CECILIA GARCIA CORTES CASE; BREAKING NEWS; CHARGES DROPPED; DEATH RULED ACCIDENTAL; INNOCENT MOTHER IS FREED FROM CUSTODY; VENTURA COUNTY STAR;

"(DEFENCE LAWYER) LEWIS CRITICIZED THE STATEMENT OF FACTS FILED BY DUNLEVY TO SUPPORT THE DISTRICT ATTORNEY’S MOTION TO DISMISS, CRITICIZING HOW POLICE INTERROGATED HER CLIENT FROM 7 P.M. TO 6 A.M., USING TREMENDOUS PRESSURE TO GET A CONFESSION."

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"THE TREATING PHYSICIAN AT CHILDRENS HOSPITAL IN LOS ANGELES CONCLUDED THE BABY HAD SUFFERED FROM SHAKEN BABY SYNDROME AND NOT “NON-ACCIDENTAL INJURIES,” DUNLEVY STATED IN HIS MOTION.

LEWIS ARGUED THAT A DOCTOR’S SUSPICION IS “FAR DIFFERENT THAN CONCLUSIVE EVIDENCE.”"

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REPORTER RAUL HERNANDEZ; THE VENTURA COUNTY STAR;

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Background: Cecilia Cortes was charged with assault on a child resulting in death on April 27, 2009; A police report provides the following details: INCIDENT: 273ab PC / Assault on a child resulting in death; DATE/TIME: 04/27/2009; LOCATION: 4800 Block Saviers Rd. Oxnard; VICTIM/S: 4 month old female child; SUSPECT/S: Cecilia Garcia Cortes, 23 years; PREPARED BY: Sergeant Jim Seitz, Homicide Supervisor; DETAILS: On 4-28-2009 a twenty three (23) year old mother of three was arrested for assaulting her 4 month old child who subsequently died as a result of her injuries.The mother identified as 23 year old Cecilia Garcia Cortes, who recently moved to Oxnard from Fillmore, was home with her three children ages 2 years, 1 year and 4 months on Monday when she apparently became upset due to the 4 month old crying continuously. It is believed that the mother began to violently shake the baby in an attempt to get the child to stop crying. Several hours later the child appeared to have stopped breathing. The child was taken to a local hospital and then airlifted to Children’s Hospital in Los Angeles. The child was on life support until she eventually died at 1:00 pm Thursday afternoon. The mother is in custody at the Ventura County Jail. Her bail is set at $500,000. If convicted of the crime she is facing a sentence of 25 years to life. The other two siblings are in custody of Child Protected Services." On July 30, 2009, a local paper reported that the medical examiner had ruled that the baby's death was accidental - yet Ms. Cortes remained in jail pending a further medical report to be obtained by prosecutors;

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Cecilia Garcia Cortes has finally been cleared in the tragic death of her 4-month-old daughter, the Ventura County Star reported earlier today;

"The Ventura County District Attorney’s Office dismissed felony charges today against a woman who was accused of assaulting her 4-month-old daughter who died earlier this year," the story. by reporter Raul Hernandez began, under the heading, DA dismisses charges against mother accused of killing infant.

"Deputy District Attorney Thomas Dunlevy declined to comment about the dismissal of the charges," the story continued;

"However, he stated in a motion to dismiss that the criminal charges were dropped on the grounds that the offense cannot be proven beyond a reasonable doubt based on conclusions contained in the autopsy report by the Ventura County Medical Examiner.

Chief Medical Examiner Ronald O’Halloran ruled last month that the April 30 death of Guadalupe Cardoza, from blunt-force trauma, was an accident. The death was attributed to an accidental fall.

The 23-year-old mother Cecilia Garcia Cortes of Oxnard has been in jail under a $500,000 bail since her arrest in May.

Ventura County Superior Court Edward Brodie granted the prosecution’s motion to dismiss the charges.

Cortes’ lawyer, Barbara Lewis who works for the Public Defender’s Office, said she was happy that the charges had been dismissed and pleased with the outcome.

“I am very pleased and relieved and I think they came to the right

decision,” Lewis said in an interview.

In the courtroom, relatives of Cortes said they were happy she was being freed.

“I am very happy. We thank God,” said Cortes’ sister, Marisela

Fernandez, adding that Cortes now has to get back her two other children from state child protective services.

Lewis criticized the statement of facts filed by Dunlevy to

support the district attorney’s motion to dismiss, criticizing how

police interrogated her client from 7 p.m. to 6 a.m., using tremendous pressure to get a confession.

“In the course of their investigation, they (Oxnard police officers)

interviewed the infant’s mother, Cecilia Cortes. In the course of the

interview, Cortes admitted that on April 27, 2009, she became

frustrated with her baby because she would not stop crying. Cortes

admitted that she raised the infant over her head and shook her

violently for approximately seven minutes. Cortes demonstrated to the detective the manner in which she shook the infant using a stuffed animal,” Dunlevy’s motion states.

Lewis said the entire interrogation is on videotape, and it

contradicts what detectives are saying.

“She never said she shook the baby violently. What they are taking is a statement that was made after hours of questioning,” Lewis said. “During that course of that questioning, they told her repeatedly that she had caused injury to the child and they basically convinced her that she had caused injury to the child. For hours, she insisted that she did not.”

Lewis said Cortes showed police how she held the baby over her head.

“She never described a violent shaking motion. What she described was a rocking back and forth motion that parents are familiar with in order to comfort the child. She cried and said, ‘I didn’t know that could hurt the baby.’”

Lewis said an officer who questioned Cortes said “there is no question that you did this. The question is whether you did this because you were frustrated or you are a monster.”

The medical examiner concluded that the defendant’s “shaking of the baby” was not the cause of death, according to Dunlevy’s motion.

Death was a result of an accidental fall onto the floor of a vehicle in which the baby landed on her head, the motion states.

Cortes’ boyfriend, Victor Hugo, said after the hearing that the baby

slid from his arms and fell inside the truck as he got her out of her

baby seat. He said he admitted to police that he dropped the child,

saying they interviewed him for more than three hours. He said he took a lie-detector test.

“I was telling the truth. I never asked for a lawyer,” Hugo said.


Lewis argued that a doctor’s suspicion is “far different than conclusive evidence.”"

The story can be found at:

http://www.venturacountystar.com/news/2009/aug/05/da-dismisses-charges-against-mother-accused-of/

Harold Levy...hlevy15@gmail.com;

THE FATIMA MIAH CASE: A MORE DETAILED ACCOUNT; 24 DASH.COM; SHE WAS ORIGINALLY CHARGED WITH MURDER FOLLOWING DEATH OF HER SON;

"ALL THE EXPERTS AGREED, OR WERE PREPARED TO CONCEDE, THAT THERE HAD BEEN CASES IN THE PAST IN WHICH THE "TRIAD" OF INJURIES HAD BEEN CAUSED BY ACCIDENTS.

THEY WERE ALSO UNABLE TO EXCLUDE THE MOTHER'S ACCOUNT THAT THE INJURIES WERE CAUSED BY A "SHORT FALL".

THE JUDGE SAID THAT, SINCE THERE WAS A "FUNDAMENTAL CONFLICT OF EXPERT OPINION" ON THE CAUSE OF DEATH AND NO "CLEAR EVIDENCE" TO BACK ONE SIDE OR THE OTHER, HE WOULD HAVE TO DIRECT THE JURY TO ENTER A NOT GUILTY VERDICT."

REPORTER HANNAH WOODERSON; 24DASH.COM;

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"A young mother accused of shaking her eight-month-old son to death walked free from court today after a judge threw out a manslaughter charge against her," reporter Hannah Wooderson's story began, under the heading, "Mother cleared of shaking baby to death."

"The case of Fatima Miah could have implications for similar prosecutions up and down the country, the Old Bailey heard," the story, published on Wednesday July 29, 2009, continued;

"Miah, 27, who has faced two trials over the allegation since her baby Anas died in May 2007, told police that he collapsed after falling off the sofa.

"She has been described in court as a "caring, dutiful wife and a loving mother".

Today Judge Timothy Pontius ordered jurors formally to clear her after he was asked to make a ruling on the conflicting evidence of medical experts about the cause of the child's death.

He said: "It is my firm view that - unusually - there is no evidence upon which this jury could find, to the extent they feel sure, that the expert opinion supporting the prosecution allegation of non-accidental death is to be preferred."

Edward Brown QC, prosecuting, said: "This case has been brought to the attention of the very highest level of the Crown Prosecution Service and we have to consider the nature of the ruling.

"We will have also to decide whether the ruling has any general application because there are cases up and down the country either pending or being heard or which have been heard."

Some lawyers believe the case may have implications for the whole basis upon which scientific evidence is used in "baby-shaking" cases.

Miah, who spent six weeks in custody after her initial arrest but has since been on bail, was hugged by her junior defence barrister, Nerida Harford-Bell, in the dock after the judge made the ruling.

The part-time dentist's receptionist, of White City, west London, was originally charged with murder after the death of her son.

The court heard that at the time her husband Mohammed, 32, was working long hours at KFC in Shepherd's Bush and was unable to help her much but in court she denied that she was under pressure.

On the day Anas died an ambulance was called to the flat and he was found on the floor, not breathing, and his heart stopped for 40 minutes.

Miah faced her first trial at the Old Bailey in November last year but the murder charge was thrown out by a judge and jurors were unable to agree their verdict on the charge of manslaughter.

She denied prosecution claims that she had shaken the boy in a fit of temper, leaving him with the brain injury from which he died.

The mother faced a second trial this year but after hearing both the prosecution and the defence case that the judge decided to throw it out.

At the heart of the case was the presence of a "triad" of three specific injuries: subdural haemorrhage (bleeding on the brain), retinal haemorrhage (bleeding in the eye), and encephalopathy (swelling of brain tissue).

This "triad" would normally be used to provide "a strong pointer towards a conclusion that those injuries were not accidentally caused".

The judge said that there was evidence that all three of these injuries had been brought on by "trauma of some kind" and the prosecution argued that having all three together proved "non-accidental death".

But defence experts said that the subdural haemorrhage was unlikely to have been caused by shaking and one said it may have been the result of a loss of oxygen caused by choking on vomit.

All the experts agreed, or were prepared to concede, that there had been cases in the past in which the "triad" of injuries had been caused by accidents.

They were also unable to exclude the mother's account that the injuries were caused by a "short fall".

The judge said that, since there was a "fundamental conflict of expert opinion" on the cause of death and no "clear evidence" to back one side or the other, he would have to direct the jury to enter a not guilty verdict.

There was no evidence of external injuries and the mother had no previous convictions or history of abuse.

"Indeed, the character evidence, from witnesses called both for the defence and prosecution, is positive, describing her as a caring, dutiful wife and a loving mother," said the judge.

He said it would be impossible to rely on "inconsistency" in her account of what happened as proof that she had tried to allay suspicion of what happened, given her "obvious and understandable distress at the time".

Some lawyers believe the judge's ruling called into question the reliance on the "triad" of injuries to prove baby-shaking cases.

A man on the jury nodded when the judge explained the reasons for his decision and said he hoped that they agreed, while two female jurors waved goodbye to Miah as they filed out of court.

The judge told them: "This case is one of particular difficulty, as such cases always are. We read about them.

"In recent years there have been cases of baby-shaking and infant deaths which have hit the headlines. They are never straightforward and they are never easy.

"There is no evidence which could prove the strength of support necessary to enable you to conclude so that you are sure of it that Anas's death was non-accidental and specifically that the defendant shook him."

He said that, while there was some evidence which may make them "suspicious", it could not be enough.

Miah declined to comment when asked for her reaction outside court."

The article can be found at:

http://24dash.com/news/Communities/2009-07-29-Mother-cleared-of-shaking-baby-to-death

Harold Levy...hlevy15@gmail.com;

THE FATIMAH MIAH CASE: BBC NEWS TELLS US THIS WAS HER SECOND TRIAL;

""IT IS MY FIRM VIEW THAT - UNUSUALLY - THERE IS NO EVIDENCE UPON WHICH THIS JURY COULD FIND, TO THE EXTENT THEY FEEL SURE, THAT THE EXPERT OPINION SUPPORTING THE PROSECUTION ALLEGATION OF NON-ACCIDENTAL DEATH IS TO BE PREFERRED," SAID JUDGE TIMOTHY PONTIUS."

BBC NEWS: 29 JULY, 2009;

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"A mother accused of shaking her eight-month-old baby son to death in west London has been cleared due to "conflicting medical evidence," the BBC News story began, under the heading, "Mother acquitted of killing baby."

"The 27-year-old, who was acquitted of manslaughter, denied she had shaken her son in fit of temper which left him with a brain injury in May 2007," the story continues;

"She was described as a "loving mother" at the Old Bailey.

The judge ordered jurors to clear her after he was asked to make a ruling on conflicting medical experts.

"It is my firm view that - unusually - there is no evidence upon which this jury could find, to the extent they feel sure, that the expert opinion supporting the prosecution allegation of non-accidental death is to be preferred," said Judge Timothy Pontius.

'Triad of injuries'

The woman, who has faced two trials over the allegation, told police that her son had collapsed after falling off the sofa.

At the heart of the case was the presence of a "triad" of three specific injuries: bleeding on the brain, bleeding in the eye and swelling of brain tissue.

This "triad" would normally be used to provide a strong indication that injuries inflicted were not caused accidentally.

The judge said there was evidence that all three of these injuries had been brought on by "trauma of some kind" and the prosecution argued that having all three together proved "non-accidental death".

But defence experts said that the bleeding of the brain was unlikely to have been caused by shaking and one said it may have been the result of a loss of oxygen caused by choking on vomit.

All the experts also agreed, or were prepared to concede, that there had been cases in the past in which the "triad" of injuries had been caused by accidents."

The story can be found at:

http://news.bbc.co.uk/2/hi/uk_news/england/london/8175279.stm

Harold Levy...hlevy15@gmail.com;

BAYNE'S CASE: OPPOSITION TO SEIZURE OF CHILDREN FOLLOWING ALLEGATIONS OF BABY SHAKING SYNDROME ALLEGATIONS MOUNTS IN BRITISH COLUMBIA;

"THE TWO BOYS, NOW AGED THREE AND FOUR, AND A 19-MONTH-OLD GIRL, WERE APPREHENDED BY THE MINISTRY IN SEPTEMBER, 2007 BECAUSE THE COUPLE WAS SUSPECTED OF SHAKING THE GIRL AND CAUSING A HEAD INJURY.

THE BAYNES BELIEVE THE INJURY WAS CAUSED WHEN THEIR YOUNGEST SON TRIPPED AND FELL ON THEIR DAUGHTER’S HEAD.

DR. PETER STEPHENS, ONE OF EIGHT DOCTORS PREPARED TO TESTIFY ON THE BAYNES’S BEHALF, SAID SHAKEN-BABY CASES ARE DRIVEN BY POLITICIANS WHO DON’T WANT TO APPEAR “SOFT” ON CRIME, AND BY SOCIAL WORKERS WHO RELY ON THE OPINION OF DOCTORS UNAWARE OF CHRONIC SUBDURAL HEMATOMA.

“PEOPLE LIKE THE BAYNES ARE COLLATERAL DAMAGE IN THE WAR ON CHILD ABUSE,” HE TOLD THE PROGRESS IN A TELEPHONE INTERVIEW FROM HIS NORTH CAROLINA HOME."

REPORTER ROBERT FREEMAN; THE CHILLIWACK PROGRESS;

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A Surrey B.C. counsellor has added his voice to that of critics - including numerous medical experts on shaken baby syndrome - who are calling for the return of his children, the Chilliwack Progress reports;

(In a letter to supporters, Paul and Zabeth Baynes say, "Baby Bayne was taken away from her mom and dad when she was only 6 weeks old only because she was born with a rare diseased, Glutaric Acidemia, but was misdiagnosed as "Shaken Baby Syndrome". Her two brothers were taken away right after the parents talked to Global TV.")

"Surrey councillor Marvin Hunt is personally stepping into the fight of a former Hope couple to regain custody of their children seized more than two years ago by the B.C. Children’s Ministry," the July 27 story by reporter Robert Freeman, begins;

"And Hunt is not alone among the doctors, social workers and others imploring the ministry to follow its own rules and return the three children," the story, which ran under the heading "Surrey councillor joins critics of child ministry," continues;
.
"Hunt said he will join a demonstration Thursday outside Premier Gordon Campbell’s office in support of Paul and Zabeth Baynes.

“I find it beyond belief that these kids are still within the care of the ministry,” Hunt told The Progress last Wednesday.

Hunt said as a politician he always looks for the missing pieces in government policies that create such problems, but in this case “all of the pieces of legislation are in place.”

“But what we have ... is an absolute abuse of the system here,” he said. “There is no point in time where the system has lawfully worked through the paper process on behalf of these people.”

Hunt said he does know the remedy, but questioned whether some in the ministry “should be in this type of work.”

He noted that at one point the children were returned to the care of the grandparents, but were re-apprehended by ministry staff, apparently miffed because the couple “broke trust” and went to the media with their story.

Retired social worker Ray Ferris said the ministry is “blatantly breaking” the province’s child welfare legislation, and showing “a complete lack of ethics” in its dealings with the Hope couple.

“They’ve gone so far, they’ll get egg on their face if they back-track now,” he said.

A review is supposed to occur when any child is held in care longer than 12 months, but Ferris said the Baynes’s were never asked to take part in a review, so only the ministry’s view was reported.

The two boys, now aged three and four, and a 19-month-old girl, were apprehended by the ministry in September, 2007 because the couple was suspected of shaking the girl and causing a head injury.

The Baynes believe the injury was caused when their youngest son tripped and fell on their daughter’s head.

Dr. Peter Stephens, one of eight doctors prepared to testify on the Baynes’s behalf, said shaken-baby cases are driven by politicians who don’t want to appear “soft” on crime, and by social workers who rely on the opinion of doctors unaware of chronic subdural hematoma.

“People like the Baynes are collateral damage in the war on child abuse,” he told The Progress in a telephone interview from his North Carolina home.

He said the baby girl’s head injuries were not caused by being shaken, but by the lack of oxygen to her brain caused by a chronic subdural hematoma.

Nobody knows for sure how these chronic conditions start, Stephens said, but they could begin as early as birth and a “minor bump in the bathtub” trigger a re-bleed.

Whoever is last seen with the child when the brain damage is finally discovered, is the one who is mistakenly blamed, he said.

Zabeth Baynes said the ministry’s allegation that she’d shaken her baby and caused the injuries “came as a complete shock” so the couple decided to look for experts in the field.

She said the doctors were not chosen because of their opposition to the “shaken-baby” syndrome, but for their research in the field.

“We did not shake our baby, we knew that,” Baynes said, and the doctors were sent the medical files for review.

The ministry is not commenting on the case because it is before the courts.

But Minister Mary Polak said in a statement last month that social workers “make judgment calls that most of us cannot imagine ... with the prime motivation to keep children safe.”

“There are going to be isolated cases in which questions will be raised about those decisions,” she said, but the ministry makes executive summaries of case reviews public “to ensure accountability and strengthen and enhance practice."

The story can be found at:

http://www.bclocalnews.com/fraser_valley/theprogress/news/Surrey_councillor_joins_critics_of_child_ministry.html

Harold levy...hlevy15@gmail.com;

THE FATIMA MIAH CASE; ANOTHER BRITISH WOMAN FREED AFTER "EXPERT" SHAKEN-BABY SYNDROME EVIDENCE TROUBLES COURT; CALLED "LANDMARK" CASE;

"EDWARD BROWN QC, PROSECUTING, SAID THE RULING WOULD HAVE IMPLICATIONS FOR MANY OTHER SIMILAR CASES, AND THE SCIENTIFIC EVIDENCE USED IN SHAKEN BABY PROSECUTIONS.

"THIS CASE HAS BEEN BROUGHT TO THE ATTENTION OF THE VERY HIGHEST LEVEL OF THE CROWN PROSECUTION SERVICE AND WE HAVE TO CONSIDER THE NATURE OF THE RULING. WE WILL HAVE ALSO TO DECIDE WHETHER THE RULING HAS ANY GENERAL APPLICATION BECAUSE THERE ARE CASES UP AND DOWN THE COUNTRY EITHER PENDING OR BEING HEARD OR WHICH HAVE BEEN HEARD," HE SAID."

REPORTER ROSEMARY BENNETT; THE TIMES ONLINE; JULY 29. 2009;

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The Times Online July 29 reported earlier today that Fatima Miah, a mother accused of shaking her baby son to death, had been freed after a judge ordered jurors not to convict her of manslaughter because the expert evidence was too divided.

"A young mother accused of shaking her baby son to death has walked free from court after a judge ordered jurors to clear her of manslaughter," the story by Social Affairs Correspondent Rosemary Bennett, begins.

"The judge said expert evidence was too divided for the jury to come to a conclusion as he threw out the charge," the story continues, under the heading, "Mother free in landmark baby shaking case."

"Legal experts said his decision would have serious implications for similar prosecutions up and down the country.

Although most medical experts still stand firmly behind Shaken Baby Syndrome, a minority of sceptical scientists fear that it is wrong, mistaking symptoms found in innocent accidents with deliberate killing.

Fatima Miah, 27, has faced two trials over the allegation that she shook her eight-month-old baby, Anas, to death in May 2007. She has always maintained he collapsed after falling off the sofa.

Judge Timothy Pontius said that, since there was a fundamental conflict of expert opinion on the cause of death, and no clear evidence to back one side or the other, he would have to direct the jury to enter a not guilty verdict.

"It is my firm view that - unusually - there is no evidence upon which this jury could find, to the extent they feel sure, that the expert opinion supporting the prosecution allegation of non-accidental death is to be preferred," he said.

Edward Brown QC, prosecuting, said the ruling would have implications for many other similar cases, and the scientific evidence used in shaken baby prosecutions.

"This case has been brought to the attention of the very highest level of the Crown Prosecution Service and we have to consider the nature of the ruling. We will have also to decide whether the ruling has any general application because there are cases up and down the country either pending or being heard or which have been heard," he said.

Ms Miah spent six weeks in custody after her initial arrest but has since been on bail. She had been described in court as a caring, dutiful wife and a loving mother.

The part-time dentist's receptionist from west London denied prosecution claims that she had shaken the boy in a fit of temper, leaving him with the brain injury from which he died.

Shaken Baby Syndrome came to prominence over a decade ago during the trial of Louise Woodward, the au pair who was found guilty of shaking baby Matthew Eappen to death. A series of reports said it was being under-diagnosed with up to 100 babies a year affected.

Most recently a child minder Keran Henderson, was jailed for the manslaughter of Maeve Sheppard, a baby in her care who a jury concluded had been shaken to death. Earlier this year, she left prison and is on probation having served half her sentence. She has always maintained her innocence.

(THE CHARLES SMITH BLOG PUBLISHER'S NOTE: THIS STORY DOES NOT MENTION THAT KERAN HENDERSON WAS RECENTLY FREED - HAVING SERVED HALF OF HER SENTENCE - PENDING AN APPEAL TO BE HEARD LATER THIS YEARS;THIS FALL. AFTER HER CONVICTION THE JURY FOREMAN AND ONE OTHER JURY TOOK THE EXTRAORDINARY STEP OF PUBLICLY QUESTIONING THE VERDICT - AND THE "EXPERT" EVIDENCE CALLED BY THE PROSECUTION; HAROLD LEVY;)

At the heart of the case was the presence of three specific injuries. They were subdural haemorrhage, or bleeding on the brain, retinal haemorrhage or bleeding in the eye, and encephalopathy or swelling of brain tissue.

This triad of injuries would normally be used to provide a strong pointer that those injuries were not accidentally.

But defence experts said that the subdural haemorrhage was unlikely to have been caused by shaking and one said it may have been the result of a loss of oxygen caused by choking on vomit.

All the experts agreed, or were prepared to concede, that there had been cases in the past in which the triad of injuries had been caused by accidents. They were also unable to exclude the mothers account that the injuries were caused by a short fall.

New research due to be peer-reviewed this summer from biomechanics in the US will suggest bangs on the head from a fall are far more dangerous to infants than shaking. Researchers at the Wayne State University in Detroit used crash-test dummies and real corpses - including dead infants - to help them reach their conclusions.

Ms Miah left the court without making any comment. Two female jurers waved her goodbye after the decision and she was hugged by her junior defence barrister.


The story can be found at:

http://news.bbc.co.uk/2/hi/uk_news/england/london/8175279.stm

Harold Levy...hlevy15@gmail.com;

RECENT EDITORIAL COMMENT ON "SHAKEN BABY SYNDROME" IN AFTERMATH OF AUDREY MEADOW'S ORDEAL; THE INNOCENCE PROJECT OF FLORIDA;

"AS SCIENCE CHANGES, THE CRIMINAL JUSTICE SYSTEM OFTEN STRUGGLES TO KEEP UP. SBS IS ONE SUCH EXAMPLE, AND BECAUSE OF THE “SHIFT IN MAINSTREAM MEDICAL OPINION,” THESE CASES OUGHT TO COME UNDER HEIGHTENED SCRUTINY AND INTENSE REVIEW."

FROM PLAIN ERROR; OFFICIAL BLOG OF THE INNOCENCE PROJECT OF FLORIDA;

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"Pullitzer Price-winner Maurice Possley has a lengthy article on Shaken Baby Syndrome today on TheCrimeReport.org.," a commentary published on June 23, 2009, in the Innocence Project of Florida Bulletin under the heading "Shaken baby convictions come under scrutiny," begins;

"At the time the case was unremarkable—one of thousands of successful prosecutions during the past 30 years of parents and other care-givers who have been found guilty of charges ranging from manslaughter to murder, based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system where the diagnosis is the basis for prosecution," the commentary continues.

"That last sentence is the most remarkable: the diagnosis itself is the basis for prosecution. It is remarkable because, as we know, scientists are fundamentally like any other human being: they are fallible. Oftentimes, like in fingerprint cases, or serology cases, a scientist will provide testimony that is corroborated by other circumstantial or physical factors, and the holism of the evidence against a defendant will lead to a conviction. Oftentimes the scientist’s evidence is, as it were, the last straw, but the prosecution would maintain a fairly strong case without their testimony.

On the other hand, these SBS cases are remarkable because it seems like a scientist’s testimony was enough by itself to prosecute, and even win a conviction.

The article opens by telling the story of Audrey Edmunds, a Wisconsin woman who had her SBS conviction overturned last year.

Edmunds was granted a new trial by a judge who ruled that the testimony “shows that there has been a shift in mainstream medical opinion.” In effect, the scientific foundation of the syndrome had been undermined to the extent that a new jury would probably have a reasonable doubt about Edmunds’ guilt…

A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.

As science changes, the criminal justice system often struggles to keep up. SBS is one such example, and because of the “shift in mainstream medical opinion,” these cases ought to come under heightened scrutiny and intense review.

This commentary can be found at:

http://floridainnocence.org/content/?p=930

Publisher's note: About 200 shaken baby syndrome cases are currently being reviewed in Ontario, Canada, as a result of evidence of demonstrably flawed "expert" opinions and dramatically shifting medical views on the so-called syndrome called at the Goudge Inquiry.

Harold Levy...hlevy15@gmail.com;

OUTSTANDING ARTICLE ON AUDREY EDMUNDS AND ROLE PLAYED BY WISCONSIN INNOCENCE PROJECT IN SECURING HER EXONERATION; MADISON MAGAZINE;

""WHEN I TOOK ON THE CASE, I COULDN'T FIND ANY EXPERTS WHO THOUGHT [NATALIE] WASN'T SHAKEN," HURLEY SAYS. FURTHER COMPLICATING MATTERS, THE DEATH OF A YOUNG CHILD CAUSES INTENSE EMOTIONS. PROSECUTORS FEEL DRIVEN TO GIVE VOICE TO THE INNOCENT LAMB, WHILE THE PUBLIC IS HELL-BENT ON FINDING WHO'S TO BLAME."

MELANIE RADZICKI MCMANUS; MADISON MAGAZINE;

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Madison Magazine has published an excellent article on heart-rending story of Audrey Edmunds and the role played by the Wisconsin Innocence project in securing her exoneration under the caption: "Oh, Baby: Audrey Edmunds is rebuilding her life after her murder conviction was overturned."

"It was the fall of 1995, and Edmunds had the world at her feet," the article, by Melanie Radzicki McManus, a contributing writer to Madison Magazine, begins.

"The striking blonde and her husband, Dave, were the proud parents of two little girls, Carrie and Allison, and were thrilled to be expecting their third in February," the article continues.

"Edmunds felt fortunate she could stay home and care for her children in the family's new ranch home in Waunakee. During the week, the three went to the library for story hour, played in the park or frequented Waunakee's newest attraction, a McDonald's PlayPlace. Weekends often meant cookouts with the neighbors; Sunday mornings were reserved for services at Crossroads United Methodist Church.

Because she loved kids and wanted to help other neighborhood families, Edmunds started watching a few tots during the week. One of her new charges was six-month-old Natalie Beard, daughter of Waunakee residents Tom and Cindy Beard. From the start, Natalie was a difficult baby. "She fussed or cried all the time," recalls Edmunds' neighbor and friend, Patti Larson, who also babysat. "We'd go for walks together, and any time the stroller went over a sidewalk bump Natalie would cry. If there were any kind of noise, she'd startle. Audrey was constantly holding her and trying to soothe her and make her happy. But she never got frustrated with Natalie. In fact, it was the opposite. She'd say, 'Oh, this poor baby. I feel so bad for her.'"

Early in the morning of October 16, Edmunds and her girls got up and ate breakfast; they'd soon be walking Carrie to preschool with some of the neighbors. At 7:35 Cindy Beard dropped off Natalie, telling Edmunds the baby was irritable, that she'd been up twice the night before and had taken less than half her morning bottle. Natalie continued to fuss after Beard left, so Edmunds placed the baby in the master bedroom and propped the bottle of formula in her mouth, hoping the quiet room and bottle would calm her while she got the other kids ready.

During the next half hour Edmunds checked on Natalie once, and all was fine. But when she went to dress Natalie for the walk to preschool at 8:35, she quickly realized something was amiss. Natalie made some funny noises, says Edmunds, and was limp when she picked her up. Formula dribbled out of her nose and mouth, and then she became unresponsive. Fearing Natalie was choking, Edmunds sped out of the house and called to her neighbor for help. And that's when the nightmare began.


* * *


Coined in 1972, the term "Whiplash Shaken-Baby Syndrome" described children, typically under three years of age, who were violently shaken but often showed no visible signs of harm. Because their brains and neck muscles weren't fully developed, their internal injuries were severe--the typical "triad" included brain swelling and brain and retinal hemorrhaging, much like being in a serious car accident or falling several stories. The one positive, the theory went, was that a victim immediately becomes unresponsive, making it a snap to figure out who's guilty: the last person with the child. This was still the view held by most medical experts in October 1995, when Audrey Edmunds ran outside her house screaming, clutching an unresponsive infant.


* * *


After the ambulance and police arrived, Med Flight whisked away Natalie. Dave Edmunds, who had just arrived at his new job in the Twin Cities, turned around and drove back home. That afternoon the couple raced to UW Hospital to see how Natalie was doing. "I was so distraught, thinking about what had happened," recalls Edmunds, still assuming Natalie was a choking victim. "I kept thinking, 'Why did I leave her with a bottle?'" She had no idea of the storm clouds quietly gathering around her.

The physicians examining Natalie found a severe presentation of the classic Shaken Baby Syndrome symptoms. So when Natalie died that evening, Edmunds was immediately presumed guilty. The fact that Edmunds hadn't watched Natalie for the past four days and Natalie had only been in her care a mere hour before her tiny body shut down was irrelevant. Nor did it matter that Natalie had no outward signs of abuse, such as the rib fractures or bruised arms sometimes found on SBS victims. Or that much older hemorrhages were found inside her brain. Or that everyone who knew Edmunds loved her. Or that no one ever saw her abuse a child. All that mattered was Natalie had the classic SBS symptoms, and when she became unresponsive, Edmunds had her.

"There was no critical thinking about things that might have gone differently," says Stephen Hurley, her defense attorney and one of the most successful trial lawyers in Dane County. "It was complete tunnel vision."

During the investigation that followed, prosecutors would wave off information about Natalie's father, Tom, indicating he was a nervous dad who suffered from migraines and was often irritated by her incessant crying. Also dismissed was Natalie's health history, which included numerous ear infections--she was being treated for one the day she died--and dozens of calls and trips to the doctor. They even ignored the fact that Natalie's parents had taken her into the doctor for lethargy, irritability and vomiting, symptoms that can indicate brain injury, several days before her death.

Shelly Rusch, Dane County assistant district attorney, says there was no reason to consider any of those factors because the case was one of simple timing. (Rusch was not involved with the case in 1995, but worked on it recently.) "We prosecutors were lucky," she says. "Natalie's injuries were so serious, any person suffering from them would have been immediately symptomatic. It is what it is."


* * *


John Plunkett is a Minnesota pathologist who has questioned SBS for years. Initially, he was considered part of the lunatic fringe; now he's treated with growing deference. Plunkett first became interested in the subject around 1985, when a defense attorney asked him to look into the death of an eighteen-month-old girl. The girl's mom said she'd been standing on the arm of a sofa and fell, hitting her head on the floor. She was brought to the hospital with retinal hemorrhages, brain swelling and subdural hemorrhages. The State alleged the mother shook her. "I said, 'Well, couldn't this fall have caused the death?'" says Plunkett. "They said, 'We never see it, so short-distance falls don't cause serious injuries in kids.' I said, 'But how do we know that?' And they said, 'Because we never see it.' That's just a circular argument, so I started looking at Shaken Baby Syndrome and realized something was very wrong."

But back then, few people agreed. Although Plunkett and other interested experts began studying everything from shaking's biomechanical effects on an infant's head and neck to whether a baby could have a lucid interval between the time shaking occurred and the baby became unresponsive, the medical and scientific communities were still largely united ten years later, when Natalie died. So rather than prosecutors having the burden of proving Edmunds' guilt, in reality Edmunds' defense team had to prove her innocence. In 1995, that was nearly impossible.

"When I took on the case, I couldn't find any experts who thought [Natalie] wasn't shaken," Hurley says. Further complicating matters, the death of a young child causes intense emotions. Prosecutors feel driven to give voice to the innocent lamb, while the public is hell-bent on finding who's to blame.

Hurley found just one medical expert who could help. Like the prosecution's experts, Mary Dominski, a pediatric neurologist with Dean Health System, believed Natalie had been shaken. But Dominski was the only physician to consider relevant her medical history and extreme fussiness the previous day, leading her to conclude Natalie was moderately shaken before she arrived at the Edmunds home. Then, Dominski theorized, Natalie suffered a major seizure at daycare from the prior shaking, culminating in her death.

Lacking additional experts, numerous friends testified to Edmunds' stellar character: She had boatloads of patience. She loved kids. They never heard her utter an angry word. They dropped in unannounced all the time and never saw anything amiss. "Audrey has that personality people automatically gravitate toward," says good friend and former neighbor Shelley Murphy. "She'd do anything for anyone." Might Edmunds have been overwrought and momentarily lost it, shaking the ever-fussy Natalie? "I never, ever even considered she might have done it," says Murphy. "I understand she was the last person with the child, but anyone who knew her knew there was just no way."

Unfortunately for Edmunds, nearly everyone judging her had never met her.


* * *


The prosecution easily amassed eight medical experts. And while they weren't in total agreement regarding Natalie's injuries and how they combined to cause her death, all believed she was an SBS victim and Edmunds was the one who killed her.

Lead prosecutor Gretchen Hayward, now retired, pulled out all the stops during Edmunds' trial, painting her as an outwardly nice person with a violent, hidden side. "Gretchen said very dramatic things, like I slammed Natalie's head into a blunt object," recalls Edmunds, interviewed recently near her home in Minnesota. "But Natalie had no head trauma, no skull fracture. I simply found a choking baby! They also tried to implicate me by saying everyone has a dark side, that my friends didn't know the real me, that I was stressed out because I was pregnant and moving, even though I was happy about both events. They tried to create a scenario that just didn't exist."

Despite the overwhelming opinions against her, Edmunds appeared headed for acquittal, Hurley says. And then she took the stand.

"She looked like the proverbial doe caught in the headlights on cross-examination," Hurley remembers. "She kept looking at me when the jury asked a question, like I was coaching her. She fell apart."

But what average American on trial for murder wouldn't be more than a little rattled when grilled by a seasoned prosecutor, questions Dean Strang, who later served as Edmunds' appellate lawyer. Nevertheless, Edmunds' fate was sealed. On November 26, 1996, she was pronounced guilty of first-degree reckless homicide. Her children were just five, two and nine months.

"I wanted to burst into tears and scream," says Edmunds. "I couldn't imagine being put into prison. I'm still shocked about it." When Edmunds arrived home that night, her conviction was already being blared across the ten o'clock news. She curled up beside her sleeping five-year-old, Carrie, and began to sob.


* * *


In the mid to late nineties, most people prosecuted for SBS were charged with second-degree reckless homicide, says Strang. If they professed innocence and were convicted, it typically meant seven or eight years behind bars. But Edmunds' conviction meant the jury felt she treated Natalie with "utter disregard for human life." Dane County Circuit Judge Daniel Moeser handed down a shocking eighteen-year sentence, barring Edmunds from raising her own girls.

"The prosecution really pushed the edges here," says Strang.

It was Dane County's most notable SBS case to date, and Judge Moeser apparently wanted to make a statement.

And so it was that in February 1997, sixteen months after the nightmare began, Edmunds found herself climbing into a van full of female convicts on its way to Taycheedah Correctional Institution, a maximum-security prison in Fond du Lac, seventy miles northeast of Madison. Sitting among seasoned criminals, dressed alike in their drab green prison garb and clanking metal shackles, Edmunds was still numb. Yet she was confident her attorneys would secure her release post haste because, well, she was innocent.

"I never dreamed I'd be in prison eleven years," she says. "I never even thought I'd be in prison one year."


* * *


Hurley turned the case over to Strang to start the appeals process, and Edmunds began her new life as a prisoner: Sleeping on an uncomfortable iron bed in a tiny cell. Urinating out in the open in a tin toilet. Signing up to use the shower or phone but not always given permission. Lacking freedom to do the tiniest things, like turn on a light or grab a snack from the fridge. Doesn't sound bad at all if you've committed a heinous crime, but if you're wrongly convicted, it suddenly appears downright inhumane.


* * *


It was right around this time the Louise Woodward case hit the news. Woodward was a nineteen-year-old British nanny working for a Massachusetts couple with two boys. After one of their sons was taken to the hospital with skull and brain injuries from which he later died, Woodward was charged with shaking him to death. Although she pled not guilty, she was convicted. The highly publicized trial caused America's medical and forensic experts to start taking a hard look at the science behind SBS.

They examined whether retinal hemorrhages can be caused by something other than shaking. They studied whether a child with SBS-type injuries can experience an extended "lucid interval," or a period of hours or days after injury where the child appears normal before becoming noticeably impaired or unconscious. They began to wonder if it was possible to violently shake a baby and cause SBS's famed triad of injuries without leaving some kind of visible neck injury. They explored similar brain injuries and death caused by lesser forces than vigorous shaking, such as short, accidental falls, or even conditions like vitamin deficiencies or immunizations. Little by little, compelling research began emerging that babies with brain swelling, retinal hemorrhages and brain hemorrhages aren't slam-dunk cases of SBS. And one by one, experts began changing their minds.

Patrick Barnes was one. A well-respected pediatric neuroradiologist at Stanford University, Barnes was the prosecution's star medical witness in the Woodward case. Today, he regrets that testimony, noting something as mundane as an ear infection can spread to the brain with dire consequences. Unless there's evidence of an impact on a baby such as a fractured skull, Barnes says SBS is more myth than science.

Minnesota's Plunkett, who has extensively studied the biomechanics of shaking, says SBS is a myth, plain and simple.

"There isn't any Shaken Baby Syndrome," he argues. "To cause subdural and retinal hemorrhages by shaking, you'd have to shake a baby twenty to twenty-five times per second to achieve the required force, or load. The most that's humanely achievable in a ten-pound model is three to four cycles per second. It's a simple mathematical equation."

Case closed.

Except it's not that simple. It never is.


* * *


At some point, Edmunds realized she was in trouble. Perhaps it was after her first appeal by Strang failed in 1999. Or when the next two petitions for her release were denied. Maybe it was after her first mandatory parole hearing in 2001. Despite being a model prisoner with no behavioral problems, plus immense community support, her parole request was summarily dismissed because she was deemed unrepentant. And in denial.

"Audrey Edmunds loved children. I believe that," says assistant D.A. Rusch. "I believe she properly cared for almost every child she took care of. But sometimes when people do something horrible, they don't want to believe they did it. And after a period of time, they convince themselves they didn't."

Meanwhile, the years ticked by. And neither side found peace. The Beards, who didn't want to comment for this story, divorced. So did Dave and Audrey. For nearly five years, Dave Edmunds fought to keep his family together, raising their daughters with help from Edmunds' parents and faithfully making the grueling five-hour drive from the Twin Cities to Taycheedah every other weekend so everyone could be together. But when Edmunds was denied parole in 2001, Dave apparently couldn't take the strain anymore, Edmunds says, and threw in the towel. Edmunds' friends and relatives began bringing the girls to visit, but now only monthly.

"There were years of tears during the girls' visits," Edmunds says. "It never, ever got easier, and I never got used to it. But hope became my religion. Without hope, you're crushed."

Then, in 2003, Edmunds finally got a break.


* * *




The University of Wisconsin Law School's Wisconsin Innocence Project was founded in 1998 to aid prisoners with plausible claims of innocence. Part of the Innocence Network, an umbrella organization of several dozen Innocence Projects worldwide, Wisconsin's has helped secure the release of twelve people. Of the five hundred requests for assistance that pour in annually from across the nation, says co-director and clinical law professor Keith Findley, the group investigates thirty to forty. Priority goes to the strongest Wisconsin-based pleas.

Although the Innocence Project hadn't handled an SBS case before, Findley was interested in Edmunds' almost immediately.

"Her trial and appellate lawyers were convinced of her innocence," he says. "But even more significantly, there was new research which had led one of the State's witnesses against Audrey at the trial to conclude his testimony was in error. Once I heard that, I knew this was something we had to look at."

That witness was Robert Huntington III, the pathologist who performed Natalie's autopsy. Finding the classic SBS triad of injuries, he had testified it was "highly probable" Natalie was injured shortly before she became comatose at Edmunds' home. But Huntington's conviction began to fade just three years later, after he performed an autopsy on another infant with injuries similar to Natalie's. When she was brought to UW Hospital, this girl was described as fussy and clingy, but interactive and responsive, much as Natalie had been in the week before her death. Yet it took trained hospital personnel more than fifteen hours to detect signs of brain injury. To Huntington, the elapsed timeframe between the girl's initial symptoms and eventual collapse now meant it was certainly possible Natalie was injured well before she reached Edmunds' home.

The Innocence Project prepared a motion for a new trial, based on new medical evidence and the current turmoil about SBS among experts. (Physicians generally favor the old science, while forensic pathologists typically side with the new.) But after an evidentiary hearing in 2007, including testimony on Edmunds' behalf by Huntington (as well as five other doctors), Judge Moeser denied the motion. The Innocence Project appealed the decision, and in January 2008 the District 4 Court of Appeals overturned her 1996 jury conviction, ruling Edmunds was eligible for a new trial. In the meantime, she was free.

Ten years and 352 days after Edmunds was led from the City-County Building in shackles (not that she was counting), she was released into the blustery grip of an early February snowstorm and her girlfriends' embrace. The State eventually declined to retry Edmunds and, at last, it was over.


* * *


At the time of her release, Edmunds' daughters were sixteen, thirteen and eleven. Natalie would have been twelve. The Beards had both remarried, but neither had other children. Edmunds moved to Minnesota to be near her children, taking a job at a Kwik-Trip and moving in with a friend.

She longs for a place of her own to share with her daughters. But that will have to wait until her finances improve. Although the State dismissed all charges against Edmunds, she isn't eligible for any compensation for wrongful imprisonment.

"I see the struggles she's having and it just upsets me so much," says Edmunds' friend Larson. "Things are certainly better than a year or two ago--she's out of prison. But I'm frustrated she still has all these other things to deal with."

Edmunds is determined not to be bitter. She knows there's no way to reclaim her girls' childhoods, so she's focusing on the present and the future. But she hopes her case draws attention to the new SBS medical findings and helps others in her predicament.

"This was never about me," she says. "There's some bigger purpose to all of this. I just hope it hasn't scarred my girls' lives."

Defense attorney Hurley isn't quite as forgiving. For starters, he's angry with physicians. "This case is all about the arrogance of doctors," he says. "Physicians are asked their opinion, and rather than surveying the data and saying there's uncertain science, they divide into camps that say these symptoms mean X or these symptoms mean Y. They think they're correct and there's no way they can be wrong."

Hurley's also frustrated with the prosecution's blind faith in the legal process. "Half of the medical profession doesn't believe what was said in court ten years ago, yet … the prosecution is unwilling to admit a person spent eleven years behind bars because they were wrong."

Rusch isn't the happiest camper, either. Still convinced Edmunds shook Natalie to death, she says the new science merely confirms the prosecution's initial theory. "Babies just don't die and have all of this bleeding in their head," she says, noting that while the new research now shows retinal hemorrhages, brain swelling and brain hemorrhages can each occur for reasons other than shaking, there have been no documented cases of the triad occurring together unless a baby was shaken.

Wrong, says Findley. "There are indeed numerous documented cases of retinal hemorrhages, brain swelling and subdural hematomas coinciding in cases where there was no shaking. In fact, there are no adequately documented cases in which shaking alone caused that triad of signs; it is only a theory, unproven. Unfortunately, this is another one of those cases in which prosecutors cling to discredited theories of guilt, despite the new evidence."

Tit, tat.


* * *


Despite Edmunds' release, the prosecution is satisfied she served most of her term (her mandatory release was just one year away). Still, Rusch says, "All the parents wanted was for Audrey to say she was sorry."

And all Team Edmunds wants is for the prosecution to apologize. "They just did not want to admit they were wrong, especially Judge Moeser," says Larson. "There's more information now, so just admit it. But there was no apology, no nothing. It's so frustrating. And it makes me wonder how many people are in prison who shouldn't be."

Which is precisely where the focus is shifting. Courts in the United Kingdom, Australia and Canada are re-opening old SBS cases; numerous have been reversed. While U.S. courts aren't at that point yet, Findley says American juries are starting to refuse to convict SBS defendants in light of the new medical research. Even more striking, the Kentucky Supreme Court is currently reviewing whether to conduct a discretionary hearing on an SBS case where a lower court judge granted a defense motion to prevent prosecutors from informing the jury the deceased infant had bleeding on the brain and retinal hemorrhaging because there were no outer signs of abuse. As of press time, the court had not ruled.

"Things are happening slowly, but I think this new understanding will filter into the U.S., and Audrey's case was one step in that direction," says Findley, who was inundated with requests for SBS assistance following Edmunds' release.


* * *


No matter what side of the issue experts are on, all agree on one thing: The term "Shaken Baby Syndrome" should no longer be used. Inflicted Traumatic Brain Injury or Abusive Head Trauma are now favored, says Rusch, because the term SBS suggests a manner of death. "But no two babies are killed the exact same way," she says. "ITBI or AHT move away from saying you know exactly what happened, because you don't unless you witnessed it."

Exactly Audrey Edmunds' point;"

The article is located at:

http://www.madisonmagazine.com/article.php?section_id=918&xstate=view_story&story_id=236322

Harold Levy...hlevy15@gmail.com;

BROKEN SILENCE; A MOVING SONG BY MARIA SHEPHERD - ONE OF ALL TOO MANY INNOCENTS PUT THROUGH HELL AFTER DR. CHARLES SMITH CAME INTO THEIR LIVES;

"CLOSE YOUR EYES, JUST TO IMAGINE
THE FEAR THAT WE FACED EACH DAY.
KNOWING ALL ALONG WE WERE NOT GUILTY, BUT NOT KNOWING
IF WE WOULD LIVE TO SEE ANOTHER DAY."

FROM BROKEN SILENCE: BY MARIA SHEPHERD;

-------------------------------------------------------------------------------

The list of songs written in the aftermath of the Charles Smith travesty has grown longer with the addition of "Broken Silence" by Maria Shepherd.

The Ontario Court of Appeal recently took the extraordinary step of granting her leave to appeal almost twenty years after she had pleaded guilty to manslaughter in order to avoid lengthy imprisonment and loss of her family on the testimony of the (then) revered Dr. Charles Randal Smith;

In an affidavit filed at the Court of Appeal, she wrote:

"I STILL DO NOT KNOW WHAT CAUSED KASANDRA’S DEATH. I KNOW THAT HER DEATH MAY HAVE RESULTED FROM EVENTS BEFORE APRIL 9, 1991, INCLUDING THE POSSIBILITY OF EPILEPTIC SEIZURES, OR AN EARLIER INJURY TO HER BRAIN THAT NO ONE KNEW ABOUT. NEITHER OF THESE POSSIBILITIES HAD BEEN RAISED WITH ME BY MR. WILEY, OR ANYONE ELSE, AS FEASIBLE BEFORE I PLED GUILTY. I NOW KNOW THAT THERE IS NO SCIENTIFIC EVIDENCE THAT I INJURED KASANDRA WHEN I PUSHED HER OR THAT MY WRISTWATCH LEFT A BRUISE ON THE UNDERSIDE OF HER SCALP. DR. SMITH’S TESTIMONY IN THESE REGARDS HAD A HUGE EFFECT ON THE LAWYERS REPRESENTING ME AND WAS A CRITICAL FACTOR IN MY DECISION TO PLEAD GUILTY TO MANSLAUGHTER. I HOPE THAT I CAN NOW PROVE THAT I DID NOT ASSAULT OR ABUSE KASANDRA AND DID NOT CAUSE HER DEATH. I WOULD NEVER HAVE PLED GUILTY IF I KNEW THEN WHAT I KNOW NOW ABOUT DR. SMITH AND KASANDRA’S DEATH."

The moving lyrics reflect the two year less a day prison term she had to serve following her guilty plea manslaughter in connection with Kasandra's death;

As Legal Affairs reporter Tracy Tyler wrote in the Toronto Star on May 11, 2009:

"With a powerful pathologist set to deliver testimony that would link her to her stepdaughter's death, Maria Shepherd faced a stark choice: Plead guilty or risk losing her other children permanently.

"Pregnant with her fourth child, Shepherd settled on the option that promised a shorter sentence, early parole and the prospect of quickly reuniting with her family."

Here are the lyrics of "Broken Silence." (The acronym AIDWYC refers to the Association in Defence of the Wrongfully Convicted which has done a magnificent job of representing parents and caregivers wrongfully convicted as a result of the flawed opinions of Dr. Charles Randal Smith);

"In our quietest hours, our silence
In our heads, we still hear them say
You are a danger to society, you are guilty
For this crime, you must be locked away.

(chorus)
We remember the hopelessness we felt,
Wanting so desperately to break free
From the injustice, the persecutors and liars
We had nowhere to run, but little miracles came,
then angels at AIDWYC set us free.

Close your eyes, just to imagine
The fear that we faced each day.
Knowing all along we were not guilty, but not knowing
If we would live to see another day.


Our lives were destroyed, taken from us
Without reason or just cause.
Our spirits temporarily broken
Due to systemic flaws.

(chorus)
We remember the hopelessness we felt,
Wanting so desperately to break free
From the injustice, the persecutors and liars
We had nowhere to run, but little miracles came,
then angels at AIDWYC set us free.


We paid for crimes we did not commit
Due to carelessness and lack of oversight
We want accountability from all the players
Who knew all long they weren’t right,


We rise and unite together now, stronger each day than ever before,
The silence has been broken, wrongful convictions can be no more.
We vow to fight against injustice, one day at a time
We are the crusaders and survivors, we rise and now WE shine

(chorus)
We remember the hopelessness we felt,
Wanting so desperately to break free
From the injustice, the persecutors and liars
We had nowhere to run, but little miracles came,
then angels at AIDWYC set us free.

Our readers are directed to two other powerful songs which were composed in the aftermath of the Charles Smith travesty: Tammy: The Wheels of Justice, by Howard Gladstone and Trusted Voice by Psycho Key;

They can be accessed at: http://smithforensic.blogspot.com/2009/06/dr-charles-smith-hits-musical-charts_16.html


Harold Levy...hlevy15@gmail.com;

THE JOHN O'TOOLE CASE: PART ONE; ANOTHER BRITISH "SHAKEN BABY SYNDROME" TRAVESTY; MANSLAUGHTER CHARGE DROPPED AFTER THREE YEARS;

"SHE (PROSECUTOR YVONNE COEN) SAID IT WAS INITIALLY THOUGHT THE LITTLE BOY MAY HAVE BEEN SHAKEN, BUT MR O'TOOLE SAID HE HAD FALLEN FROM A SOFA ONTO A CARPET.

AN EMINENT US EXPERT IN BIOMECHANICS HAS RECREATED VARIOUS SCENARIOS AND CONCLUDED BLOOD VESSELS COULD HAVE BEEN RUPTURED IN A "SHORT DISTANCE FALL".

MISS COEN SAID: "THE CROWN ARE SATISFIED THAT NOW THERE IS NO LONGER A REALISTIC PROSPECT OF A CONVICTION AND CANNOT EXCLUDE THE POSSIBILITY THAT THIS WAS AN ACCIDENT."

THE BBC NEWS;
-------------------------------------------------------------------------------

It's a list that no one would ever want to be on;

Innocent, loving parents and caregivers charged with taking a child's life - arrested, seized by the State from their families, arrested, jailed, and stigmatized - on the basis of ignorant police, prosecutors, and judges who suspend their normal skepticism to buy into unproven science and and the opinions delivered by supposedly infallible experts replete with their impressive C'V's.

Suzanne Holdsworth, Keran Henderson, Anne-Marie Rooney and now John O'Toole;

The latest chapter in the O'toole story was told by BBC News on June 9 in an article which appeared under the heading "Man cleared of killing young son."

"A father who was charged with the manslaughter of his 11-month-old son who died three years ago has been told the prosecution has been dropped," the article begins;

"John O'Toole, 29, of Milton Keynes, had been charged over the death of Cameron O'Toole in January 2006," the article continues.

"He had been due to stand trial at Luton Crown Court last October, but the case was postponed for more expert evidence.

Prosecutor Yvonne Coen QC told the court: "It has been decided not to proceed with this prosecution."

'Short distance fall'

She said it was initially thought the little boy may have been shaken, but Mr O'Toole said he had fallen from a sofa onto a carpet.

An eminent US expert in biomechanics has recreated various scenarios and concluded blood vessels could have been ruptured in a "short distance fall".

Miss Coen said: "The Crown are satisfied that now there is no longer a realistic prospect of a conviction and cannot exclude the possibility that this was an accident."

Judge John Bevan QC said: "These cases are notoriously difficult. The prosecution cannot safely prove guilt."

He ordered a not guilty verdict to be recorded.

Mr O'Toole, who was not present in court, had been informed earlier about the decision."

Harold Levy...hlevy15@gmail.com;

KERAN HENDERSON CASE: PART 21; BRITISH LAWYER WANTS THE JUROR'S VOICE TO BE HEARD; MARK STEPHENS; THE TIMES ONLINE;

"JURORS HAVE EXPOSED YET ANOTHER FLAW IN THE SYSTEM RECENTLY, EXPRESSING CONCERN ABOUT THE SAFETY OF CRIMINAL CONVICTIONS IN A SHAKEN-BABY SYNDROME CASE. SOME DOCTORS HOLD THE BELIEF THAT IF THREE INDICIA TOWARDS THE SYNDROME EXIST WHEN A CHILD PRESENTS, THEN A “DEDUCTIVE DIAGNOSIS” MAY BE MADE SAFELY. MEDICAL OPINION IS DIVIDED STRONGLY. TWO JURORS CONCERNED ABOUT THIS CONFLICT AND CONSEQUENT RELIABILITY OF A CRIMINAL CONVICTION SPOKE OUT AFTER KERAN HENDERSON, A CHILDMINDER, WAS FOUND GUILTY BY 10-2 OF A CHILD IN HER CARE.

THERE IS NO OFFICIALLY PUBLICISED METHOD OF BRINGING INJUSTICE TO LIGHT. SO WHAT IS THE RESPONSIBLE JUROR, PRICKED BY CONSCIENCE, TO DO? IN THE CASES ABOVE, JURORS SOUGHT OUT RESPONSIBLE MEDIA AND GAVE INTERVIEWS AIRING THEIR CONCERNS IN VERY MEASURED TONES. NOT SUFFICIENTLY MEASURED FOR THE ATTORNEY-GENERAL, IT TRANSPIRED, WHO INSTITUTED CRIMINAL PROCEEDINGS FOR CONTEMPT."

LAWYER MARK STEPHENS; THE TIMES ONLINE;

-------------------------------------------------------------------------------

"Lawyer Mark Stephen's perspective on the punishments for contempt of court imposed on The Times and the jury foreman of the Keran Henderson trial was published earlier today in the Times Online;

Stephen's column appeared under the brilliant heading: "Would you want to know if a Ouija board decided your case?"

"It seems trite law that the secrets of the jury room, however compelling, must never be revealed, the column began;

"The British have a penchant for locking away in the closet distasteful truths about much loved institutions — whether jury deliberations or Liberal politicians," it continued;

"After the acquittal of Jeremy Thorpe, the former leader of the Liberal Party, on a charge of conspiracy to murder in the Old Bailey in 1979, Parliament reacted swiftly to protect its own, passing the modern strict liability offence as an absolute bar against revelation of almost anything from inside the jury room.

Unsurprisingly, this step backwards into secrecy caused disquiet. With others, Lord Steyn, the law lord, was demonstrably concerned (in a case before the law lords in 2004) that evidence that could reveal a lack of impartiality in a jury’s deliberations would no longer become public. This meant that the law had no jurisdiction to examine possible miscarriages of justice emanating from the jury room.

He cited two examples. A juror reveals that during deliberations some of the jury who were affiliated with a neo-Nazi group had urged the conviction of the accused, a black immigrant. In the second example, a juror reveals that a majority of the jury refused to deliberate and that the guilty verdict was decided by spinning a coin. “Neither example is either fanciful or extreme: both were suggested to me by decided cases,” he said.

No one would seriously contest that such verdicts would be unsafe and procedurally perverse.

Many will also remember the notorious 1994 case when Stephen Young, an insurance broker, was convicted of murdering Harry and Nicola Fuller. It transpired that the jury at Hove Crown Court had used a Ouija board in deliberations.

Jurors have exposed yet another flaw in the system recently, expressing concern about the safety of criminal convictions in a shaken-baby syndrome case. Some doctors hold the belief that if three indicia towards the syndrome exist when a child presents, then a “deductive diagnosis” may be made safely. Medical opinion is divided strongly. Two jurors concerned about this conflict and consequent reliability of a criminal conviction spoke out after Keran Henderson, a childminder, was found guilty by 10-2 of a child in her care.

There is no officially publicised method of bringing injustice to light. So what is the responsible juror, pricked by conscience, to do? In the cases above, jurors sought out responsible media and gave interviews airing their concerns in very measured tones. Not sufficiently measured for the Attorney-General, it transpired, who instituted criminal proceedings for contempt.

To date, jurors have been interviewed in a number of cases, including that of Barry George, the alleged killer of Jill Dando. These interviews occurred because, until recently, it was believed that the legal matrix had been relaxed so as to permit general disquiet to be expressed by a responsible juror, who would nonetheless be under a continuing obligation to keep the detail of deliberations secret to ensure the proper and effective functioning of a jury. This loosened position was set out in guidance issued in 1982 by Sir Michael Havers, QC, when his was Attorney-General, and reinforced with the adoption into UK law of the European Convention on Human Rights.

A stake was driven through the heart of that guidance in the recent prosecution by the present Attorney-General. In a twist of irony, she instructed Sir Michael’s son, the eminent QC Philip Havers, to prosecute. It was with a certain lightness of touch that Mr Havers said of his father’s guidance: “However eminent the Attorney-General may have been, he may also have been incorrect.”

The decision to prosecute in a genuine case of conscience is surely a retrograde step and the conviction by the Divisional Court is more disquieting, if only for its failure to address the balance necessary between Article 10 (the jurors right to speak) and Article 6 (the right to a fair trial).

One hopes that the House of Lords will accept the petition in this case and give clear guidance as to how a juror may properly express concern at unsafe verdicts and practices, while safeguarding the real noesis: the necessary secrets of the jury room."

Mark Stephens is head of media law at Finers Stephens Innocent LLP;

Harold Levy...hlevy15@gmail.com;

UP-DATE; KERAN HENDERSON CASE: (20); TIMES TO APPEAL CONTEMPT VERDICT, GUARDIAN REPORTS; JURY FOREMAN APOLOGIZES TO COURT; RESERVES RIGHT TO APPEAL;

"AFTER THE HIGH COURT RULING, THE NEWS INTERNATIONAL TITLE SAID: "THE TIMES BELIEVES THAT THIS JUDGMENT IS A SERIOUS INFRINGEMENT OF ITS ARTICLE 10 RIGHT TO FREE SPEECH AND ITS DUTY TO ACT AS WATCHDOG IN A DEMOCRATIC SOCIETY, PARTICULARLY IN COMPLEX CASES WHERE THERE COULD BE A SERIOUS INJUSTICE." IF THE HIGH COURT'S JUDGMENT WERE NOT REVERSED BY THE LAW LORDS, IT WOULD HAVE "A VERY SERIOUS CHILLING EFFECT ON JURORS AND NEWSPAPERS TRYING TO BRING TO THE ATTENTION OF THE PUBLIC AREAS OF VERY CONSIDERABLE PUBLIC CONCERN, PARTICULARLY IN MANSLAUGHTER CASES INVOLVING THE DEATHS OF BABIES AND THE USE OF EXPERT WITNESSES"."

THE GUARDIAN:

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The Guardian story ran yesterday under the heading "The Times promises to appeal after £15,000 contempt of court fine" and a sub-heading, "The Times fined £15,000 and jury foreman £500 over article that discussed jury dissent in child manslaughter case."

"The Times has said that it will appeal after it was today fined £15,000 in the high court for contempt of court over two articles published last December about jury dissent in a child manslaughter case," the story begins;

"Michael Seckerson – who was the jury foreman and one of two dissenting jurors in the trial of Keran Henderson last autumn and provided the information to the Times – was fined £500 and also intends to appeal to the House of Lords," the story continues;

"The high court last week found the newspaper and Seckerson guilty of disclosing the "secrets of the jury room" in a contempt-of-court case brought by the attorney general, Baroness Scotland.

Section 8 of the Contempt of Court Act bans disclosure of "votes cast, statements made, opinions expressed or arguments advanced" by members of a jury in their deliberations.

The attorney general was awarded £27,426 costs, which will be picked up by the Times because Seckerson's defence was paid for by legal aid and the judges ruled that costs should not be enforced against him without the leave of the court.

Lawyers for the Times said the newspaper respected the court's judgment on the contempt issue, but an apology would ring "hollow" because it did not agree with the court and would attempt to appeal to the law lords.

They pointed out there had been no damage to the administration of justice, no individual juror was identified and no individual's opinions were disclosed. They said the articles were written in good faith, after taking legal advice, on a matter of public importance – the heavy reliance placed on expert medical evidence in "shaken baby" cases.

The defendants argued unsuccessfully that contempt proceedings could not be justified in this case in the light of article 10 of the European Convention on Human Rights, which guarantees everyone the right to freedom of expression, subject to exceptions such as the need to maintain the authority and impartiality of the judiciary.

Lord Justice Pill, who heard the case alongside Mr Justice Sweeney, said the court acknowledged those mitigating factors, but had to impose penalties "sufficient to mark the seriousness of breaches of section 8 and to deter others from following the example of this juror and this newspaper".

After the high court ruling, the News International title said: "The Times believes that this judgment is a serious infringement of its article 10 right to free speech and its duty to act as watchdog in a democratic society, particularly in complex cases where there could be a serious injustice."

If the high court's judgment were not reversed by the law lords, it would have "a very serious chilling effect on jurors and newspapers trying to bring to the attention of the public areas of very considerable public concern, particularly in manslaughter cases involving the deaths of babies and the use of expert witnesses".

The Times ran two articles on 19 December 2007 by the newspaper's legal editor, Frances Gibb, about the trial of Henderson, who was convicted of manslaughter of a child in her care, 11-month-old Maeve Sheppard. Henderson was jailed for three years but is to appeal against her conviction.

The articles, which ran five weeks after Henderson's trial in Reading crown court, reported that two jurors questioned the verdict and the role that complicated evidence from expert medical witnesses played in the trial.

Seckerson, 66, a retired lecturer at East Berkshire College, apologised to the court today but reserved the right to seek leave to appeal."

Harold Levy...hlevy15@gmail.com;

BREAKING NEWS: KERAN HENDERSON CASE; (18); SHE HAS BEEN FREED FROM PRISON PENDING HER APPEAL: SLOUGH AND LANGLEY OBSERVER REPORTS;

The Slough and Langley Observer reported earlier today that Keran Henderson has been released from custody pending her up-coming appeal;

"KERAN Henderson, the childminder who was convicted of manslaughter has been released from prison and is now back with her family in Iver Heath," the story begins.

"Mrs Henderson was jailed for three years in November 2007 after being convicted of the manslaughter of 11-month old Slough child Maeve Sheppard," the story continues.

"She was released on Wednesday last week after serving half her sentence.

An appeal on her case is due to be heard in December and until then she is unable to speak publicly about her imprisonment.

Her husband Iain Henderson said: “I would just like to say on behalf of Keran’s friends and family we are pleased to finally have her back at home with her sons. It is sad that we could not get her name cleared before now but we will wait until December for the next stage of the appeal and will work towards clearing her name.

“We will never forget that through our ordeal that we are not alone in suffering because of course all this started with the tragic loss of little Maeve, a tragedy that eclipses a wrongful conviction.”"

Harold Levy...hlevy15@gmail.com;

WHO WILL APOLOGIZE TO ANNE-MARIE ROONEY? WHEN WILL THIS "SHAKEN-BABY SYNDROME" MADNESS BE STOPPED? LET SANITY PREVAIL;

"I AM UTTERLY HORRIFIED BY THE ORDEAL ANNE-MARIE ROONEY WAS PUT THROUGH BY THE BRITISH CRIMINAL JUSTICE SYSTEM AND ITS OFFICIALS - AS HAVE BEEN SO MANY OTHER MOTHERS AND CARE-GIVERS IN ENGLAND;"

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

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The signs were all there;

A loving mother grieving the loss of her child turning into an alleged killer by the state and its officials which should have been comforting her;

Slavish devotion to an unscientific dogma - so-called baby-shaking syndrome - which has long been repudiated;

The jury's rejection of medical specialists called by the state to spout this dogma in favour of the testimony of the mother who has been put through hell by the process;

The media's elevation of these specialists by terms such as "leading" and "renowned" which suggest to the public that they are infallible;

I am utterly horrified by the ordeal Anne-Marie Rooney was put through by the British criminal justice system and its officials - as have been so many other mothers and care-givers in England;

I am utterly horrified by the ordeal Suzanne Holdsworth was put forward by the British government and its officials - before her ultimate exoneration;

I am utterly horrified that Keran Henderson, also the subject of numerous posts on this Blog, is still undergoing the horror of prosecution in these circumstances;

I am utterly horrified that Anne-Marie Rooney's recent acquittal, following that of Suzanne Holdsworth, has not led to public furor, leading articles in the newspapers, debate in Parliament, calls for reviews of shaking-baby syndrome cases, reviews of prosecution policies, a public demand for compensation for the victims of this misguided "science" and their families, and a deep, public self-examination by the medical profession in Great Britain;

Let sanity - and a sense of justice and humanity - prevail;

Harold Levy; hlevy15@gmail.com;

POWERFUL ARTICLE; PART FIVE; SHAKEN BABY SYNDROME; THE NEXT INNOCENCE PROJECT; CONCLUSION;

"SBS is a case study in the intersection of science and law, and the distorting influence that each may have on the other.

The construction and persistence of SBS raises the distinct possibility that our adversarial system of criminal justice may be corrupting science.

It may do so by placing pressure on scientists to articulate opinions more extreme – and certainly with more confidence – than those they actually hold."

PROF. DEBORAH TUERKHEIMER;

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Professor Deborah Tuerkheimer,of the University of Maine School of Law, has written a definitive article on Shaken Baby Syndrome for the Washington University Law Review; (March 6, 2009: Vol. 87, 2009;)

The article is aptly titled: "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts."

An abstract of the article reads:

Every year in this country, (The U.S.A) hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant's death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course. This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry - for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world - should assist in the task of righting past wrongs and averting further injustice.;

This article is so refreshing, insightful and compelling that I have chosen to run it in its entirety in seven installments - beginning today with Part One: The introduction. (I have chosen to run the article without the incredibly useful footnotes. Readers who wish to consult them will find the entire article on line with footnotes at: http://ssrn.com/abstract=135465;

V. CONCLUSION:

SBS is a case study in the intersection of science and law, and the distorting influence that each may have on the other.

The construction and persistence of SBS raises the distinct possibility that our adversarial system of criminal justice may be corrupting science.

It may do so by placing essure on scientists to articulate opinions more extreme – and certainly with more confidence – than those they actually hold.346

And it may do so by raising the stakes for those who have testified in court, under ath, to their version of scientific reality.

The natural course of scientific evolution has resolved many past medical conflicts.

In the case of SBS, as well, ongoing research could ultimately answer the open questions.347

New technological developments would facilitate this process.

But SBS. from inception to current iteration, is fully embedded in the domain of law.

This reality creates a special kind of urgency: around the country, murder convictions are resulting weekly from evidence that is a source of significant scientific controversy.

Even if it were possible for research to progress on this front “naturally” – a dubious proposition given what has come before348 – organic processes take time, hich, here, is of the essence.

Even more untenable is the suggestion that this scientific dispute be decided in the courts.

As the cautionary tale of SBS demonstrates, our adversarial, atomized system of justice, with its need for finality, is a poor forum for this debate.

The institutional norms of science and law often collide; in this case, with tragic results.

Without proper differentiation of their respective functions, both scientific certainty and individualized justice suffer.

To the greatest extent possible, then, a comprehensive inquiry must take place apart from the fray.349

Perhaps only the National Academy of Sciences (NAS)350 – or, even more fittingly, a similar undertaking by a newly created National Institute of Forensic Sciences351 - can provide this space.

In the meantime, until scientific consensus has been achieved, the criminal justice system must find its own solutions to the problem of a diagnosis already morphed and still in transition.

To date, our system has failed. In place of adaptation, we have seen massive institutional inertia.

Once the SBS prosecution paradigm became entrenched, the crime became reified. Deferential review standards and a quest for finality perpetuated the system’s course.

How expeditiously, and how deliberately, this course is righted will inform the meaning of justice.352

Complicating the endeavor, SBS prosecutions raise discomfiting possibilities that diverge from those presented by the innocence archetype.

Here, no other perpetrator can be held accountable; indeed, no crime at all may have occurred.

The problem is not individual, but systemic, and its source is error, not corruption.

Responsibility is diffuse: prosecutors and scientists may each legitimately point fingers.

Most fundamentally, scientific developments have cast new doubt without yet creating certainty in its place.

The story of SBS thus challenges current notions of wrongful convictions. Underlying conceptual frameworks must evolve accordingly.

For now, we find ourselves situated in an extraordinary moment; one which tests our ommitment to innocence that is not proven, but presumed.

352 I pursue the question of reform in a future Article.

Harold Levy...hlevy15@gmail.com;

PART 4E: POWERFUL ARTICLE; SHAKING BABY SYNDROME; THE NEXT INNOCENCE PROJECT; POST CONVICTION PROCEEDINGS;

"ENORMOUS PROCEDURAL AND SUBSTANTIVE HURDLES CONFRONT DEFENDANTS AT THE POSTCONVICTION STAGE."

PROF. DEBORAH TUERKHEIMER;

-------------------------------------------------------------------------------

Professor Deborah Tuerkheimer,of the University of Maine School of Law, has written a definitive article on Shaken Baby Syndrome for the Washington University Law Review; (March 6, 2009: Vol. 87, 2009;)

The article is aptly titled: "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts."

An abstract of the article reads:

Every year in this country, (The U.S.A) hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant's death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course. This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry - for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world - should assist in the task of righting past wrongs and averting further injustice.;

This article is so refreshing, insightful and compelling that I have chosen to run it in its entirety in seven installments - beginning today with Part One: The introduction. (I have chosen to run the article without the incredibly useful footnotes. Readers who wish to consult them will find the entire article on line with footnotes at: http://ssrn.com/abstract=135465;

E. Post-Conviction Proceedings:

1. Edmunds:

In early 2007, the judge who presided over Audrey Edmunds’s trial over a decade earlier conducted a five day evidentiary hearing in support of her motion for a new trial based on newly discovered evidence.

The defense experts287 testified that, since the mid-1990s, “significant research has undermined the scientific foundations for SBS, creating substantial challenges to matters that were nearly universally accepted in the medical community at the time of Edmunds’s trial.”288

According to the defense experts,a still-emerging body of literature had cast new doubt on previously accepted medical dogma.289

Now in dispute: whether shaking alone can cause the constellation of injuries associated with SBS;290 whether a specific mechanism for the injuries (i.e., Shaking) can be accurately identified;291 whether considerable force, as opposed to a minor impact, is necessary to cause the injuries associated with the syndrome;292 whether previously unrecognized mimics of child abuse can cause the triad of symptoms said to be pathognomonic of abusive head trauma;293 and whether the occurrence of the type of head trauma leading to serious brain damage inevitably causes immediate unconsciousness.294

The defense experts testified that “in 1996 they themselves would have testified
as the State’s experts had at Edmunds’s trial,”295 but the evolving science had changed their opinions as to the likely cause of death.296

In short, the scientific foundation for concluding beyond a reasonable doubt that Edmunds had shaken Natalie Beard to death was no longer intact.297

The near unanimity that once characterized the medical establishment’s understanding of SBS had been shattered.298

Yet no new medical accord had been reconstituted in its place.299

Against this disquieting backdrop, Audrey Edmunds’s new trial motion was decided.

While expressly acknowledging that “[s]tanding along and unchallenged, the defense witnesses provide[d] a sufficient evidentiary basis to order a new trial based upon newly discovered medical evidence,”300 the trial judge denied the motion.

But an appellate court reversed this decision and concluded that there was a reasonable likelihood that a different result would be reached at a new trial.301

In a remarkable opinion without judicial precedent, the court noted the “shift in mainstream medical opinion since the time of Edmunds’s trial.”302

While there were “now competing medical opinions as to how Natalie's injuries arose and [ ] the new evidence does not completely dispel the old evidence,”303 the court was persuaded that “the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence.”304

According to the appeals court,[at trial] the State was able to easily overcome Edmunds’s argument that she did not cause Natalie's injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds’s guilt.

Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds’s guilt.

Thus, we conclude that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds’s guilt.305

Audrey Edmunds was granted a new trial.306 Months later, all charges against her were dismissed.307

2. Beyond Edmunds:

Enormous procedural and substantive hurdles confront defendants at the postconviction
stage.308

Although the law differs depending on jurisdiction, a number of generalizations can be made about the SBS defendant’s burden of proof.

Put simply, there are tensions between the governing framework for collateral relief and the issues presented by SBS cases.309 These strains were nicely illustrated by the state’s arguments against post-conviction relief in Edmunds.

First, the evidence presented at the post-conviction stage must be deemed new, or
“discovered” after the trial.310

One problem for the defense is that the proffered evidence is less definitive than past “scientific improvements”311 – DNA typing, primarily.312

In Edmunds, the prosecutor underscored this point: the defense could offer no “bone test … [that] would tell us whether that infant was … the subject of [shaking-inflicted] brain injury.”313

Instead, the evidence was described as “an academic debate among medical experts,”314 and one the prosecution characterized as ongoing at the time of the trial in
order to negate a showing of “newness.”

For instance, the article widely recognized as the “classic that really set this all in motion about doubting shaking,”315 was published in 1987,316 and a small number of scientists were already questioning the basis for SBS in the early 1990s.317

The state thus argued that “[t]he debate … was fully engaged” at the time of trial.

Although the court rejected this characterization,318 future defendants collaterally attacking their convictions may have greater difficulty satisfying the “newly discovered” requirement if the evidence offered as “new” at the post-conviction stage was more fully developed when the trial occurred.319

Second, the evidence must be material to the case and not merely cumulative.320

The prosecution in Edmunds asserted that the “academic debate” about SBS was “beside
the point:”321 theoretical disagreements about whether shaking alone could cause death and whether the triad alone was pathognomonic of abuse were irrelevant to Edmunds’s conviction, given the severity of the infant’s injuries.322

The court could dispense with this argument in short order,323 given that the prosecution fell squarely within the SBS paradigm – the cause of death was said to be forceful shaking, the diagnosis was made on the basis of the basis of the classic triad,324 and the perpetrator was identified based on the impossibility of a lucid interval.325

But given the current state of scientific research, which (unlike DNA326) cannot conclusively establish a defendant’s innocence, deviations from this prototypical fact pattern will tend to undermine the defendant’s materiality claim.

Finally, the evidence must “probably” have resulted in a different verdict at trial.

This is the most difficult burden for the defense,328 and was predictably the greatest area of contention in the Edmunds post-conviction relief proceedings.329

The defense argued to the court that, at trial, the jury never had any reason to doubt that diagnosis of shaking, with or without impact, and nearly immediate collapse was unassailable as medical evidence.

This is simply no longer true…. [T]his new evidence of evolving science that
rigorously challenges and refutes long-presumed hypotheses [ ] very well could
change the outcome.330

In refuting this notion, the prosecutor explicitly juxtaposed the scientific attacks
on SBS with the certainty of DNA exonerations.

Unlike the new debate offered by the defense, DNA was “real science” that established innocence “to an astronomical degree of science (sic) or statistical probability.”331

DNA did not “dispute a theory or demonstrate a rift or a contention in the Scientific community.

It didn’t provide for alternative hypotheses.”332

In contrast to defense evidence substantiating the existence of lucid intervals, DNA samples “exclude[d] the defendant from the world of possible perpetrators.”333

And unlike testimony regarding possible alternative causes of death in Edmunds, DNA provided definitive answers.334

As the Edmunds arguments show, DNA has implicitly been positioned as the paradigm of newly discovered evidence. Although the appeals court ultimately rejected the prosecutor’s arguments, DNA’s reign as the “poster child of newly discovered evidence” motions335 must be reckoned with.

The level of certitude DNA provides has become a de facto “benchmark,”336 and the actual innocence it establishes is a touchstone for post-conviction relief.337

As a consequence, legal standards may be formulated and applied in ways that tend to disadvantage other types of proof.

As a matter of law, DNA is not the benchmark338 and actual innocence is not the sine qua non of a new trial.

But the subjectivity inherent in predicting the effect of new evidence on a jury’s
deliberations339 means that the litigation of post-conviction relief motions will continue to take place in the shadow of DNA.

Given these formidable obstacles, the trial court’s denial of Edmunds’s motion
was perhaps to be expected.340

In the decision, we may rightly discern that similarly situated defendants will have difficulty prevailing in the future.341

Perhaps more surprising is that the trial court’s decision was overturned on appeal

This development portends hope for those seeking new trials in SBS cases.

Even so, the promise of Edmunds is closely circumscribed by its limited precedential effect.343

Beyond onerous post-conviction relief standards,344 defendants seeking collateral relief in SBS cases confront the likelihood that, in coming years, the current scientific controversy will be suspended in a kind of equilibrium.

At some point, unless a revolutionary breakthrough fatally undermines SBS, defendants convicted in this era of uncertainty will be hard-pressed to claim that evidence of the diagnosis’s invalidity is new.

Newly discovered evidence motions will be effectively foreclosed without ever having become truly viable.345

This prospect would be somewhat less problematic if, throughout the criminal process, a systemic assimilation of the evolved science was underway.

As we have seen, however, it is not.

Part Five: Conclusion:

Harold Levy...hlevy15@gmail.com