PUBLISHER'S NOTE: Today (Monday, September 21), Texas death row occupant Robert Roberson is expected to appear in-person for testimony at the state Capitol on Monday after an unusual legal intervention by state lawmakers delayed his Thursday execution. I hope that every one of the lawmakers has the opportunity, before the hearing, to read Judge Brown's ruling - in which he demonstrates so clearly how the medical community’s understanding of SBS/AHT (Shaken Baby Syndrome/ Abusive Head Trauma) has clearly changed since the time of [Butts’s] trial in 2003.” It is clear and incisive - and explains why Texas would be making a terrible mistake if it defies science and kills an innocent man, which no lawmaker would want to do.
Harold Levy: Publisher: The Charles Smith Blog.
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| PASSAGE OF THE DAY: "In 2019, attorneys with the Center for Integrity in Forensic Sciences and the Ohio Innocence Project, as well as an attorney in private practice working pro bono, filed a petition to vacate Butts’ convictions. The petition cited expert testimony that the triad of symptoms were no longer considered to be exclusively caused by shaking a child. “The differential diagnosis for the triad of injuries has expanded,” the petition said. “It now includes a number of variables applicable to Jaydyn, including the effects of the short falls (such as Jaydyn’s hard fall in a porcelain tub in the days prior to his collapse) and of serious infection, such as pneumonia and sepsis, both of which Jaydyn suffered.” In May 2021, a six-day hearing was held during which defense experts testified, as did an expert for the prosecution. On November 10, 2022, Judge Jeffrey Brown vacated the convictions and ordered a new trial." ——————————————————————————————————— PASSAGE TWO OF THE DAY: "Judge Brown ruled that “the medical community’s understanding of SBS/AHT has clearly changed since the time of [Butts’s] trial in 2003.” Judge Brown noted that at the time of Butts’s trial, retinal Hemorrhages were presented as the “smoking gun” of SBS. “The State now agrees, however, that such testimony was incorrect and can no longer be supported by science,” the judge ruled. “This shift in understanding by the medical community raises a strong probability of a different result on retrial.” The judge ruled that the defense “demonstrated that, if tried today, the expert testimony presented on both sides would differ in the following ways: (1) experts could not categorically exclude a short fall as a cause of death; (2) experts could not rule out the possibility of a lucid interval; (3) today, retinal optic nerve sheath hemorrhages could not be the basis of an SBS/AHT diagnosis; (4) today, doctors know that infection and pneumonia could have been contributing factors in Jaydyn's death; (5) today, the toxicity of over-the-counter cold medicines in pediatric patients is known and understood; and (6) biomechanical research conducted since the trial shows that shaking a child Jaydyn’s size hard enough to cause brain injury would have also caused neck injury, a symptom never noted by any physician at or prior to trial.” On December 8, 2022, Butts was released from prison on bond pending a retrial. On August 1, 2023, the Ohio Tenth District Court of Appeals denied a motion by prosecutors for permission to appeal Judge Brown’s decision. On February 12, 2024, the prosecution dismissed the case." ---------------------------------------------------- GIST: "Shortly after 4:30 p.m. on Saturday, February 13, 2002, Columbus, Ohio police were called to the home of Beth Unger by her boyfriend, 21-year-old Alan Butts, who said that Unger’s two-year-old son, Jaydyn, was unconscious. One officer began administering CPR while the other officer questioned Butts. Butts said he had been playing a video game when Jaydyn raised his arms and fell over, hitting his head on the carpet. Paramedics began treating the boy 12 minutes after the call to 911. The boy had no pulse and no heart rate. He was intubated and ultimately received nine shots of epinephrine, a drug used to restart the heart. The paramedics got his heart started, but then it stopped. The boy was airlifted to Children’s Hospital in Columbus. While in flight, the boy’s heart stopped again and was restarted. Despite treatment, the following day, Jaydyn was taken off life support and died. The physicians who treated him, as well as the medical examiner who conducted an autopsy, concluded that the boy had died of a head injury as a result of Shaken Baby Syndrome. On February 18, 2002, Butts was arrested. He was eventually charged with first-degree murder, involuntary manslaughter, felonious assault, and two counts of endangering a child. In March 2003, Butts went to trial in the Franklin County Court of Common Pleas. The prosecution’s case rested primarily on the testimony of four medical experts. Sean Condron, a friend of Butts, testified that he went to the house at approximately 1:00 p.m. to play Sony PlayStation with Butts. Condron said Jayden was a little “fussy,” but that he saw the boy eat a cookie and drink some juice before Condron left at approximately 2:30 p.m. Dr. Charles Johnson, a child abuse expert, testified that he had been called in to consult on the case after the boy arrived at Children’s Hospital. He said he reviewed the hospital chart; discussed the x-rays with a pediatric neuroradiologist; examined Jaydyn; spoke to the charge nurse, Jaydyn’s mother, the maternal grandparents, and two aunts; looked at the x-rays and CT scans; and reviewed the laboratory work. Dr. Johnson testified that the CT scan showed edema, which meant swelling or fluid; subdural blood, which was bleeding under the covering of the brain, between the dura and the brain; and swelling of one side of the brain. Jaydyn also had hypoxic injury to his lungs and bowels, as the result of oxygen deprivation. Dr. Johnson testified that he would not expect a fall to the floor to cause a child to be unconscious, have a seizure, or die, nor would he expect optic nerve hemorrhages or a constellation of subdural hemorrhages and retinal hemorrhages. He said a standing fall to the floor could not have been the cause of the injuries because there was an insufficient distance to the floor, there was no evidence of external injury, no fracture, and no epidural hemorrhage. Dr. Johnson believed the injury occurred after the time that Jaydyn ate a cookie and juice because, after suffering an injury of such severity, he would not expect a person to be capable of sophisticated neurofunction. He said Jayden would have been unconscious within seconds or minutes of the injury. Dr. Johnson was asked whether—if Jayden had fallen and hit his head on a porcelain bathtub and experienced several other falls in that prior week—the cumulative effect of the falls was a concern. He said the cumulative effect would not lead to death. Dr. Johnson concluded that the history that was given to him did not explain the injuries, and he believed Jayden experienced a non-accidental head injury with primarily an acceleration-deceleration component—Shaken Baby Syndrome. Shaken Baby Syndrome (SBS) is a term coined to describe a condition first articulated in 1971. SBS is said to arise when an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a telltale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms supposedly indicates that the child has been violently shaken. According to proponents of the theory, no other injuries or pathologies could cause these three symptoms to occur at the same time. Moreover, it was thought that a victim of SBS became unresponsive immediately, and therefore the last person to have physical care of the baby must have caused the injuries. Jaydyn’s treating pediatric surgeon at Children’s Hospital, Dr. Jonathan Groner, testified that Jaydyn’s injuries to his brain as seen on his CT scan and injuries to his eyes were not consistent with a fall from standing height. He believed the boy’s injuries would have been immediately incapacitating. He also stated that several falls in the week before Jayden’s death would not have caused the optic nerve hemorrhages or the retinal hemorrhages. Dr. Karla Hauersperger, attending physician at Children’s Hospital, described Jayden’s condition upon arrival at the hospital and the procedures which were performed. She stated that the head CT scan showed that there was blood collection around the surface of the brain and into the different folds of the brain and diffused cerebral edema or swelling of the brain. Jayden also had retinal hemorrhages to both eyes. The paramedics’ report listed in the history that Jaydyn had slipped and fallen, but Dr. Hauersperger testified that the history and the degree of injury were incompatible. Her conclusion was that Jaydyn sustained a non-accidental head injury, most consistent with Shaken Baby Syndrome, and the injury would have been immediately incapacitating. Chief Forensic Pathologist and Franklin County Deputy Coroner Patrick M. Fardahl, a board certified forensic pathologist who conducted the autopsy on Jaydyn, testified that Jayden had some bruises, an ill-defined area of hemorrhage into soft tissues around his left ear, an area of hemorrhage that was ill-defined in the right occipital scalp in the back of his head, subdural hematoma or hemorrhage, cerebral edema, hemorrhage around the spinal cord which was probably due to being on his back at the hospital, hemorrhage in the sheath around both optic nerves, and hemorrhage into his retina in the left eye. Dr. Fardahl testified that it was highly unlikely that the injuries could have been caused by a fall because there was no point of impact where he hit his head, and, to cause such injuries by a fall, the fall had to have been from a height greater than five to 10 feet. Dr. Fardahl believed that Jaydyn’s injuries were caused by shaken baby or shaken impact syndrome, where the child hits something while being shaken. The information about prior falls by Jayden did not alter his opinion because there was no evidence of any significant head trauma from prior falls. Jaydyn’s mother, Beth Unger, testified that she had known Butts for more than two years. She said he had moved in with her and Jaydyn earlier in the year. Butts babysat while she worked. She said that Jaydyn had been sick for about a week prior to his death. She said he had been dizzy, not as talkative, not as active, falling more often, and just not acting like himself. She had been giving him cold medication. She said she and Butts had discussed taking Jaydyn to the doctor, but she had not taken him yet. She said that about a week to 10 days before he died, Jaydyn had slipped in the bathtub while taking a bath and struck his head. Unger said Butts acted in a very loving way towards Jaydyn and treated him as if he were his own son. She never saw Butts do anything abusive or inappropriate, and Jaydyn called him “Dad.” Butts testified that Jaydyn had fallen in the bathtub five to seven days prior to the incident and there followed a dramatic change in his behavior. He said Jaydyn did not eat or talk as much, and he wanted to be held more often. On February 13, he and Jaydyn took Unger to work, and, after they returned, Condron visited. After playing video games. Condron left. Not long after, Jaydyn fell over and was unresponsive. Butts testified that he loved Jaydyn, and he did not injure, shake, or strike him. Dr. John Plunkett, a laboratory and medical education director at Regina Hospital in Hastings, Minnesota, who was board certified in anatomic pathology, clinical pathology, and forensic pathology, testified for the defense. Dr. Plunkett reviewed copies of Jaydyn’s medical records from Children’s Hospital, the autopsy report, photographs, and slides. Dr. Plunkett testified that the concept of SBS was scientifically invalid because one could not cause the injuries usually associated with SBS by shaking a child. He believed that the theory of retinal bleeding being a sign of shaken baby syndrome was not a valid assessment. Dr. Plunkett testified that he reviewed the readings of the CT scans, but not the CT scans themselves, and testified there was a loss of gray/white matter distinction in the brain, something that occurs or is seen 12 to 24 or more hours after an injury or event. He said that the CT scan strongly suggested that the brain swelling started 12 to 24 hours or more prior to Jaydyn’s admission to the hospital. Dr. Plunkett testified that the boy’s cause of death was brain swelling probably due to impact injury and may have been complicated by pneumonia. He testified that Jaydyn’s behavior the week before, which included not eating, being fussy, and lack of coordination, were consistent with a pre-existing head injury possibly suffered from the fall in the bathtub. Dr. Plunkett testified that he did not think that Jayden died of SBS because Butts would have needed to generate 2,400 pounds of force to cause such injuries based on Jaydyn’s weight of 30 pounds. Dr. Plunkett said that the brain swelling was the result of oxygen deprivation, which he said was lengthy. During cross-examination, Dr. Plunkett admitted that his opinion was contrary to what had been taught in medical schools since 1972, was contrary to the views of the American Pediatric Academy, and that an overwhelming majority of pediatricians disagreed with his opinion. On March 11, 2003, the jury convicted Butts of first-degree murder, involuntary manslaughter, felonious assault, and endangering a child. He was sentenced to 15 years to life in prison. There followed years of legal battles to overturn the convictions. In March 2004, the Tenth Appellate District of the Ohio Court of Appeals affirmed the convictions. A federal petition for a writ of habeas corpus was filed and denied. In 2019, attorneys with the Center for Integrity in Forensic Sciences and the Ohio Innocence Project, as well as an attorney in private practice working pro bono, filed a petition to vacate Butts’ convictions. The petition cited expert testimony that the triad of symptoms were no longer considered to be exclusively caused by shaking a child. “The differential diagnosis for the triad of injuries has expanded,” the petition said. “It now includes a number of variables applicable to Jaydyn, including the effects of the short falls (such as Jaydyn’s hard fall in a porcelain tub in the days prior to his collapse) and of serious infection, such as pneumonia and sepsis, both of which Jaydyn suffered.” In May 2021, a six-day hearing was held during which defense experts testified, as did an expert for the prosecution. On November 10, 2022, Judge Jeffrey Brown vacated the convictions and ordered a new trial. Dr. Roland Auer noted for the defense, “Since Mr. Butts’ conviction, new evidence has emerged as a result of scientific publications that would cause a sea change in the trial dynamic if it were held today. This new type of evidence deals with an expanded differential diagnosis of the type of injuries discovered in Jaydyn at autopsy, the knowledge that short falls can and do cause death, the now known possibility of a lucid interval, and the effects of advanced resuscitation efforts. Although the scientific principles behind some of this evidence were in place at the time, the science was not part of the medicine at the time, and no differential diagnosis was in place for the medical community in 2003 at the time of Mr. Butts’ trial.” The prosecution’s witness at the hearing, Dr. Lori Frasier, acknowledged the state of the medical literature was significantly different in 2003 as compared to 2018, when a consensus statement on “Abusive Head Trauma” (AHT) was issued, supported by the American Academy of Pediatrics, as well as numerous physicians and experts. The paper retreated from the position that retinal hemorrhage could only be caused by shaking a baby and that abuse could be presumed from intracranial injury. Judge Brown ruled that “the medical community’s understanding of SBS/AHT has clearly changed since the time of [Butts’s] trial in 2003.” Judge Brown noted that at the time of Butts’s trial, retinal Hemorrhages were presented as the “smoking gun” of SBS. “The State now agrees, however, that such testimony was incorrect and can no longer be supported by science,” the judge ruled. “This shift in understanding by the medical community raises a strong probability of a different result on retrial.” The judge ruled that the defense “demonstrated that, if tried today, the expert testimony presented on both sides would differ in the following ways: (1) experts could not categorically exclude a short fall as a cause of death; (2) experts could not rule out the possibility of a lucid interval; (3) today, retinal optic nerve sheath hemorrhages could not be the basis of an SBS/AHT diagnosis; (4) today, doctors know that infection and pneumonia could have been contributing factors in Jaydyn's death; (5) today, the toxicity of over-the-counter cold medicines in pediatric patients is known and understood; and (6) biomechanical research conducted since the trial shows that shaking a child Jaydyn’s size hard enough to cause brain injury would have also caused neck injury, a symptom never noted by any physician at or prior to trial.” On December 8, 2022, Butts was released from prison on bond pending a retrial. On August 1, 2023, the Ohio Tenth District Court of Appeals denied a motion by prosecutors for permission to appeal Judge Brown’s decision. On February 12, 2024, the prosecution dismissed the case." The entire entry can be read at; 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.
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