PUBLISHER'S NOTE: I have called the Michigan Court of Appeals decision 'momentous' because of the thorough review of evidence from top notch experts that went into reaching the decision to open the door to a new trial for Tonia Miller (already in prison for almost 20 years because of strict application of the Shaken baby syndrome 'triad' which prevailed at the time of her conviction (this will become clear below) - and because of the stature of the court itself. The entire unpublished transcript of the appeal court decision, released on April 8 by Justices Gadola, Gleicher and Stephens) can be read at the link below. I have set out a few of the paragraphs of the decision cleansed of page reference, footnotes, etc for easier reading) which resonated strongly with me.
Harold Levy: Publisher: The Charles Smith Blog.
--------------------------- -------------------------------
PASSAGE OF THE DAY: "Counsel’s recollection harmonizes with Dr. Ophoven’s explanation of why Alicia’s deadly pneumonia qualifies as newly discovered evidence. “[S]tarting in the early 80’s,” Dr. Ophoven recounted, “it became routine that if a child presented to medical attention with significant brain damage and there was the presence of subdural blood, retinal hemorrhages, and brain swelling - - those three things,” it was “routine” and “automatic” that the child would be diagnosed as a victim of SBS/AHT. “And no other real aggressive or assertive exploration for an alternative explanation was undertaken,” she added. In 2003, Dr. Ophoven asserted, SBS “was at its peak in terms of how often it was used to diagnose these cases.” In Dr. Ophoven’s view, Drs. Hunter and Beck “got it wrong because they didn’t consider that it could be anything else. And that is where the error was made.” Miller’s other two experts concurred that Alicia died due to severe pneumonia rather than head trauma."This case returns to us after remand for an evidentiary hearing regarding defendant Tonia Miller’s motion for relief from judgment. Citing the testimony of four expert witnesses, the trial court found that newly discovered, noncumulative scientific evidence necessitated a new trial at which a different result was probable. The prosecution challenges this ruling, contending that the science underlying Miller’s arguments is not new and has not gained general acceptance in the medical community."
---------------------------------------------------
---------------------------------------------------
PARAS: In 2003, a jury convicted Miller of second-degree murder arising from the death of her 11- week-old daughter, Alicia Duff. The prosecution claimed that Miller had violently shaken Alicia, causing a fatal brain injury. The prosecution’s experts characterized three clinical findings as conclusive evidence of Miller’s guilt: subdural blood, cerebral edema, and retinal hemorrhage. Miller presented an expert witness at trial who concurred that based on this triad, Alicia’s death was due to shaken baby syndrome (SBS), now called abusive head trauma (AHT). The defense expert placed the time of the brain injury at a week before the child’s death, but did not challenge the scientific validity of the SBS/AHT diagnosis. This Court affirmed Miller’s conviction on direct appeal. In 2018, Miller filed a motion for relief from judgement under MCR 6.500, raising claims of newly discovered evidence and ineffective assistance of counsel. The trial court denied the motion. Miller sought leave to appeal in this Court and requested that we remand for an evidentiary hearing. We reversed the trial court’s denial of Miller’s motion and ordered an evidentiary hearing before a different judge, retaining jurisdiction. Our opinion explained that Miller had produced affidavits from several medical experts from different disciplines attesting that Alicia had died due to fulminant pneumonia, and not AHT. The experts averred that the science underlying the AHT diagnosis has evolved considerably since 2003, such that many physicians harbor now compelling doubts regarding the reliability of the “classical trio” of findings as confirmatory of child abuse.
--------------------------------------------------------d:
Miller’s eligibility for relief from judgment hinges on whether she can establish that the evidence on which she relies qualifies as newly discovered, and good cause for failing to raise the possibility of a competing pneumonia diagnosis or for neglecting to challenge the scientific reliability of the SBS/AHT diagnosis in 2003. Without an evidentiary hearing, the trial court could not evaluate these questions in an informed manner. On remand, the trial court conducted a two-day evidentiary hearing at which five expert witnesses testified, four on behalf of the defense. The testimony focused on two issues: the cause of Alicia’s death, and whether the science surrounding the diagnosis of SBS/AHT had undergone a fundamental transformation, profoundly altering the way in which physicians approach the investigation of infant deaths such as Alicia’s. The trial court explained in a lengthy bench opinion that Miller had established a “shift in the scientific consensus” regarding whether a presumptive diagnosis of AHT premised solely on the presence of the three findings remained scientifically valid. The court observed that this shift had resulted in a recognition among many physicians that “there are alternative reasons or alternative mechanisms that can cause those three findings to appear.” Therefore, the court concluded, the science relied on by Miller was “newly discovered. . . . The evidence at trial was totally inconsistent with the conclusions of the four experts that have been presented by Ms. Miller.”
--------------------------------------------------------------
The prosecution asserts that the evidence underlying the trial court’s decision was not “newly discovered” for three reasons: the medical findings remained unchanged; the expert testimony offered by Miller represents merely “a difference of opinion, not a sea change” in scientific understanding of the diagnosis of AHT, and Miller’s experts’ opinions “have not . . . gained general acceptance in the medical community.” The prosecution is correct in one respect. The physical evidence gathered during Alicia’s hospitalization and at her autopsy has not changed. The medical records, CT scans, and pathological specimens evaluated by Miller’s experts are identical to those available in 2003. Standing alone, however, that evidence supports neither innocence nor guilt, and would have been incomprehensible to the jury. Analogously, a genetic deoxyribonucleic acid (DNA) identification code exists within untested blood, but only the testimony of the scientist who unlocks the code is meaningful. Here, the evidence of consequence consisted of expert testimony linking the medical and autopsy findings to Miller’s alleged conduct. Alternatively stated, Miller’s conviction rested not on the admittedly unchanged physical evidence, but on the experts’ interpretation of that evidence. The new interpretation—that Alicia’s death was attributable to pneumonia and not shaking—was unknown to Miller’s counsel, the trial court found, and not potentially available given the state of medical knowledge at the time. In that sense, the testimony at the evidentiary hearing substantiates a two-fold “shift in scientific consensus.” According to Miller’s experts, the physicians who testified in 2003 ignored or discounted the evidence of pneumonia because they believed that the diagnostic triad, standing alone, established Miller’s guilt. This blinkered approach led the experts at Miller’s trial away from compelling evidence that the child suffered from severe pneumonia. The scientific methodology underlying both the conclusiveness of the triad and the absence of another cause of death, the experts explained, has changed dramatically since Miller’s trial.
-------------------------------------------------------------
The three experts who testified at the trial (including the expert called by Miller) agreed that Alicia’s subdural bleeding, cerebral edema, and retinal hemorrhages met the diagnostic criteria for SBS/AHT. Dr. Robert Beck, a pediatric intensivist who cared for Alicia at Bronson, asserted that “[t]here’s really no other explanation typically found.” The pathologist who performed the autopsy, Dr. Brian Hunter, as well as the pathologist called by Miller, Dr. Ljubisa Dragovic, agreed. No expert testimony presented at Miller’s trial supported or even mentioned another potential cause of death. At the evidentiary hearing, however, Miller’s experts testified that the child’s death was due to pneumonia, and not trauma. Dr. Francis Green, a pathologist specializing in lung diseases, testified that Alicia’s death was due to “severe necrotizing pneumonia” that had been present for at least three or four days, and was “as severe as you can possibly get.” Dr. Green highlighted that when Alicia was first admitted to the hospital following her collapse, her blood grew an organism “known to cause outbreaks of severe and fatal pneumonia in neonatal wards and hospitals.” The lung specimens obtained at her autopsy revealed “severe necrotizing walking pneumonia” resulting from an infection that had spread from her lungs to her blood stream. Further evidencing an infection, Alicia’s clotting mechanisms were disrupted, manifested by “quite extensive” hemorrhages in her kidneys. The pneumonia was so severe, and its consequences so widespread, that it could not have developed during Alicia’s brief hospitalization, Dr. Green opined. He additionally pointed out that although Dr. Hunter had identified “acute bronchopneumonia and congestion” in his autopsy report, Dr. Hunter described almost normal lungs when he cut them. In Dr. Green’s view, Alicia’s lungs likely would have been “solid to the cut” due to their consolidation with infection. Dr. Janice Ophoven, a pediatric pathologist, agreed that Alicia had “a severe pneumonia,” and that pneumonia rather than trauma caused the child’s death. Yet pneumonia had played no role whatsoever in the opinions of the experts who testified at Miller’s trial. Trial counsel recollected that a juror actually inquired of Dr. Beck whether pneumonia could have explained why formula came out of Alicia’s nose just before the child stopped breathing. According to counsel, Dr. Beck “denied that pneumonia was present.” Counsel testified that neither of the two experts he consulted advised him that the pneumonia found during the autopsy was relevant to Alicia’s cause of death. Counsel’s recollection harmonizes with Dr. Ophoven’s explanation of why Alicia’s deadly pneumonia qualifies as newly discovered evidence. “[S]tarting in the early 80’s,” Dr. Ophoven recounted, “it became routine that if a child presented to medical attention with significant brain damage and there was the presence of subdural blood, retinal hemorrhages, and brain swelling - - those three things,” it was “routine” and “automatic” that the child would be diagnosed as a victim of SBS/AHT. “And no other real aggressive or assertive exploration for an alternative explanation was undertaken,” she added. In 2003, Dr. Ophoven asserted, SBS “was at its peak in terms of how often it was used to diagnose these cases.” In Dr. Ophoven’s view, Drs. Hunter and Beck “got it wrong because they didn’t consider that it could be anything else. And that is where the error was made.” Miller’s other two experts concurred that Alicia died due to severe pneumonia rather than head trauma. Dr. Roland Auer, a neuropathologist, provided detailed testimony explaining that the origins of Alicia’s brain findings (cerebral edema, subdural bleeding, and retinal hemorrhage) were once believed to be pathognomonic for SBS/AHT. But in Alicia’s case, the subdural bleeding began at her birth, Dr. Auer opined. The retinal hemorrhages were attributable to hypoxia caused by her pneumonia and the fact that when Alicia was first intubated, the endotracheal tube was improperly inserted. Brain swelling was an expected consequence of the hypoxia, Dr. Auer maintained. Dr. Julie Mack, a radiologist, concluded that Alicia’s CT scan findings were consistent with hypoxic injury rather than trauma. Given this evidence, the trial court did not clearly err by finding that there has been a “shift in the science.”
-------------------------------------------------------------------
In summary, the trial court did not abuse its discretion by determining that newly discovered evidence merits a new trial in this case.
--------------------------------------------------------------------
The entire decision can be read at:
http://netk.net.au/BabyDeaths/Babydeaths8.pdfPUBLISHER'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;
