PASSAGE OF THE DAY: "On January 25, 2021, Judge Alspaugh granted Miller’s motion for a new trial. She said the review of Alicia’s record by Miller’s experts constituted new evidence that could not have been discovered at her 2003 trial. Judge Alspaugh said the jury was given no other explanation for Alicia’s death, only a different timeline. “I think a reasonable juror who is given the expert testimony of these four credible experts, giving them an alternative cause for this young baby’s death, I think a different verdict is probable,” she said in her ruling from the bench." Miller was released from prison on April 22, 2021. "
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ENTRY: Author Ken Otterbourg; (September 20, 2021); Contributing factor: "False or misleading forensic evidence."
On the way to Battle Creek Hospital, paramedics tried to intubate Alicia. When that didn’t work, they used a face mask to help her breathe. At the hospital, Alicia was intubated. A chest X-ray showed part of her left lung was unusually dark and “opacified.”
Alicia remained unable to breathe on her own and was transferred that day to the pediatric unit at Bronson Methodist Hospital in Kalamazoo. Dr. Glenn Libby ordered a CT scan, which showed mild swelling in the girl’s brain, as well as bleeding in and around the brain. At about 3:00 p.m., Libby discussed Alicia’s case with Miller, the girl’s father, Alan Duff, and another family member. Libby said there was a likelihood that Alicia had abusive-head trauma, also known as Shaken Baby Syndrome (SBS). According to Libby’s notes, Duff was silent, and Miller denied any possibility of abuse. Libby told Duff and Miller that the medical staff would also be looking for other possible causes of Alicia’s injuries.
Also that day, Dr. Jonathan Rowe performed an ophthalmological examination of Alicia and found retinal hemorrhaging, which he said was “consistent with Shaken Baby Syndrome.”
Two doctors examined Alicia that night and found no evidence of bone fractures or bruising. Her condition didn’t improve, and Alicia was taken off life support on October 20 and died at 7:27 that evening. She was 11 weeks old.
Even before Alicia’s death, Detective Tim Hurtt of the Battle Creek Police Department had begun investigating whether the infant’s injuries were due to child abuse. In his report, Hurtt said that as he drove to the Kalamazoo Hospital on October 20, he spoke with a child welfare worker named Robert Peck who said a pediatric physician told him that Alicia’s injuries were the result of abuse.
Peck told Hurtt that he and another social worker, Robert Bell, wanted to interview Miller, and Hurtt said that was okay. According to Hurtt’s notes, Peck said Miller told him that Alicia “arched her back,” threw up, and then stopped breathing as Miller attempted to feed her. Peck said Miller told him that she shook Alicia three to five times and then called 911.
Peck said that Miller hadn’t mentioned the shaking the first time he talked with her, so he asked her again about what happened. This time, he said, Miller only said that “maybe” she shook Alicia. He would ask her two other times about the shaking. Miller gave two different answers, one where she shook Alicia two to three times, and another involving four to five shakes.
Peck told Hurtt that he had talked with Duff, the child’s father, and Duff said that Miller suffered from “a little depression,” and that he wasn’t very involved in raising his daughter. In addition, Peck noted that Miller had been in foster care as a child and that she and Duff were both unemployed and living with his parents. Miller also had a two-year-old daughter.
Hurtt also spoke with Dr. Robert Beck, the pediatric physician. He said the injuries were “inflicted abuse and not accidental trauma.”
After Alicia’s death, an autopsy was performed at Sparrow Hospital in Lansing by Dr. Brian Hunter. He ruled the death a homicide, noting the presence of brain swelling, brain hemorrhaging, and retinal hemorrhaging, which according to his training gave a clear indication of Shaken Baby Syndrome.
He wrote: “In my opinion, this child died as a result of the head injuries inflicted by another person, making them abusive in nature.” He said blunt force trauma couldn’t be excluded, but there were no bruises or fractures.
Hunter told Hurtt of his findings on October 22, 2001, and Hurtt arrested Miller and brought her in for questioning. She declined to answer questions, asked for an attorney, and was released. She was later arrested on August 6, 2002, and charged with second-degree murder.
Miller’s trial in Calhoun County Circuit Court began April 8, 2003. Prosecutors called Drs. Beck and Hunter as expert witnesses.
Beck said that Alicia died from abusive head trauma. He explained to jurors how shaking a baby can cause the brain to rapidly accelerate and decelerate, leading to extensive injuries as the brain impacts the skull. He said that after Alicia’s eye examination showed retinal hemorrhaging, he and others at the hospital had been “forced” to investigate for possible brain injuries. A CT scan revealed the brain bleeding, and Beck also noticed that Alicia’s fontanelle, the still unformed part of a newborn’s skull, was swollen and bulging. Together, these three symptoms met the criteria for abusive head trauma. “There’s really no other explanation typically found,” Beck said.
During Beck’s testimony, the prosecutor used a small doll to demonstrate various intensities of shaking until Beck indicated a level that would cause Alicia’s injuries.
Hunter testified about the autopsy, and he said that Alicia’s injuries could only be caused by blunt force trauma or abusive head trauma. He said shaking a baby in a “whiplash fashion” causes the brain to move “independently … much like jello.” Like Beck, Hunter also said the combined presence of brain bleeding, brain swelling, and retinal hemorrhaging were clear indicators of Shaken Baby Syndrome.
Miller’s attorney, Edwin Hettinger, did not present any expert testimony to refute the state’s finding of Shaken Baby Syndrome. He said in his opening statement that “the evidence has shown that the baby has died and it was the result of abuse.” Hettinger’s expert witness, Dr. Ljubisa Dragovic, would testify: “The injury of a three-month-old baby does not happen just like that, so some trauma obviously occurred; some force had been rendered at the head of this baby. There’s no question about that.”
Although conceding the presence of abuse, Dragovic testified that her examination of the medical records indicated Alicia had been injured a week before she died, suggesting that someone other than Miller hurt the baby. Hettinger would say in closing arguments, “The question the evidence left is who did it?”
Miller testified in her own defense. She said Alicia frequently stopped breathing but that doctors didn't believe anything was wrong. They told her that Alicia was simply holding her breath. Miller said that on the morning of October 19, 2001, she and her two-year-old daughter were feeding Alicia when the infant began gasping for air. “She wasn't breathing and she looked straight at me and one eye had gone off to the side. I shook her enough where she started back up,” she said. Miller said the shaking was slight and she did not hurt Alicia. “I did not stand there shaking my baby.”
Under cross-examination, Miller said that she had been seeing a doctor for headaches and that she felt pressure because she and Duff were unemployed. Miller also said that she had been Alicia’s sole caregiver in the week prior to the child’s death.
The jury convicted Miller of second-degree murder on April 14, 2003, and she was later sentenced to between 20 and 30 years in prison.
Miller appealed, arguing her conviction went against the weight of the evidence. The Michigan Court of Appeals affirmed the conviction, writing: “The expert witnesses agreed that Alicia’s death was the result of a trauma. Defendant’s contention that the evidence represents ‘a battle of experts’ is, therefore, irrelevant.”
Miller’s conviction came just two years after the National Association of Medical Examiners published a position paper on abusive head trauma that incorporated the theory that brain swelling, brain bleeding and retinal hemorrhaging – a so-called “triad of symptoms” – indicated the violent shaking of a child.
The paper was withdrawn in 2006. Researchers now have a wider understanding of abusive head trauma. It’s not that these three symptoms aren’t present in infants who have been violently shaken, but rather that they can also occur for reasons that have nothing to do with traumatic abuse.
In 2018, Miller filed a motion for relief in Calhoun County Circuit Court. Now represented by the Michigan Innocence Clinic at the University of Michigan Law School, Miller said that new evidence supported her claim that Alicia died from pneumonia.
She presented affidavits from four medical experts who had studied the child’s medical records and autopsy.
Dr. Francis Green, a pathologist at the University of Calgary, said there was clear evidence of pneumonia. A blood culture taken from Alicia upon her arrival at the hospital showed the presence of a bacteria associated with pneumonia in children. He said Alicia’s lungs already showed abscesses due to pneumonia. He also noted that Alicia’s medical records in the week before her admission to the hospital showed a viral infection.
Dr. Janice Ophoven, a pediatric pathologist in St. Louis County, Minnesota, Minnesota, said brain bleeding wasn’t necessarily a sign of trauma, as 50 percent of newborns suffer from intracranial bleeding, which can lead to later bleeding. In addition, Ophoven said that biomechanical studies have shown that a newborn shaken violently enough to cause the injuries associated with abusive head trauma would also have injuries to the spine or neck. Alicia’s autopsy revealed no such injuries.
Dr. Roland Auer, a neuropathologist at the University of Saskatchewan, agreed with Green and Ophoven. He also said that the retinal hemorrhaging and lack of oxygen could have been caused by paramedics, as they blocked her windpipe when they tried to intubate her. He also found evidence of an older brain bleed that could have been present since Alicia’s birth.
Dr. Julie Mack, a radiologist at Hershey Penn State Medical Center, said her review of Alicia’s X-rays and scans showed the presence of thrombosis, a clotting problem that can affect the delivery of oxygen to the brain and other organs. She also said the cloudiness seen in the images of Alicia’s lungs were an indicator of pneumonia. Hunter had noted the presence of pneumonia in his autopsy, but the only mention at trial was when Beck said the girl didn’t have pneumonia.
“It is now commonly understood that the triad of symptoms is not necessarily indicative of abuse, especially when unaccompanied by evidence of impact to the head or trauma to the neck or spine,” the motion said. “Such was the case in Alicia’s death. Based on this modern understanding of SBS science, Ms. Miller’s new experts now agree that there is nothing in this case to indicate abuse.”
The motion said that the belief in the triad of symptoms as an indicator of SBS was so pervasive that it would have been “unreasonably difficult” for Miller’s attorney to find an expert to refute the testimony of Hunter and Beck.
Also included in the motion for a new trial were affidavits from family and friends that attested to Alicia’s poor health since birth and her persistent breathing problems prior to October 19. The affidavits said Miller was a loving and careful mother; several noted Miller’s frustration with Alicia’s pediatrician, who dismissed her concerns about Alicia’s poor health and breathing problems as those of a “paranoid parent.” None of these witnesses testified at Miller’s trial because her defense strategy was that someone else hurt Alicia.
Without holding an evidentiary hearing, Judge Sarah Lincoln denied Miller’s motion on July 2, 2018. She wrote: “Defendant claims that she is entitled to a new trial in the instant case because of newly discovered scientific evidence that now provides an ‘alternative diagnosis’ of death by natural causes. However, the evidence in the case remains the same. The alternative diagnosis put forth by defendant’s new experts is based upon the exact same medical and autopsy records relied upon by the trial experts presented by both the People and the defense. It is simply a different interpretation of those records.”
Miller appealed, and on August 6, 2020, the Michigan Court of Appeals, remanded the case back to Calhoun County and ordered an evidentiary hearing before a different judge. The appellate court said Judge Lincoln had used facts not in the record to support her ruling and that the credibility of Miller’s experts required an evidentiary hearing. In addition, the opinion said that Judge Lincoln had erred by saying there was no new evidence simply because Miller’s experts used the same records available at trial. “A shift in scientific consensus undermining the evidence presented at trial would indeed constitute newly discovered evidence,” the appellate court wrote.
Judge Vicky Alspaugh held three days of evidentiary hearings in the fall of 2020. During testimony at these hearings, Hunter acknowledged that the triad of symptoms was no longer considered as a conclusive indicator of shaken baby syndrome as he testified to at Miller’s trial.
On January 25, 2021, Judge Alspaugh granted Miller’s motion for a new trial. She said the review of Alicia’s record by Miller’s experts constituted new evidence that could not have been discovered at her 2003 trial. Judge Alspaugh said the jury was given no other explanation for Alicia’s death, only a different timeline. “I think a reasonable juror who is given the expert testimony of these four credible experts, giving them an alternative cause for this young baby’s death, I think a different verdict is probable,” she said in her ruling from the bench.
Miller was released from prison on April 22, 2021. After the reversal, Miller was represented by Mary Chartier and Rhonda Ives, who filed discovery motions in preparation for a retrial. Prosecutors dismissed the charge on August 30, 2021. "
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6030
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.
