve
been convicted, and I think it’s because of a couple of reasons. One is
it will come down to a battle of the experts. That’s exactly what
happened in Michelle’s case. You know, unlike the cases of the nineties
where everyone’s agreeing that the baby was shaken to death and the
question is who did it, in Michelle’s case they really did put the
diagnosis in many ways on trial and they said number one there are
issues with this diagnosis, number two, it was actually not physically
possible for Michelle, who’s a very small woman to have shaken this baby
to death. So in Michelle’s case, we have a serious challenge to the
diagnosis, which we didn’t have in the nineties. That being said, right,
it comes down to a battle of the experts and the jury sided with the
state’s. So that’s one thing that I think makes these cases really,
really difficult to defend. The other issue I think is that I really see
SBS in that greater context of these forensic sciences that we’ve
always taken for granted as true when they really have not been
validated, they have not survived any sort of scientific scrutiny. And I
think, you know, we can put blood spatter analysis, handwriting
analysis, tool mark analysis, hair microscopy, right? You know, you have
all of these things that have convicted so many people — bite mark
analysis still is admitted into courts — and it’s tragic actually
because we have these things that are sort of masquerading as science
being used to convict people when they have not been subjected to the
scrutiny that they need to be. And I think it’s particularly tragic
because when a jury hears that science is telling us that the defendant
hurt or killed this victim, that’s very, very powerful. That’s very,
very hard to overcome.
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Adam:
Yeah. I mean, this is something we’ve talked about before when we
talked about forensics, which is that it’s sort of too big to fail
because the implications are so troubling that we sort of, you know,
once you start pulling it one thread, the whole thing begins to unravel.
It seems like many of these forensic sciences have just put so many
people in jail that what you have is you have a kind of, to the extent
to which there has been scientific re-investigation or re-interrogation,
it’s almost like they’re kind of trying to limit the damage that
they’re saying ‘Okay, go back and find me something that says there’s
some validity to this, because if there’s no validity to this, that’s
too troubling of a reality to face.’ In ten years if you had to sort of
put on your prognostication cap, where do you view this as being in
terms of scientific consensus in ten, fifteen years?
Elizabeth Weill-Greenberg:
I think that’s 100 percent correct. In terms of the future, I mean, my
hope is that as a rule we don’t allow any of these kinds of forensic
disciplines into the courtroom before they’ve been scientifically
validated. And I include SBS as part of that. I think what will help get
us there is journalism that exposes when this has occurred, doctors
speaking up and admitting if they were wrong, that they were wrong in
cases which has occurred. That actually occurred in Adria Edmund’s case.
Someone, the pathologist who performed the autopsy in Audrey’s case and
testified against her, he later changed his mind and testified on her
behalf at a post-conviction hearing, which helped lead to her
exoneration. I think doctors standing up is a very sort of courageous
thing to do and I think will really help. But I think it just has to be
that we kind of keep at the issue and keep talking about it and keep
challenging it. And I also think that’s really up to journalists that
when, you know, let’s not wait until the person is convicted and has
already served ten, fifteen, twenty years. Like, if you’re covering
crime and the state tells you or the cops or the prosecutors tell you,
‘Hey, you know, yeah, this person’s being charged with SBS,’ which
should be part of your story from the beginning are the questions that
surround SBS. And that should be when you’re reporting on an arrest and
end when you’re reporting at trial.
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Adam:
Yeah. I mean because the whole thing is so emotionally charged, right?
Like the most important thing a state can do is protect children. So
when you start talking about the protection of children, everyone checks
the brain at the door. It’s purely emotive. And I think that the sort
of other into the equation, of the trauma and the violence of prison
itself to say nothing of tearing the remaining children away from their
parents, to sort of just say that, ‘Well that’s the cost of doing
business.’ What is the current status of Michelle’s case? How long has
she been in prison and how much longer will she be in prison likely?
Elizabeth Weill-Greenberg:
She was convicted in 2015 and sentenced to 15 years. And so the status
of her case right now is that her conviction was upheld on appeal and
there really hasn’t been any other activity on her case.
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Adam: Okay. Well, thank you so much for coming on The Appeal. This was extremely informative.
Elizabeth Weill-Greenberg: Well, thank you so much for having me and for talking about this issue. I really appreciate it.
Adam:
Thank you to our guest Elizabeth Weill-Greenberg. This has been The
Appeal podcast. Remember, you can always follow us at The Appeal
magazine’s main Facebook and Twitter page, and as always, you can rate
and subscribe to us on Apple Podcast. The show is produced by Florence
Barrau-Adams. The production assistant is Trendel Lightburn. Executive
producer is Craig Hunter. I’m your host Adam Johnson. Thank you so much.
We’ll see you next week.
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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 found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.""
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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