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PASSAGE TWO OF THE DAY: "I’ve probably written more about abuse — clerical, on campus, in the military, in law enforcement, in relationships and in families — than I have about any other single topic, and I am not in denial. But I am persuaded by shaken baby skepticism for a few reasons: One, the advent of nanny cams has shown that in cases where babies really were shaken by caretakers, we just don’t see the injuries on CT scans that the shaken baby pioneers said were a given in such cases. Two, I’ve seen this psychological horror movie before, in real life, in the Kansas case of Carrody Buchhorn, who was also convicted of murdering a child in her care on the say-so of Erik Mitchell, and is now among those who have been exonerated in such cases. The child in that case, Oliver Ortiz, actually died of a congenital heart defect. The excellent 2014 documentary “The Syndrome,” based on the work of investigative journalist Susan Goldsmith, shows how the doctors who pioneered shaken baby orthodoxy were the same individuals who dreamed up the “Satanic panic” of the 1980s, when, as I’ve written before, much of America bought into reports that an improbable number of day care workers were Satan-worshiping pedophiles. The film documents case after case of people who’ve been wrongfully accused as the result of shaken baby panic."
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GIST: Ten years ago, in September of 2013, Christopher Lyman was a decorated Army sergeant, the recipient of a Bronze Star for valor, reporting for duty at Fort Riley after 16 months in Afghanistan.
He’d survived three IED attacks during his three tours of duty and was looking forward to some family time with his wife and their 15-month-old son Evan.
His wife, Tammarisk Lyman, had been through her own ordeal: a nonviable, ectopic pregnancy with twins during the months they spent with family in Ohio after his return from overseas.
Still, she and Chris had agreed to take in her sister’s baby for six or eight weeks, while little Johnathan’s 21-year-old single mom, Meggan Swan, was trying to get her life together after a second DUI.
In Meggan’s small town of Conneaut, Ohio, on Lake Erie, it was hard to find anyone willing to watch Johnathan while she worked, she later said in court, “because he had medical issues and everyone was scared.”
They were right to be.
All of his brief life, 8-month-old Johnathan Swan was in and out of the hospital with severe respiratory problems.
He stopped breathing sometimes, and at one point had been on full life support.
Taking him in was a last-minute arrangement, brokered even after the Lymans had left Ohio for Kansas.
But Meggan was desperate, and in the months before Chris had to report to Fort Riley, he in particular had bonded with the baby. “My son wouldn’t cuddle with me, but he would with him,” Meggan testified, sobbing, at her brother-in-law’s 2015 murder trial. “He called him ‘dad.’ That’s the only word he ever knew.”
Around 2 a.m. on Sept. 15, just two weeks after Johnathan had joined them in Kansas, Chris Lyman says, their son Evan woke them up pounding on his door, so while Chris was up he checked on Johnathan, too, and found him “kind of limp” and unresponsive in his bed.
He tried CPR, but heard an ominous gurgling sound, “like bubbles when you blow through a straw,” and yelled for his wife to get the baby to the hospital. He’d throw on some clothes, grab Evan and be right behind them. Which, after setting off their own alarm system in a panic, he did and was.
By 4:20 that afternoon, he was sitting opposite a homicide detective in a police interrogation room.
Where Lyman, who thought he didn’t need an attorney, talked and talked.
First, he volunteered that he hadn’t exactly been eager to take responsibility for “always fussy” Johnathan, especially since “we moved out to Kansas to kind of like, I guess, just to get to know each other” again after so much time apart during his two tours in Iraq and one in Afghanistan.
Sometimes they worried, he said, about whether they were going to have the boy with them for more than just a couple of months.
And then, just five days earlier, Lyman said, they’d learned that Tammarisk was pregnant again.
If taking in their nephew “had to be permanent for a freak accident, fine,” he told the detective, like they were having beers in the backyard. “But it’s like everyone in her family is just trying to take advantage of our goodwill.”
Still, he added, he and “the wife” did feel for the ”poor kid,” who had been rejected by his father before he was even born. He and Tammarisk had talked about setting up some kind of college fund for Johnathan, and they didn’t want Meggan to have to leave him with sitters she barely knew.
“You don’t know what kind of people they are,” he told the Junction City police detective, Cory Odell. “Right,” Odell said.
Reading the transcript of that interview is like reading a horror story where you know that something is about to pop out from under the bed, but for what seems like forever, the main character does not.
Though when Odell stepped out of the room but kept the tape running, Lyman did make the sign of the cross.
’SHAKEN BABY INDUSTRIAL COMPLEX’
Without hesitation, Lyman told Odell that he’d insisted that his wife go ahead and catch her planned flight to California for a business trip that morning, which is exactly what she’d done.
“I told her, I said, you know, there’s nothing we can do medically. We did our part.” “Uh-huh,” the detective said again.
When Odell finally stopped agreeing, he told Lyman that he knew his whole story was a lie, and that the only real question was whether he was going to be “man enough” to admit abusing Johnathan both physically and sexually. Why? Because at Children’s Mercy in Kansas City, where Johnathan had been life-flighted, “they specialize in child abuse cases.
The doctors, who are specifically trained and do this for a living, tell me this is child abuse. Somebody hurt this kid on purpose. That is the medical truth. Somebody hurt him and they hurt him so bad that he is fighting for his life. That is what happened.” Is it? Lyman kept trying to tell him about the child’s many serious medical problems, and Odell kept saying, “I don’t care about his medical issues.”
Lyman kept saying that the doctors had to be wrong, and Odell kept repeating that they were the experts, and so were not wrong.
Whenever someone tells me that doctors can’t be wrong, I think how lucky they are never to have learned otherwise.
This isn’t a story about one doctor who flubbed a diagnosis, though. Instead, it’s one about how much of the medical establishment refuses to update its understanding of what they used to call “shaken baby syndrome.”
The name has been changed, to abusive head trauma, or non-accidental or inflicted trauma, because of the growing criticism of this diagnosis.
But the criteria for diagnosing abuse have not changed, even though we now know that there are many other conditions that can cause the three markers for shaken baby, which are retinal hemorrhages, brain swelling and a subdural hematoma.
The “classic triad,” it’s called.
The result isn’t just that this one man may well have been wrongfully convicted, but that hundreds of people every year continue to be sent away for crimes that those doctors and researchers who are critics of what they call the “shaken baby industrial complex” argue never happened at all.
The National Registry of Exonerations, a project of the University of California Irvine Newkirk Center for Science & Society, the University of Michigan Law School and Michigan State University Law School, lists shaken baby convictions of “injuring or killing an infant by violent shaking, based on a medical diagnosis that is now highly controversial” as a major subset of exonerations.
A pathologist testified that the small triangle at the top of this CT scan of Johnathan Swan’s head was a “massive subdural hematoma” that killed him.
NO EVIDENCE OF TRAUMATIC BRAIN INJURY
In January of this year, now 38-year-old Lyman’s conviction was overturned by District Court Judge Courtney Boehm.
She ruled that Lyman had been denied his Sixth Amendment right to effective assistance of counsel because his original defense attorney, Linda Eckelman, was suffering from dementia at the time of his 2015 trial.
It turned out to be Eckelman’s last trial, and it’s plain from the transcript that she was not at all well, interjecting “God, I’m bored” apropos of nothing, using words incorrectly, accusing the judge, Steven Hornbaker, of being mad at her, and frequently losing her train of thought.
Eckelman was deficient, Boehm found, in “her failure to adequately vet and investigate the state’s only expert as to the cause of death.”
That expert was Erik K. Mitchell, the notorious Kansas pathologist I’ve written about several times before, who has made a door-to-door career of getting it wrong.
Eckelman also fell short, the judge found, in failing to subpoena and admit the child’s medical records, and in refusing to take the time the original judge had offered to give her to find a new expert after hers was disqualified, not because of his medical opinions, but “because of the odd and bizarre ideas contained on his website,” including that he could scientifically prove Earth was created in six days.
If a defense expert like any of the three who now say Johnathan Swan actually died of acute pneumonia and lung disease had testified at Lyman’s original trial, there was a “reasonable probability” that the verdict would have been different, the judge ruled.
All three also say shaken baby syndrome is not supported by current medical science.
Neither Mitchell nor the child abuse pediatrician at Children’s Mercy, Dr. Terra Frazier, ever reviewed Johnathan’s medical records from Ohio.
Dr. Janice Ophoven, a pediatric pathologist from Minnesota, found, based on tissue slides of five lobes of Johnathan’s lung, that “all five sections are remarkably abnormal and, in my opinion, clearly represent the cause of little Johnathan’s fatal distress and cardiopulmonary collapse.”
“There is no evidence to support a diagnosis of traumatic injury to the brain tissues,” she said, and “no evidence to conclude that Johnathan Swan suffered any abuse at the hands of Christopher Lyman.”
The swelling to the brain that signaled child abuse to Children’s Mercy’s Frazier, Dr. Ophoven said, was instead “associated with respiratory and cardiac failure” and efforts to resuscitate him.
Yet “as soon as the presence of intracranial blood and brain swelling were observed,” she wrote, “the case became one of abuse.”
In fact, “by early afternoon on the date of hospitalization, the medical records contain numerous references to what appeared to be a confirmed diagnosis of child abuse. My review indicates that there was a combination of misdiagnosis and a rush to judgment.”
Ophoven also dismissed the finding of sexual abuse: “Unfortunately, inexperienced observers raised questions regarding purported anal lacerations” even though the medical examiner “documented a normal anus.”
“Inexperienced eyes,” she said, “will misinterpret the natural dilation in a brain dead child as suspect, but the autopsy findings typically allay any such concerns. This did not occur, and the jury was told that the child had evidence of blunt force injuries to the anus suggestive of sexual abuse. This was incorrect.”
All the same, Lyman was found not guilty of the aggravated criminal sodomy charge against him, which was filed 18 months after his arrest.
‘STUCK IN A TIME CAPSULE FOR ALMOST 10 YEARS’ There is one thing that does bother me about Lyman’s version of events: A computer expert for the prosecution testified that Lyman had searched, both on his laptop and on his phone, for information about shaken baby syndrome right before Johnathan Swan arrived in Kansas.
Lyman says he has no idea what that was about; was he looking for something about sick babies and it led him to that page?
Child abuse is not something you normally think of as a premeditated crime, but if he did search for shaken baby deaths right before being accused of one, well, that would need explaining.
What defense experts said about the actual cause of Johnathan’s death is still convincing, though. And the judge wrote this in her decision overturning Lyman’s murder conviction: “The court finds that there is a reasonable probability that without trial counsel’s unprofessional errors, the result would have been different.”
For Lyman, of course, the cost of those errors was only nearly everything. Not only did he spend almost a decade behind bars, but his wife divorced him, he hasn’t seen his son Evan in years and has never met his younger boy, Maik.
His mother’s savings were wiped out, and “just like me, she was stuck in a time capsule for almost 10 years.”
Lyman is free for now, awaiting a possible retrial back at his mom’s in Ashtabula, Ohio, sleeping in the room he grew up in.
“People want to see me,” but he has to space out those visits with old friends, because answering the same questions over and over is so exhausting.
At a hearing in Junction City on Thursday, Judge Keith Collett agreed to grant Lyman a new probable cause hearing, and the state did not object.
At his initial such hearing, which is the preliminary hearing at which a judge decides if there’s enough evidence to go to trial, Mitchell testified that Johnathan was admitted to the hospital with a “massive subdural hematoma” that turned out to be smaller than a dime.
He also said that Johnathan “was, in fact, beaten in order to get those injuries.”
That’s what the probable cause finding by Judge Charles Zimmerman was based on, the judge said: “There’s a child who had a massive subdural hematoma” which Mitchell “clearly stated that this was the cause of death. And it strains credulity for me to believe that there was no outside force that caused the child’s injuries.”
Medical examiner Erik Mitchell has a history of making incorrect diagnoses.
In January, Meggan Swan, little Johnathan’s mother, who was never convinced of Lyman’s guilt, sent the prosecutor, Geary County Attorney Krista Blaisdell, a heartfelt letter begging her not to put her through another trial: “I am asking you to do the right thing,” it says, “and please not force me to continue to live through the trauma of Johnathan’s passing.”
So far, she’s received no response. When she showed up at Children’s Mercy Hospital on the day he was admitted, she told me, “they didn’t let me in to see him, because they had automatically made it a murder.”
Why a distraught mother who’d been in another state when her son was admitted would be treated like a criminal I can’t fathom, but she says that’s what happened. “They told me my son had been brutally murdered and raped,” she said, and “treated me like I was the one that hurt him.”
“I got there with $100 in my pocket and was kicked out of the hospital in the pouring rain with my phone at 5%.”
Chris, who had planned to pick her up at the airport, was unavailable on account of incarceration.
Evan was in the state’s custody, and Meggan, on the worst day of her life, had to call around to figure out which kill shelter the family dog had been taken to.
The next day, after her child was already dead, “my first sight of him was them ripping his legs apart to say he’d been raped. I tried to tell them he’d been sick, but they null and voided anything I said.”
She “turned to heavy drugs” after her son’s death, she told me, but has been in recovery and part of a church community for the last five years.
It’s hard not to see a class issue at work here:
The first doctor who saw Johnathan, at Geary Community Hospital, reported that he found it suspicious that when Meggan was told about her son’s condition, she didn’t say she’d hop right on a plane. “She was kind of, OK, well, I’ll see if I can get there,” he testified.
Could that be because she had no money and had never hopped anywhere on a plane in her life?
Blaisdell told me in an email that she couldn’t comment on the case since it “has been remanded back for a new trial,” and “that trial date has not been set.”
Which certainly sounds like she intends to take Lyman back to court. Attorney Richard Ney, left, picked up Christopher Lyman when he was released from Ellsworth Correctional Facilty in February.
SKEPTICISM, EXONERATIONS, NOT GUILTY VERDICTS
But whatever happens in Junction City, the even bigger question, given the growing number of exonerations and not guilty verdicts in shaken baby cases, is when the verdict on the markers for child abuse is going to be reconsidered.
Neither a spokeswoman for Children’s Mercy nor Dr. Terra Frazier, the child abuse pediatrician who found and testified that Johnathan had been abused, answered my messages asking whether they had in the decade since Johnathan died in any way changed their view of what child abuse looks like.
Mitchell, who is now working in Georgia with a medical transplants company, didn’t answer me either.
Medical schools still teach, as they have since the 1990s, that if you see retinal hemorrhages, brain swelling and a subdural hematoma, then what you’re seeing is the result of abuse, period.
In fact, doctors who do not report suspected abuse when they see these can be held liable.
The medical establishment has pushed back hard against doctors who cite hard evidence that many of these deaths instead result from natural causes;
the official view is that anyone who finds a reason other than abuse for these cases is just in denial, because we as a society don’t want to admit how prevalent abuse really is.
I’ve probably written more about abuse — clerical, on campus, in the military, in law enforcement, in relationships and in families — than I have about any other single topic, and I am not in denial.
But I am persuaded by shaken baby skepticism for a few reasons:
One, the advent of nanny cams has shown that in cases where babies really were shaken by caretakers, we just don’t see the injuries on CT scans that the shaken baby pioneers said were a given in such cases.
Two, I’ve seen this psychological horror movie before, in real life, in the Kansas case of Carrody Buchhorn, who was also convicted of murdering a child in her care on the say-so of Erik Mitchell, and is now among those who have been exonerated in such cases.
The child in that case, Oliver Ortiz, actually died of a congenital heart defect. The excellent 2014 documentary “The Syndrome,” based on the work of investigative journalist Susan Goldsmith, shows how the doctors who pioneered shaken baby orthodoxy were the same individuals who dreamed up the “Satanic panic” of the 1980s, when, as I’ve written before, much of America bought into reports that an improbable number of day care workers were Satan-worshiping pedophiles.
‘I SERVED THE SAME SYSTEM THAT DID THIS TO ME’
The film documents case after case of people who’ve been wrongfully accused as the result of shaken baby panic.
One of them was Kathy Jo Hyatt, a mom from Macon, Missouri, whose husband Kevin had spent 31 years with the Missouri State Highway Patrol by the time he retired in 2014.
In the film, the Hyatts tell the story of how, after the 11-month-old in Kathy’s care fell off the couch and then had trouble breathing, she rushed the girl to the ER and was promptly charged with “abuse of a child/shaken baby syndrome.”
“It was, ‘the doctor said this, so it had to be shaken baby, and tell us why you did it,’” Kevin Hyatt says in the movie.
“I’ve been involved in law enforcement for soon to be 29 years, and it floored me that the finger could be pointed at somebody over so little information. If one of these bigwig doctors could go through what they put us through, maybe they would see how wrong they are.”
Hyatt was arrested in 2004 and ultimately found not guilty, but others continue to be arrested on “so little information.”
The first time I interviewed the Buchhorns, one of the things I found saddest was what Carrody’s husband Tim, an active duty Army sergeant, said about how his wife’s wrongful conviction had shaken his faith in our system:
“I’ve spent my entire adult life defending our justice system and believing in the Constitution and believing in the Declaration of Independence.”
So when his wife went to prison, “it made me question everything I’d done, because the system didn’t work.”
Lyman told me almost exactly the same thing: “I served my country. I served the same system that did this to me, and that was more depressing than seeing Afghanistan fall to the Taliban. I just felt betrayed.”
This story was originally published April 20, 2023, 5:00 AM.
Read more at: https://www.kansascity.com/opinion/opn-columns-blogs/melinda-henneberger/article274172070.html#storylink=cpy
The entire story can be read at;
https://www.kansascity.com/opinion/opn-columns-blogs/melinda-henneberger/article274172070.html
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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