QUOTE OF THE DAY: "Following the ruling, (Dave) Moran (Michigan Innocence Clinic) declared, “This is all about clearing his name. He has a child abuse conviction on his record.”
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PASSAGE ONE OF THE DAY: "Dr. Holly Gilmer-Hill was one of the neurosurgeons who evaluated Brenden at Children’s Hospital. Dr. Gilmer-Hill found that Brenden was awake, alert, and had no external bruising, scalp swelling, or other outward signs of trauma. She reviewed the CAT scan from Port Huron Hospital, which showed some blood, brain-swelling, and a midline shift, indicating a “serious” injury. Dr. Gilmer-Hill noted no other injuries, and the radiology showed no fractures. Dr. Gilmer-Hill did not remember noticing any retinal hemorrhaging on October 3, the date of Brenden’s admission. On October 5, an ophthalmologist reported noticing some retinal hemorrhaging in both of Brenden’s eyes. Brenden did not require neurosurgical intervention and was discharged on October 8 with no apparent lasting injuries. Dr. Gilmer-Hill concluded that Brendan’s injuries were the result of having been violently shaken and were not caused by an accidental fall. She told authorities that Brenden was a victim of Shaken Baby Syndrome (SBS). Consequently, on January 25, 2005, Ceasor was charged with first-degree child abuse.
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PASSAGE TWO OF THE DAY: "Following a preliminary hearing, his defense attorney, David Black, noted to the judge that the case was “going to be expert against expert, and that’s why it’s very, very important that I get all the information I can when I have an opportunity to talk to witnesses.” However, Black, who had been paid $1,500 by Ceasor’s mother, did not represent Ceasor at trial. Kenneth Lord, who was paid $2,500 by Ceasor’s mother, took over the case. He reached out to an expert, Dr. Faris Bandak, a biomechanical engineer, who had concluded that manual shaking of a human infant of the type hypothesized in SBS theory would cause severe neck and spinal injuries long before causing intracranial injury, including subdural hematomas. However, attorney Lord did not present any expert testimony at Ceasor’s trial because Ceasor’s family could not come up with any more money to pay for the expert. Lord also never asked the court to approve court funding for the expert. In December 2005, Ceasor went to trial in St. Clair County Circuit Court. The prosecution’s case relied primarily on the testimony of Dr. Gilmer-Hill."
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PASSAGE THREE OF THE DAY: "Attorneys for the Michigan Innocence Clinic, Dave Moran and Bridget McCormick, presented the affidavits of four experts who reviewed his case pro bono: Dr. John Plunkett, a forensic pathologist; Dr. Peter Stephens, a medical doctor board certified in anatomical pathology, clinical pathology, and forensic pathology; Dr. Ronald Uscinksi, a clinical neurosurgeon with "special expertise in the literature surrounding pediatric head injuries;" and Dr. Christopher Van Ee, a Ph.D. in biomedical engineering. Together, these experts filed affidavits saying that since approximately 2004, the theories underlying SBS have been challenged and called into question due to their purported lack of a scientific basis. This is, at least in part, because the biomechanical and forensic literature demonstrates that shaking without impact is unlikely to cause subdural hematomas or retinal hemorrhages. The experts said that instead, such injuries may result from an accidental impact, including a short fall, or from a variety of natural causes. In fact, the gravitational force from the impact of a short fall far exceeds the force from shaking, and short falls can result in serious or even fatal head injuries. Further, the expert)s) said that injury biomechanics confirmed that when a child is manually shaken, he or she will suffer a neck injury or gripping-style chest injuries well before sustaining a subdural hematoma or retinal hemorrhage. They said that Brenden's injuries were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent with abusive shaking."
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PASSAGE FOUR OF THE DAY: "The experts said that Dr. Gilmer-Hill had misrepresented the findings in Dr. Duhaime's study and gave the jury incorrect information regarding the biomechanics of infant head injury, short distance falls, and abusive shaking. They also noted that Dr. Gilmer-Hill's apparent misapprehension of the literature on SBS and pediatric head injury likely stemmed, at least in part, from her limited focus on American neurosurgical literature at the exclusion of international literature and literature from other disciplines, including pathology, pediatrics, and biomechanics. Each of the experts noted that criticisms of SBS (or Dr. Gilmer-Hill's understanding thereof) existed at the time of Ceasor's December 2005 trial or earlier, and Drs. Plunkett and Van Ee expressly stated that they would have offered the opinions included in their respective affidavits if they had been asked to testify at trial;
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PREFACE: "In 2005, Terry Ceasor was sentenced to two to fifteen years in prison for child abuse in St. Clair County, Michigan for injuring his girlfriend's toddler by shaking him. He was exonerated in 2021 by evidence that the boy's injuries were the result of an accidental fall,"
ENTRY: Terry Ceasor; Michigan; Contributing factors: 'false or misleading forensic evidence, and 'inadequate legal defence'. (The two often go together. HL). By Maurice Possley: Entered on October, 15, 2021.
GIST: On Sunday, October 3, 2004, Terry Ceasor babysat his girlfriend Cheryl Genna’s 16-month-old son, Brenden, while she went swimming with her daughter in Port Huron, Michigan.
While taking care of Brenden, Ceasor played a game called “gotcha” with Brenden which involved Brenden running back and forth on the sofa while Ceasor “chased him” behind it. Ceasor briefly stepped away to use the bathroom and heard a loud thud. He ran\to the living room and found Brenden unconscious on the floor.
Moments later, Genna returned. She and Ceasor rushed Brenden to Port Huron Hospital. Upon admission, Brenden was unresponsive. Nurse LeAnn Roulo later testified that she examined Brenden and observed no bruising or lumps anywhere on Brenden’s scalp or face, nor did she find any scrapes, bruising, or abnormalities of any kind on the rest of his body. She did note that one of Brenden’s pupils was “vastly larger than the other,” a neurological indicator that prompted the hospital staff to order a CAT scan to search for brain abnormalities.
Dr. Christopher Hunt, the emergency room physician who treated Brenden, found Brenden’s vital signs were stable and that he was breathing regularly. He also observed that Brenden was unresponsive to verbal or other stimuli and that his pupils were of unequal size. Dr. Hunt did not see any external signs of trauma, nor did he observe any retinal hemorrhaging.
Genna noticed a bite mark on Brenden’s tongue while he was at the Port Huron Hospital. Genna and some other family members also later noted a red mark “about the size of a 50 cent piece” on Brenden’s head.
By the time the CAT scan was taken, approximately one hour after Brenden arrived at Port Huron Hospital, Brenden was alert and his pupils were equal and reactive. Shortly thereafter, he was crying, and his breathing was even and unlabored.
Brenden’s CAT scan showed a subdural hematoma with a slight mass effect. Dr. Hunt later testified that a mass effect occurred when the blood under the dura in the brain was of such quantity that it began to push the brain to the opposite side. He considered the subdural hematoma a serious condition and decided to send Brenden to Children’s Hospital in Detroit to consult with a pediatric neurosurgeon. Brenden was transferred by ambulance that night.
Dr. Holly Gilmer-Hill was one of the neurosurgeons who evaluated Brenden at Children’s Hospital. Dr. Gilmer-Hill found that Brenden was awake, alert, and had no external bruising, scalp swelling, or other outward signs of trauma. She reviewed the CAT scan from Port Huron Hospital, which showed some blood, brain-swelling, and a midline shift, indicating a “serious” injury. Dr. Gilmer-Hill noted no other injuries, and the radiology showed no fractures.
Dr. Gilmer-Hill did not remember noticing any retinal hemorrhaging on October 3, the date of Brenden’s admission. On October 5, an ophthalmologist reported noticing some retinal hemorrhaging in both of Brenden’s eyes.
Brenden did not require neurosurgical intervention and was discharged on October 8 with no apparent lasting injuries.
Dr. Gilmer-Hill concluded that Brendan’s injuries were the result of having been violently shaken and were not caused by an accidental fall. She told authorities that Brenden was a victim of Shaken Baby Syndrome (SBS).
Consequently, on January 25, 2005, Ceasor was charged with first-degree child abuse.Following a preliminary hearing, his defense attorney, David Black, noted to the judge that the case was “going to be expert against expert, and that’s why it’s very, very important that I get all the informatio n I can when I have an opportunity to talk to witnesses.”
However, Black, who had been paid $1,500 by Ceasor’s mother, did not represent Ceasor at trial. Kenneth Lord, who was paid $2,500 by Ceasor’s mother, took over the case. He reached out to an expert, Dr. Faris Bandak, a biomechanical engineer, who had concluded that manual shaking of a human infant of the type hypothesized in SBS theory would cause severe neck and spinal injuries long before causing intracranial injury, including subdural hematomas. However, attorney Lord did not present any expert testimony at Ceasor’s trial because Ceasor’s family could not come up with any more money to pay for the expert. Lord also never asked the court to approve court funding for the expert.
In December 2005, Ceasor went to trial in St. Clair County Circuit Court. The prosecution’s case relied primarily on the testimony of Dr. Gilmer-Hill.
Dr. Gilmer-Hill testified that it took a good deal of force to cause retinal bleeding. She told the jury that the combination of subdural blood with retinal hemorrhage was diagnostic for child abuse. Dr. Gilmer-Hill said that retinal hemorrhage was caused by "being shaken or slammed onto a surface, either hard or soft. Usually repeatedly." Based on her training and experience and her treatment of Brenden, Gilmer-Hill did not believe his injuries were the result of an accident. Dr. Gilmer-Hill further testified that a fall from a couch onto a carpeted floor could not have caused injuries as severe as Brenden’s.
During cross-examination, Ceasor’s attorney, Lord, confronted Dr. Gilmer-Hill with articles by Dr. John Plunkett and Dr. Jennian Geddes that claimed that the accepted mechanism of SBS was incorrect. Lord also questioned whether Brenden's recent vaccinations may have caused the subdural bleeding. Dr. Gilmer-Hill disagreed with both positions. Dr. Gilmer-Hill noted that Plunkett's theory was inconsistent with "the body of evidence that's out there." When challenged on the force of a fall as opposed to shaking, Gilmer-Hill testified that a fall from five or six feet would have much less force than a shaking. Dr. Gilmer-Hill believed that it would take a fall of 20 to 30 feet to create the same force.
Dr. Gilmer-Hill claimed her opinion was supported by studies done by Ann-Christine Duhaime, including a 1987 study referred to by the trial attorneys as the “Duhaime study.” Dr. Gilmer-Hill further testified that subdural hemorrhage, brain-swelling and midline shift are only seen in accidents such as falls from second story buildings or high-speed motor vehicle accidents and cannot be caused by an accidental injury such a fall from a couch onto a carpeted floor.
Lord also confronted Gilmer-Hill with articles by Dr. Gregory Reiber and Dr. Irving Root, which claimed children could receive injuries causing brain swelling from short falls and how short falls with rotational force can cause G-forces equivalent to long falls. Dr. Gilmer-Hill admitted she was not familiar with either article, but noted that her professional reading was in the neurosurgical field. Dr. Gilmer-Hill noted that both doctors were forensic pathologists, a specialty that did not take care of patients with head injuries. Dr. Gilmer-Hill stated she did not believe that there were experts in the field of neurosurgery who believed that a two-foot fall onto carpet would cause a severe head injury with bleeding within the brain.
Ceasor testified and denied that he shook Brenden. He recounted how he was in the bathroom when he heard a thud and found the boy unconscious. He admitted that he had initially falsely told police that Genna was present when the boy fell.
Genna testified and admitted that she lied to the investigating officers at the Port Huron Hospital by telling them that she was present when Brenden fell. Genna testified that she did not see any other injuries on Brenden while at Port Huron Hospital. However, she did say that during the ambulance ride from Port Huron Hospital to Children's Hospital, she saw an oval mark on the back of Brenden's head with red dots in the mark.
Genna then contradicted her earlier testimony by claiming she noticed a bite mark on Brenden's tongue while at Port Huron Hospital, but she admitted that she did not tell anyone at that hospital about it, nor could she recall telling anyone at Children's Hospital. Genna admitted that she had eventually told a detective in St. Clair County Sheriff's Department that she had not been at the house when the incident happened.
During cross-examination, Genna also said that Brenden had previously fallen at daycare although she had earlier testified that he had never fallen.
During final arguments, the prosecution told the jury that Genna and Ceasor’s inconsistent accounts were evidence that they were attempting to hide Ceasor’s abuse of Brenden.
The jury deliberated for three days, during which they were allowed to rehear the testimony of Dr. Gilmer-Hill in its entirety. On December 19, 2005, the jury convicted Ceasor of first-degree child abuse. He was sentenced to two to 15 years in prison.
Ceasor appealed to the Michigan Court of Appeals. In the appeal, Ceasor’s appellate attorney claimed that Ceasor’s trial defense attorney had provided an inadequate legal defense by failing to call an expert witness. However, the appellate attorney failed to include a separate motion to remand the case back to the trial court for a hearing to present evidence on the inadequate legal defense claim.
On July 12, 2007, the Michigan Court of Appeals affirmed Ceasor’s conviction. The Michigan Supreme Court denied permission to appeal further on October 29, 2007.
Acting without a lawyer, Ceasor filed a petition for habeas corpus in the United States District Court for the Eastern District of Michigan on August 21, 2008. After retaining the assistance of the Michigan Innocence Clinic at the University of Michigan Law School, an amended petition was filed in February 2010. By then, Ceasor was free. He was released on parole on October 6, 2009.
Attorneys for the Michigan Innocence Clinic, Dave Moran and Bridget McCormick, presented the affidavits of four experts who reviewed his case pro bono: Dr. John Plunkett, a forensic pathologist; Dr. Peter Stephens, a medical doctor board certified in anatomical pathology, clinical pathology, and forensic pathology; Dr. Ronald Uscinksi, a clinical neurosurgeon with "special expertise in the literature surrounding pediatric head injuries;" and Dr. Christopher Van Ee, a Ph.D. in biomedical engineering.
Together, these experts filed affidavits saying that since approximately 2004, the theories underlying SBS have been challenged and called into question due to their purported lack of a scientific basis. This is, at least in part, because the biomechanical and forensic literature demonstrates that shaking without impact is unlikely to cause subdural hematomas or retinal hemorrhages. The experts said that instead, such injuries may result from an accidental impact, including a short fall, or from a variety of natural causes. In fact, the gravitational force from the impact of a short fall far exceeds the force from shaking, and short falls can result in serious or even fatal head injuries.
Further, the expert said that injury biomechanics confirmed that when a child is manually shaken, he or she will suffer a neck injury or gripping-style chest injuries well before sustaining a subdural hematoma or retinal hemorrhage.
They said that Brenden's injuries were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent with abusive shaking. The experts said that Dr. Gilmer-Hill had misrepresented the findings in Dr. Duhaime's study and gave the jury incorrect information regarding the biomechanics of infant head injury, short distance falls, and abusive shaking. They also noted that Dr. Gilmer-Hill's apparent misapprehension of the literature on SBS and pediatric head injury likely stemmed, at least in part, from her limited focus on American neurosurgical literature at the exclusion of international literature and literature from other disciplines, including pathology, pediatrics, and biomechanics. Each of the experts noted that criticisms of SBS (or Dr. Gilmer-Hill's understanding thereof) existed at the time of Ceasor's December 2005 trial or earlier, and Drs. Plunkett and Van Ee expressly stated that they would have offered the opinions included in their respective affidavits if they had been asked to testify at trial.
In addition, the attorneys presented affidavits from Ceasor and his uncle—who had accompanied Ceasor to each of his meetings with his trial defense attorney, Lord. During the meetings, Lord said they would need an expert witness "in order to succeed at trial due to the complexity of the medical issues involved" in his case. Lord, after consulting with Dr. Bandak, told Ceasor that Ceasor owed Dr. Bandak $1,500 for this initial consultation and would need to pay an additional fee of at least $10,000 in order to compensate Dr. Bandak for testifying at trial.
When Ceasor said he could not afford these fees because he had already exhausted his and his family's financial resources, Lord "refused to entertain other options for expert testimony" and, as a result, "never retained an expert for . . . trial,” the affidavits said. In addition, Lord failed to pursue "other avenues to attain an expert for [Ceasor], such as petitioning the court for fees for an expert due to [Ceasor's] indigency."
Ceasor’s legal team argued that his appellate lawyer had also provided an inadequate legal defense by failing to request that Ceasor’s case be remanded for a hearing on the claim that the defense lawyer failed to call an expert.
In January 2015, U.S. District Judge John Corbett O’Meara denied the habeas petition. Judge O’Meara ruled that while Ceasor’s appellate attorney did not ask for the case to be remanded, he had made an argument that Ceasor had an unfair trial because no expert testified on his behalf. Judge O’Meara said that Ceasor failed to show that if a remand request had been made that it would have been granted or that the Michigan Court of Appeals would have reversed his conviction had such a hearing been held. The judge noted that Ceasor “has failed to show that the Michigan Court of Appeals would have found trial counsel to be ineffective.”
Judge O’Meara also said although Ceasor’s trial defense attorney “did not present an expert on Shaken Baby Syndrome, trial counsel extensively cross-examined Dr. Gilmer-Hill about her findings and confronted her with literature from a number of doctors, including from several experts whom [Ceasor] claims supports his position, which challenge the science on Shaken Baby Syndrome.” The decision to defend the case through cross-examination rather than by presenting an expert was “a reasonable trial strategy,” Judge O’Meara ruled.
Moran, joined by Innocence Clinic attorney Imran Syed, appealed. (In 2013, McCormack was elected to the Michigan Supreme Court.) On July 1, 2016, the U.S. Court of Appeals for the 6th Circuit reversed Judge O’Meara. The court ordered a hearing be held on the merits of Ceasor’s claim that Lord provided an inadequate legal defense by failing to present an expert. In May 2017, Judge O’Meara signed an order based on an agreement between Ceasor’s legal team and attorneys for the state of Michigan that instead of a hearing, Ceasor should be allowed to pursue relief in the state court.
On July 17, 2017, Ceasor’s lawyers filed a motion for a new trial in the St. Clair County Circuit Court claiming that Ceasor’s lawyer should have requested funds from the court to hire an expert witness prior to Ceasor’s trial.
A hearing was held in September 2017, and on February 1, 2018, Circuit Court Judge Michael West denied the motion for a new trial. Judge West said that it was not unreasonable for Lord to assume that a request for public funds would be denied because he was privately retained. Judge West noted that attorney Lord was “in a box” when he learned “at the 11th hour” that Ceasor’s family had no more money. Lord had testified, Judge West noted, that Ceasor agreed to move to trial without an expert “and accept the associated risks.”
Ceasor’s legal team appealed and in May 2019, the Michigan Court of Appeals affirmed Judge West’s ruling.
Ceasor’s lawyers asked the Michigan Supreme Court for leave to appeal. On May 5, the Michigan Supreme Court said that rather than allow an appeal, it would reverse the Michigan Court of Appeals.
“By failing to request public funds for an expert based on a mistaken belief that the defendant did not qualify for those funds because he had retained counsel, counsel performed deficiently,” the court ruled. The court set aside Ceasor’s conviction and ordered a new trial.
Following the ruling, Moran declared, “This is all about clearing his name. He has a child abuse conviction on his record.”
On September 30, 2021, the prosecution dismissed the case rather than go to a retrial.
Moran said, “After 12 solid years of continuous litigation where we bounced from state court to federal court and back, Terry is now finally exonerated in a case where his girlfriend's toddler fell off of a couch in 2004 and suffered a concussion, from which he fully recovered in a few days.""
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6043
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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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice.
Jennifer Givens: DirectorL UVA Innocence Project.
