Shaken Science - A disputed diagnosis imprisons parents

By Debbie Cenziper , Washington Post
Posted 3/20/2015

Six years ago, in a tidy home day care on the edge of a cornfield, with angel figurines in the flower beds and an American flag over the driveway, 9-month-old Trevor Ulrich stopped breathing. He had contusions on his scalp and bleeding on the surface of his swollen brain.

Within weeks, day-care owner Gail Dobson was charged with killing the baby in a fit of frustration at the business she had run for 29 years along a rural stretch of Maryland’s Eastern Shore. The Sunday school teacher and grandmother of three was convicted of second-degree murder in 2010, eight months shy of her 54th birthday, and sentenced to 20 years in prison.

“To me, she is a monster,” Trevor’s mother told a local television reporter in 2013. “She is a cold-hearted killer.”

But what prosecutors called a clear-cut case of child abuse is now mired in doubt. Two doctors working on Dobson’s appeal last year argued that the scientific testimony used against her was fundamentally flawed. A judge overturned the conviction and ordered a new trial, finding that a jury hearing that argument could have had “a reasonable doubt” about her guilt.

Doctors for the prosecution said Trevor had been a victim of Shaken Baby Syndrome, a 40-year-old medical diagnosis long defined by three internal conditions: swelling of the brain, bleeding on the surface of the brain and bleeding in the back of the eyes. The diagnosis gave a generation of doctors a way to account for unexplained head injuries in babies and prosecutors a stronger case for criminal intent when police had no witnesses, no confessions and only circumstantial evidence.

It has also led to more than a decade of fierce debate: Testing has been unable to show whether violent shaking can produce the bleeding and swelling long attributed to the diagnosis, and doctors have found that accidents and diseases can trigger identical conditions in babies.

Challenges to the diagnosis have spilled into courts on two continents. In 2005, Britain’s Court of Appeal found that the head and eye injuries alone were not absolute proof of abuse and, in Sweden last year, the Supreme Court ruled that the scientific support for the diagnosis had “turned out to be uncertain.”

In the United States, 16 convictions have been overturned since 2001, including three last year. In Illinois, a federal judge who recently freed a mother of two after nearly a decade in prison called Shaken Baby Syndrome “more an article of faith than a proposition of science.”

Despite the uncertainty, prosecutors are still using the diagnosis to help prove criminal cases beyond a “reasonable doubt” against hundreds of parents and caregivers.

“You can’t necessarily prove [Shaken Baby Syndrome] one way or another — sort of like politics or religion,” said forensic pathologist Gregory G. Davis, the chief medical examiner in Birmingham, Ala., and the board chairman of the National Association of Medical Examiners. “Neither side can point to compelling evidence and say, ‘We’re right and the other side is wrong.’ So instead, it goes to trial.”

The Washington Post, in partnership with journalists at Northwestern University’s Medill Justice Project, carried out the first systematic examination of dispositions in Shaken Baby cases since doctors started disputing the science behind the syndrome.

Reporters used court records and newspaper reports to track down murder or abuse cases involving shaking that have been filed or dismissed since 2001. The year-long study unearthed about 1,800 resolved cases nationwide, finding some of the heaviest concentrations in counties in Ohio, Pennsylvania, Wisconsin and Nebraska.

About 1,600 cases resulted in a conviction, a rate that is higher than that for other violent crimes. In hundreds of cases, there were reports of shaking along with more obvious forms of violence that left extensive bruises and broken bones, with prosecutors alleging that babies also had been slammed, thrown or beaten.

The study for the first time identified about 200 cases in 47 states that ended when charges were dropped or dismissed, defendants were found not guilty or convictions were overturned.

Among them: a 39-year-old software entrepreneur in California who mourned his infant son while locked in an isolation cell; a 13-year-old babysitter in Washington who was charged with second-degree murder; and a 46-year-old grandmother in Arizona who spent nearly 2½ years facing capital murder charges.

Kelly Kline, acquitted in 2012 of shaking a baby to death in her home day care in rural Ohio, met her 6-year-old daughter for a parents’ lunch at school the day her mug shot flashed on the local news.

“If I wasn’t married and didn’t have kids, I would have committed suicide because of the hell, the embarrassment,” said Kline, a mother of three.

In four of the cases, doctors who had diagnosed shaking later revised their opinions, saying they were uncertain about the timing or cause of the injuries. One of the revisions helped free a Sacramento father after 3½ years in jail.

In four other cases, new medical examiners found that their predecessors had made mistakes by diagnosing shaking in babies who likely died from conditions that had nothing to do with violence. One doctor in Tennessee found a 10-week-old diagnosed with shaking appeared to have suffered from a series of strokes while he was in the womb.

Forensic pathologist George Nichols is among the doctors who once diagnosed Shaken Baby Syndrome and no longer believes in the science.

“Doctors, myself included, have accepted as true an unproven theory about a potential cause of brain injury in children,” said Nichols, who was the chief medical examiner of Kentucky for 20 years before retiring in 1997. “My greatest worry is that I have deprived someone of justice because I have been overtly biased or just mistaken.”

Doctors and prosecutors who defend the diagnosis dismiss the challenges, saying Shaken Baby Syndrome is supported by years of clinical work, research and confessions from parents and caregivers. They say the doctors and scientists who frequently testify for the defense are on the fringes of mainstream medicine and are often paid to provide testimony.

“There is absolutely no question among any ICU doc that I’ve worked with that shaking a kid can cause these things,” said Desmond Runyan, a Colorado-based pediatrician and professor who has spent more than 30 years researching child abuse.

The doctors said they don’t rely solely on the internal head and eye injuries linked to shaking to make a diagnosis: They also look for external signs of abuse, weigh the accounts of caregivers and take steps to rule out natural causes and accidents.

“In the first 10 minutes the kid is in the hospital, we rule out meningitis, we rule out leukemia, we rule out sepsis,” said California pediatrician John Stirling. “It is a standard of practice to do those things, and in most cases, that is what is done.”

Prosecutors also say they consider all circumstances surrounding a baby’s death.

“I think it’s a very clever and misleading device . . . to reduce these cases down to a sound bite,” said Leigh Bishop, a prosecutor who is chief of the Child Fatality Unit in Queens County, N.Y. “We’re never in a rush to go out and throw handcuffs on somebody.”

Prosecutors add that judges have overturned Shaken Baby convictions for a range of reasons — not necessarily because they thought the science was flawed.

“It’s a correct diagnosis,” said Mary-Ann Burkhart of the National Center for Prosecution of Child Abuse at the National District Attorneys Association. “All areas of science and law change and evolve as more information comes to light; however, the fact that children too often suffer fatal abuse at the hands of their caretakers — and that abuse includes traumatic head injuries — has not changed.”

As questions about the diagnosis mounted, the American Academy of Pediatrics recommended that doctors stop using the term “Shaken Baby Syndrome,” noting that “the precise mechanisms for all abusive injuries remain incompletely understood.” Instead, the academy in 2009 suggested a broader term that is now widely used —abusive head trauma — that includes shaking, blunt force impact or a combination of both.

The battle over the science has played out in court cases across the country.

In December, a judge in New York overturned the murder conviction of a 55-year-old babysitter who had spent more than a decade in prison, declaring that the shaking evidence against her was “either demonstrably wrong or are now subject to new debate.”

Two weeks later, a Texas judge recommended a new trial for a man sentenced to 35 years in 2000 for injuring his girlfriend’s daughter. The district attorney and the defense attorney had submitted a joint agreement to the court stating that “the science that formed the basis of the conviction is now known to be unsound.”

In the cases where convictions were overturned, defendants had to marshal significant legal resources and medical expertise to challenge the scientific testimony against them. Some have been supported by lawyers affiliated with the Innocence Network, a worldwide organization that works to exonerate defendants who say they were wrongly convicted. The network’s affiliates are currently working on at least a hundred Shaken Baby cases.

“It’s almost always taken massive legal and medical support to do that, the kind of support that your typical criminal defendant simply doesn’t have access to,” said law professor Keith Findley, who has helped represent Shaken Baby defendants through the Wisconsin Innocence Project at the University of Wisconsin.

For more than a decade, a growing movement of doctors and engineers has questioned the science behind Shaken Baby Syndrome, long considered a serious public health threat. Testing has been unable to conclusively show if violent shaking can produce the conditions often linked to the diagnosis -- bleeding and swelling in the head and bleeding in the back of the eyes -- and doctors have found that accidents and a series of diseases can in some cases produce identical conditions in infants. Doctors who support the diagnosis, however, say that it has been validated by years of clinical work, research and confessions from parents and caregivers. Here is how those doctors describe the impact of violent shaking...

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