PASSAGE OF THE DAY: "Jimenez is not the first judge to question the SBS diagnosis. Another New Jersey judge acquitted a father who was accused of shaking his infant son. The father had said the baby unexpectedly went limp, at which point he’d taken him to the hospital. In the judge’s ruling he wrote that it was widely accepted in the scientific community that other causes can “‘mimic’ findings commonly associated with SBS.” His decision came down in the summer of 2018, about two months after the state Supreme Court refused to hear Heale’s appeal. “There have now been two New Jersey courts that have deemed the same type of testimony used to convict Michelle Heale unreliable and inadmissible,” USC’s Miller wrote to the Attorney General’s conviction review unit in April. The most recent ruling further strengthens Heale’s innocence claim, Miller said, and he “again respectfully asks that her convictions be overturned."
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COMMENTARY: "A judge finally called BS on 'Shaken Baby Syndrome," by Elizabeth Weill-Greenberg, published by 'The Appeal' on May 4, 2022.
GIST: "When Michelle Heale was sentenced for shaking to death 14-month old Mason Hess, she told the courtroom: “Innocent people are being sent to prison based on this flawed theory…This needs to stop.”
More than six years later, a New Jersey judge agreed with her.
In January of this year, Superior Court of New Jersey Judge Pedro J. Jimenez, Jr. ruled in a different case that prosecutors could not introduce evidence of the scientifically dubious theory used to convict Heale—”Shaken Baby Syndrome.” In that case, a father was accused of shaking his 11-month-old son, who was identified as D.N. in the judge’s opinion.
Jimenez wrote that the diagnosis of Shaken Baby Syndrome, also known as Abusive Head Trauma, is “an assumption packaged as a medical diagnosis” and “lacks scientific grounding.”
The parents had brought D.N. to the hospital because he appeared to be having seizures. Although he had a documented history of medical problems, including a hospital stay for the first seven months of his life, doctors concluded that he had been shaken.
“No study has ever validated the hypothesis that shaking a child can cause the triad of symptoms associated with AHT,” Judge Jimenez continued. “This diagnosis is akin to ‘junk science.’”
In February, Colin Miller, a professor at the University of South Carolina School of Law, submitted an application to the New Jersey Attorney General’s Conviction Review Unit asking that they “correct an injustice and set Michelle Heale free.”
Last month, he sent the office a letter detailing Jimenez’s ruling. Miller began work on Heale’s application after he read The Appeal’s investigation into her case, which was published in 2020.
Proponents of the Shaken Baby Syndrome diagnosis claim that shaking a baby produces a so-called “triad” of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage, and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks, or damage to the baby’s neck.
The injuries are so severe, these experts say, that the baby would immediately collapse. The last person with the baby — a parent, babysitter, or daycare worker — is often the prime (if not the only) suspect. The person accused is then left to prove they’re innocent of a crime that likely never occurred. They are up against damning testimony, often from physicians, who say with certainty that the baby’s injuries are comparable to those sustained from falling out of a window or being thrown from a car. In comparison, the defendant’s account — that the baby went limp — often seems farcical.
On Aug. 28, 2012, Heale was babysitting Hess in her New Jersey home. She says she was feeding him when he suddenly went limp.
Heale called 911. “His whole body is lifeless,” she told the operator. Hess was then rushed to the hospital.
The emergency room doctor diagnosed him with pneumonia and found evidence of a possible bacterial infection. Hess was airlifted to Children’s Hospital of Philadelphia. Their doctors quickly came to a different conclusion: Hess must have been shaken.
Hess was pronounced dead on Sept. 1. Although Heale, a mother of two, had no history of abuse, she was convicted of aggravated manslaughter and child endangerment and sentenced to 15 years in prison. At the time, her twins were six years old.
Studies and several exonerations have shown that there are many other explanations for the so-called triad, including accidental, seemingly inconsequential short-distance falls that may have occurred days or weeks before a baby’s collapse; trauma sustained during childbirth; or illness.
In Heale’s case, Hess was sick and had fallen in his home about a week before his collapse. The fall caused a bruise on his head that was visible during the autopsy.
Before Heale’s trial, her attorneys had contacted Chris Van Ee, a biomechanical engineer and accident reconstruction specialist, about her case. He wrote and sent them a report, but never heard back. The report was not introduced at her trial and he was not called to testify. In his report on Hess’s death, Van Ee wrote that the child did not have any bruises, skull fractures, or other injuries that would have indicated he was shaken.
Van Ee has testified as an expert in several criminal cases, including at the hearing held before Judge Jimenez to determine if the prosecution could introduce evidence of SBS against D.N.’s father.
Jimenez is not the first judge to question the SBS diagnosis. Another New Jersey judge acquitted a father who was accused of shaking his infant son. The father had said the baby unexpectedly went limp, at which point he’d taken him to the hospital.
In the judge’s ruling he wrote that it was widely accepted in the scientific community that other causes can “‘mimic’ findings commonly associated with SBS.” His decision came down in the summer of 2018, about two months after the state Supreme Court refused to hear Heale’s appeal.
“There have now been two New Jersey courts that have deemed the same type of testimony used to convict Michelle Heale unreliable and inadmissible,” USC’s Miller wrote to the Attorney General’s conviction review unit in April. The most recent ruling further strengthens Heale’s innocence claim, Miller said, and he “again respectfully asks that her convictions be overturned.""
The entire story can be read at:
https://theappeal.org/new-jersey-shaken-baby-syndrome-bs/
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;
