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Doctors Jail Their Mistakes
July 11, 2009 permalink
The collapse of the science underpinning shaken baby syndrome leaves the American legal system with a troublesome legacy. What should be done with the thousands of people already convicted on this now-discredited theory? The US is still generating 200 shaken baby convictions per year, and the number of false convictions for shaken baby dwarfs the number of homicide exonerations recorded in the few past decades.
Analysis of other sources not in the enclosed article suggests that the tort system contributed to the epidemic of shaken baby cases. In the litigation-prone USA, doctors with an injured baby face ruin from lawsuits once the aggrieved family comes before a sympathetic jury. Doctors have been forestalling ruin by preemptively accusing the parents of a crime. Vaccine injury is a one medical error that doctors slough off on the parents as shaken baby.
The article below by a journalist is based on the work of Deborah Tuerkheimer (pdf).
Monday, June 22nd, 2009 6:28 am
Mistaken diagnoses of Shaken Baby Syndrome may have sent thousands of innocent people to prison, according to a new study
Exclusive to The Crime Report
In October, 1995, when police charged Audrey Edmunds, a Waunakee, Wis. day care provider, with the murder of a seven-month-old girl who had been left in her care, prosecutors said she had shaken the baby to death.
A medical expert testified at trial that the child had suffered critical injuries that were the hallmarks of Shaken Baby Syndrome. A jury convicted Edmunds and she was sentenced to 18 years in prison.
At the time the case was unremarkable—one of thousands of successful prosecutions during the past 30 years of parents and other care-givers who have been found guilty of charges ranging from manslaughter to murder, based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system where the diagnosis is the basis for prosecution.
Last year, however, in a remarkable turnaround, one of the physicians that testified against Edmunds told a judge that he was no longer confident that the injuries were inflicted by Edmunds and that they could have occurred many hours before the baby was dropped off.
Edmunds was granted a new trial by a judge who ruled that the testimony “shows that there has been a shift in mainstream medical opinion.” In effect, the scientific foundation of the syndrome had been undermined to the extent that a new jury would probably have a reasonable doubt about Edmunds’ guilt.
The case was dropped and Edmunds was freed.
That was good news for Edmunds—whose freedom is the result of work done by the Wisconsin Innocence Project—but what about the thousands of others convicted during the past two decades as a result of the same medical testimony that put Edmunds behind bars?
A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.
Tuerkheimer, who is joining the DePaul University College of Law faculty on July 1, points to new research in the United States and abroad showing that a variety of circumstances, including something as seemingly innocuous as falls from a short height, can cause fatal head injuries that appear very similar to injuries routinely diagnosed as SBS.
If research shows that the physical conditions that once automatically resulted in a prosecution could actually have been the result of an accident, the implications are enormous.
“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.
“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,” Tuerkheimer writes.
Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project, who headed Audrey Edmunds legal team, said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt.”
He added, “This is not about being opposed to child abuse prosecutions. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”
In a 1974 medical journal article, American pediatric radiologist John Caffey described what would become SBS, saying, “Our evidence, both direct and circumstantial, indicates that manual whiplash shaking of infants is a common primary type of trauma in the so-called battered infant syndrome.” The first appeal of an SBS-related criminal conviction was reported in 1984, according to Tuerkheimer’s research.
During the next five years, there were less than two reported appellate decisions per year. While counting reported appellate decisions is a decided undercount since the majority of convictions do not result in such rulings, Tuerkheimer notes that beginning in 1990, the number of appeals grew rapidly. There were 74 published appellate decisions from 1990 to 1994; 160 from 1995 to 1999; and 315 from 2000 to 2004. And the upward trend is continuing: the first half of the current five year period—from 2005 to June 20, 2008 shows 259 opinions. Approximately 1,500 babies are diagnosed with SBS each year, but no information is collected to analyze how many of these cases result in criminal prosecutions, and of those how many prosecutions are based solely on the SBS triad.
Questions about the SBS diagnosis have emerged over the past two decades, but the critical debunking of the theory began in earnest following the 1997 prosecution of Louise Woodward, a 19-year-old British au pair. Woodward was charged with the murder of eight-month-old Matthew Eappen while he was in her care in his home in Newton, Mass. Dubbed the “Nanny Trial,” the case was the subject of intense media scrutiny in the U.S. and the United Kingdom.
The prosecution presented testimony that the boy’s injuries were the result of violent shaking and his head hitting a hard surface. Defense experts testified the boy’s injuries could have occurred days earlier. Woodward was convicted of second degree murder, but the judge later reduced the charge to involuntary manslaughter, noting the possibility of another cause for the SBS symptoms.
Wisconsin law student Molly Gena, who was part of the Edmunds defense team, wrote an article for the Wisconsin Law Review in 2007, noting that “there is no consensus among medical professionals as to whether the symptoms that have traditionally been attributed to SBS are necessarily indicative of intentional shaking.”
Earlier this year, for example, two British pathologists, in a study published in the Journal of Pediatric Developmental Pathology, found that SBS symptoms can be found in babies before they are taken home from the hospital for the very first time. The Daily Telegraph in London quoted the pathologists as reporting that the symptoms can occur without violent shaking.
Dr. Irene Scheimberg told the newspaper, “When there is no evidence of physical abuse, apart from the hemorrhaging, we may be sending to jail parents who lost their children through no fault of their own.”
Closer to home, Dr. Bruce Gross, a Fellow of the American College of Forensic Examiners, writing earlier this year in The Forensic Examiner, noted that studies have called into question the SBS triad as the result of only violent shaking. “The prevailing notion is that the injuries ‘characteristic’ of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two –story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet.”
Gross added, “In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms lacks scientific certainty.”
Tuerkheimer writes that despite the potential for a large number of wrongful convictions, the United States criminal justice system “has yet to respond to new scientific realities.” Investigations of past SBS-based prosecutions have been undertaken in both the United Kingdom and Canada. “When viewed in global perspective, our continued adherence to a prosecution template that rests on discredited science is particularly jarring,” Tuerkheimer writes.
Findley, of the Wisconsin Innocence Project, said that in the wake of the Edmunds case, he has been inundated by requests from scores of defense attorneys for information about the case. “I am hearing anecdotally that defense lawyers are getting acquittals or cases are being dropped once they bring in evidence calling SBS into question,” he said.
Indeed, earlier this year, a jury in Iroquois County, Illinois, acquitted day care operator Connie Rieken of first degree murder in the 2005 death of a six-month-old boy who had been left in her care.
Defense attorneys Kenneth Leshen and Scott Sliwinski presented testimony from experts that suggested the baby’s injuries could have been the result of being dropped by his father days earlier.
One of the prosecution’s chief witnesses, Dr. Jill Glick, of the University of Chicago, testified that the baby was the victim of violent shaking, basing her diagnosis on the classic SBS triad of symptoms.
However, Rieken denied shaking the baby and there was no testimony from anyone that she had abused the baby in any way, according to Sliwinski.
The jury acquitted Rieken after about three hours of deliberation.
In her article, Tuerkheimer calls for a comprehensive inquiry, perhaps by the National Academy of Sciences, which recently issued a broad criticism of forensic science in the courts.
“SBS from inception to current iteration is fully embedded in the domain of the law,” Tuerkheimer writes. “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…To date our system has failed.”
Maurice Possley is a Pulitzer-Prize winning journalist and author who left the Chicago Tribune in 2008. He was a visiting lecturer at the University of Michigan Law School in 2009 and in the fall will begin work at the Northern California Innocence Project at Santa Clara University School of Law.
Source: The Crime Report