Shaken Baby Syndrome: Part One: Robert Roberson: On death row, (an execution date expected "any day") as a result of the widely debunked, junk science 'theory.'...Incarcerated journalist John J. Lennon writes one of the best accounts of the nightmarish Roberson case, and others, which I have read, under the heading, "The horrible truth about shaken baby syndrome cases."…"For nearly two decades, shaken baby syndrome has divided the medical community. Some doctors believe that the triad of symptoms used for the diagnosis cannot be explained by a fall or an accident. Others say that there can be alternate explanations—including accidental suffocation, underlying illnesses, viral infections, or bleeding disorders. The result is a split screen of legal rulings in cases like Tom’s. Back in 2008, the Wisconsin Court of Appeals became the first to overturn an SBS conviction, writing that there was “fierce disagreement” among doctors and “a shift in mainstream medical opinion” about the certainty of the diagnosis. Last year, a New Jersey appeals court barred the admission of evidence about shaken baby syndrome, calling it “junk science.” Yet elsewhere, hundreds of parents and caregivers continue to be prosecuted based on the same medical theory. A review of more than 1,400 appellate rulings between 2008 and 2018 found that only 3 percent of SBS convictions were overturned, a far lower rate than in other types of cases. The reality is that in parts of the country, evidence of the telltale triad of symptoms won’t warrant an arrest—but in other parts, it can literally amount to a death sentence."

PASSAGE OF THE DAY: "After  doctors diagnosed shaken baby syndrome, Roberson was arrested.  The detective who questioned him, Brian Wharton, noted his lack of emotion—Roberson didn’t seem defensive, angry, or sad. In 2003 a jury convicted Roberson and sentenced him to death. The jury didn’t know that Roberson would later receive a diagnosis for autism, which could explain his low affect.  The jurors also did not learn that Nikki had suffered from chronic illness since birth.  Days before she died, she had bouts of breathing apnea from undiagnosed pneumonia.  She was also taking an opioid, for an unspecified respiratory illness, a treatment that can cause breathing problems.  In 2018, when Roberson’s attorney, Gretchen Sween, told Wharton about Roberson’s autism and the other information about Nikki’s health, it was clear to her the detective had long been troubled by the case. Wharton agreed to testify about his initial misgivings and about how Roberson’s autism could have influenced his opinion about Roberson during the investigation. But neither the evidence about Nikki’s health nor Wharton’s testimony made a difference.  In spite of these developments, the Texas courts have denied Roberson relief, and last year the Supreme Court refused to hear the case."

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STORY: "The horrible truth about shaken baby syndrome cases," by John J. Lennon, published by 'Slate', on May 2, 2024. (John J. Lennon is an incarcerated journalist who works with the Prison Letters Project at Yale Law School, which responds to mail from incarcerated people and seeks to amplify their voices.)

GIST: "About 20 years ago, at the beginning of my prison stint, I was double-bunked with a fella who was in for shaking a baby to death. 

When you’re locked in a cell with a guy, there’s an initial bonding phase. You do pushups together. You talk about your past lives.

 My story ended with what led me to prison. I was a drug dealer. Shot and killed a man in Brooklyn. 

My bunkie wasn’t criminal—he was a square. He never mentioned his crime. So, I asked. He hadn’t shaken his girlfriend’s baby to death, he told me, and the science behind “shaken baby syndrome,” the theory that violent shaking causes fatal brain injuries, was unreliable.

I didn’t believe him. I just figured he couldn’t admit to killing a kid. 

As you can imagine, baby killers don’t do well in prison. I figured experts wouldn’t testify to things they were uncertain about. 

I think most people, including jurors, figure that. I began to question this in 2022, when I started working with Yale Law School’s Prison Letters Project, an initiative that responds to letters we receive from prisoners telling us about injustices.

 I noticed that many of these letter writers claimed that they had been wrongfully convicted under the SBS theory.

“I was facing allegations of child abuse and first-degree murder of my 5-month-old son,” Tom Imschweiler wrote to PLP from a North Carolina prison. 

He explained that his case was like others “sent to prison based on the hypothesis of shaken baby syndrome. What sets me apart is the support of professionals in the field and the unwavering dedication my family and friends have for me.”

In July 2018, Tom, a 31-year-old landscaper, and his 29-year-old girlfriend, Laura Michael, who worked in finance, took their 5-month-old son Franklin on a trip from their home in Harrisburg, Pennsylvania, to the Outer Banks in North Carolina. 

A week earlier, Franklin had been sick, running a 104-degree fever, but his doctor signed off on the trip. Laura’s mother, sister, and brother-in law drove down too. They all rented a beach house.

In the middle of the night, Franklin started whimpering. Tom woke up and carried his son to the living room. He propped Franklin between two pillows on the couch, he says, while he went to the kitchen to warm a bottle of formula. “Minutes later, I returned and found him facedown in the pillow,” Tom later wrote.

Tom yelled for help, and the whole family woke up, frantic. 

Tom and his brother-in-law, a medic, did CPR. Laura called for an ambulance. Franklin was rushed to the hospital, where he died days later.

 Doctors discovered a triad of internal symptoms—subdural and retinal hemorrhage and brain swelling—that some doctors say can be explained only by shaken baby syndrome, a diagnosis that criminally implicates the child’s last caregiver as an abuser.

 Soon after Franklin’s death, Tom was arrested and charged with murder for killing his baby. 

He is now in prison after taking a plea deal that significantly reduced the possible sentence, though he has not admitted guilt and maintains his innocence.

Tom’s story is not unusual.

 For nearly two decades, shaken baby syndrome has divided the medical community. 

Some doctors believe that the triad of symptoms used for the diagnosis cannot be explained by a fall or an accident.

 Others say that there can be alternate explanations—including accidental suffocation, underlying illnesses, viral infections, or bleeding disorders.

The result is a split screen of legal rulings in cases like Tom’s. 

Back in 2008, the Wisconsin Court of Appeals became the first to overturn an SBS conviction, writing that there was “fierce disagreement” among doctors and “a shift in mainstream medical opinion” about the certainty of the diagnosis.

 Last year, a New Jersey appeals court barred the admission of evidence about shaken baby syndrome, calling it “junk science.” 

Yet elsewhere, hundreds of parents and caregivers continue to be prosecuted based on the same medical theory. 

A review of more than 1,400 appellate rulings between 2008 and 2018 found that only 3 percent of SBS convictions were overturned, a far lower rate than in other types of cases.

The reality is that in parts of the country, evidence of the telltale triad of symptoms won’t warrant an arrest—but in other parts, it can literally amount to a death sentence.

This is the case for 56-year-old Robert Roberson.

 He is on death row in Texas for an SBS conviction. In 2002 he carried his 2-year-old daughter, Nikki Curtis, limp and blue, into an East Texas hospital. She died the next day. 

After doctors diagnosed shaken baby syndrome, Roberson was arrested. 

The detective who questioned him, Brian Wharton, noted his lack of emotion—Roberson didn’t seem defensive, angry, or sad. In 2003 a jury convicted Roberson and sentenced him to death.

The jury didn’t know that Roberson would later receive a diagnosis for autism, which could explain his low affect. 

The jurors also did not learn that Nikki had suffered from chronic illness since birth.

 Days before she died, she had bouts of breathing apnea from undiagnosed pneumonia. 

She was also taking an opioid, for an unspecified respiratory illness, a treatment that can cause breathing problems. 

In 2018, when Roberson’s attorney, Gretchen Sween, told Wharton about Roberson’s autism and the other information about Nikki’s health, it was clear to her the detective had long been troubled by the case.

 Wharton agreed to testify about his initial misgivings and about how Roberson’s autism could have influenced his opinion about Roberson during the investigation.

But neither the evidence about Nikki’s health nor Wharton’s testimony made a difference. 

In spite of these developments, the Texas courts have denied Roberson relief, and last year the Supreme Court refused to hear the case. 

Roberson could receive an execution date any day now.

Doctors who defend the science behind SBS convictions point out that abusive head trauma, a term that includes shaken baby syndrome, is the third leading cause of head injury in children.

 They say health care providers conduct extensive evaluations before reaching a diagnosis. 

Robert Sege, a professor at Tufts University School of Medicine who has served on the American Academy of Pediatrics’ Committee on Child Abuse and Neglect, acknowledges that wrongful convictions occur.

 But he says he’s not sure how that fact “has any relevance to the issue of abusive head trauma.”

“As a doctor and experienced child abuse pediatrician, I know that abusive head trauma exists,” Sege said. “I have cared for injured children, some of whom died. I have met with their parents, who were deep in misery as the realization of what they had done seeped in.”

In some cases, prosecutors rely in part on medical evidence, separate from the SBS diagnosis, which they say points to a history of child abuse. 

In Franklin’s case, there was no known history of abuse, but doctors found that he had fractured ribs and a rectal tear. 

Tom and Laura had nonviolent explanations for those injuries.

 Franklin had been in a car accident months before his death, they said, which could have caused the fractures, and his temperature was taken anally while he had the high fever, soon before he died, which could account for the rectal tearing.

But the district attorney, Andrew Womble, had what he considered to be an admission of guilt.

 After his arrest in 2018, Tom wrote a letter to Laura from jail, which prosecutors intercepted and read. “Maybe the devil took my hand,” he wrote. “Maybe I did hurt my son.”

Tom now says he wrote the letter in a state of “absolute despair, believing that I somehow was responsible because that is all I was told from the moment I went into custody.” 

His defense attorney sent Franklin’s medical file to Mary Gilliland, a forensic pathologist and expert in abusive head trauma who has worked with North Carolina prosecutors for decades.

 Reviewing the case without payment, Gilliland concluded that Franklin’s death had been an accidental suffocation. 

His parents’ explanations for Franklin’s other injuries made sense to her too. “The age of the broken rib is just right for that time frame,” she said in a video presentation of her findings that prosecutors reviewed with the charges against Tom pending. “This is an older injury, and it’s unrelated.”

Womble did not drop the charges against Tom, but he offered an unusual plea deal for the alleged murder of a child: a five-year prison sentence for voluntary manslaughter.

In November 2021, Laura married Tom, who was out on bail, in a Pennsylvania courthouse. She was six months pregnant with their second child. 

Ten days later, they went to North Carolina, and Tom took what’s called an Alford plea, which allowed him to plead guilty to Franklin’s manslaughter while maintaining his innocence.

In a letter from prison, Tom said he took the plea “so my daughter will have her daddy before she’s old enough to have lifelong memories.”

 In the meantime, Laura is raising their child alone. She has posted an online petition asking North Carolina Gov. Roy Cooper 

Tom lives in a dorm in Sanford Correctional Center, a low-security prison in rural North Carolina.

 He works off-grounds in a warehouse for $16.84 a week. 

Laura makes the 10-hour trip from Pennsylvania to North Carolina only a few times a year. She brings their new baby, who, Laura told me, beams when she sees her father in the visiting area.

 I thought about my old bunkie, the square with the SBS case, and I wondered about the pecking order part of prison, if other prisoners ostracized and judged Tom like I did my bunkie. 

I wondered if my bunkie really was innocent. I wondered if the knock-around guys who lived in his dorm called him a baby killer behind his back.

In the beginning, there were some guys who said things, Laura told me, but Tom has found a sense of security with others. 

They work, lift weights, talk about freedom. 

But I imagine he hasn’t shared everything with Laura. He has internalized plenty. It’s all we can do in here. 

What struck me about Tom and Laura was how the loss of their son, for which they were the most affected, was shadowed by this idea of justice. I asked Laura about that.

“I would want justice if my son was abused,” Laura told me. Her dog barked; her 2-year-old cried for her attention. “But he wasn’t. This was an injustice.""

The entire story can be read at: 

https://slate.com/news-and-politics/2024/05/shaken-baby-syndrome-cases-sad-truth.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

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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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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.

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801

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