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Shaken Baby Syndrome

Important Law Review: Why Courts Have to Take a New Look at Shaken Baby Cases

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

CBC's Fifth Estate Looks at Shaken Baby Syndrome

There was a great decision today from the US Supreme Court in Smith v Cain, Supreme Court No. 10-8145. Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See id., at 87. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.
A divided Court held that Brady requires that Smith’s conviction be reversed. The eyewitness’s statements were favorable to Smith and that those statements were not disclosed to him. Under Brady, evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” There, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated.
Smith is an unusual case because the Court agreed to hear it on certiorari to a state post-conviction relief decision. Normally, the high court refuses to hear such cases and encourages the litigants to use habeas corpus instead. Given the deference the high court has said such rulings are entitled to, I suspect that Smith would have lost if he followed the Court’s preferred route.

New York Times Raises Concerns About shaken baby syndrome (non-accidental head trauma or abusive head trauma).

Today’s New York Times has an excellent article dealing with the problems involving the all too popular forensic diagnosis that a child is suffering from shaken baby syndrome (now referred to as “non-accidental head trauma”). For years, doctor’s and nurses were taught that subdural hemorrhaging and retinal hemorrhaging were indicate of child abuse (shaken baby syndrome). Courts around the country routinely admitted this evidence and Daubert challenges were failing.

Recently, the reliability of this evidence has come into doubt. The Wisconsin Court of Appeals order granting a new trial in the
Audrey Edmunds case is widely cited as an example of a change in attitude by the Courts about this evidence. The Edmunds case, however, is the exception and took place only after years of fighting by the Wisconsin Innocence Project. Most U.S. courts continue to admit this evidence without question and contemptuously turn back defense Daubert motions.

Update: I just found an interesting discussion on a group called Common Health where folks on both sides are discussing the issue. While the level of rhetoric is sometimes fairly high, the discussion is fascinating.

Meanwhile, the
Canadian Government (particularly after the “Goudge Report”) has been looking into wrongful convictions based on this horribly abused diagnosis. Search on Dr. Charles Smith and you’ll find a series of troubling cases where individuals were locked up based on this pediatric forensic pathologist’s testimony. Canada is now freeing these individuals, compensating them, and trying to restore the affected individuals’ lives.

Update: The Winnipeg Free Press and Globe & Mail are now reporting that Dr. Smith’s medical license was revoked yesterday based on his testimony. See also the excellent discussion of Dr. Charles Smith and the damage he caused on the Shaken Baby & Sudden Infant Death Syndrome Blog.

The UK government has also set up Innocence Commissions to deal with the number of wrongful conviction which have taken place. In the UK, the
Goldsmith Commission has been clearing family after family of these wrongful convictions. (Individuals interested in the UK approach should also read the new Crown Prosecution Service Standard).

Even where there is evidence of bleeding, the actual injury could have taken place period much earlier in time than originally imagined. Rebleeding is much easier than the experts originally believed.

Parents who have had a child suffer a horrible injury want to lash out. T
he Eappens still blame their former nanny Louise Woodward for the injuries to their child despite all heir medical training and the developments. Most importantly, the prosecution’s main expert in the case (Patrick Barnes) switched viewpoints and is now one of the strongest critics of the diagnosis.

You have two massively different points of opinions on this evidence and you have to ask how can a lay jury decide.
Under Michigan law, when the state believes a person died as a result of criminal activity they have prove that causation to a medical certainty. One has to wonder how that can ever be proven in Michigan were the cause of death is “shaken baby syndrome.” The elephant in that room, however, is that for the case to be a murder case there has to be a dead baby Cases involving dead babies are emotionally very difficult to dismiss.

In Michigan, Court have bee generally admitting this evidence and treating the question as a question for the jury. As was reported earlier
here and here, the Bulmer acquittals in the Macomb County Circuit Court at least open the possibility that things are changing. The Michigan Innocence Project is taking a hard look at these cases.

Baumer is Acquitted!

Last year I reported on the new trial granted in the Julie Baumer case. Macomb County decided not to appeal and to just give Ms. Baumer a new trial. Represented former prosecutor Carl Marlinga, and Professors Charles Lugosi and Bridget McCormick (of the Michigan Innocence Project), Ms. Baumer was acquitted.

The case caused outrage and a number of attorneys and experts donated their time. The medical evidence presented in the case showed that Ms. Baumer did not commit the crime because there was no crime. The elephant in the room was that the appropriate defense required over $150,000 in attorney and expert time. Very few monied defendants could afford this and it is unlikely that any court appointed team would be funded so well. The original doctors (the ones who referred the case) were predisposed to see child abuse and never ran the tests required to test their premises.

Macomb Circuit Court Grants 6.500 Motion in a Shaken Baby Syndrome Child Abuse Case. Court Finds Child Might Have Died from a Stroke

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.