PASSAGE OF THE DAY: "The Innocence Clinic presented evidence at the appeals hearing that there could be more explanations for the child's death than shaking. The Appeals Court ruled that with a defense expert called to testify the jury could have reached a different conclusion."
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STORY: "Charges dropped in baby death after father completed his prison sentence," by reporter Trace Christenson, published by The Battle Creek Enquirer on April 12, 2021.
GIST: "Charges in the 2010 death of a five-month boy were dropped this week against a Battle Creek father after the appeals courts ordered a new trial.
The decision comes after Shawn Delano Brown, 36, was sentenced in 2010 following a conviction of manslaughter and child abuse in the death of his son. He was paroled in May 2019.
The Michigan Innocence Clinic at the University of Michigan appealed the conviction and argued that Brown did not receive a fair trial because his defense attorney did not present a medical expert to refute prosecution testimony that the child died from being shaken or struck in the head.
Prosecutors alleged that Brown shook the child, Shawn Brown, Jr. on Jan. 22, 2010 and the infant died two days later from injuries to the brain.
Brown said he was feeding the baby when the child choked on formula and stopped breathing.
The attorneys for the Innocence Clinic argued that the trial attorney did not present evidence refuting the conclusion that the child died from shaking.
Brown's trial attorney testified in 2018 that Brown was indigent and the county declined to provide money for an expert to testify for Brown.
The Innocence Clinic presented evidence at the appeals hearing that there could be more explanations for the child's death than shaking. The Appeals Court ruled that with a defense expert called to testify the jury could have reached a different conclusion.
Prosecutors appealed the decision to the Michigan Supreme Court but were rejected and on Tuesday Chief Assistant Prosecutor Daniel Buscher signed an order dismissing the case.
Prosecutor David Gilbert said Thursday that the office decided not to hold a trial because Brown had served his sentence and the family of the child didn't want to pursue the case farther."
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Read National Registry of Exonerations entry by Maurice Possley at the link below.
PASSAGE OF THE DAY: " In August 2017, Brown filed a motion with the Court of Appeals asking it to remand the case to the trial court for a hearing on whether Goulooze had provided an adequate legal defense. In September 2017, the appeals court granted the motion. In January 2018, Calhoun County Circuit Court Judge Sarah Lincoln convened a hearing. Innocence Clinic students as well as David Moran and Imran Syed, the director and assistant director the clinic, presented testimony from Dr. Joseph Scheller, a pediatric neurologist. Dr. Scheller testified that after reviewing the medical records and particularly the CT scan, he saw evidence of an older subdural hematoma. "It's at least two weeks old, but you really can’t tell if it's two weeks or two months old," Scheller testified. He said that it was possible that when the baby began choking, the older hematoma began to rebleed and that was the cause of the cascade of events that led to baby's death. He particularly noted that the rebleed could be caused by something "very minor." Scheller said the older “subdural hematoma caused a membrane, a membrane caused bleeding, the bleeding caused disruption of circulation, disruption of circulation caused bleeding on the surface of the brain on the subarachnoid small blood vessel. And that's what caused Shawn's seizures, collapse, and ultimately his death." Scheller said he had no idea what caused the older hematoma--it could have been abuse; it could have been that Shawn Jr. was dropped while being bathed or changed. "So it is possible that there was an abusive incident or an accident that happened weeks or months before,” he testified. “It's even in the realm of possibility that this was a complication of birth because we know that subdural hemorrhages happen to normal babies who are born. They are very small and they usually go away,” Scheller testified. “Maybe this one lingered. So I just don't know. Shawn, at the time, was five months old. So five months prior perhaps Shawn suffered a small subdural hematoma." Scheller also said retinal hemorrhaging was not specific to child abuse; even if it was severe. He said there was no pattern of retinal hemorrhaging that would prove that the hemorrhages were caused by abuse. He also said, "It has never been proven scientifically, but that's the concept or the thought used by a lot of child abuse experts to say ‘Well, I could tell from the retinal hemorrhage that this child was a victim of a terrible shaking.’" "There is no evidence that (the retinal hemorrhages) were related to trauma,” he said, adding that “it’s just as likely that the whole brain compromise, seizure, subdural and subarachnoid hemorrhage were related to a previous condition. I believe that the retinal hemorrhages could be part of that same process.”
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GIT: "Shortly after noon on January 22, 2010 in Battle Creek, Michigan, 25-year-old Shawn Brown was giving a bottle to his five-month-old son, Shawn Jr. when the baby began choking. Brown later said he patted the baby on his back gently, then harder and the baby stopped breathing.
Richardson told Brown to call 911. He ran next door to attempt to rouse the baby’s maternal grandparents. When he returned, he was on his cell phone and reported that the ambulance was “taking too long. We got to go.” He also called the baby’s mother, Lenora Horton, who was at work.
With Brown behind the wheel of his car, running red lights and stop signs, they arrived minutes later at the Battle Creek hospital. Not long after, the baby’s mother, grandparents and other family members arrived.
Emergency room personnel managed to get the baby breathing again and restored his pulse, but within the hour, the decision was made to transfer the baby to Bronson Methodist Hospital in Kalamazoo, about 30 miles away.
Not long after, a physician at Battle Creek hospital conferred with a physician at Bronson. The medical tests suggested that the baby had suffered a brain injury. The Michigan Department of Human Services Children’s Protective Services (CPS) was notified, as was the Battle Creek police department. Based on the conclusions of medical personnel, police arrested Brown that day. Two days later, on January 24, 2010, Shawn Jr. died after being removed from life support because he had no brain function.
Brown was charged with first-degree murder and first-degree child abuse. Shortly before the trial began in August 2010, Brown’s defense attorney, James Goulooze, asked Calhoun County Circuit Court Judge Allen Garbrecht to authorize funds to retain a medical expert. The judge denied the request, noting that the request was untimely and that Goulooze had failed to show that the expert that he wanted to retain, Dr. Lawrence Simson, would be helpful to the defense. The judge also noted that Goulooze had been retained as defense counsel, which suggested that the judge believed Brown had resources available to hire an expert. Simson was ultimately never called as a witness. He told Goulooze that he did not want to testify against the medical examiner who conducted the autopsy, Dr. Joyce DeJong, because he had previously worked with her and was inclined to agree with her conclusion that the baby’s death was a homicide.
The trial opened with testimony from several family members and friends, including Jessica Richardson, Lenora Horton, the baby’s grandparents, and the baby’s uncle. During questioning by Calhoun County assistant district attorney Daniel Buscher, they were unanimous that Brown had been a devoted father, though he did not live in the home with the baby. Lenora Horton said that she went to work at 6 a.m. daily and Brown came to care for the baby while she was at work. However, Buscher elicited testimony that when the family members gathered to pray for the baby, Brown was seen looking at the television in the room and seemed detached.
Richardson testified that Brown said he patted the baby on the back when he began choking—gently at first and harder. She told the jury that he told her he might have patted the baby “a little too hard.”
Dr. Michelle Halley, a pediatric critical physician at the Battle Creek hospital, said the baby was placed on a respirator. A CT scan of the baby’s head showed a subdural hematoma—bleeding under the skull. “We knew there was intracranial injury…to the brain. And he was not awake or alert at all,” she testified. “These injuries, as well as the retinal hemorrhages that he had when we had the ophthalmologist see him are consistent with shaking injury.”
Asked if Brown’s descriptions of patting the baby on the back were consistent with the type and extent of injuries she saw, Halley said, “No…It’s a very severe injury…There’s no history consistent with that injury other than he could have been shaken.”
Although Halley did not specifically use the words Shaken Baby Syndrome (SBS), she was clear that she believed the injuries were caused by Brown shaking the baby. SBS was a term coined to describe a condition first articulated in 1971. SBS is said to arise when an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a tell-tale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms is interpreted by many physicians, child abuse investigators and police to indicate that the child has been violently shaken. The prosecution presented testimony from Halley and other caregivers to support the theory that the baby’s injuries were the result of non-accidental trauma that occurred at the time the baby became unresponsive. Therefore, the last person to have physical care of the child—Brown—must have caused the injuries.
Dr. Christina Jacobs, a diagnostic radiologist, said that there were no fractures or signs of skeletal trauma. "The main finding was there was trauma to the lungs."
Dr. Philip Ptacin, the child's pediatrician, said he had seen the child for wellness visits regularly and the boy was fine. On December 15, five weeks prior to death, the boy’s mother said Shawn Jr. was fussy and was spitting up a lot. Ptacin said he diagnosed constipation and changed the baby’s formula.
Dr. Mark Dzwik, an emergency room physician, testified that one of the baby’s pupils was larger than the other, raising a “suspicion for some kind of brain injury." Dzwik said frothy blood was coming from the lungs. He said that after the baby was transferred to Bronson, he received a call from Dr. Robert Beck, a pediatric intensive care physician at Bronson. Dr. Beck said the baby had subdural and retinal hemorrhaging.
As a result, Dr. Dzwik said that he reported the child’s medical condition to child protective services because the medical findings were evidence of child abuse.
Dr. Joyce DeJong, a pathologist who performed the autopsy on the boy, said she concluded the death was a homicide. She said she found several small abrasions on the baby’s head. The brain was swollen, she said, and there was subdural bleeding caused by trauma.
She said the swollen brain was a "very ominous thing” and that there was bleeding around the optic nerve. All of these things, she said, "are most likely the result of a single traumatic event."
The prosecutor asked, "Are all of these injuries that you have seen consistent with a shaking-type mechanism?"
Dr. DeJong said, "I believe that there’s an impact involved here that…and I guess I would like to expand that definition, if you’re--if—shaking is certainly a potential mechanism, but it’s—in my opinion, it’s shaken impact syndrome—if we’re going to attach a syndrome to this—that there’s an impact involved."
Given hypotheticals that paralleled what Brown had said he did, such as patting the baby on the back, Dr. DeJong said those actions would not have been sufficient to cause the injuries present.
Dr. Charles Bibart, an ophthalmologist, testified that he found "extensive retinal hemorrhages." He said, "It's the worst amount of retinal hemorrhaging I've ever seen."
Dr. Alan Fabi, a neurosurgeon, reviewed CT scans of the child’s head. He said the child had "extreme neurological issues" and essentially was non-responsive. He performed a procedure to try to relieve pressure and to drain some fluid. He said blood, some old and some new, was coming out. There was so much pressure, the procedure provided no relief and the pressure was not compatible long-term with life. During cross-examination, Dr. Fabi said he saw some older blood, which he said had been present "longer than a day."
Dr. Fabi also testified that he had included in his report his perception of Lenora and Brown. “There is no emotional response from either mother or father. And in fact…they appeared to be apathetic,” his report said. Asked about his description, Dr. Fabi said, “I’m just looking at a five-month-old child that’s essentially dead. And they looking at me…with no response. I found that to be disturbing, to be honest with you.”
Dr. Beck, the pediatric intensive care physician at Bronson, testified that the baby was removed from life support on May 24. He said Shawn Jr. died of "abusive head trauma or non-accidental trauma." Dr. Beck testified, "I have no consistent information that would describe the injuries this child had that could have come from choking on formula. I don't have an explanation that would explain this child's severity of injury.”
Prosecutor Buscher asked, "Would it be fair to say it takes a violent shaking of at least once, if not more, to result in these type of injuries, correct, sir?"
“That’s the expectation,” Beck said.
Beck said the term SBS was no longer used and the term in use was Abusive Head Trauma (AHT). Beck then gave a lengthy description of what happens to the brain when a child is shaken and compared the brain to layers in a Jell-O salad. He said, "Each of those layers has a different density and because of that as the head moves back and forth those layers move at different speeds so that means they start sliding on each other. The difficulty is that there's connections between those layers and as those layers slide on each other, those connections snap and that will cause bleeding…and that will typically cause the subarachnoid component of the bleeding.”
Asked if the retinal and brain hemorrhaging were “a cascading effect of the original trauma,” Dr. Beck replied, “That’s a good term for it.”
During cross-examination by defense attorney Goulooze, Beck said, "I have no story offered to me that would explain this child's injury and his injuries are most consistent with what used to be called shaken infant now considered...abusive head trauma." He added, "Once I saw the retinal hemorrhages in the CT, at that point that's severe head trauma and…it becomes suspicious for abusive head trauma - or non-accidental trauma."
Beck conceded that there were medical experts who contend that shaking does not cause these injuries.
“Is it fair to say that the areas that are under critique are particularly the force necessary to cause retinal hemorrhage and subdural hematomas?” Buscher asked.
“That is argued,” Beck said.
“And one of the arguments that they contend is that…lack of blood to the brain, could cause retinal hemorrhage and subdural hematoma, am I correct?” Buscher asked.
“That is an argument that they put out, yes,” Beck replied.
“And that's in the medical literature, isn't it?” Buscher asked.
“There have been articles about that in the peer review literature,” Beck said.
James Snider, an investigator for child protective services, testified that he and another CPS investigator interviewed Brown at Bronson Methodist Hospital while Brown was in the same room with the baby. Snider said Brown was “pretty lighthearted” during their conversation. He said that Brown was “bouncing around on his feet, smiling, kind of laughing with us.”
Snider agreed with prosecutor Buscher’s suggestion that at some point, he and Brown exchanged “fist-bumps.” Snider added that although Brown occasionally interacted with the baby, there “wasn’t a lot of emotionality to it.”
In an attempt to rebut the evidence suggesting that Brown was uncaring and indifferent to the plight of his son, Goulooze called Nadine Brown, Brown’s mother, who testified that Brown was a person who didn’t show his emotions—that he kept his emotions bottled up inside.
Just before the lunch recess on August 17, 2010, Goulooze called his last witness, Randy Reinstein, a Battle Creek police detective. Reinstein had testified for the prosecution that he arrested Brown after Dr. Beck briefed him, and after he spoke with CPS investigators, the baby’s mother, and other members of the family.
After the baby died, Reinstein went to the jail to notify Brown of the death and to question him further about the events leading up to the baby’s hospitalization. Goulooze said that he intended to play a tape recording of the interview. Goulooze said the interview showed that Brown became extremely distraught when he was informed that Shawn Jr. had died.
Judge Garbrecht ruled the tape was admissible and could be played for the jury. However, before the tape could be played, the judge noted that it was 10 minutes to noon. He decided to recess the trial for lunch. When the trial resumed after lunch, Buscher objected to playing the tape, although he had not done so earlier. He said that after researching the law, he concluded that the tape was hearsay testimony of Brown and therefore inadmissible. The judge agreed and the tape was not played.
Reinstein did say, under questioning by Goulooze, that Brown was “up and down” after being informed that the baby had died. “He would kind of scream and put his head down and then he would kind of level off a little bit,” Reinstein said. “And after we started talking, the rest of the interview, he was just—he couldn’t believe that he was getting charged with this.”
The following day, August 18, 2010, the jury acquitted Brown of murder, but convicted him of a lesser charge of voluntary manslaughter. The jury also rejected the first-degree child abuse charge and convicted Brown of second-degree child abuse. Brown was sentenced to eight years and four months to 30 years in prison.
In January 2012, the Michigan Court of Appeals upheld Brown’s conviction and sentence.
In 2017, the trial court ruled that Brown had been denied his right to counsel for the appeal because his appellate lawyer submitted the appeals brief without reviewing the entire trial transcript. The appellate lawyer had not even obtained the transcript from the day of the trial when several of the medical experts, including the pathologist, testified about the cause of death and the baby’s injuries. The trial court concluded that without reading that transcript, the lawyer had failed to provide a meaningful appeal for Brown.
In May 2017, Brown, whose case had been under investigation by the Michigan Innocence Clinic at the University of Michigan Law School since 2014, moved for a new trial or an evidentiary hearing based on medical evidence that contradicted the prosecution’s medical testimony. That motion was denied. In August 2017, Brown filed a motion with the Court of Appeals asking it to remand the case to the trial court for a hearing on whether Goulooze had provided an adequate legal defense.
In September 2017, the appeals court granted the motion. In January 2018, Calhoun County Circuit Court Judge Sarah Lincoln convened a hearing. Innocence Clinic students as well as David Moran and Imran Syed, the director and assistant director the clinic, presented testimony from Dr. Joseph Scheller, a pediatric neurologist.
Dr. Scheller testified that after reviewing the medical records and particularly the CT scan, he saw evidence of an older subdural hematoma.
"It's at least two weeks old, but you really can’t tell if it's two weeks or two months old," Scheller testified. He said that it was possible that when the baby began choking, the older hematoma began to rebleed and that was the cause of the cascade of events that led to baby's death. He particularly noted that the rebleed could be caused by something "very minor."
Scheller said the older “subdural hematoma caused a membrane, a membrane caused bleeding, the bleeding caused disruption of circulation, disruption of circulation caused bleeding on the surface of the brain on the subarachnoid small blood vessel. And that's what caused Shawn's seizures, collapse, and ultimately his death."
Scheller said he had no idea what caused the older hematoma--it could have been abuse; it could have been that Shawn Jr. was dropped while being bathed or changed. "So it is possible that there was an abusive incident or an accident that happened weeks or months before,” he testified.
“It's even in the realm of possibility that this was a complication of birth because we know that subdural hemorrhages happen to normal babies who are born. They are very small and they usually go away,” Scheller testified. “Maybe this one lingered. So I just don't know. Shawn, at the time, was five months old. So five months prior perhaps Shawn suffered a small subdural hematoma."
Scheller also said retinal hemorrhaging was not specific to child abuse; even if it was severe. He said there was no pattern of retinal hemorrhaging that would prove that the hemorrhages were caused by abuse.
He also said, "It has never been proven scientifically, but that's the concept or the thought used by a lot of child abuse experts to say ‘Well, I could tell from the retinal hemorrhage that this child was a victim of a terrible shaking.’"
"There is no evidence that (the retinal hemorrhages) were related to trauma,” he said, adding that “it’s just as likely that the whole brain compromise, seizure, subdural and subarachnoid hemorrhage were related to a previous condition. I believe that the retinal hemorrhages could be part of that same process.”
Goulooze explained that prior to the trial, he contacted a longtime friend who was a vascular surgeon as well as two AHT experts, both of whom supported the prosecution’s theory of the case. He made no further inquiry.
After the hearing, Judge Lincoln denied the motion for a new trial. Brown’s legal team appealed. On May 29, 2019, while the appeal was pending, Brown was released on parole.
On July 25, 2019, the Michigan Court of Appeals reversed Judge Lincoln and ordered a new trial for Brown.
The appeals court ruled that Goulooze had provided an inadequate legal defense by failing to retain a medical expert. The court noted that Goulooze’s failure to identify and consult with an expert “made him unprepared to seek medical expert funds from the court.”
The appeals court also concluded that Goulooze had provided an inadequate legal defense because he was unprepared to argue the issue of the admissibility of the tape recording of Detective Reinstein’s interview with Brown when Brown was informed of the baby’s death.
The recording, the court noted, was “integral to his strategy to present the defendant as a loving parent who could not harm his son.” There was an exception to the hearsay rule that would have allowed the tape to be aired, but Goulooze “had no plan for its admission and unreasonably relied on the acquiescence of the prosecutor. Such performance was deficient.”
The case was remanded for a retrial and attorney Mary Chartier, who had represented Lacino Hamilton and Dennis Tomasik, both of whom were exonerated, agreed to handle the retrial without a fee. On April 6, 2021, after nearly two years of preparing for trial, the prosecution dismissed the charges.
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5953
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