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;

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

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

PART 4D: POWERFUL ARTICLE; SHAKEN BABY SYNDROME; THE NEXT INNOCENCE PROJECT; INSUFFICIENCY CLAIMS:

"THE GOVERNING STANDARD ON APPEAL IS "WHETHER, CONSIDERING THE EVIDENCE IN A LIGHT MOST FAVORABLE TO THE PROSECUTION, ANY RATIONAL TRIER OF FACT COULD HAVE FOUND THE ESSENTIAL ELEMENTS OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT."

IT IS THUS TO BE EXPECTED THAT DEFENDANTS RARELY PERSUADE COURTS TO OVERTURN SBS-BASED CONVICTIONS ON SUFFICIENCY GROUNDS.

SHIRLEY REE SMITH MAY BE THE ONLY DEFENDANT TO SUCCEED IN DOING SO."

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;

D. Insufficiency Claims:

Defendants challenging the sufficiency of the evidence against them in SBS cases238 focus on two areas of arguably deficient proof: mens rea,239 and causation/identity.2

While many prosecutions involve physical evidence of other abuse (i.e., beyond Shaking) apart from the triad,241 a substantial number rests solely on the presence of retinal hemorrhaging and subdural hematoma.242

Even in this latter subcategory, courts are invariably affirming convictions.243

Deference to the fact-finding functions of juries translates into a legal regime
generally hostile to insufficiency arguments.244

(In the evidentiary context, this judicial deference is exercised at the front-end of the trial process; here it comes at the back-end, after prosecution has rested, after the defense has rested, and/or after the jury has returned its guilty verdict.

The governing standard on appeal is "whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt."246

It is thus to be expected that defendants rarely persuade courts to overturn SBS-based convictions on sufficiency grounds.247

Shirley Ree Smith may be the only defendant to succeed in doing so.248

Her case is extraordinary, particularly because the procedural context in which the claim arose – an appeal of a denial of Smith’s federal habeas petition – makes the result exceedingly unlikely.

In certain respects, the facts of Smith diverge from the paradigmatic SBS pattern.

The defendant was the child’s grandmother.249

The medical evidence showed an absence of retinal bleeding.”250

Most significantly, pathologists found “no swelling,” and “only a small, non-fatal amount” of subdural and subarachnoid bleeding.”251\

But in other ways, the facts share important similarities with the typical triad-only
SBS prosecution. No bruises on the body, fractures, or grip marks were present.252

The accused claimed to have discovered the infant in a non-responsive state.253

The “discrepant history” was considered evidence of guilt.254

The prosecution experts’ testimony was “absolutely critical to its case.”255

Even under the highly deferential standard mandated on federal habeas review,256 a three-judge panel of the Ninth Circuit concluded that this evidence was insufficient to sustain a guilty verdict: “[t]here was simply no demonstrable support for shaking as the cause of death… [T]here has very likely been a miscarriage of justice in this case.”257

The court’s reasoning in this regard is instructive on when a deficiency in proof
rises to the level requiring reversal: All of the prosecution witnesses based their opinion of Shaken Baby Syndrome on their hypothesis that violent shaking had torn or sheared the brain stem in an undetectable way[258]….and they reached this conclusion because there was no evidence in the brain itself of the cause of death.

Thus …the tearing might have occurred or it might not have occurred; there simply was no evidence to permit an expert conclusion one way or the other on the point.

This is simply not the stuff from which guilt beyond a reasonable doubt can be established...259

The improbability of a court substituting its view of the sufficiency of the evidence for the jury’s in this manner – and of that ruling being left intact – is indicated by Smith’s highly unusual procedural path.

The defendant’s conviction was affirmed by the state appellate court.260 The California Supreme Court denied review.261

The federal magistrate judge recommended that the habeas petition be denied and the district court denied the petition.262

After the three-judge panel reversed this denial and the full court voted to deny a petition for rehearing en banc, a number of judges wrote to dissent bitterly.263

The United States Supreme Court then granted certiorari, vacated the judgment, and remanded the case for further consideration264 in light of a recent decision elaborating on the standard applicable to federal habeas review of a state court affirmance of convictions.265

After the Ninth Circuit reinstated its earlier judgment and opinion,266 the state once again petitioned the Supreme Court for review.267

This petition is currently pending.268

Now compare Smith to the far more typical case of Drancy Deshann Jackson, whose conviction was recently affirmed on direct appeal by a California court.269

Jackson is currently serving a prison term of thirteen years for felony child abuse.

The medical evidence consisted of subdural hemorrhaging and diffuse brain swelling – no retinal hemorrhages, no other injuries – which prosecution experts diagnosed as SBS.271

The defendant’s account – that the baby fell from the couch where he had been propped with a bottle – was dismissed as “inconsistent” with the observed symptoms.

The defense presented evidence that Jackson was an “excellent parent who never abused or hit his children or any other child for whom [he] was the caretaker.”273

The baby’s pediatrician testified that “there was no evidence [the baby] had been abused” prior to the incident in question.274

The sole defense expert, a biomechanical engineer, questioned the scientific basis for SBS.275

Citing research showing that short-distance falls can cause subdural hematomas, he also noted “that it was an open question whether an earlier injury could make the child more susceptible to injury from a second fall.”276

Applying the familiar standard of review,277 the appellate court determined that:
[it] the conflict among the experts' opinions . . . did not render the evidence insufficient. . . . In finding [against the defendant], the jury necessarily
rejected his experts' contention . . . . The credibility and weight of the expert testimony was for the jury to determine, and it is not up to us to reevaluate it.

The jury "could reasonably believe the evidence of the prosecution witnesses and reject that of the defense witness."278

As the reasoning of the Jackson court evinces, the legal framework governing
sufficiency challenges seems to virtually preordain this result. 279

Credibility determinations are within the province of the jury; when the testimony of defense experts is rejected, that rejection must be afforded deference by the appeals court.

Provided that the prosecution experts testify in a manner that reasonably justifies a finding of guilt, the conviction is affirmed.280

In short, a conflict in expert opinions is functionally irrelevant to the disposition
of sufficiency challenges.

Given this, the legal landscape will not be appreciably altered by a louder chorus of SBS skeptics, but by continued movement in this direction on the part of the SBS faithful.

If the testimony of prosecution experts comes to reflect the scientific limitations of a triad-based diagnosis of abuse, a court may well conclude that evidence of SBS is “not the stuff from which guilt beyond a reasonable doubt can be established.”281

Even in the midst of continued scientific controversy, this judicial shift may yet
occur.282

Despite deep tensions within the competing opinions,283 Smith suggests that the
trial record must contain evidence of a sufficient quantum and caliber.

According to the Ninth Circuit, habeas relief was warranted because “[a]n expert's testimony as to a theoretical conclusion or inference does not rescue a case that suffers from an underlying insufficiency of evidence to convict beyond a reasonable doubt.284

But the “absence of evidence”285 cited by the court – an absence which “cannot constitute proof beyond a reasonable doubt”286 – is, more precisely, an absence of evidence worthy of conviction.

Identifying the qualitative judgment embodied in this determination is not to indict it.

After all, even the “rational trier of fact” to whom courts are deferring must have certain standards.

In triad-only SBS cases, judges willing to assess the value of the state’s
evidence, as the court did in Smith, may conclude that an absence of evidence has
convicted others.

Next section: 4E: Post-Conviction Proceedings;

Harold Levy...hlevy15@gmail.com;

POWERFUL ARTICLE; PART 4C: SHAKEN BABY SYNDROME; LEGAL ASPECTS; THE JURY VERDICT;

"UNTIL ONLY RECENTLY, SBS HAS BEEN EMBRACED NEARLY UNANIMOUSLY BY THE SCIENTIFIC
COMMUNITY, AND IT STILL COMMANDS THE FAITHFUL ADHERENCE OF A MAJORITY OF PHYSICIANS.

TO THE GENERAL PUBLIC, THE DIAGNOSIS HAS COME TO BE UNDERSTOOD AS A MEANINGFUL MARKER OF CRIMINALITY.

SUBSTANCE ASIDE, THESE MEASURES OF ACCEPTANCE SERVE AS POWERFUL PROXIES FOR TRUTH, ENABLING JURORS TO DISCOUNT THE INSIGHTS OF THE SKEPTICS AND THE CHALLENGES RAISED BY THEIR RESEARCH."

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;

C. Jury Verdicts:

Little is known about the operation of juries in shaken baby cases.213

One national trial consultant who assists the defense in this area has estimated a conviction rate of 95%;214 a prosecutor widely recognized as a national authority on SBS has suggested that the figure is closer to 50%;215 and a forensic pathologist Who has consulted on many hundreds of cases for the defense places the figure somewhere between the two.216

In the absence of meaningful empirical documentation,217 the impressionistic data of those who see the largest number of these cases – and have done so for at least a decade – becomes a helpful source of information.

Such experts in SBS trial outcomes seem to agree upon certain basic propositions.

Juries continue to convict based on medical testimony about the triad of symptoms.218

They are, however, acquitting more frequently today than ever before.219

Although the most important predictor of an acquittal is the defense presentation Of nationally prominent experts who challenge the science,220 the presentation of this type of evidence still results in conviction more often than acquittal.221

Therefore, while an increasing reliance on defense experts222 and a growing population of such experts for defendants to draw on223 should be expected to result in a greater number of acquittals proportionally, there is every reason to believe that SBS-based convictions will persist.

In prosecutions that rely on science to prove causation, mens rea and identity, how can jurors faced with genuine scientific debate as to each of these elements be
convinced of guilt beyond a reasonable doubt?

To make sense of this question, consider how the prosecution’s burden of proof may be effectively eased, first, by the skepticism that greets the “differential diagnosis” offered by the defense experts and, second, by the sheer inertial force of SBS.

In SBS cases, the differential diagnosis is a list of possible causes of the infant’s
symptoms.

It results from a methodology that seeks to eliminate those factors that cannot Have contributed to the injuries.224

The current state of the science does not typically allow the defense to identify one cause with certainty.

Instead, experts provide a complex forensic analysis. From the defendant’s perspective, the differential diagnosis is strategically important because it provides an alternative version of events – albeit a less definitive one – that Gives jurors a different way of thinking about what happened.

But the differential diagnosis is also dangerous, as it tends to functionally shift the prosecutor’s burden of proving its theory of the case onto the defense.225

At the heart of the state’s winning argument to juries is this: the defendant has not
established what caused the child’s death: The prosecution experts were in full agreement regarding their diagnosis.

They told you what the three presenting symptoms mean – how they are caused, how much force is required, how soon after the trauma the baby would have lost consciousness.

The defense experts gave you a list of various possibilities, but admitted that they could not be sure about what happened here.

And, indeed, they did not even agree amongst themselves regarding this child’s death.226

In the Edmunds post-conviction hearing, where the determination for a judge was
whether new scientific research would probably result in a different outcome at Trial,227 the prosecutor made this appeal: “the primary flaw [in the defendant’s theory of postconviction relief] is the fact – and it’s not an opinion; it is a fact – that no one on this defense team could agree on the cause of death in this case.”228

In fact, no defense expert testified to certainty regarding any particular theory of death.229

This reasoning would seem to have considerable traction with jurors.230

Indeed, the differential diagnosis – or, from the perspective of the Prosecution, “a veritable laundry list of alternative medical possibilities which are commonly proffered” by the defense231– has become a critical area of contention in SBS trials.

The defense must concede that it cannot definitively prove a mechanism of injury.233

According to the accused in an SBS case, testimony regarding other plausible
diagnoses is important not because it definitively establishes the occurrence of a scenario other than the one hypothesized by the prosecution, but because it casts doubt on the claim that no other scenario could explain the symptoms.

This mode of argument tends to be deeply unsatisfying to the human psyche and, as a consequence, problematic for jury decision-making.

Widely recognized is that “fact finders look for stories, not just nuggets of fact to fit into a set of legal rules.”234

Burdens of proof notwithstanding, a consensus that identifies a single narrative will almost invariably trump an amalgam of possibilities that challenge it.235

In SBS cases, what the defense asks the jury to do is surmount this psychological barrier236 and acquit.

The likelihood of this occurring is diminished by the context in which the medical
dispute is presented to jurors.

In a typical SBS case, as a matter of law, the prosecution must establish that the presence of retinal hemorrhages, subdural hematoma and cerebral edema proves beyond a reasonable doubt that the defendant on trial shook the baby to death.

If the science cannot bear this burden, the jury must acquit – even in the absence of a known cause.237

The reality is quite different on the ground, where, to prevail at trial, a defendant must disprove the validity of a medical diagnosis with impressive establishment bona fides.

Until only recently, SBS has been embraced nearly unanimously by the scientific
community, and it still commands the faithful adherence of a majority of physicians.

To the general public, the diagnosis has come to be understood as a meaningful marker of criminality.

Substance aside, these measures of acceptance serve as powerful proxies for truth, enabling jurors to discount the insights of the skeptics and the challenges raised by their research.

Next section: 4D: Insufficiency Claims

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;

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

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;

PART 3: POWERFUL PERIODICAL: "THE NEXT INNOCENCE PROJECT; SHAKEN BABY SYNDROME AND THE CRIMINAL COURTS: SCIENTIFIC EVOLUTION;

"WHILE THE “SHORT-FALL” LITERATURE CONTINUES TO BE A SOURCE OF DEBATE AND ITS SCIENTIFIC SIGNIFICANCE MINIMIZED BY SOME,123 THE POTENTIAL IMPACT OF THESE FINDINGS ON CRIMINAL PROSECUTIONS IS ENORMOUS.124 WHERE DOCTORS WOULD PREVIOUSLY HAVE BEEN CERTAIN THAT AN INFANT WAS SHAKEN, IN MANY CASES125 A FALL MUST NOW BE ENTERTAINED AS AN EXPLANATION FOR INJURIES.126 ONCE THE THRESHOLD OF FORCE SUFFICIENT TO CAUSE THE INJURIES AT ISSUE HAS BEEN CAST INTO DOUBT, SCIENTIFIC IDENTIFICATION OF A CAUSAL MECHANISM THAT IS ABUSIVE127 BECOMES PROBLEMATIC. PUT DIFFERENTLY, THE MEDICAL TESTIMONY CAN NO LONGER DO THE WORK OF ESTABLISHING MENS REA. NOTWITHSTANDING THESE RATHER SEISMIC SHIFTS, THE CRIMINAL JUSTICE SYSTEM HAS – WITH ONLY RARE AND RECENT EXCEPTION – BEEN UNYIELDING TO NEW THINKING ABOUT A DIAGNOSIS THAT PROVES A CRIME."

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: 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;

III. SCIENTIFIC EVOLUTION;

As a categorical matter, the science of SBS can no longer support a finding of proof beyond a reasonable doubt in triad-only cases 54 – cases which represent a significant number of SBS prosecutions.

Put simply, here “change has raised the real possibility of error.”55

In the past, the mere presence of retinal hemorrhaging, subdural hematoma, and cerebral edema was taken to mean that a baby had been shaken hard enough to produce what were conceptualized as whiplash forces.56

According to the conventional understanding of SBS,57 “[t]he application of rotational acceleration and eceleration forces to the infant’s head causes the brain to rotate in the skill.

Abrupt deceleration allows continuing brain rotation until bridging veins are stretched and ruptured, causing a thin layer of subdural hemorrhage on the surface of the brain.”58

Retinal hemorrhages were thought to result from a similar causal mechanism.59

Most significantly, the triad of symptoms was believed to be distinctly characteristic – in scientific terms, pathognomonic – of violent shaking.60

Despite its lingering presence in the popular imagination, the scientific underpinnings of SBS have crumbled over the past decade61 as the medical establishment has deliberately discarded a diagnosis defined by shaking.62

Although no single nomenclature has emerged in its place,63 doctors are now in widespread agreement that SBS is an unhelpful characterization,64 and that the presence of retinal hemorrhages and subdural hematoma cannot conclusively prove that injury was inflicted.65

Although it may be tempting to conclude simply that “science evolves,” and leave the inquiry there, the story is more complex; an object lesson in scientific overreaching and the challenge of correction.

A. Flawed Science:

A number of forces coalesced to transform SBS from a certain diagnosis into its current state of flux.

Most importantly, in the mid- to late-1990s,66 medical research, including the SBS literature, became subject to a heightened level of scrutiny.

The new “evidence-based medicine” standards required doctors to derive their research from methods that are scientific and statistically rigorous.67

The change triggered a review of the evidence supporting a number of areas of medicine,68 and included a comprehensive effort to examine the science underlying SBS.69

The application of the evidence-based framework to the SBS literature resulted in a remarkable determination: the medical literature published prior to 1998 contained “inadequate scientific evidence to come to a firm conclusion on most aspects of causation, diagnosis, treatment, or any other matters pertaining to SBS.”70

More specifically, “[s]erious data gaps, flaws of logic, [and] inconsistency of case definition” meant that “the commonly held opinion that the finding of SDH [subdural hematoma] and RH [retinal hemorrhage] in an infant was strong evidence of SBS was unstainable.”71

A logical fallacy of profound importance was uncovered by a close examination of the pre-1999 SBS literature: researchers had chosen subjects for study based on the presence of subdural hematomas and retinal hemorrhages and, with little or no investigation into other possible causes of these symptoms, simply concluded that the infants were shaken.72

Scientists accordingly inferred that subdural hematomas and retinal hemorrhages must necessarily result from shaking.73

Put differently, researchers “select[ed] cases by the presence of the very clinical findings and test results they [sought] to validate as diagnostic.

Not surprisingly, such studies tend[ed] to find their own case selection criteria pathognomonic of SBS.”74

The circularity of this logic is 71 represented by the following equation: “SBS = SDH + RH [inclusion criteria], therefore SDH + RH = SBS [conclusion].”75

Other studies purporting to support the validity of the SBS diagnosis relied on
“confessions” to establish the mechanism of injury.

Here, too, a number of problems undermined the validity of the research.76

Putting aside momentarily the possibility that a suspected abuser would be less than candid with doctors and investigators,77 the classification of an account as a confession in these studies was highly problematic from a methodological perspective: “where caretakers said that they shook the baby, it was never detailed how much they shook the baby, how long they shook the baby, and did the baby’s symptoms precede the shaking or did they follow the shaking.”78

Once the edifice upon which SBS had been constructed cracked, researchers began looking beyond the child abuse literature to the expertise of neurosurgeons, biomechanical engineers, and pathologists. Knowledge gained from these disciplines further eroded confidence in the existence of a pathognomonic relationship between shaking and the SBS triad.81

Around the same time, magnetic resonance imaging (MRI) revolutionized the field of radiology and significantly altered the diagnostic universe.82

Compared to its precursor, computed tomography (CT), MRI enabled a far more detailed assessment of the “pattern, extent, and timing” of central nervous system injuries.83

New radiological findings challenged what had become akin to scientific gospel,84 revealing the presence of triad symptoms in the “mimics” of abuse: accidental injury and medical disorders manifesting as SBS.85

And as technology and scientific methodology advanced, researchers questioning the basis for SBS reached a critical mass.

Knowledge gained from these disciplines further eroded confidence in the existence of a pathognomonic relationship between shaking and the SBS triad.81

Around the same time, magnetic resonance imaging (MRI) revolutionized the field of radiology and significantly altered the diagnostic universe.82

Compared to its precursor, computed tomography (CT), MRI enabled a far more detailed assessment of the “pattern, extent, and timing” of central nervous system injuries.83

New radiological findings challenged what had become akin to scientific gospel,84 revealing the presence of triad symptoms in the “mimics” of abuse: accidental injury and medical disorders manifesting as SBS.85

And as technology and scientific methodology advanced, researchers questioning the basis for SBS reached a critical mass.86

This momentum was catalyzed by the high-profile prosecution of British au pair Louise Woodward, which in 1997 brought shaken baby syndrome into international spotlight.87

The case was widely perceived as “one of the more intriguing legal dramas of the age – one that [left] unresolved a mystery of sickening fascination to parents everywhere.”88

In its wake, an already divided scientific community became even more polarized.

Physicians felt “compelled to speak out regarding the scientific evidence as
portrayed in the trial of Louise Woodward,” contending that “medical publicity
surrounding the case has led to considerable sentiment that she was convicted despite allegedly irrefutable scientific evidence presented by the defense that the infant’s injuries had occurred days to weeks earlier.”89

And critics of the SBS diagnosis were galvanized by a legal and symbolic victory that commanded the world’s attention.

In response to these developments, an uneasy equilibrium has been reached.

Once considered a “fringe” group, scientists challenging the SBS dogma have emerged as a significant force in terms of numbers as well as influence.

Meanwhile, rather than abandon it altogether, defenders of the validity of the diagnosis have adapted it in subtle but important ways: SBS has been reincarnated to reflect a shifted consensus.90

B.B. Shifted Consensus:

Since the mid-1990s, the science surrounding SBS has undergone a striking transformation.

With little attention outside of the medical community, universally held tenets have been undermined, leading a segment of the scientific establishment – including some formerly prominent supporters of its validity – to perceive the diagnosis as illegitimate.

Others, equally distinguished in their respective fields, have responded to the new research by defending SBS against attack.91

Thus, despite the progression of scientific discourse, the current debate about shaken baby syndrome is remarkably polarized.92

Scientists on each side of the controversy espouse their respective views with a passion and certainty matched in intensity by that of their opponents.93

This polarization, and the bitterness that accompanies it, can tend to obscure a significant area of consensus that has developed around the invalidity of previously accepted dogma.

Doctors who defend the legitimacy of SBS and dismiss many of its critics’ attacks are willing to concede that the science has evolved – and that even mainstream thinking has changed in a number of areas.

The testimony of prosecution experts marks this movement.94

The movement is subtle but undeniable.

Its significance may depend upon the context in which it is being evaluated: from the perspective of “pure” science, the similarities between the two factions may be overshadowed by their unresolved differences;95 but in the criminal justice setting, the newly common ground should be of critical importance.

A brief overview of what has become uncontroversial reveals why.

1. The Myth of Pathognomony:

An emerging body of research has undermined the scientific basis for defining the triad of SBS symptoms as exclusively diagnostic of abuse.96

No longer are physicians willing to state with certainty that the constellation of symptoms that once characterized SBS individually97 and collectively98 must in every case indicate that a child was abused.99

In particular, as scientific study has generated new explanations for the presence of subdural hematomas100 and retinal hemorrhages,101 doctors have become increasingly reluctant to use the word pathognomonic when discussing these symptoms.

While many disagree vehemently with the contention that shaking alone cannot possibly cause the diagnostic triad,103 they have conceded that the triad is not necessarily induced by shaking.

This represents a dramatic evolution in mainstream scientific thinking.

Critics of the new research argue that shaking is still the most likely explanation for retinal hemorrhaging and subdural hematoma.104

Nevertheless, given that the diagnostic paradigm rests fully on the triad, the move away from pathognomony inevitably reframes ongoing debate.

2. Lucid Intervals:

In the past, defendants prosecuted for SBS were identified by the science – that is, by the certainty of doctors that the perpetrator of abuse was necessarily the person with the infant immediately prior to the loss of consciousness.

However, studies have since shown that children suffering fatal head injury may be lucid for more than 72 hours before death.105

Because the prospect of a lucid interval lessens the ability to pinpoint when an injury was inflicted, this research dramatically alters the forensic landscape.

Without other evidence, the identity of a perpetrator – assuming a crime has occurred - simply cannot be established.106

Similarly, whereas before, doctors effectively foreclosed the possibility that prior accidental injury caused an infant’s later symptoms, lucid interval studies support the notion of a lag time.

Those who dispute the importance of this research note that the concept of lucidity is ambiguous and argue that, even in an interval classified as lucid, an infant suffering from fatal head trauma would show signs of severe neurological damage.107

At least one documented case – where a hospitalized child was observed by medical personnel in a “clingy, but perfectly responsive” state for sixteen hours before her death108 – has proven otherwise.109

But here, again, the emerging consensus dwarfs the continuing disagreement.110

A period of time can exist where a child is impaired but functioning,111 making the lucid interval “a distinct discomforting but real possibility.”112

In the past, caregiver accounts of seemingly un-precipitated neurological crises were dismissed or even deemed inculpatory.113

These accounts must now be evaluated with the possibility of a lucid interval in mind.

3. Removing the Shaking from the Syndrome:

New debate has emerged regarding whether shaking can generate the force levels sufficient to cause the injuries associated with SBS.

Those who believe it cannot point to a number of biomechanical studies, as well as research using animal and computer models.114

Many of these scientists assume arguendo that rotational acceleration/deceleration forces can in theory cause retinal hemorrhage and subdural hematoma, but contend that shaking an infant with sufficient force to do so would necessarily damage the neck and cervical spinal cord or column.

Since most infants diagnosed with SBS do not present with this type of injury,115they could not have been simply shaken.116

This perspective remains subject to considerable criticism within the medical
establishment.117

But even those who vehemently dispute the conclusion that shaking alone cannot cause the triad have revised their thinking.

No longer is shaking advanced as an exclusive etiology.118

Instead, the current position of this group of physicians is that either shaking or impact may cause the classic triad.119

More important is the widespread recognition that the two possible mechanisms cannot be clinically differentiated.

Thus, the most committed defenders of the validity of the SBS diagnosis now allow that impact cannot be eliminated as a possible cause of the triad.

Once impact is acknowledged as a potential causal mechanism, the question of how much force is required to generate the types of injury associated with SBS becomes critical to whether trauma was inflicted, accidental, or undeterminable.

The latest thinking about force thresholds complicates this inquiry.

New research shows that relatively short-distance falls may cause fatal head injury that looks much like the injury previously diagnosed as SBS.120

Moreover, these signs and symptoms may not appear immediately.121

While the “short-fall” literature continues to be a source of debate122 and its
scientific significance minimized by some,123 the potential impact of these findings on criminal prosecutions is enormous.124

Where doctors would previously have been certain that an infant was shaken, in many cases125 a fall must now be entertained as an explanation for injuries.126

Once the threshold of force sufficient to cause the injuries at issue has been cast into doubt, scientific identification of a causal mechanism that is abusive127 becomes problematic.

Put differently, the medical testimony can no longer do the work of establishing mens rea.

Notwithstanding these rather seismic shifts, the criminal justice system has – with only rare and recent exception – been unyielding to new thinking about a diagnosis that proves a crime.

Next part: Part Four (A): Shaken baby syndrome and the law; Investigation and prosecution;

Harold Levy...hlevy15@gmail.com;

PART TWO: POWERFUL PERIODICAL ARTICLE ON SHAKEN BABY SYNDROME; PROF. DEBORAH TUERKHEIMER; THE AGE OF SHAKEN BABY SYNDROME;

"WITHOUT ADDITIONAL DATA, WE CANNOT REASONABLY SPECULATE ABOUT THE NUMBER OF DEFENDANTS WHO PLEAD GUILTY TO THIS TYPE OF CRIME, ALTHOUGH THE ESTIMATED 1500 SBS DIAGNOSES A YEAR MAY PROVIDE AN OUTSIDE PARAMETER.

WHEN PLACED AGAINST THE BACKDROP OF RECENT SCIENTIFIC DEVELOPMENTS, THESE NUMBERS REFLECT A CRISIS IN THE CRIMINAL JUSTICE SYSTEM."

PROFESSOR 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: 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 TWO: THE AGE OF SHAKEN BABY SYNDROME;

II. THE AGE OF SBS
The first appeal of an SBS-related conviction was reported in 1984.40 Based on the presence of bilateral retinal hemorrhages and subdural hematoma, the prosecution’s expert concluded that a four-month-old infant had been shaken to death,41 and the appellate court affirmed the sufficiency of the evidence to convict.42

Over the next five years, less than fifteen appeals of convictions based on an SBS diagnosis were reported.43

Beginning in 1990, however, the number of appeals grew dramatically.

In five year increments, published appellate decisions increased from 74 (January 1, 1990 -December 31, 1995), to 160 (January 1, 1995 - December 31, 1999), to 315 (January 1, 2000 – December 31, 2004).44

The numbers from the first half of the current five-year period suggest that this trend toward rising SBS appeals is continuing: from January 1, 2005 to June 30, 2008, 259 written opinions in this category were issued.45

Appellate case law is admittedly an inadequate measure of prosecutions, both because most convictions do not result in a written appellate decision46, and because not all prosecutions result in conviction. Notwithstanding these limitations, the appellate case law can suggest, as it does in this instance, that the total volume of prosecutions has been on a sharply upward trajectory since 1990.

Ascertaining the absolute number of SBS prosecutions is of course far more
difficult.47

Approximately 1500 babies are diagnosed with SBS in the U.S. each year.48

How many of these cases result in prosecution and conviction is unknown, however, since no comprehensive data on SBS cases has ever been collected.49

That said, there are a number of ways of estimating the magnitude of defendants potentially impacted by recent scientific developments.50

One might conservatively assume that the approximately eight hundred cases reported since 1990 reflect about 1500 convictions after trial.51

To focus on more recent figures only, it seems fair to conclude that around two hundred defendants a year are being convicted of SBS prosecutions.52

Without additional data, we cannot reasonably speculate about the number of defendants who plead guilty to this type of crime,53 although the estimated 1500 SBS diagnoses a year may provide an outside parameter.

When placed against the backdrop of recent scientific developments, these numbers reflect a crisis in the criminal justice system.

Next part: Part three: "Scientific Evolution;"

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;