PART 4B: POWERFUL ARTICLE: SHAKEN BABY SYNDROME; THE NEW INNOCENCE PROJECT; SBS AND THE LAW; EVIDENTIARY CHALLENGES;

"GIVEN THE IMPORTANCE PLACED ON THE CRITERION OF GENERALLY ACCEPTANCE WITHIN THE “RELEVANT” SCIENTIFIC COMMUNITY – EVEN IN DAUBERT JURISDICTIONS, WHERE IT IS NOT DISPOSITIVE – THE CONSENSUS AMONG PEDIATRICIANS HAS BEEN GIVEN PARTICULAR EMPHASIS BY ADMITTING TRIAL JUDGES.189 IN THE ABSENCE OF LEGALLY BINDING PRECEDENT, JUDGES ARE WELL AWARE THAT “FOR SOME TIME, COURTS IN OTHER STATES HAVE FOUND SHAKEN BABY SYNDROME TO BE A GENERALLY ACCEPTED DIAGNOSIS IN THE MEDICAL COMMUNITY.”190 JUDGES HAVE ALSO NOTED THAT RESEARCH INTO SBS HAS BEEN PEER REVIEWED, AND THAT THERE HAS BEEN "CONSIDERABLE LITERATURE PUT OUT BY PROFESSIONAL SCIENTIFIC ORGANIZATIONS THAT SUBSTANTIATE THE FINDINGS."191

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;

PART ONE: INTRODUCTION:

IV. SBS AND THE LAW:

B. Evidentiary Challenges:

Defense motions to exclude expert testimony regarding SBS have, almost without exception, proven unsuccessful.

Despite new challenges to the scientific underpinnings of the diagnosis, the admission of SBS testimony is facilitated by its once-uncontroversial nature.

Even recently, and in cases involving triad symptoms alone, courts in both Daubert and Frye jurisdictions186 have rejected arguments that SBS is not generally accepted in the medical community187 and that it is not based on reliable scientific methods.1

Given the importance placed on the criterion of generally acceptance within the “relevant” scientific community – even in Daubert jurisdictions, where it is not
dispositive – the consensus among pediatricians has been given particular emphasis by
admitting trial judges.189

In the absence of legally binding precedent, judges are well aware that “for some time, courts in other states have found shaken baby syndrome to be a generally accepted diagnosis in the medical community.”

Judges have also noted that research into SBS has been peer reviewed, and that there has been "considerable literature put out by professional scientific organizations that substantiate the findings."191

While at least one court has explicitly recognized “the absence of a known rate of error,” this void was dismissed as merely “reflect[ing] the limitations of the subject matter.”192

The standards for determining the admissibility of scientific evidence in effect
privilege the institutionalized theoretical framework – even despite serious doubts about the validity of underlying methodologies.

Perhaps judicial reluctance to keep evidence of SBS from the jury derives from faulty evaluations of the science, or from an overly deferential respect for the establishment that recommends it.

But it is also quite likely that judges are allowing testimony regarding SBS because our justice system is structured in a way that makes its admission the default.

“[T]he standard of admissibility is relevance and reliability, not certainty,” as courts often remark when allowing SBS testimony.193

As is widely recognized, the law of evidence is fundamentally premised on the
functioning of our adversary system.

As the United States Supreme Court emphasized in Daubert v. Merrill Dow Pharmaceuticals, Inc., “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”194

Courts often justify the admission of SBS testimony by reference to this foundational principle.

For instance: “[t]he ‘gatekeeping function of the court was never meant to supplant the adversarial trial process.

The fact that experts disagree as to methodologies and conclusions is not grounds for excluding relevant testimony;”195 “[a] party confronted with an adverse expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weaknesses through effective cross-examination.’”196

Admissibility determinations are also grounded in the proper allocation of decision-making authority between judge and juror.

In a recent reversal on interlocutory appeal of a trial judge’s order excluding the prosecution’s SBS testimony, this consideration was explicitly invoked:197 “[t]he gatekeeping function of the trial court is restricted to keeping out unreliable expert testimony, not to assessing the weight of the testimony.

This latter role is assigned to the jury.”198

Even more emphatically, “[t]he court is only a gatekeeper, and a gatekeeper alone does not protect the castle.”199

Systemic factors construct a presumption of admissibility: if the evidence is not
“pseudoscientific” or “junk science,”200 it comes in.

This presumption is overcome only rarely by still-evolving research.201

In recent years, testimony regarding SBS has been excluded only twice.202

In Kentucky, after hearing from experts on both sides, a trial court concluded that the diagnosis “presupposes the cause.”203

The court’s order continued: “[t]o allow a physician to diagnose SBS with only the two classical markers, and no other evidence of manifest injuries, is to allow a physician to diagnose a legal conclusion.”204

Accordingly, the judge precluded the state from presenting expert testimony regarding SBS based exclusively on subdural hematoma and retinal hemorrhage and in the absence of “any other indicia of abuse.”205

As noted, this order 195was subsequently reversed.206

The defendant has appealed the decision to the state Supreme Court.207

The other court to exclude SBS evidence did so in a case also involving a diagnosis based on retinal hemorrhage and subdural hematoma.208

After hearing testimony from experts on both sides, the Missouri trial judge determined that the SBS diagnosis “appears to have gained considerable acceptance… among pediatricians.

However, there is substantial, persistent and continuing criticism of this diagnosis among many in the medical and scientific research communities.”209

In its unpublished order, the court concluded that the state had failed to meet its burden of establishing that SBS is generally accepted in the scientific and medical communities.210

The state was thus precluded from offering testimony that the infant was a victim of violent shaking based on the diagnostic triad alone.211 This ruling was not appealed.

Although the two trial court decisions to exclude testimony about SBS are outliers, they foretell more aggressive defense challenges to the admissibility of the science, as well as greater pressure on judges to restrict the scope of expert testimony.

If research in this area continues to erode the foundations of the diagnosis, evidentiary rulings will evolve accordingly – but only after a lag guaranteed by judicial deference to precedent, to physicians, and to the workings of the adversary system.

For now, with few exceptions, if an SBS case goes to trial, juries will decide the worth of the science and the fate of the accused.

Next part: 4C: Jury Verdicts;

Harold Levy...hlevy15@gmail.com;

PART 4A; POWERFUL ARTICLE; NEXT INNOCENCE PROJECT; SHAKEN BABY SYNDROME CASES; SBS AND THE LAW: INVESTIGATION AND PROSECUTION;

"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."

PROFESSOR 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;

PART ONE: INTRODUCTION:

IV. SBS AND THE LAW:

Given the scientific developments described, we may surmise that a sizeable
portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent.

Even more certainly, a far greater number of defendants among this group were wrongfully convicted.

The distinction is an important one: In SBS cases, identifying the factually innocent is complicated by two related propositions.

First, no crime whatsoever may have occurred, thus eliminating the opportunity to establish someone else’s culpability.130

Second, at least to date, science has not definitively established an alternative explanation for the injuries associated with SBS.131

What this means is that a significant number of people convicted in triad-only
prosecutions132 are likely innocent of wrongdoing, but others are not, and we have no
way of differentiating between these groups.133 Accordingly, we may rightly be troubled by the convictions of those whose factual innocence is unproven.

The criminal justice implications of all of this are staggering.134

To put the scope of the problem in a more familiar framework, it is helpful to consider the number of known exonerations in the United States over the past thirty years.

From 1989 through 2007, there were 210 DNA exonerations, mostly for rape.135

It is reasonable to suspect that this number of SBS-based convictions after trial occurred in the past year alone.136

Additional (non-DNA) exonerations include those of 111 inmates on death row; 135
other individuals; and perhaps another 200 or so defendants whose convictions were
overturned based on a “mass” scandal implicating widespread systemic corruption.137

Unlike SBS cases, none of these exonerations involve a set of paradigmatic facts later determined to be a faulty basis for prosecution.138

Despite the large numbers of potentially impacted cases – or perhaps, because of
them – our criminal justice system has yet to respond to new scientific realities.

Its failure to do so stands in marked contrast to other nations’ recognition of the problematic nature of pure triad prosecutions.

The emphatic institutional responses of the United Kingdom140 and Canada141 are particularly instructive.

Just as our criminal justice system has seemed to operate within a time bubble, largely untouched by scientific evolution, so, too, it remains insulated from unmistakable signs that, elsewhere in the world,142 other legal systems are assimilating new scientific understandings and adapting accordingly.

When viewed in global perspective, our continued adherence to a prosecution template
that rests on discredited science is particularly jarring.

What follows is an account of how we have arrived at this place;

A. Investigation and Prosecution:

In the United States, unlike the United Kingdom and Canada, the SBS prosecution paradigm that ascended in the 1990s has remained largely untouched by scientific developments of the past decade.143

This systemic failure should not be equated with the prosecutorial pursuit of charges against defendants believed to be innocent of wrongdoing.144

Rather, SBS cases are going forward because law enforcement officers genuinely believe in the validity of the diagnostic triad that has fallen from scientific
grace.145

But this explanation, while more benign than its alternative, begs the question of why the triad continues to exert an almost talismanic effect.146

It is worth noting the considerable deference given to child abuse doctors147 – who, as a general rule, remain believers in the diagnosis.148

Accordingly, prosecutors may exhibit a disinclination to interrogate the science upon which these physicians’ opinions rest.

There is nothing novel about the observation that prosecutors tend to defer to their
experts; but, in this context, the relationship between the prosecutor and the allied
medical professionals is a particularly close one.149

In the typical SBS case, the expert is the case: there is no victim who can provide an account, no eyewitness, no corroborative physical evidence, and no apparent motive to kill.150

Doctors identify both the occurrence of a crime and its perpetrator, and their assurance regarding each is essential for a conviction.151

These dynamics may well contribute to a prosecutorial reluctance to challenge the validity of an SBS diagnosis.

But they do not fully explain a continued willingness to pursue charges in cases built entirely on contested expert testimony.

To complete the account, it is helpful to consider first, how prosecutors are
trained in the science of SBS; second, how prosecutors perceive the accounts of those
suspected of abuse; and, third, how prosecutors are influenced by the systemic nature of SBS convictions.

Prosecutorial Training:

Training is especially critical in this area, where a complex and evolving body of
science is outcome determinative.153

As one prominent instructor recently urged, “investigators and prosecutors should obtain a basic education on medical issues common to all of these cases.”154

Since most prosecutors encounter SBS cases infrequently, few become experts in the issues they raise.155

It is unsurprising, then, that a nationwide training apparatus has developed to disseminate information about the basic structure of an SBS prosecution.

For instance, the American Prosecutors Research Institute of the National District Attorney’s Association156 transmits newsletters,157 organizes conferences,158 and provides other support for prosecuting the SBS case.159

The National Center on Shaken Baby Syndrome, an organization dedicated in part to training law who have become leaders in the field have published book chapters with instruction in handling SBS cases from investigation through trial.162

These training materials present a view of the science refracted through an advocate’s lens.

For instance, a 2001 publication asserts: “the [prosecution] expert can testify that the forces the child experiences are the equivalent of a 50-60 m.p.h. unrestrained motor vehicle accident, or a fall from 3-4 stories on a hard surface;”163 and
“current research and professional consensus within the medical literature clearly
supports the conclusion that … there is no lucid interval.”164

Similarly, from a chapter published in 2006: “there is emerging consensus among credible medical experts that when children have suffered serious or potentially fatal head injuries, they will start to experience symptoms almost immediately after injury;”165 “[t]he collection of ocular damage, subdural or subarachnoid bleeding over the brain, axonal damage, and severe brain swelling is not seen in the same patterns in any forms of accidental trauma, but is seen in cases involving severe and violent shaking;”166 and “the medical field has reached substantial consensus concerning many of the issues pertinent to criminal [SBS] cases.”167

While it should be expected that materials used to educate prosecutors would be
strategically focused with respect to trial, this same orientation with respect to case investigation is more problematic.

And while we might also anticipate that the most “extreme” critiques of the science underlying SBS convictions would be soundly - and passionately – attacked, many of these materials fail to acknowledge the shifting of the center.

In defending the science of old,168 the authors tend to obscure the changed consensus around fundamental aspects of the SBS diagnosis.169

At the same time, significant challenges to the conventional medical wisdom are ignored.170

Nomenclature aside,171 few concessions to developments in research have been made.

The digested science describes a diagnosis upon which prosecutors can securely rely.

Caregiver Accounts:

Prosecutorial confidence in guilt is augmented by statements on the part of SBS suspects – statements which are inevitably perceived as incriminatory.

The three accounts most often offered to explain an infant’s loss of consciousness or other obviously severe neurological symptoms are that: (i) their onset was unprovoked/without explanation; (ii) the infant fell from a short distance; and iii) the infant was shaken playfully or in the course of revival efforts.172

Research over the past decade has made each of these explanations newly plausible.173
But because law enforcement officers interrogating the SBS suspect “know” that the infant’s injuries were caused by violent shaking – the science is believed to prove this definitively – the narratives are all perceived as false and, therefore, incriminating.174

Moreover, if the suspect’s story changes in response to familiar interrogation
techniques,175 this fact itself is used to support a SBS diagnosis.176

The ensuing 171 interrogation confirms the suspect’s guilt, as this veteran SBS prosecutor’s characterization suggests:

Each of the 3 most common histories, and others, may be combined in patterns of
changing histories as guilty adults attempt to fabricate new explanations to respond to the probing or suggestive questions of one or multiple interviews.177

But even if the caregiver’s story remains constant, it too may be used as evidence of guilt.178

The “discrepant history” - “when the history does not match the physical condition in front of you” – is also seen as proof that the infant was shaken.179

Whatever contradicts the scientific “givens” is deemed “discrepant” and a confession.

In sum, law enforcement officers confirm their suspicions of SBS whenever a suspect provides “a false, discrepant, evolving or absent history.”180

The suspect cannot avoid self-incrimination; the investigator’s certainty of guilt can only be reinforced.181

Reification:

Finally, prosecutorial thinking about these cases is pervaded by an echo of the
methodological fallacy of the early SBS literature.182

If, across the country over the years,defendants have been proven guilty of shaking babies to death based on the presence of retinal hemorrhages, subdural hematomas and cerebral edemas, then the presence of these symptoms must mean that someone is guilty of shaking a baby to death.

All that remains is to identify the last person with the conscious child.

That person becomes the suspect, who can then be pursued with supreme confidence.

In this manner, the triad-based crime constructed by the medical establishment183 has been reified – its existence affirmed - by the systematic conviction of its apparent perpetrators.184

Next portion: Shaken Baby Syndrome and the law; 4B: Evidentiary challenges;;

Harold Levy...hlevy15@gmail.com;

UP-DATE; ANNE-MARIE ROONEY CASE; U.K. CHILD BRAIN INJURY SPECIALIST SAYS BABY JOE LIKELY DIED FROM HEAD FIRST FALL; THISISGLOUCESTERSHIRE.COM REPORTS;

"TAKING THE WITNESS STAND AT TRURO CROWN COURT YESTERDAY THE FORMER PAEDIATRICIAN WHO SEES SOME 200 BABIES AT THE JOHN RATCLIFFE HOSPITAL IN OXFORD EVERY YEAR SAID: “IT IS VERY LIKELY A FALL FROM THE HEIGHT INDICATED COULD HAVE CAUSED THE INJURIES.

“THE FORCE OF SUCH A FALL WOULD BE AT LEAST FOUR TIMES THE FORCE USED BY AN AVERAGE ADULT TO SHAKE A CHILD. IF YOU HAVE AN IMPACT FALL HEAD FIRST YOU SIMPLY DON’T NEED THE SHAKE.”"

NEURO-PATHOLOGIST VALERIE SQUIRE;

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As Anne-Marie Rooney's trial continued, a child head injury specialist took the stand for the defence, thisisgloucestershire.com reported earlier today in a story which ean without by-line under the heading, "Fall likely to have caused baby's death."

"Joe Rooney was more likely to have died from a head first fall than from being shaken by his mother, according to a leading expert in child brain injuries," the story began.

"Great Ormond Street-trained consultant neuro-pathologist Valerie Squire, was giving evidence during the trial of 28-year-old Anne Marie Rooney of Bristol Road, Quedgeley," it continued;

Taking the witness stand at Truro Crown Court yesterday the former paediatrician who sees some 200 babies at the John Ratcliffe Hospital in Oxford every year said: “It is very likely a fall from the height indicated could have caused the injuries.

“The force of such a fall would be at least four times the force used by an average adult to shake a child. If you have an impact fall head first you simply don’t need the shake.”

Mrs Squire went on to explain that clinical tests have proved that shaking a five kilogram baby for longer than 10 seconds was “too tiring”.

“And shake a baby with such force as has been suggested would require a tight grip on the baby’s chest, waist or arms,” she said.

“There would be finger marks, bruises and even fractured ribs.”

Defence barrister Maura McGowan QC asked: “Could an accident have caused the injuries suffered by this eight-month-old baby?”

The neuro-pathologist, who had been called in to examine baby Joe’s brain after his death in 2007, replied: “Oh yes, indeed.”

Rooney has pleaded not guilty to murdering baby Joe at Trevisker Farm camp site on July 1, 2007. She has also denied his manslaughter.

“The Crown’s case is that the defendant shaking her baby caused fatal injuries, while the defence case is they were caused by a fall,” said Miss McGowan.

Earlier, the prosecution claimed Rooney had shaken baby Joe with such force he sustained “devastating” head, brain and neck injuries.

But the defendant explained from the witness stand earlier this week, that she had placed her baby in the middle of her bed in their caravan and plumped up the duvet around the child.

She went outside to deposit some rubbish, the door slammed shut and she heard a second bang, when she went inside her son was lying face down on the floor screaming .

He went red, then blue.

She told the court how she picked him up by his clothing, shook him, shouting ‘come on Joe,’ cradled him and shook him again.

Friends in the next door caravan took him to Padstow in their car, from where he was taken by air ambulanceto Treliske Royal Cornwall Hospital near Truro.

He died the following day.

The trial continues;

Harold Levy...hlevy15@gmail.com;

UP-DATE: THE ANNE-MARIE ROONEY CASE: PART TWO; ANNE MARIE TESTIFIES SHE SHOOK HER BABY TO REVIVE IT AFTER IT FELL FROM THE BED; TRIAL CONTINUES;

"EARLIER THE COURT HEARD HOW ROONEY HAD TOLD POLICE IN INTERVIEW THAT SHE DIDN'T KNOW HOW HARD SHE HAD SHAKEN HER BABY.

"I DIDN'T SHAKE HIM TO KILL HIM, OR TO CAUSE HIM HARM – I SHOOK HIM BECAUSE HE WAS SCREAMING AND GOING UNCONSCIOUS," SHE TOLD OFFICERS.

ROONEY HAS PLEADED NOT GUILTY TO MURDERING JOE AT TREVISKER FARM CAMP SITE, ST MERRYN, NEAR PADSTOW IN NORTH CORNWALL, ON JULY 1, 2007."

THE CORNISHMAN;

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The Cornishman's story on the on-going trial was published today under the heading, "I shook baby after he fell from the bed."

"A MOTHER accused of murdering her eight-month-old son broke down in the witness box as she explained to a court she shook her baby in a desperate bid to revive him after a fall," the story, which runs without a by-line, begins.

"Anne Marie Rooney, of Bristol Road, Quedgeley, Gloucestershire, recalled picking up baby Joe, shaking and cradling him in her arms to try to bring him round, a jury at Truro Crown Court was told yesterday," the story continues;

"The 27-year-old said: "He was laying face down on the floor – he was screaming and crying and he was red in the face.

"I picked him up by his babygrow but his face started to go whiter and whiter, his eyes rolled back in his head and his arms went floppy. He then went blue."

Demonstrating what she did next, the distraught defendant went on: "I turned him around, shook him, cradled him in my arms, shook him again and shouted 'Joe, Joe, come on Joe!'.

"I then took him outside to my friend Kathleen's caravan and said to her 'please help him, please fix him'."

Earlier the court heard how Rooney had told police in interview that she didn't know how hard she had shaken her baby.

"I didn't shake him to kill him, or to cause him harm – I shook him because he was screaming and going unconscious," she told officers.

Rooney has pleaded not guilty to murdering Joe at Trevisker Farm camp site, St Merryn, near Padstow in North Cornwall, on July 1, 2007.

She also denies his manslaughter.

The Crown maintains baby Joe was a victim of "shaken baby syndrome" and had suffered "devastating" head, brain and neck injuries.

A member of the travelling community, the defendant told the court yesterday how she was "delighted" when she discovered she was pregnant with Joe. She also said she had named her new baby after her own father.

"Joe was a very good baby – he never whinged or moaned and he ate well," she said in answer to questions from defence barrister Maura McGowan QC.

Mrs McGowan asked: "So what happened on the morning of Sunday, July 1, 2007?"

Rooney explained how her husband Felix had driven down to the wash block and she had put baby Joe in the middle of her bed and plumped up the duvet around him.

She told how she left the trailer to deposit some rubbish outside, the door had blown shut and she heard a second bang.

When she went back inside, her son was laying face down on the linoleum floor.

Friends drove him into Padstow, where an air ambulance took him to Treliske Royal Cornwall Hospital near Truro, where he died the following day.

The trial continues."

Harold Levy...hlevy15@gmail.com;

PART 1: A POWERFUL PERIODICAL ARTICLE ON SHAKEN BABY SYNDROME BY PROF. DEBORAH TUERKHEIMER; THE NEXT INNOCENCE PROJECT; SBS AND THE CRIMINAL COURTS;

"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."

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

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;

PART ONE: INTRODUCTION:

"Natalie Beard died on October 16, 1995.2," the Introduction begins;

"That morning, her mother had brought the seven-month-old to the home of her day care provider, Audrey Edmunds,3 it continues;

The baby was by all accounts fussy.4 According to the caregiver’s account, shortly after the baby was delivered to her, Edmunds propped Natalie in her car seat with a bottle, left the room, and returned a half-hour later to discover her limp.5 Edmunds – herself a mother – immediately called 911 to report that Natalie appeared to have choked and was unresponsive.6 Rescue workers responded minutes later and flew the baby to the hospital, where she died that night.7

Prosecutors charged Edmunds with murder based on the theory that Natalie had
been shaken to death.8 No witness claimed to have seen the defendant shake the baby.
There were no apparent indicia of trauma. Edmunds maintained her innocence throughout. Yet a jury convicted on the sole basis of expert testimony that Natalie
suffered from Shaken Baby Syndrome (SBS). And a court sentenced Edmunds to eighteen years in prison.9

In important respects, this case falls squarely within the “shaken baby”
prosecution paradigm that developed in the early 1990s. The infant10 had no external
injuries suggestive of abuse.11 The accused12 was unable to provide an explanation for the child’s condition.13 The medical evidence against the defendant consisted of the three diagnostic symptoms comprising the classic “triad”: retinal hemorrhages (bleeding of the inside surface of the back of the eye); subdural hemorrhages (bleeding between the hard outer layer and the spongy membranes that surround the brain); and cerebral edema (brain swelling).14 The presence of these three signs was understood to be pathognomic – or exclusively characteristic – of shaken baby syndrome.

At trial, the prosecution’s experts testified that “only shaking, possibly
accompanied by impact” could explain the injuries.15 Regarding the force necessary to
cause these injuries, jurors heard the explanation typically offered in these cases: the force was equivalent to a fall from a second- or third-story window, or impact by a car moving at 25 to 30 miles an hour.16 The prosecution’s experts concluded that the shaking necessarily occurred while the baby was in the defendant’s care, since the trauma of the shaking would have caused immediate unconsciousness.17 The scientific basis for SBS was not challenged by the defense.18 And indeed, at the time of Edmunds’s trial, the medical consensus on this issue was overwhelming.19
All of this is standard fare for an SBS prosecution.20 With rare exception, the case
turns on the testimony of medical experts. Unlike any other category of prosecution, all elements of the crime – mens rea and actus reus (act and causation) – are proven by the science. Degree of force testimony not only establishes causation, but also the requisite state of mind.21 Unequivocal testimony regarding timing – i.e., that symptoms necessarily would appear instantaneously upon the infliction of injury – proves the perpetrator’s identity. In its classic formulation, SBS comes as close as one could imagine to a medical diagnosis of murder: prosecutors use it to prove the mechanism of death, the intent to harm, and the identity of the killer.

Edmunds is a representative shaken baby case in every respect but one. On January 31, 2008, Audrey Edmunds was granted a new trial on the basis of an evolution in scientific thinking. For the first time, a court examining the foundation of shaken baby syndrome (SBS) concluded that it had become sufficiently eroded that a new jury
probably would have a reasonable doubt as to the defendant’s guilt.22 According to the court, a “shift in mainstream medical opinion”23 had undermined the basis of the SBS diagnosis, raising the distinct possibility that Edmunds, who was still serving her eighteen-year sentence in Wisconsin, had done nothing whatsoever to harm the child. As is true of an unknown number of convictions like it,24 the science upon which the defendant’s conviction rested had advanced, raising the specter of innocence.

This Article explores what ensues when medical certainty underlying science based prosecutions dissipates.25 It asks: how does a scientific revolution penetrate the criminal justice system? And: does our legal system effectively respond to the inevitable consequences of science outpacing the law? The remarkable transformation of SBS provides a unique vehicle for probing these questions.

Part Two places SBS prosecution in historical context, exposing the recent and rapid ascendance of a paradigm that, until now, has gone largely unnoticed.26

Part Three assesses the current scientific controversy. A critical look at the
creation of SBS exposes a diagnosis flawed from its inception by a tainted
methodological approach – one in all likelihood corrupted by a too-close medical-legal nexus.27 In recent decades, researchers have uncovered these failings, and the diagnosis has evolved accordingly. There is now general agreement among the medical community that the previous incarnation of SBS is invalid.28 The particulars of this evolution are striking – especially from a criminal justice standpoint. Despite continued controversy around aspects of the diagnosis, I identify a number of key areas where the framework for debate itself has been significantly altered. This discussion reveals that the new SBS is different enough from what came before to raise serious challenges to a substantial number of criminal convictions.
Specifically, these scientific developments have cast into doubt the guilt of an
entire category of defendants: those convicted of crimes based on a triad-only SBS
diagnosis. While we cannot know how many convictions are “unsafe” without systematic
case review, a comparison of the problematic category of SBS convictions to DNA- and
other mass exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena.29

In Part Four, I chronicle the criminal justice system’s treatment of the changing
science. I do so by surveying the various stages in the criminal process where actors
make decisions with the potential to account for – or overlook – scientific developments of the past decade. Police and prosecutors investigate cases and prosecutors decide whether to pursue charges.30 Defendants and prosecutors make Daubert and Frye challenges to the admissibility of scientific evidence.31 Jurors determine whether guilt has been proven beyond a reasonable doubt.32 Defendants appeal and collaterally attack their convictions based on insufficiency of the evidence.33 And defendants make motions for post-conviction relief because new evidence has been discovered.34 This procedural approach to understanding how the law integrates new scientific knowledge uncovers a response that is halting and inconsistent. I focus my critique on the system’s treatment of cases in which SBS diagnoses rest on outmoded medical dogma. What can be discerned about the status quo is alarming. Guilt is being assigned where thebest available science creates, at the very least, reasonable doubt. When an outcome reflecting the best available science is generated, it is not because the factual predicate for the prosecution diverges from the typical case; but, rather, because the defendant is able to mount an aggressive attack – one that requires resources – on a body of science whose
vulnerability is in theory equally exposed to all.

In short, prosecutors and courts are differentially absorbing scientific developments, resulting in an arbitrary distribution of justice.35 Since January 31, 2008, when Edmunds’s new trial motion was granted, dozens of convictions based on SBS have been upheld, either on direct appeal or collateral attack. An unknown number of prosecutions have resulted in convictions and been initiated.36 While a portion of these cases rely on corroborating medical evidence of injury beyond the triad,37 many do not. The story of our legal system’s response to SBS speaks to how crime is constructed and reified. It tells of institutional inertia and a quest for finality38 that sit uneasily with our commitment to justice. And it demands consideration of where we go from here. By identifying a problem of tragic dimensions, I hope to begin a conversation that seeks solutions and situates itself in the emerging discourse on innocence.39 The conceptual implications of this 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."

Next post: The next Innocence Project: Shaken Baby Syndrome and the Criminal Courts: Part two: The Age of SBS;

Harold Levy...hlevy15@gmail.com;